U.S. Department of Labor

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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

ROBERT DEAN,

ARB CASE NO. 2023-0022

COMPLAINANT,

SOUTH CAROLINA DEPARTMENT

OF TRANSPORTATION,

ALJ CASE NO. 2023-WPC-00001

ALJ DANA ROSEN

DATE: September 28, 2023

RESPONDENT.

Appearances:

For the Complainant:

Robert Dean; Pro Se; Johns Island, South Carolina

For the Respondent:

Lake E. Summers, Esq.; Malone, Thompson, Summers & Ott LLC;

Columbia, South Carolina

Before HARTHILL, Chief Administrative Appeals Judge, and WARREN,

Administrative Appeals Judge

DECISION AND ORDER

HARTHILL, Chief Administrative Appeals Judge:

This case arises under the Federal Water Pollution Control Act (FWPCA)

(sometimes referred to as the Clean Water Act) and its implementing regulations. 1

Robert Dean (Dean or Complainant) filed a whistleblower complaint with the

33 U.S.C. § 1367; 29 C.F.R. Part 24 (2023).

Occupational Safety and Health Administration (OSHA) alleging that his former

employer, South Carolina Department of Transportation (SCDOT or Respondent),

retaliated against him for engaging in activities protected under the FWPCA. 2 After

OSHA dismissed his complaint, Complainant requested a hearing before the Office

of Administrative Law Judges (OALJ). 3 A United States Department of Labor

Administrative Law Judge (ALJ) issued an Order Granting Respondent’s Motion to

Dismiss (Order of Dismissal) denying the claim because Complainant’s request for a

hearing was untimely. 4 Complainant timely appealed the ALJ’s decision to the

Administrative Review Board (ARB or Board). 5 We vacate and remand.

BACKGROUND

On June 2, 2022, Complainant filed a complaint with OSHA, alleging that

Respondent denied him sick leave benefits and leave under the Family and Medical

Leave Act in retaliation for reporting “potential Clean Water Act violations.” 6 On

October 18, 2022, OSHA dismissed the complaint, finding that the evidence “did not

support that Respondent retaliated against Complainant for engaging in any

protected activity under the FWPCA.” 7 OSHA notified Complainant of his right to

request a hearing before the OALJ, advised Complainant that he had 30 days from

the receipt of OSHA’s findings to request a hearing, and cautioned Complainant

that failure to request a hearing would render the OSHA decision final. 8

On November 18, 2022, 31 days after Complainant received the OSHA

decision, Complainant filed his objections with the OALJ via email and requested a

hearing. 9 On December 5, 2022, Respondent submitted a letter to the Chief ALJ

(Motion to Dismiss), 10 arguing that Complainant’s objections were untimely under

Order Granting Respondent’s Motion to Dismiss at 1.

Id. at 1-2.

Id. at 4.

Complainant’s Petition for Review of the Order of Dismissal (Petition) at 1.

Order of Dismissal at 1.

Id.

Id. at 1-2.

Id. at 2.

In the ALJ’s subsequent Order to Complainant to Show Cause Why This Complaint

Should Not Be Dismissed for Untimely Objections By 2/23/2023 (Order to Show Cause), the

ALJ referred to Respondent’s December 5, 2022 letter as a “Motion to Dismiss with

29 C.F.R. § 24.106(a) and, consequently, his complaint should be dismissed with

prejudice. 11 On December 7, 2022, Complainant responded by email, asking the

Chief ALJ to excuse his untimeliness and explaining that he failed to timely request

a hearing because (1) he was waiting for a response to a Freedom of Information Act

(FOIA) request before filing; and (2) he interpreted the applicable deadline to fall on

