U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

MICKEDA S. BARNES,

ARB CASE NO. 2025-0086

COMPLAINANT,

ALJ CASE NO. 2024-NTS-00004

ALJ JONATHAN C. CALIANOS

v.

RHODE ISLAND PUBLIC TRANSIT

AUTHORITY,

DATE: January 13, 2026

RESPONDENT.

Appearances:

For the Complainant:

Mickeda S. Barnes; Pro Se; Rumford, Rhode Island

For the Respondent:

Jillian Folger-Hartwell, Esq.; Littler Mendelson P.C.; Providence,

Rhode Island

Before JOHNSON, Chief Administrative Appeals Judge and BURRELL,

Administrative Appeals Judge

ORDER DENYING REQUEST FOR EXTENSION OF TIME AND OF

ADMINISTRATIVE CLOSURE

This case arises under the employee protection provisions of the National

Transit Systems Security Act (NTSSA) and the Federal Railroad Safety Act (FRSA)

and their implementing regulations. 1 On April 1, 2025, Administrative Law Judge

(ALJ) Jonathan C. Calianos issued a Decision and Order (D. & O.) granting

Respondent Rhode Island Public Transit Authority (RIPTA)’s motion for summary

judgment and denying Complainant Mickeda Barnes’ complaint. 2 On August 21,

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1

6 U.S.C. § 1142; 49 U.S.C. § 20109; 29 C.F.R. Part 1982 (2025).

Respondent styled its motion as a motion to dismiss. However, the ALJ determined

that the motion was more properly considered as a motion for summary decision because it

2

2

2025, Complainant filed (via email) a request for an extension of time to file a

petition for review with the Administrative Review Board.

BACKGROUND AND PROCEDURAL HISTORY

This case has a long and discursive history and only the events relevant to

the disposition of Complainant’s request are recounted here. On February 12, 2015,

Complainant suffered a work-related injury and was terminated by RIPTA the

following day. 3 On August 13, 2016, Complainant filed a complaint that was

referred to the Department of Labor’s Occupational Safety and Health

Administration (OSHA). OSHA dismissed the complaint as untimely. Complainant

appealed this finding and the case was assigned to ALJ Timothy J. McGrath. On

March 1, 2017, Complainant filed an unopposed motion to dismiss, which ALJ

McGrath granted, dismissing the complaint with prejudice. 4 During 2016 and 2017,

Complainant also filed a workers’ compensation claim with the Rhode Island

Department of Labor and Training, an action in the U.S. District Court for the

District of Rhode Island alleging Respondent discriminated against her in violation

of various state and federal laws, and an action in Rhode Island Superior Court

alleging Respondent violated her constitutional and civil rights. 5

2F

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4F

On April 25, 2018, the parties reached a global settlement agreement. Under

the terms of this agreement, Complainant released all claims against RIPTA that

arose prior to April 25, 2018, excluding any claims for unemployment insurance or

workers’ compensation benefits. Additionally, Respondent was to pay Complainant

a total of $150,000.00, allocated as follows: (1) $55,000.00, less applicable

withholdings, for Complainant’s economic loss; (2) $55,000.00 for Complainant’s

non-economic damages; and (3) $40,000.00 for attorney fees. 6 Following the

settlement, Complainant’s suits in the U.S. District Court for the District of Rhode

Island and the Rhode Island Superior Court were dismissed. Despite the

settlement, Complainant brought various new suits against RIPTA. These suits

were ultimately dismissed by the Rhode Island Superior Court, which found that

5F

referred to matters outside the pleadings. We agree with the ALJ’s decision to treat the

motion as a motion for summary decision. See 29 C.F.R. § 18.72 (providing for summary

decision in proceedings before an ALJ when “there is no genuine dispute as to any material

fact and the movant is entitled to decision as a matter of law.”); cf. Fed. R. Civ. P. 12(d)

(requiring that a motion to dismiss made under Rule 12(b)(6) or 12(c) be treated as a motion

for summary judgment under Rule 56 if “matters outside the pleadings are presented to

and not excluded by the court” in the motion.).

3

D. & O. at 2.

4

Id. at 2-3.

5

Id. at 3.

6

Id. at 3-4.

