Hicks v. Colonial Motor Freight Lines, 1984-STA-20 (Sec'y Dec. 10, 1985)

EDWIN M. HICKS
    Claimant

    v.

COLONIAL MOTOR FREIGHT LINES
    Respondent

   This matter is before me under the provisions of Section 405 of the Surface Transportation Assistance Act (STAR or the "Act"), 49 U. S.C. app. S 2305 (c.) (1) (1982) , which provides protection to employees in the trucking industry from discrimination on account of activity related to commercial motor vehicle safety. In a Recommended Decision and Order issued on August 12, 1985,¹ following' hearings on January 28 and 29, 1985, the Administrative Law Judge ("ALJ") recommended that the complaint be dismissed on the ground that it had not been timely filed. That recommendation is now before me for final consideration.

I. BACKGROUND

   Complainant, a veteran driver with Colonial Motor Freight Lines (Colonial or Respondent), was discharged on July 5, 1983,for refusing to drive tractor unit No. 232 on a run from Moncks Corner, South Carolina to Baltimore. Complainant contends that his discharge was in violation of the statutory prohibitions of Section 405 of STAR which, in pertinent part, provide:

(b) No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.

(c)(1) Any employee who believes he has been discharged, disciplined, or otherwise discriminated against by any person in violation of subsection (a) or (b) of this section may, within one hundred and eighty days after such alleged violation occurs, file (or have filed by any person on the employee's behalf) a complaint with the Secretary of Labor alleging such discharge, discipline, or discrimination.

   2) Complainant alleges that he refused to drive unit No. 232 because he believed that it was unsafe.²    3) On July 8, 1983, Complainant sent a letter, by certified mail, to the president of Colonial, Mr. Archie Honbarrier, detailing the events-surrounding his termination and including as attachments two (2) Driver Vehicle Inspection Reports on No. 232. Complainant never received a response to this letter.

   4) In the latter part of July, 1983, Complainant contacted attorney William P. Chrisanthis regarding his discharge by Respondent, and at some point in September of 1983, attorney Chrisanthis sought the assistance of attorney J. Preston Warren on the matter.

   5) Warren prepared a letter dated September 17, 1983, for Chrisanthis' signature to the Equal Employment Opportunity Cor~:mission ("EEOC"), Atlanta, Georgia, requesting assistance and information necessary to initiate an action for wrongful dismissal. That letter was not answered and Chrisanthis wrote to EEOC again on October 31, 1983.

   6) On December 27, 1983, Chrisanthis wrote another letter to EEOC and enclosed a copy of Complainant's July 8 letter to the president of Colonial.

   7) Sometime after December 27, 1983, Warren was informed by representatives of EEOC that EEOC did not have jurisdiction over this discharge and, in early January of 1984, Complainant's attorneys were directed to the Department of Labor's Occupational Safety and Health Administration ("OSHA"). On January 6, 1984, 185 days after his discharge, Complainant's attorneys filed a telephone complaint with OSHA. The telephonic complaint was supplemented and confirmed with a written one submitted to OSHA and dated January 9, 1984.

   8) On August 8, 1984, the OSHA Regional Administrator issued a preliminary Order holding that Respondent's July 5, 1983, discharge of the Complainant violated Section 405 of the Act and providing for back pay and costs in the amount of $22,251.00.    9) On September 7, 1984, Respondent filed objections to the preliminary Order and a hearing request. The case was referred to the Office of Administrative Law Judges of this Department for a hearing which was conducted on January 28 and 29, 1985, in Charleston, South Carolina. At the hearing Respondent moved to dismiss the complaint as not timely filed. Thereafter on August 12, 1985, the ALJ issued his Recommended Decision and order granting that motion.

   Following the conclusion of the evidentiary hearing, both parties were afforded the opportunity to submit post-hearing briefs.³ Respondent's position, articulated in its brief in support of its motion to dismiss, was that the complaint of January 6, 1984, should be dismissed as untimely filed because it was filed after the 180-day time-frame for filing specified in Section 405 (c) (1) of the Act.    Complainant denies that the complaint should be subject to a time bar and claims that in this situation the doctrine of equitable tolling should be applied. Complainant further contends that Colonial should be found in violation of the Act because its discharging him was predicated upon his engaging in protected, commercial motor vehicle safety related activity.

   The ALJ adopted the position of the Respondent and recommended the dismissal of the complaint, finding that the doctrine of equitable tolling, while recognized under the purposes to be served by the employee protection provisions of the Act, was not applicable to the particular facts in this case. For the reasons stated below, I agree that there is no adequate basis in the record for tolling the statutory 180-day limitation period, and, therefore, affirm the dismissal of the complaint.

