Bedwell v. Spirit Miller NE, LLC (agency decision, August 27, 2009)

Plain-English summary

Carl Bedwell alleged that Spirit Miller NE terminated him after he reported insurance fraud. He filed his Surface Transportation Assistance Act complaint in September 2008, almost three years after his last day of employment in December 2005. Bedwell relied on a later Internal Revenue Service matter, but the Board found no evidence that he had timely raised the same STAA claim in the wrong forum or met another basis for equitable tolling. It also explained that filing a different claim with another agency does not toll the STAA deadline. The Board affirmed the ALJ's dismissal of the complaint as untimely.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105; 29 C.F.R. § 1978.109(c)
• Outcome: Untimeliness dismissal affirmed and complaint denied.
• Key point: A different claim filed with another agency does not toll the STAA's 180-day complaint deadline.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  CARL B. BEDWELL, SR.,                                 ARB CASE NO. 09-094

                  COMPLAINANT,                          ALJ CASE NO. 2009-STA-029

         v.                                             DATE: August 27, 2009

  SPIRIT MILLER NE, LLC,

                  RESPONDENT.


  BEFORE:         THE ADMINISTRATIVE REVIEW BOARD

  Appearances:

  For Respondent:
         Carol C. Barnett, Esq., Polsinelli Shughart, PC, St. Joseph, Missouri



                                FINAL DECISION AND ORDER

          Carl Bedwell filed a complaint with the United States Department of Labor’             s
  Occupational Safety and Health Administration (OSHA) on September 12, 2008. He alleged
  that his employer, Spirit Miller NE, LLC, violated the employee protection provisions of the
  Surface Transportation Assistance Act (STAA or Act) of 1982, as amended and re-codified,1
  when Spirit Miller terminated his employment on August 12, 2008, after he reported insurance
  fraud to insurance carriers and Spirit Miller. The STAA protects from discrimination employees
  who report violations of commercial motor vehicle safety rules or who refuse to operate a
  vehicle when such operation would violate those rules. A Department of Labor (DOL)
  Administrative Law Judge (ALJ) dismissed Bedwell’    s complaint as untimely filed. We affirm.

  1
         49 U.S.C.A. § 31105 (West 2008).

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BACKGROUND

         Spirit Miller, a commercial motor carrier engaged in transporting products on the
  highways via commercial motor vehicle, hired Bedwell as an independent contractor-driver to
  haul new tractor trailers to their destinations.2 Bedwell alleged that he was discharged by Spirit
  Miller on or about August 12, 2008.3 Bedwell’     s last day of employment with Spirit Miller was
  on or about December 31, 2005.4

          On or about September 12, 2008, Bedwell filed a complaint with OSHA, alleging that the
  Respondent discharged him in retaliation for reporting insurance fraud.5 OSHA concluded that
  Bedwell had not timely filed the complaint, that Bedwell’      s allegation that Spirit Miller had
  threatened him in a telephone call on August 12, 2008 was not supported by the evidence, and
  that reporting insurance fraud is not a protected activity under 49 U.S.C. § 31105. Thus, OSHA
  dismissed the complaint.6 Bedwell objected to the OSHA Administrator’              s findings and
  requested a hearing before an ALJ. Spirit Miller responded to Bedwell’     s objection, stating that
  his request for a hearing should be denied because Bedwell did not file his complaint in a timely
  manner, he was not an employee under the STAA near or at the time the charge was filed, and
  because he had not complied with appropriate regulatory procedures. The ALJ issued an Order
  to Show Cause why the claim should not be dismissed as untimely since Bedwell had not worked
  for Spirit Miller since December 31, 2005.

          Bedwell responded to the ALJ’    s show cause order, stating that the date of December 31,
  2005, was a moot issue due to an event that occurred on October 30, 2008. Bedwell stated that
  on that date, he received notice of Internal Revenue Service (IRS) case determination No. 62702,
  as did Parent Company Administrator Howard L. Miller. Bedwell asserted that his response
  satisfied the ALJ’ s Show Cause Order.