3

the 2018 settlement was a “valid and enforceable agreement” and the new claims

were barred by the agreement as they were not related to workers’ compensation. 7

6F

On February 25, 2024, the Social Security Administration (SSA) sent

Complainant a letter explaining that it was reviewing her eligibility for Social

Security Disability (SSDI) benefits based on her earnings from July 2022 and

continuing through the date of the letter. 8 The following month, SSA sent

Complainant another letter informing her of its decision that she no longer qualified

for SSDI benefits as of July 2022. On May 10, 2024, Complainant filed a complaint

with OSHA alleging that Respondent retailed against her in violation of the NTSSA

and FRSA. Specifically, Complainant alleged that on April 1, 2024, Respondent

fraudulently provided information to the IRS, affecting her SSDI benefits, in

retaliation for making safety complaints. 9 On May 23, 2024, OSHA issued a

preliminary order stating that because the complaint did not set forth all the

elements of a prima facie allegation of unlawful retaliation, it was not docketed for

investigation. On June 6, 2024, Complainant timely objected to the preliminary

order and requested a hearing before the Office of Administrative Law Judges. The

case was docketed with ALJ Calianos.

7F

8F

On December 19, 2024, Respondent filed a motion to dismiss and a brief in

support of the motion. On February 5, 2025, Complainant filed a brief in opposition

to the motion to dismiss. On April 1, 2025, the ALJ issued a Decision and Order

Granting Respondent’s Motion for Summary Decision and Denying Complaint. 10 In

the D. & O., the ALJ found that: (1) Respondent was not covered under the FRSA as

it did not meet the definition of a “railroad carrier;” (2) Respondent was covered

under the NTSSA as it fell within the definition of a “public transportation agency;”

(3) the complaint was not timely filed as it was not filed within 180 days of the

alleged adverse action; (4) Respondent’s reporting of the settlement amounts to the

IRS was not an adverse action; and (5) Complainant’s alleged protected activity was

not a contributing factor in Respondent’s reporting of the settlement amounts to the

IRS. 11 The ALJ also found that, contrary to Complainant’s allegation that RIPTA

reported the settlement to the IRS on April 1, 2024, RIPTA reported the $55,000.00

as wages on a Form W-2 and deducted the proper tax withholdings from that

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7

Id. at 4.

8

Id. at 4-5.

9

Id. at 5.

As previously described, the ALJ treated the Motion to Dismiss as a Motion for

Summary Decision under 29 C.F.R. § 18.72. D. & O. at 5.

10

11

Id. at 6-13.

4

amount on May 17, 2018. 12 Respondent’s treatment of the $55,000 as W-2 wages

was consistent with the settlement agreement. 13

11F

12F

On July 16, 2025, about three and a half months after the ALJ issued the

D. & O., Complainant left a voicemail with the ALJ’s chambers requesting an

update on the case’s status. The ALJ’s Senior Staff Attorney emailed Complainant

notifying her that the D. & O. was issued on April 1 and provided Complainant with

a courtesy copy. Complainant then alleged that she had not previously received a

copy of the D. & O. The ALJ treated Complainant’s communications as a request to

reissue the D. & O. and, on August 6, 2025, issued an Order Denying Complainant’s

Request to Reissue Decision and Order Granting Respondent’s Motion for Summary

Decision and Denying Complaint (Order Denying Reissuance). 14 The ALJ noted

that the Office of Administrative Law Judges’ internal Case Tracking System

showed that a copy of the D. & O. was served on Complainant at her email address

of record on April 1, 2025. The ALJ further noted that Complainant confirmed that

her email address of record was correct and she had used the same email address

when communicating with the ALJ’s chambers regarding the case. 15 Accordingly,

the ALJ found that there was insufficient basis to reissue the D. & O. 16

13F

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15F

On August 21, 2025, Complainant filed, via email, a request for an extension

of time to file a petition for review with the Administrative Review Board (Board) of

the D. & O. This request was filed more than 14 days after the issuance of the

D. & O. and was thus untimely as the NTSSA regulations require that a petition for

review be filed within 14 days of the date of the decision for which review is

sought. 17 On September 4, 2025, the Board issued a Notice and Briefing Order

(Briefing Order) ordering Complainant to file a brief explaining why the Board

should grant the extension request, especially in light of its untimeliness.

Complainant filed a brief on September 18. On September 29, 2025, Respondent

filed a Response opposing Complainant’s request for extension.

16F

12

Id. at 9-10.

13

Id. at 10.

Barnes v. R.I. Pub. Transit Auth., ALJ No. 2024-NTS-00004 (ALJ Aug. 6, 2025)

(Order Denying Complainant’s Request to Reissue Decision and Order Granting

Respondent’s Motion for Summary Decision and Denying Complaint) (hereinafter “Order

Denying Reissuance”).

