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:

JASON FARRAR,

ARB CASE NO. 2022-0051

COMPLAINANT,

v.

ALJ CASE NO. 2022-CAA-00001

ALJ PATRICK M. ROSENOW

DATE: August 25, 2023

STRAITLINE WELL

SERVICES, LLC,

RESPONDENT.

Appearances:

For the Complainant:

Jason Farrar; pro se; San Antonio, Texas

For the Respondent:

Patrick S. Richter, Esq.; Jackson Lewis P.C.; Austin, Texas

Before HARTHILL, Chief Administrative Appeals Judge, and WARREN,

Administrative Appeals Judge

DECISION AND ORDER

WARREN, Administrative Appeals Judge:

This case arises under the whistleblower protection provisions of the Clean

Air Act (CAA) and its implementing regulations. 1 On March 25, 2020, Complainant

Jason Farrar (Complainant or Farrar) filed a complaint with the Occupational

Safety and Health Administration (OSHA) alleging that his former employer,

Respondent Straitline Well Services, LLC (Respondent), terminated his

1

42 U.S.C. § 7622; 29 C.F.R. Part 24 (2023).

2

employment in retaliation for engaging in activities protected by the CAA. OSHA

investigated Farrar’s claims and dismissed his complaint on June 4, 2021. Under

the rules governing appeals of CAA complaints, Farrar was required to request a

hearing with the Office of Administrative Law Judges (OALJ) within 30 days of

receipt of the OSHA determination. 2

On October 26, 2021, Farrar contacted the OALJ by electronic mail to request

a hearing. The case was assigned to an Administrative Law Judge (ALJ) who

conducted a conference call with Farrar and counsel for Respondent. Counsel for

Respondent stated that she intended to file a motion to dismiss the complaint as

untimely. The ALJ directed Farrar to submit a Bill of Particulars describing “all the

facts relevant to the filing of his request for hearing and why it was outside of the

30-day deadline.” 3

After the call, Farrar submitted a Bill of Particulars that, in addition to

describing safety violations, indicated that he had difficulty obtaining legal

counsel. 4 Respondent submitted a Motion to Dismiss, arguing that Farrar (1) was

not entitled to equitable tolling of the deadline for filing his objection to the OSHA

ruling, and (2) could not establish that it discharged him in violation of the CAA. 5

Farrar filed a Response to the Motion to Dismiss. He described his concerns

about Respondent’s burning of trash that included tires, used motor oil, railroad

ties, and other substances. 6 He also listed several reasons for missing the filing

deadline:

Mental anguish brought on by multiple circumstances such

as the Covid-19 pandemic, the loss of my job at the very

beginning of the pandemic along with denial of assistance

(unemployment) due to company actions, the loss of several

family members due to pandemic, the stress of having to go

to night school to learn a new trade, having to travel out-

2

29 C.F.R. § 24.106(a).

3

Order on Respondent’s Motion for Summary Decision (Order) at 2.

4

Bill of Particulars at 1.

5

Motion to Dismiss at 2, 4-5.

6

Complainant’s Response to the Motion to Dismiss (Comp. Resp.) at 1-3.

3

of-state to attend daughter’s high school graduation and

simultaneously having to take a weekly progress

examination while on the road, all of which has

exacerbated my Attention Deficit Hyperactivity Disorder

(ADHD) diagnosed around age 5 and manageable into my

late 20’s, has now become a serious issue since early 2020. 7

On June 23, 2022, the ALJ issued an Order on Respondent’s Motion for

Summary Decision (Order). 8 He concluded that Farrar failed to describe any

circumstances justifying equitable tolling of the filing deadline and denied his

request for a hearing. Farrar appealed the ALJ’s ruling to the Board.

JURISDICTION & STANDARD OF REVIEW

The Secretary of Labor has delegated to the Board the authority to review

ALJ decisions under the CAA. 9 We review the ALJ’s decision to dismiss Farrar’s

complaint as untimely de novo. 10

DISCUSSION

1. Governing Law

A complainant pursuing a whistleblower retaliation claim under the CAA

must meet certain deadlines. 11 These deadlines apply whether the complainant is

7

Id. at 4.