II. DISCUSSION

   In his decision recommending dismissal of the complaint, the ALJ was clearly and expressly concerned with both the doctrine of equitable tolling and with the lengthy period of time which Complainant and his attorneys allowed to pass before filing his complaint with the appropriate agency.⁴ Since it is undisputed that Mr. Hicks' complaint was not filed with OSHA until 185 days had passed from the date of his July 5, 1983, termination, his complaint cannot properly be heard unless the Act's 180-day filing period was somehow tolled or, in some other way,.excused.    I begin by recognizing that the STAA is a statute "that is remedial and should be given a construction consistent with its objectives." School District of the City of Allentown v. Marshall, 657 F.2d 16, 19 (3rd Cir. 1981) . But the STAA, like other remedial statutes, sets out time limitations within which the rights established under the statute must be pursued. When Congress has established a deadline, I may not "casually ignore the statutory limitation." Id. at 20.⁵

   I concur in the ALJ's analysis that the 180-day statutory period for filing a complaint with the Department of Labor under Section 405 of the STAR is not a jurisdictional prerequisite but a statute of limitations which is subject to waiver, estoppel, and equitable tolling. And I agree that the applicability of the doctrine of equitable-tolling must be considered on a case-by-case basis. The ALJ examined the facts and circumstances presented concerning the attempts made by the Complainant and his attorneys to get the complaint filed within 180 days. The ALJ found, and again, I concur, that the record here contains no suggestion that Complainant was misled or lulled into inaction by Respondent, or by the EEOC or OSHA. Rather, what is apparent from the record is that "had [Complainant's] counsel pursued this matter more aggressively at an early stage of the proceeding, or conducted the necessary research when he was retained, the deadline for the OSHA filing would have been met." ALJ's Decision at 3. There is, however, a further point to consider which is that while the complaint here was filed within 180-days of the Complainant's termination it was incorrectly filed with the wrong federal agency.

   I am guided in my analysis by the cogent reasoning on this issue presented in the Third Circuit's opinion in School District of the City of Allentown, supra, (discrimination alleged under the Toxic Substances Control Act, 15 U.S.C. §§ 2601-2629 (1982)). The court recognized three situations where equitable tolling might be appropriate: 1) where the defendant has actively misled plaintiff respecting the cause of action; 2) where the plaintiff has in some extraordinary way been prevented from asserting his rights, or 3) where plaintiff has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum, although such filing must be timely. There is no hint that Respondent misled Complainant or that he was in some extraordinary way prevented from filing his complaint. Thus only the latter triggering condition may be a basis in this case for considering the applicability of equitable tolling.

   Counsel for complainant contends that the September 17, October 31 and December 27 letters to EEOC constituted timely filings, albiet is the wrong forum. Assistant Secretary of Labor's Post-Hearing Brief (Complainant's Brief) at 14. However the first two letters, which are identical⁶ in content, provided no information concerning the basis for the complaint.

They were addressed to the EEOC in Atlanta and read as follows:

       Re: Edwin Hicks

Gentlemen:

I have a client who claims wrongful dismissal from employ-ment.

I am not familiar with your procedures leading to a hearing and ask for this information with any forms necessary to initiate action. Thank you very much.

       Yours very truly,

       WILLIAM P. CHRISANTHIS

Assistant Secretary's Exhibit (ASX) 8-B and ASX 8-C.⁷ Despite counsel's professed lack of knowledge about filing procedures, no further

steps were taken to pursue Complaint's charges until after a representative of EEOC telephoned to request additional information in "the later part of December, 1983." ASX 8-A; Hearing Transcript (tr) 176. Only then, in a letter dated December 27, 1983, did Complainant arguably⁸ raise with EEOC

"the precise statutory claims in issue ... mistakenly ... in the wrong forum."' Allentown, 657 F.2d at 20, quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 109 (2nd Cir. 1978). The record does not show when that letter actually was received by EEOC, thus it is not certain that even the December 27 letter was filed within the 180 day period.⁹ Assuming that it was timely submitted to EEOC, however, my inquiry is not ended.