14

15

Order Denying Reissuance at 2.

16

Id.

17

29 C.F.R. § 1982.110(a).

5

DISCUSSION

As we noted in the Briefing Order, the period in which a party seeking review

of an ALJ decision may file a petition for review with the Board is not jurisdictional

and is therefore subject to equitable modification. 18 Equitable tolling and equitable

estoppel are two different and distinct equitable doctrines which this tribunal and

courts have applied to modify a filing deadline. 19 Equitable tolling is a rare and

“extraordinary measure that applies only when [a party] is prevented from filing

despite exercising that level of diligence which could reasonably be expected in the

circumstances.” 20 In determining whether to toll the time in which a party may

seek review, the Board has recognized several classes of situations in which a

moving party may be entitled to equitable tolling, including (1) when the movant

has raised the precise statutory claim at issue but has done so in the wrong forum;

(2) when the movant has in some extraordinary way been prevented from filing; and

(3) when the movant has some excusable ignorance of the respondent’s

discriminatory act. 21 These situations are not exclusive, and a party’s inability to

satisfy one is not necessarily fatal for his or her untimely appeal. 22 The party

requesting tolling bears the burden of establishing circumstances that justify

modifying the appeal deadline. 23

17F

18F

19F

20F

21F

22F

See, e.g., Dickerson v. Iteris, Inc., ARB No. 2023-0026, ALJ No. 2019-SOX-00009, slip

op. at 3 (ARB July 28, 2023) (Order Denying Motion to Dismiss and Reestablishing Briefing

Schedule).

18

Martin v. Paragon Foods, ARB No. 2022-0058, ALJ No. 2021-FDA-00001, slip op. at

8 (ARB June 8, 2023) (citing Hyman v. KD Res., ARB No. 2009-0076, ALJ No. 2009-SOX00020, slip op. at 6 (ARB Mar. 31, 2010). “Equitable tolling focuses on the [employeecomplainant’s] excusable ignorance of the employer’s discriminatory act. Equitable

estoppel, in contrast, examines the [employer or other] defendant’s conduct and the extent

to which the [complainant] has been induced to refrain from exercising his rights.” Id.

Based on Complainant’s request, we analyze her claim under the “equitable tolling”

doctrine.

19

20

2004).

21

Id. at 9 (quoting Veltri v. Bldg. Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir.

Id.

See, e.g., Mazenko v. Pegasus Aircraft Mgmt., LLC., ARB No. 2021-0032, ALJ No.

2019- AIR-00001, slip op. at 3 (ARB Sept. 7, 2021) (Order Accepting Complainant’s Appeal

and Setting Briefing Schedule).

22

Smith v. Franciscan Physician Network, ARB No. 2022-0065, ALJ No. 2020ACA00004, slip op. at 4 (ARB Jan. 13, 2023) (Order Denying Motion to Dismiss and

Reestablishing Briefing Schedule) (citing Mazenko, ARB No. 2021-0032, slip op. at 3).

23

6

1. Computation of the Time to Seek Review

The regulations implementing the NTSSA provide that any party seeking

review of a decision of the ALJ must file a petition for review with the ARB.

A petition “must be filed within 14 days of the date of the decision of the ALJ.” 24

Under the Board’s rule for computing time, Complainant was required to submit a

petition for review by April 15, 2025, in order obtain review. 25 No provision of the

NTSSA regulations nor any Board rule allows for the clock to be “reset” to the date

on which the Order Denying Reissuance was issued. The reason for this is selfevident: allowing the computation of time to begin on the date that an order

denying reissuance is issued would obliterate the Board’s equitable tolling

principles and permit parties to enlarge the time in which they may seek review by

simply requesting that a decision be reissued. This is of particular concern given

that the Office of Administrative Law Judge’s Rules of Practice and Procedure

(OALJ Rules) do not specifically address requests for reissuance and we are not

aware of an explicit limitation on the time in which such requests can be filed. This

is in contrast to motions for reconsideration, which, under the OALJ Rules, must be

filed no later than 10 days after service of the decision on the moving party. 26

23F

24F

25F

Complainant’s request for an extension was not filed until August 21, more

than four months after the expiration of the time in which Complainant was

entitled to file a petition for review. The Board takes into account the degree of

untimeliness when considering a request for extension and Complainant’s request is

extremely untimely. 27

26F

2. Extension of Time as a Reasonable Accommodation

In her brief in support of extension, Complainant stated that, due to physical

disabilities, she “cannot do any typing for this appeal, and this is the reason why

[Complainant] is requesting extra time to submit a Petition for Review[.]” 28 She

also stated that:

27F

Due to all of the injuries she had at RIPTA she needs to

have reasonable accommodations ADA Act to help her file

these appeal [sic] to the Administrative Review Board and

24

29 C.F.R. § 1982.110(a).

25

See 29 C.F.R. § 26.2(b).