Although the ALJ captioned the decision as a ruling on summary decision, we note

that Respondent filed its motion under 29 C.F.R. § 18.70(c), the regulation governing

motions to dismiss.

8

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

9

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

5 (ARB June 8, 2023) (citing Johnson v. The Wellpoint Cos., Inc., ARB No. 2011-0035, ALJ

No. 2010-SOX-00038, slip op. at 5 (ARB Feb. 25, 2013) (citations omitted); Boyd v. EPA,

ARB No. 2010-0082, ALJ No. 2009-SDW-00005, slip op. at 2-3 (ARB Dec. 21, 2011)

(citations omitted)).

10

11

42 U.S.C. § 7622; 29 C.F.R. § 24.106(a).

4

represented by counsel or is proceeding pro se. 12 Potential complainants are

responsible for determining which statutes and regulations, and which deadlines,

apply to their cases and for meeting those deadlines: “[I]gnorance of the law is no

excuse” for missing a filing deadline. 13

Under the regulations governing the CAA, a complainant who wishes to

object to OSHA’s findings and receive a hearing on a complaint “must file any

objections and/or a request for a hearing on the record within 30 days of receipt of

the findings and order . . . .” 14 There is no dispute that Farrar failed to contact the

OALJ within that period. Farrar asks, however, for his appeal to be accepted

because of his circumstances and argues that the deadline for appeal should be

equitably tolled.

The ARB and courts may apply equitable tolling to modify a filing deadline. 15

Equitable tolling refers to a set of circumstances excusing a complainant’s inability

to meet a deadline. The doctrine focuses on “plaintiff’s excusable ignorance of the

employer’s discriminatory act.” 16 Equitable tolling is rare and “an extraordinary

measure that applies only when plaintiff is prevented from filing despite exercising

that level of diligence which could reasonably be expected in the circumstances.” 17

In determining whether the Board should toll a statute of limitations, we

have recognized several principal situations in which tolling may be warranted.

These include when the moving party: (1) has raised the precise statutory claim in

issue but has done so in the wrong forum; 18 (2) has in some extraordinary way been

prevented from filing; 19 and (3) was excusably ignorant of the respondent’s

12

Martin, ARB No. 2022-0058, slip op. at 6 (citations omitted).

13

Id. (citation omitted).

14

29 C.F.R. § 24.106(a).

Martin, ARB No. 2022-0058, slip op. at 7-8 (citations omitted). Farrar does not allege

Respondent misled him or otherwise contend that equitable estoppel applies to his case,

and so, the Board does not specifically address that doctrine with respect to the record in

this matter. Cf. id. at 8-9.

15

16

Id. at 9 (citation omitted).

17

Id. (citation omitted).

18

Id. (citation omitted).

Id.; see also Salsbury v. Edward Hines, Jr. Veterans Hosp., Dep’t of Veterans Affs.,

ARB No. 2005-0014, ALJ No. 2004-ERA-00007, slip op. at 6 (ARB July 31, 2007) (citation

omitted); Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011-AIR-00009,

19

5

discriminatory act. 20 A complainant bears the burden of justifying the application of

equitable tolling. 21 Complainants must also generally show that they diligently

pursued their claim. 22

None of Farrar’s arguments demonstrate that he is entitled to equitable

tolling. Of the three circumstances the Board has recognized for granting equitable

tolling, only one warrants extended discussion in this case. Farrar has not said or

suggested he raised the precise statutory claim in issue in the wrong forum. Farrar

in fact raised his claim in the correct forum; he just did so too late. Farrar also does

not claim he did not know about the purported retaliation, either. He in fact filed

with OSHA on time—his appeal to OALJ is where he filed too late. Farrar’s

arguments instead focus on his personal circumstances, which he argues, in

combination, prevented him from timely requesting a hearing. To be entitled to

equitable tolling because of his personal circumstances, Farrar must show that

those circumstances were “extraordinary” and that he exercised appropriate

diligence pursuing his claim. 23

Farrar listed, in total, eight reasons for his failure to timely request a

hearing. On appeal, Farrar reiterates several of the reasons he detailed in front of

the ALJ, and states that he was under duress due to the retaliation he experienced.