November 18, not November 17, 2022. 12 Complainant requested the ALJ deem his

objections as timely, grant an extension of time, or grant a waiver, modification, or

suspension of the deadline. 13

On February 2, 2023, the ALJ issued an Order to Show Cause. 14 In the Order

to Show Cause, the ALJ referred to Respondent’s Motion to Dismiss, observed that

Complainant’s request for a hearing was untimely, and ordered Complainant to

show cause why his case should not be dismissed. On February 7, 2023,

Complainant filed an Answer. 15 In Complainant’s Answer, he reiterated that his

objections and request for a hearing were untimely because he was waiting for a

response to his FOIA request. 16 He also restated that he interpreted the 30-day

deadline for filing his objections to expire on November 18, 2022, and requested the

ALJ find his objections were timely filed, grant an extension of time, or grant

waiver, modification, or suspension of the deadline. 17

On February 23, 2023, Respondent filed a Renewed Motion to Dismiss,

arguing that there was no dispute that Complainant miscalculated the 30-day

deadline, and that Complainant’s admitted miscalculation of the filing deadline,

“does not constitute excusable neglect,” nor create, “unique circumstances,” to waive

the filing deadline. 18 On February 27, 2023, the ALJ issued the Order of Dismissal,

Prejudice Complainant’s Appeal.” Order to Show Cause at 2. The letter was not in the form

of a motion and Respondent subsequently filed a Renewed Motion to Dismiss on February

23, 2023.

Order of Dismissal at 2.

Complainant’s December 7, 2022 email at 1-2, attached as exhibit to Complainant

Robert Dean’s Answer to Show Cause on Timeliness (Answer).

Id. at 3.

Order to Show Cause at 1.

Answer at 1.

Id. at 4-5.

Id. at 6-9.

Respondent SCDOT’s Renewed Motion to Dismiss at 14.

dismissing the complaint with prejudice for Complainant’s failure to timely file his

objections and request for a hearing. 19 The ALJ’s Order of Dismissal did not address

Dean’s arguments regarding “waiver, modification, or suspension of the” deadline. 20

After the ALJ issued the Order of Dismissal, Complainant attempted to file an

Opposition to Respondent’s Renewed Motion to Dismiss with the ALJ on March 10,

2023. On March 15, 2023, the ALJ issued an Order deeming Complainant’s

responsive filing moot because she had already dismissed the case and Complainant

had appealed to the ARB. 21

In his Petition to the Board, Complainant argues that the ALJ should have

accepted his untimely request for a hearing for the reasons set forth in his Answer

to the ALJ’s Order to Show Cause and his Opposition to Respondent’s Renewed

Motion to Dismiss. 22 Complainant also raises several collateral, procedural

arguments: (1) the ALJ’s Order of Dismissal was issued prematurely before he was

afforded the opportunity to respond to Respondent’s Renewed Motion to Dismiss; 23

(2) Respondent’s Renewed Motion to Dismiss was procedurally flawed; 24 (3) the

ALJ’s recitation of the procedural history of the case failed to address key filings; 25

(4) the ALJ failed to make provisions for a pro se litigant; 26 and (5) the ALJ relied

on improper OSHA findings. 27

The parties have also filed several motions before the Board. Complainant

has requested the Board enter additional documents into the record 28 and to

Order of Dismissal at 4.

Id.

Order That Complainant’s Response Is Moot, the Complaint Has Been Dismissed,

and the Dismissal Appealed at 2. Complainant had filed his Petition with the Board on

March 13, 2023.

Petition at 14.

Id. at 2.

Id. at 2-3.

Id. at 3-4.

Id. at 4-5.

Id. at 5-10.

See generally Complainant’s Motion to Submit Documents.

introduce new evidence. 29 Respondent has, in turn, objected to these motions. 30

Respondent has also requested that the Board strike Complainant’s Opening Brief

because it was not timely filed. 31

JURISDICTION & APPLICABLE LEGAL STANDARDS

The Secretary of the Department of Labor has delegated to the Board the

authority to review ALJ decisions under the FWPCA. 32 We review the ALJ’s

decision to dismiss Dean’s complaint as untimely de novo. 33

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

object to OSHA’s findings and request 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 . . . .” 34 A complainant pursuing a whistleblower retaliation

claim must meet this deadline, which applies regardless of whether the complainant

is represented by counsel or is proceeding pro se. 35 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 deadline. 36

See generally Complainant’s Motion to Submit New Evidence.

