In a case of first impression, a federal court holds the only statue of limitation that applies to Federal Rail Safety Act whistleblower cases is the 180 day window following an adverse action, and that no other statute of limitation applies to the filing of a de novo complaint in federal court.
In Gary Despain v. BNSF Railway Company, the Railroad fired Despain after he reported an injury. Over five years later, while the case was still pending at the Administrative Law Judge level, Despain opted to file a complaint in federal court. The Railroad moved to dismiss the case, arguing federal law’s four year default statute of limitation applies.
In a well reasoned decision, U.S. District Judge Neil V. Wake soundly rejected that argument. Judge Wake noted Section 20109 contains its own 180 day limitation period, and the four year statute of limitations “applies only in the absence of other limitations periods.” He then went on to hold because the employee’s whistleblower action is substantively the same whether in the Department of Labor or in federal court, “only one limitations period applies: the 180-day period governing the employee’s initial filing” with OSHA.
The take away? An employee has the absolute right to file a complaint in federal court as long as: (1) he files a complaint with OSHA within 180 days of an adverse action, (2) the DOL did not issue a final decision within 210 days after the filing of the complaint, and (3) there has been no DOL final dismissal on the merits.