He states he had difficulty securing counsel and that, once obtained, his counsel did

not adequately communicate the steps necessary in proceeding with an appeal. 24

Farrar also indicated that he suffered from ADHD and mental anguish from the

loss of family members to the COVID-19 pandemic. 25 He listed several other

obligations that kept him very busy, including trying to obtain employment, denial

slip op. at 8, 11 (ARB Dec. 10, 2012) (citing Hall v. E.G.&G. Def. Materials, Inc., ARB No.

1998-0076, ALJ No. 1997-SDW-00009, slip op. at 2 (ARB Sept. 30, 1998)) (noting mental

incapacity as an example of an extraordinary circumstance which the Board has recognized

could qualify for tolling if there is a particularly strong showing and in fact the party was

prevented from managing his affairs and thus from understanding his legal rights and

acting upon them).

20

Martin, ARB No. 2022-0058, slip op. at 9 (citation omitted).

Id. at 10 (citation omitted); see also Salsbury, ARB No. 2005-0014, slip op. at 6

(citation omitted).

21

22

Katz v. U.S. Dep’t of Lab., 857 F. App’x 859, 863 (7th Cir. 2021).

23

Id.

24

Bill of Particulars at 1.

25

Comp. Resp. at 4.

6

of unemployment compensation, attending night classes, and going to his

daughter’s out-of-state high school graduation “at the same time he had to take a

weekly progress examination.” 26

Farrar’s argument that extraordinary circumstances prevented his timely

filing falls short. Some of Farrar’s arguments for tolling have been addressed

specifically by this Board before. Failure to secure counsel to pursue a claim is an

insufficient reason to toll the limitations period. 27 The Board has recognized that a

medical condition that prevents a complainant from timely pursuing his legal rights

may be an “extraordinary” circumstance justifying equitable tolling. 28 For example,

the Board has held that “mental illness tolls the limitations period only if

the illness in fact prevents the petitioning party from managing his affairs and thus

from understanding his legal rights and acting upon them.” 29 Additionally, several

federal courts have held that the impact of the COVID-19 pandemic may constitute

extraordinary circumstances for the purposes of equitable tolling under certain

circumstances. 30 However, a petitioner seeking equitable tolling must still

demonstrate fact-specific circumstances related to the pandemic that hindered their

ability to file. 31 For example, the COVID-19 pandemic does not justify an otherwise

26

Id.

See, e.g., Rose v. Dole, 945 F.2d 1331, 1335-36 (6th Cir. 1991) (stating that failure to

retain counsel within the statutory filing time frame, in and of itself, is not enough to

warrant equitable tolling).

27

Reid v. The Boeing Co., ARB No 2010-0110, ALJ No. 2009-SOX-00027, slip op. at 4

(ARB Mar. 30, 2012) (citation omitted); cf. Martin, ARB 2022-0058, slip op. at 13.

28

Woods, slip op. at 11 (ARB Dec. 10, 2012) (citation omitted); cf. Martin, ARB 20220058, slip op. at 13 (rejecting argument that “cancerphobia and medical depression”

warranted equitable tolling where complainant “failed to present any evidence that these

illnesses made it impossible for him to manage his day-to-day activities”).

29

See Hager v. Warden, Ross Corr. Inst., No. 2:21-CV-2472, 2021 WL 2291319, at *3

(S.D. Ohio June 4, 2021) (“The COVID-19 pandemic may qualify as an extraordinary

circumstance justifying equitable tolling of the statute of limitations”), adopted and aff’d,

No. 2:21-CV-2472, 2021 WL 2670622 (S.D. Ohio June 29, 2021); Taylor v. Valentine, No.

5:20-CV-00139-TBR, 2021 WL 864145, at *2 (W.D. Ky. Mar. 8, 2021) (“[T]he COVID-19

pandemic may very well qualify as an ‘extraordinary’ circumstance that warrants equitable

tolling.”), mot. for relief from j. denied, No. 5:20-CV-00139-TBR, 2021 WL 2043974 (W.D.

