Budri v. FirstFleet, Inc. (agency decision, March 25, 2019)

Plain-English summary

Adriano Budri alleged that FirstFleet retaliated for safety concerns by reporting an accident and his termination to a consumer reporting agency used by trucking companies. He filed his Surface Transportation Assistance Act complaint 225 days after learning about the report, beyond the 180-day deadline. The Board rejected his continuing-violation argument because the report's continued public availability did not restart the filing period. It also declined to consider a new tolling argument that had not been presented to the ALJ. The Board affirmed dismissal as untimely.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105; 29 C.F.R. § 1978.102(d)
• Outcome: In this March decision, untimeliness dismissal affirmed; the Board later vacated this decision for lack of jurisdiction.
• Key point: Continued availability of a negative employment report did not restart the 180-day STAA filing period.

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:



  ADRIANO KRUEL BUDRI,                             ARB CASE NO.   2018-0055

                  COMPLAINANT,                     ALJ CASE NO.   2018-STA-00033

         v.                                        DATE: March 25, 2019

  FIRSTFLEET, INC.,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Adriano Kruel Budri; pro se; Burleson, Texas

  For the Respondent:
        C. Eric Stevens, Esq.; Littler Mendelson, P.C.; Nashville, Tennessee;
        and Greg McAllister, Esq.; Littler Mendelson, P.C.; Dallas, Texas

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges


                         FINAL DECISION AND ORDER

        PER CURIAM. Adriano Kruel Budri, the Complainant, filed a complaint
  with the United States Department of Labor’s Occupational Safety and Health
  Administration (OSHA) on January 23, 2018 against FirstFleet, Inc., the
  Respondent. Complainant alleged that Respondent, his employer, had violated the
  employee protection provisions of the Surface Transportation Assistance Act (STAA)




  of 1982, as amended and re-codified, 1 when it reported a February 16, 2017
  accident involving Complainant and his subsequent termination as a truck driver to
  a consumer reporting agency which provided employment references to trucking
  companies. Complainant argued that this was in retaliation for his having
  previously identified and raised safety concerns. The STAA prohibits employers
  from discriminating against employees when they report violations of commercial
  motor vehicle safety rules or when they refuse to operate a vehicle when such
  operation would violate those rules. 2

        A Department of Labor (DOL) Administrative Law Judge (ALJ) issued a
  Decision and Order (D. & O.) granting Respondent’s motion for summary decision
  and dismissed the complaint on the basis that it had been untimely filed.
  Subsequently, the ALJ denied Complainant’s motion for reconsideration. We agree
  with the ALJ and summarily affirm his decision.

         We limit our comments to the most critical points. First, we review a
  decision granting summary decision de novo. 3 We view the evidence presented by
  the pleadings in the light most favorable to Complainant (the non-moving party) to
  determine whether there are any genuine issues of material fact and whether the
  Respondent was entitled to judgment as a matter of law. 4

         A STAA complaint must be filed within 180 days after an alleged violation of
  the STAA. 5 Complainant acknowledges he filed his STAA complaint 225 days after
  he learned about Respondent’s report about him to the consumer reporting agency.
  D. & O. at 4. The inescapable conclusion is that the complaint was untimely filed.

        Complainant asserts that his complaint should nevertheless be accepted
  because the adverse report was still publicly available in January and August of

  1      49 U.S.C. § 31105 (2007), as implemented at 29 C.F.R. Part 1978 (2018); see 49
  U.S.C. § 42121 (2000).

  2      See 49 U.S.C. § 31105(a).

  3     Hardy v. Mail Contractors of Am., ARB No. 2003-0007, 2002-STA-00022, slip op. at 2
  (ARB Jan. 30, 2004).

  4      Lee v. Schneider Nat’l, Inc., ARB No. 2002-0102, ALJ No. 2002-STA-00025, slip op.
  at 2 (ARB Aug. 28, 2003).

  5      49 U.S.C. § 31105(b); 29 CFR § 1978.102(d).



  2018 and, as such, constitutes a continuing violation of the STAA. He argues that
  this continuing violation should reset the time limit for filing his complaint and
  thereby allow this Board to consider his complaint as timely filed. This argument
  fails because, as the ALJ explained, Complainant had 180 days from when he first
  learned about the negative information to file his STAA claim. The statute does not
  expressly provide that a claim of a continuous violation extends the filing deadline,
  and in any event the instant facts support the ALJ’s conclusion that there is no
  continuous violation in this matter. 6



                                         CONCLUSION

        The ALJ properly dismissed this complaint because it was untimely.
  Accordingly, the ALJ’s decision to dismiss the complaint is AFFIRMED and this
  complaint is hereby DISMISSED.

         SO ORDERED.




  6       D. & O. at 4 (citing Eubanks v. A.M. Express, Inc., ARB No. 2008-0138, ALJ No.
  2008-STA-00040, slip op. at 6-7 (ARB Sept. 24, 2009). However, DOL regulations also
  provide that “[t]he time for filing a complaint may be tolled for reasons warranted by
  applicable case law.” 29 C.F.R. § 1978.102(d). Complainant did not argue any grounds for
  tolling the deadline for filing his STAA complaint to the ALJ, and it is unclear whether the
  issue has been raised on appeal. Even if it has been raised, the ARB, as an appellate body,
  generally declines to consider arguments raised for the first time on appeal. There is no
  reason in this case to depart from that practice. Seehusen v. Mayo Clinic, ARB No. 2012-
  0047, ALJ No. 2011-STA-00018, slip op. at 4 (ARB Sept. 11, 2013) (citation omitted).