When exactly does the 180-day window for filing a FRSA complaint with OSHA open and close? And when can equitable tolling keep that window from shutting?
In Privler v. CSX Transp. Inc. the Administrative Review Board spells it out:
An FRSA complaint must be filed within 180 days after an alleged violation of the FRSA occurred. The statutory limitations period begins to run when a worker “has final, definitive, and unequivocal knowledge of a discrete adverse act.” The date of filing will be considered as “the date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third part commercial carrier, or in person filing at an OSHA office.”
Since Privler’s OSHA Complaint was filed 182 days after the Railroad terminated his employment, it was untimely. That is fatal unless the doctrine of equitable tolling applies, and the ARB spells out the four principal situations in which equitable modification of filing deadlines may apply:
(1) the railroad has actively misled the employee regarding the cause of action;
(2) the employee has in some extraordinary way been prevented from filing his or her action;
(3) the worker has raised the precise statutory claim in issue but has done so in the wrong forum; and
(4) the railroad’s own actions or omissions have lulled the employee into foregoing prompt attempts to vindicate his or her rights.
In the railroad industry, typically there is a series of actions culminating in the imposition of discipline: a notice of disciplinary charge, a notice of disciplinary hearing, the hearing itself, and the post-hearing decision to actually impose a concrete amount of discipline. Each action is arguably adverse and opens up its own 180-day window for filing a FRSA complaint with OSHA. But best practice is to file with OSHA within 180 days of the first arguably adverse action.
Filing within 180 days of the railroad’s post-hearing decision to actually impose a concrete amount of discipline is sufficient. But waiting for the conclusion of the usually lengthy internal and external disciplinary appeal process is not advised, as it only invites the filing of a motion battling over when the employee had or should have had “final, definitive , and unequivocal knowledge of a discrete adverse act.”