26

29 C.F.R. § 18.93.

Cf. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993)

(recognizing that whether a party’s neglect of a court-ordered deadline is excusable depends

on various factors, including “the length of the delay[.]”).

27

28

Comp. Br. at 15.

7

that [the ALJ] knew that [Complainant] had already

requested to have ADA reasonable accommodations in the

beginning of her case when it started and that she would

need more time with typing due to the Traumatic brain

injury, Right shoulder injury, and Left Traumatic hand

carpal tunnel and when the weather changes

[Complainant’s] fingers lock up[.][ 29]

28F

The Board, as an instrumentality of the federal government, is not covered by

the Americans with Disabilities Act (ADA). 30 However, the Board is bound by 29

C.F.R. Part 33, authorized, in part, by section 504 of the Rehabilitation Act, which

may require certain accommodations for a covered individual to utilize the Board’s

services. 31

29F

30F

Additionally, we note that courts have found that requests for

accommodation can be granted as a matter of judiciary policy. 32 In one decision, the

U.S. District Court for the District of Hawaii granted a complainant’s request for an

extension of the deadline to file an amended motion in order to accommodate the

delays that the defendant anticipated would occur because of his schizophrenia

symptoms. 33

31F

32F

Given the facts in this case, however, we find that it is not necessary to

decide whether 29 C.F.R. Part 33 requires the Board to grant Complainant’s

request for an extension of time to file a petition for review. We similarly do not

need to decide whether general principles of equity and access to justice warrant an

extension of the time to file in order to accommodate Complainant’s disabilities.

This is because Complainant alleges that she did not receive the D. & O. until the

ALJ’s chambers provided her with a courtesy copy on July 16, 2025. Accordingly,

Complainant has not—nor could she—allege that her failure to seek review of the

decision in the period from April 1 to July 16 is even in part attributable to the

difficulties resulting from her disabilities. Had Complainant, prior to April 15,

requested an extension on the basis that her disabilities impede the timely

preparation of a petition for review, we would have been inclined to grant such a

29

Id.

See Henrickson v. Potter, 327 F.3d 444, 447 (5th Cir. 2003) (observing that “the

entire federal government is excluded from the coverage of the ADA”).

30

31

See, e.g., 29 C.F.R. § 33.6, “General prohibitions against discrimination.”

See, e.g., Patrick v. U.S. Postal Serv., 2010 WL 4879161, at *4 (D. Ariz. Nov. 23,

2010) (ordering the appointment of an American Sign Language interpreter because “[n]ot

only is it right and just to do so, the District Court is required” to do so pursuant to

guidelines promulgated by the Administrative Office of the United States Courts).

32

33

United States v. Maria, 2025 WL 3141081, at *4 (D. Haw. Nov. 10, 2025).

8

request. Similarly, had Complainant been able to attribute the entirety of her delay

in seeking review to her disabilities we would have looked upon her request

differently. Here, however, the bulk of Complainant’s delay in seeking review is a

result of her alleging she was not aware of the D. & O. until July 16, three and a

half months after it was issued.

3. Equitable Tolling

As previously stated, the period in which a party may seek review of an ALJ’s

decision is not jurisdictional and is therefore subject to equitable modification. 34

We now consider whether Complainant has alleged facts that would justify the

application of equitable tolling. In her brief, Complainant states that she did not

receive a copy of the D. & O. when it was served on her via email on April 1, 2025. 35

Complainant does not provide any evidence to buttress this claim. The most

probative evidence in the record is the ALJ’s statement that the Office of

Administrative Law Judge’s Case Tracking System shows that a copy of the D. & O.

was served on Complainant at her email address of record on April 1, 2025. 36 The

record confirms that the email address in the Case Tracking System is the address

she regularly uses and the one she consented to receive service at. Complainant

does not allege that there were any circumstances that prevented her from

accessing this email address or otherwise impeded her from receiving the D. & O.