   In support of the applicability of equitable tolling, Complainant's counsel cites Donovan v. Peter Zimmer America, Inc., 557 F. Supp. 642 (D.S.C. 1982), a retaliatory discharge case under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 660(c)(2) (1982). In that case three of defendant's employees made an official safety- related "harassment" complaint regarding their working conditions to the State of South Carolina's Department of Labor. While the harassment complaint was pending before the State agency, the three were fired and then filed a second complaint with the South Carolina Department of Labor concerning the discharge. Following its own procedures, the State's Labor Department attempted and failed in an effort to conciliate and resolve the complaint. Finally, upon being officially notified of the failure of the conciliation effort and over two months after their termination date, the three discharged employees filed a complaint over their termination with the United States Department of Labor under the Occupa-tional Health and Safety Act.    The district court, citing to both the relevant provision of the statute and to the interpretative regulation of the Secretary of Labor at 29 C.F.R. § 1977.15 (d) (3) (1985)¹⁰ held the federal complaint to be timely filed even though it was received beyond the 30-day filing limit specified in the statute. 557 F. Supp. at 650. In addition, the holding in that case was influenced by the relatively short, 30-day period during which complaints could be filed. The combination of factors present in Zimmer -- a short filing period; a promulgated interpretative regulation which directly addressed the principle of equitable tolling; and a state investigative/conciliatory framework which allowed a harassment complaint to be "converted" (in the court's phrase) into a discharge complaint -- are simply not present here.

   As the ALJ noted, from an early time following his discharge, Complainant was represented by counsel of his choice. He was not a "layman, unassisted by trained lawyers, initiat[ing] the process" alone and against whom a "technical reading of filing requirements is particularly inappropriate." Zees v. Trans World Airlines, 455 U.S. 385, 397 (1982).

   In declining to apply equitable tolling in School District of the City of Allentown v. Marshall, supra., the court reviewed the facts concerning that complainant's filing with the wrong agency -- in that case EPA -- and concluded:

When all the chaff is striped away, the naked reason for the delay [in filing with the proper agency] was Hanna's lack of knowledge about the remedy. The statutory language is plain and direct and leaves no basis-for reliance upon the EPA in any respect. Hanna's ignorance of the law is not enough to invoke equitable tolling.

DD> Congress granted a right of action to victims of reprisals for invoking the protections of this Act. The benefits to the claimant, however, were balanced by-the limited time within which the defendant would be exposed to liability. It is not unfair to recognize both benefit and detriment to guarantee 'evenhanded administration of the law.'

¹ ALJ's Decision.

² Complainant contends that the action to discharge him is in violation of the Act since his refusal to make the trip was grounded upon his belief that the vehicle he was asked to drive (No. 232, which was not his regularly assigned vehicle) was unsafe.

³ Complainant's position was briefed and submitted on behalf of the Assistant Secretary of Labor for Occupational Safety and Health by the Regional Solicitor of Labor (Atlanta).

⁴ "Complainant's counsel had at least some 5 months to identify the proper forum viz., August through December 1983." ALJ's Decision at 3, fn.3.

⁵ See also Mohasco Corp. v. Silver, 447 U.S. 807, 825-826 (1980) (upholding a "statutory scheme in which Congress carefully prescribed a series of deadlines measured by number of days -- rather than months or years...").

⁶ The October 31 letter had the word "IMPORTANT" typed above the text.

⁷ Whether these letters which do not identify Respondent or provide any information about the claim of "wrongful dismissal" could constitute a "complaint" under STAR is problematical. As the Supreme Court noted in Zipes v. Trans World Airlines 455 U.S. 385 (1982), a case holding the time constraints in Tile VII non-jurisdictional and thus subject to tolling, 'the particular purpose of the filing requirement [is] to give prompt notice to the employer." 455 U.S. at 1135 (emphasis supplied).

⁸ The December 27 letter does not refer to STAA but does reference a "six month limitation" which Chrisanthis thought would expire on January 6. However, the basic discrimination statutes administered by EEOC, 42 U.S.C. §5 2000e-2, -3, -5 (1982), also have a 180 day limit for filing. The record is ambiguous on whether Complaints counsel was, indeed, raising the "precise statutory claim." 657 F.2d at 20.

⁹ The regulations at 29 C.F.R § 24.3 (1985) which are applicable to the administration of other employee protection statutes that have only a 30 day period to file a complaint and which provide that "a complaint filed by mail shall be deemed filed as of the date of mailing," § 24.3(b), have not been extended to STAA cases. § 24.1(a).

¹⁰ This regulation reads, in pertinent part, as follows: [T]here may be circumstances which would justify tolling of the 30- day period on recognized equitable principles or because of strongly extenuating circumstances, e.g., where the employee has, within the 30-day period, resorted in good faith to grievance- arbitration proceedings under a collective bargaining agreement or filed a complaint regarding the same general subject with another agency; where the discrimination is in the nature of a continuing violation. In the absence of circumstances justifying a tolling of the 30-day period, untimely complaints will not be processed. (emphasis supplied)