           On May 12, 2009, the ALJ issued his Recommended Decision and Order Dismissing
  Complaint as Untimely because Bedwell’     s reliance on an the filing of an IRS claim as the basis
  for tolling the limitations period was unavailing. The ALJ noted that the pursuit of an alternative

  2
         See OSHA Administrator’
                               s Findings, Feb. 24, 2009, at 1.
  3
         Whistleblower Screening Form completed by Bedwell on Sept. 12, 2008.
  4
         See OSHA Administrator’
                               s Findings, note 2.
  5
         Whistleblower Screening Form, note 3.
  6
         OSHA Administrator’
                           s Findings, note 2.

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s 180-day requirement.7 Accordingly, the
remedy with another agency does not toll the STAA’
ALJ dismissed Bedwell’s complaint.

                              JURISDICTION AND STANDARD OF REVIEW

         The Secretary of Labor has delegated to the Administrative Review Board her authority
  to issue final agency decisions under the STAA.8 The Administrative Review Board
  automatically reviews an ALJ’s recommended STAA decision.9 The Board “    shall issue a final
  decision and order based on the record and the decision and order of the administrative law
         10
  judge.”

          Under the STAA, we are bound by the ALJ’        s fact findings if substantial evidence on the
  record considered as a whole supports those findings.11 In reviewing the ALJ’         s conclusions of
  law, the Board, as the Secretary’   s designee, acts with “all the powers [the Secretary] would have
                                         12
  in making the initial decision . . . .”   Therefore, the Board reviews the ALJ’   s conclusions of law
  de novo.13

         The Board issued a Notice of Review and Briefing Schedule permitting both parties to
  submit briefs in support of or in opposition to the ALJ’
                                                         s order. Spirit Miller submitted a brief,
  but Bedwell did not.

  The Legal Standards

        The STAA provides that an employer may not “         discharge,” “discipline,” or
  “
  discriminate”against an employee-operator of a commercial motor vehicle “
                                                                          regarding pay,

  7
         Recommended Decision and Order Dismissing Complaint as Untimely (R. D. & O.) at 2.
  8
        Secretary’ s Order No. 1-2002, (Delegation of Authority and Responsibility to the
  Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
  9
         29 C.F.R. § 1978.109(c)(1) (2008).
  10
         29 C.F.R. § 1978.109(c).
  11
          29 C.F.R. § 1978.109(c)(3); BSP Transp., Inc. v. U.S. Dep’   t of Labor, 160 F.3d 38, 46 (1st
  Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Substantial evidence
  is that which is “ more than a mere scintilla. It means such relevant evidence as a reasonable mind
  might accept as adequate to support a conclusion.”Clean Harbors Envtl. Servs. v. Herman, 146 F.3d
  12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
  12
         5 U.S.C.A. § 557(b) (West 1996). See also 29 C.F.R. § 1978.109(b).
  13
         Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

USDOL/OALJ REPORTER PAGE 3
terms, or privileges of employment”because the employee has engaged in certain protected
activity. The STAA protects an employee who makes a complaint “ related to a violation of a
commercial motor vehicle safety regulation, standard, or order;”who “ refuses to operate a
vehicle because . . . the operation violates a regulation, standard, or order of the United States
related to commercial motor vehicle safety or health;”or who “ refuses to operate a vehicle
because . . . the employee has a reasonable apprehension of serious injury to the employee or the
14
public because of the vehicle’s unsafe condition.”

          Employees alleging employer retaliation in violation of the STAA must file their
  complaints with OSHA not later than 180 days after the alleged violation occurred.15 The STAA
  limitations period is not jurisdictional and therefore is subject to equitable tolling.16

          Because a major purpose of the 180-day period is to allow the Secretary to decline to
  entertain complaints that have become stale, complaints not filed within 180 days of an alleged
  violation will ordinarily be considered untimely.17 The regulation provides for extenuating
  circumstances that will justify tolling of the 180-day period, such as when the employer has
  concealed or misled the employee regarding the grounds for discharge or other adverse action or
  when the discrimination is in the nature of a continuing violation.18 But filing a complaint which
  does not seek remedies under the STAA with an agency other than the Department of Labor does
  not justify tolling the 180-day period.19


                                             DISCUSSION

         It is undisputed that Bedwell did not file his complaint until September 12, 2008, which
  was almost three years after Spirit Miller terminated his employment on or about December 31,
  2005. Accordingly, Bedwell’     s complaint is untimely. We must therefore determine whether
  Bedwell is entitled to equitable tolling of the filing period.