33F

34F

35F

We have recognized that a party’s assertion that it did not see a decision

served on him via email can, in some circumstances, justify equitable tolling of a

filing deadline. Specifically, in Mazenko v. Pegasus Aircraft Management, LLC, the

Board found that equitable tolling was warranted when a complainant alleged that

a change in the form of service, without notification to the parties, prevented him

from timely filing a petition for review. 37 In Mazenko, the Board addressed a

situation where, due to the COVID-19 pandemic, the ALJ changed the form of

service from regular mail and email to only email. The ALJ provided notification of

this change to the parties and their counsel via a different email address than the

one she had previously used to communicate with the parties. 38 As a result,

complainant’s counsel did not see the notification email nor the email containing

the ALJ’s decision until after the time in which to seek review had elapsed.

Complainant’s counsel filed a petition for review the day after he independently

36F

37F

34

Dickerson, ARB No. 2023-0026, slip op. at 3.

35

Comp. Br. at 15.

36

Order Denying Reissuance at 2.

37

Mazenko ARB No. 2021-0032, slip op. at 4.

38

Id. at 4.

9

learned of the decision. 39 The Board found that these circumstances warranted

equitable tolling. 40 In the instant case, there are no comparable additional

circumstances that would explain or excuse Complainant’s failure to see the email

containing the D. & O. During the entire time her case was pending before the ALJ,

service was accomplished through email alone. Since the ALJ has confirmed that

the Case Tracking System shows that the D. & O. was sent to Complainant at the

same address she both previously and subsequently used to communicate with the

ALJ and his staff, we do not view the bare assertion that she did not receive the

D. & O. as sufficient to justify the application of equitable tolling. Had the ALJ been

unable to confirm that the D. & O. was sent to Complainant through the Case

Tracking System or had the ALJ received a “bounce-back” email or similar error

message indicating a problem with delivering the email, we would be willing to give

additional credence to Complainant’s assertion that she did not receive the email.

38F

39F

We note that in two recent cases the Board found that a pro se complainant’s

assertion that it did not receive an order issued by the Board was grounds for

modification of briefing schedules previously established by the Board. In Cooley v.

MISA Imports, Inc., the Board found that a complainant’s assertion that he did not

receive an order issued by the Board and served on the complainant via certified

mail was sufficient to warrant granting the complainant’s motion for

reconsideration after the Board had dismissed his case for failing to timely file an

opening brief. 41 Similarly, in Hukman v. Ed’s Station, the Board issued an Order to

Show Cause to a complainant ordering that she show cause as to why the Board

should not dismiss her case for failing to file an opening brief as required by the

briefing order. 42 In response, the complainant averred that they did not receive the

Board’s email. The Board accepted this and issued an Order Reestablishing Briefing

Schedule. 43

40F

41F

42F

Both of these cases, however, dealt with compliance with the Board’s briefing

orders and the complainants’ claims that they did not receive certain emails were

39

Id. at 2.

40

Id. at 4.

Cooley v. MISA Imports Inc., ARB No. 2025-0005, ALJ No. 2024-SOX-00037 (ARB

Jan.22, 2025) (Order Granting Reconsideration, Vacating Decision and Order Dismissing

Petition for Review, and Reestablishing Briefing Schedule).

41

Hukman v. Ed’s Stations, Inc., ARB No. 2025-0003, ALJ No. 2023-FDA-00005 (ARB

Jan. 24, 2025) (Order Reestablishing Briefing Schedule).

42

In explaining its decision, the Board stated that “although system records reflect

that the Board’s electronic filing system (EFS) successfully generated and sent notice of the

Briefing Order to Complainant’s registered email account on November 13, 2024, we accept

Complainant’s representation that she did not see that notice in her email and did not learn

of the Briefing Order at the time it was issued.” Id. at 3.

43

10

made in response to orders to show cause. The standard of good cause shown is less

than the standard that must be met to warrant the application of equitable tolling

principles. Thus, we do not view our order today to be in conflict with the Board’s

orders in either Cooley or Hukman.

CONCLUSION

Complainant did not timely seek review of the ALJ’s decision. Complainant’s

assertion that she did not receive a copy of the D. & O. when the ALJ’s staff emailed

it to her on April 1, 2025, is insufficient to warrant the application of equitable

tolling, especially given the evidence that the D. & O. was properly served on her

via email. Accordingly, we DENY Complainant’s request for an extension of time to

file a petition for review. For this reason, we hereby administratively close this

matter.

SO ORDERED.

RANDEL K. JOHNSON

Chief Administrative Appeals Judge

THOMAS H. BURRELL

Administrative Appeals Judge