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McDowell v. Eagle Express Lines, Inc., 2004-STA-32 (ALJ Apr. 29, 2004)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 |
Issue Date: 29 April 2004
CASE NO.: 2004-STA-32
In the Matter of:
KENNETH MCDOWELL,
Complainant
v.
EAGLE EXPRESS LINES, INC.,
Respondent
This proceeding arises from a claim filed under the employee protection provisions of Section 31105 of the Surface Transportation & Assistance Act of 1982 (STAA). On December 14, 2003, Complainant filed a complaint with the Secretary of Labor alleging he was terminated by Eagle Express for questioning the legality of changing a driver log book. On February 11, 2004, OSHA concluded that the complaint was not timely filed. I was assigned the case on March 4, 2004. On March 8, 2004, I issued a Notice of Hearing ordering the parties to show cause why the above-captioned matter should or should not be dismissed as untimely. A hearing in the above-captioned matter is scheduled for Tuesday, June 8, 2004 through Thursday, June 10, 2004, in Chicago, Illinois.
On March 25, 2004, Complainant requested that the matter not be dismissed as untimely. He claims that he sent letters via regular mail on May 8, 2003, May 23, 2003 and June 13, 2003 to OSHA. There is no evidence that OSHA received any letters from the Complainant dated May 8, 2003, May 23, 2003 or June 12, 2003. The Secretary of Labor received Complainant's filing on December 14, 2003. On March 30, 2004, Respondent filed a Motion to Dismiss Complaint for Failure to Make Timely Filing. Respondent states that Complainant was terminated on June 12, 2003 and did not file a complaint until December 14, 2003.
49 U.S.C. § 31105(b)(1) provides: "An employee alleging discharge, discipline, or discrimination in violation of subsection (a) of this section, or another person at the employee's request, may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred."
Complainant's 180 day time period ended on December 8, 2003. In Conclusion, Complainant's filing on December 14, 2003 is more than 180 days after Complainant's termination, on June 12, 2003. Moreover, the record contains no evidence for equitable tolling of the statute of limitations.
IT IS HEREBY ORDERED that the above-captioned matter is DIMISSED for lack of a timely filing. It is further ORDERED that the hearing scheduled for June 8, 2004 through June 10, 2004, in Chicago, Illinois, is CANCELLED.
NOTICE: This Recommended Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).
RICHARD A. MORGAN
Administrative Law Judge