          As a general matter, in determining whether equity requires the tolling of a statute of
  limitations, the ARB is guided by the principles that courts have applied to cases with statutorily-

  14
         49 U.S.C.A. § 31105(a)(1).
  15
         49 U.S.C.A. § 31105(b)(1).
  16
        See, e.g., Miller v. Basic Drilling Co., ARB No. 05-111, ALJ No. 2005-STA-020, slip op. at
  3 (ARB Aug. 30, 2007).
  17
         29 C.F.R. § 1978.102(d)(2).
  18
         29 C.F.R. § 1978.102(d)(3).
  19
        Id. See also Hillis v. Knochel Bros., Inc., ARB Nos. 03-136, 04-081, 04-148, ALJ No. 2002-
  STA-050, slip op. at 6-7 (ARB Mar. 31, 2006).

USDOL/OALJ REPORTER PAGE 4
mandated filing deadlines.20 Accordingly, the Board has recognized three situations in which
tolling is proper:

                  (1) [when] the respondent has actively misled the complainant
                  respecting the cause of action,
                  (2) the complainant has in some extraordinary way been prevented
                  from asserting his rights, or
                  (3) the complainant has raised the precise statutory claim in issue
                  but has mistakenly done so in the wrong forum.[21]
  When seeking equitable tolling of a statute of limitations, the complainant bears the burden of
  justifying the application of equitable tolling.22

          Bedwell stated that on October 30, 2008 he received notice of IRS case determination
  No. 62702, which he believes is sufficient reason to allow his claim even though it was filed
  outside of the 180-day filing period. There is no evidence that the first or second situation as set
  out above are implicated in this case. Bedwell’    s argument falls most closely under the third
  equitable tolling situation described. However, that situation requires that he have mistakenly
  filed an STAA complaint in the wrong forum not later than 180 days after his last date of
  employment of December 31, 2005.
          As earlier noted, an STAA regulation permits tolling the 180-day limitations period under
  certain circumstances, but not when the complainant files a non-STAA complaint with an agency
  other that the Labor Department.23 Thus, if Bedwell had timely filed “ the precise statutory claim
  in the wrong forum,”he could have established his entitlement to tolling of the limitations
  period. The record contains no evidence that Bedwell filed an STAA complaint with the IRS
  however. Neither is there evidence that he filed his claim with the IRS within the 180-day filing
  period. Therefore, he did not file the precise statutory claim within the filing period and his
  actions do not justify tolling the 180-day limitations period.

         We have reviewed the entire record herein. The ALJ thoroughly and fairly examined the
  evidence each party submitted. After viewing the evidence and drawing inferences in the light
  most favorable to Bedwell, the ALJ dismissed Bedwell’ s complaint. Since the record contains
  no evidence that Bedwell filed an STAA complaint within 180 days of the alleged adverse

  20
          Howell v. PPL Servs., Inc., ARB No. 05-094, ALJ No. 2005-ERA-014, slip op. at 4 (ARB
  Feb. 28, 2007).
  21
         School Dist. of Allentown v. Marshall, 657 F.2d 16, 19-20 (3d Cir. 1981) (citations omitted).
  22
           Herchak v. America W. Airlines, Inc., ARB No. 03-057, ALJ No. 2002-AIR-012, slip op. at 5
  (ARB May 14, 2003), citing Wilson v. Sec’    y, Dep’
                                                     t of Veterans Affairs, 65 F.3d 402, 404 (5th Cir.
  1995) (complaining party in Title VII case bears burden of establishing entitlement to equitable
  tolling).
  23
         See 29 CFR § 1978.102(d)(3).

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actions and does not support permitting equitable tolling, the ALJ properly dismissed Bedwell’
s
complaint. Thus, we AFFIRM his Recommended Decision and Order and DENY the
complaint.

         SO ORDERED.

                                                    WAYNE C. BEYER
                                                    Chief Administrative Appeals Judge

                                                    OLIVER M. TRANSUE
                                                    Administrative Appeals Judge

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