Ky. May 21, 2021), certificate of appealability denied, No. 21-5616, 2021 WL 6201605 (6th

Cir. Dec. 28, 2021), cert. denied, 142 S. Ct. 1400 (2022).

30

See Lewis v. Postmaster Gen. of the U.S., No. 21-2958, 2022 WL 109007, at *2 (3d

Cir. Jan. 12, 2022) (affirming the District Court’s determination that the appellant’s claims

of age and disability-based discrimination were time barred because the appellant failed to

connect the pandemic to his specific situation); Katz, 857 F. App’x at 864 (7th Cir. 2021)

31

7

untimely filing where the facts indicate that the petitioner had filed other

documents electronically without incident during the pandemic. 32

Here, Farrar says he has ADHD and experienced mental anguish, but fails to

provide evidence that these conditions in fact prevented him from timely requesting

a hearing or otherwise prevented him from understanding and acting upon his legal

rights. Additionally, Farrar argues that the COVID-19 pandemic placed a heavy

burden on him, but again fails to articulate how it prevented him from timely

requesting a hearing. In fact, his filing does not explain how his circumstances

prevented him from filing on time. While job loss, retraining, and family obligations

can be serious and time-consuming, there is nothing in the record indicating that

Farrar’s personal circumstances stood in the way of his requesting a hearing. In

order to prevail, Farrar needed to explain both his circumstances and why they

prevented him from filing. He has not done so.

“‘[E]quitable tolling requires a party to pass with reasonable diligence

through the period it seeks to have tolled.’” 33 Here, we find that Farrar failed to act

with reasonable diligence. The ALJ concluded that “while he established a genuine

issue of material fact that he may have been busy and stressed,” Farrar failed to

show “that he was prevented from filing the very short and simple email he

(finding that the petitioner did not show extraordinary circumstances warranting equitable

tolling because he did not explain why the pandemic prevented him from filing a timely

appeal); Rush v. Sec’y, Fla. Dep’t of Corr., No. 21-10218-C, 2021 WL 3134763, at *1 (11th

Cir. June 22, 2021) (finding petitioner “could not show extraordinary circumstances, as his

circumstances were not different than any other prisoner attempting to access legal

resources, as they all were subject to COVID-19 protocols”); United States v. Henry, No.

2:17-CR-00180, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (“[T]he COVID-19

pandemic does not automatically warrant equitable tolling for any petitioner who seeks it

on that basis. The petitioner must establish that he was pursuing his rights

diligently and that the COVID-19 pandemic specifically prevented him from filing his

motion.”), certificate of appealability denied, No. 21-1285, 2021 WL 3669374 (3d Cir. June 3,

2021); Dragasits v. Covello, No. 3:21-CV-1459-CAB-MDD, 2022 WL 207730, at *7 (S.D. Cal.

Jan. 24, 2022) (stating that a petitioner seeking tolling based on the COVID-19 pandemic

must still demonstrate fact-specific circumstances related to the pandemic that hindered

his ability to timely file a petition).

32

Katz, 857 F. App’x at 864.

United States v. All Funds Distributed To, or o/b/o Weiss, 345 F.3d 49, 55 (2d Cir.

2003) (quoting Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996)); see also Menominee

Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016).

33

8

eventually sent months after the deadline.” 34 We agree with the ALJ’s conclusion.

Farrar allowed months to go by before he sent his e-mail, and he fails to offer

evidence that he was otherwise attempting to diligently pursue his case.

For all of the reasons cited, we conclude that Farrar filed an untimely request

for a hearing and failed to establish that his circumstances warrant an extension of

the filing deadline.

CONCLUSION 35

Accordingly, we AFFIRM the ALJ’s Decision and Order dismissing the

complaint as untimely filed.

SO ORDERED.

__________________________________________

IVEY S. WARREN

Administrative Appeals Judge

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

34

Order at 5.

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor, not the Administrative

Review Board.

35