See generally Respondent’s Opposition to Complainant’s March 20, 2023 Motion to

Submit Documents; Respondent’s Response in Opposition to Complainant Robert Dean’s

April 13, 2023 Motion to Submit New Evidence.

Respondent’s Motion to Strike the Opening Brief Filed by Complainant Robert Dean

(Motion to Strike). Respondent also filed a Motion to Hold Proceedings in Abeyance.

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).

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

5 (ARB June 8, 2023) (citations omitted); 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) (citation omitted).

29 C.F.R. § 24.103(d).

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

Id. (citation omitted).

As we have recently explained in detail, the Board may modify a filing

deadline under equitable tolling or equitable estoppel principles. 37 Equitable

estoppel only applies where the employer has acted deliberately to deceive, mislead,

or coerce the employee into not filing a claim in a timely manner. 38 Equitable

estoppel “presupposes that the plaintiff has discovered, or, as required by the

discovery rule, should have discovered, that the defendant injured him, and denotes

efforts by the defendant—beyond the wrongdoing upon which the claim is

grounded—to prevent the plaintiff from filing a timely complaint.” 39 Equitable

estoppel applies when a respondent or defendant prevents “a complainant from

suing in time by, for example, promising not to plead the limitations defense or by

presenting fabricated evidence to negate any basis for a claim.” 40

A complainant’s inability to meet a deadline may also be equitably tolled due

to “plaintiff’s excusable ignorance of the employer’s discriminatory act.” 41 Equitable

tolling is a rare and “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.” 42 The Board has recognized several

principal situations in which a moving party may be entitled to the remedy,

including: (1) when the movant has raised the precise statutory claim in 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

Id. at 8 (citing Hyman v. KD Res., ARB No. 2009-0076, ALJ No. 2009-SOX-00020,

slip op. at 6 (ARB Mar. 31, 2010); Edmonson v. Eagle Nat’l Bank, 922 F.3d 535, 549-50 (4th

Cir. 2019); Phillips v. Leggett & Platt, Inc., 658 F.3d 452, 458 (5th Cir. 2011)).

Id. at 8 (citing Woods v. Boeing-South Carolina, ARB No. 2011-0067, ALJ No. 2011AIR-00009, slip op. at 9 (ARB Dec. 10, 2012); Droog v. Ingersoll-Rand Hussman, ARB No.

2011-0075, ALJ No. 2011-CER-00001, slip op. at 3 n.6 (ARB Sept. 13, 2012) (“[E]quitable

estoppel occurs where an employee is aware of his [statutory] rights but does not make a

timely filing due to his reasonable reliance on his employer’s misleading or confusing

representations or conduct.” (citation omitted))).

Id. (quoting Overall v. Tenn. Valley Auth., ARB Nos. 1998-0111, -0128, ALJ No.

1997-ERA-00053, slip op. at 39 (ARB Apr. 30, 2001)).

Id. (quoting Overall, ARB Nos. 1998-0111, -0128, slip op. at 39).

Id. at 9 (quoting Hyman, ARB No. 2009-0076, slip op. at 6).

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

2004); Blanche v. United States, 811 F.3d 953, 962 (7th Cir. 2016) (internal citation

omitted)).

ignorance of the respondent’s discriminatory act. 43 Complainant bears the burden of

justifying the application of equitable tolling. 44

In his submissions to the ALJ, Complainant stated that he waited until

November 18, 2022 to submit his request for a hearing to allow time for a response

to his FOIA request. 45 Complainant expected to receive documents related to his

FOIA request on November 17, 2022, which he believed would allow him an

additional day to review the documents prior to submitting his hearing request. 46

Complainant claimed that he wanted to wait for these documents due to his concern

that they could potentially disprove his case but that SCDOT delayed producing the

necessary documents. 47 Complainant further appears to allege before this Board

that SCDOT deliberately hampered his FOIA efforts and argues that this allegation

“goes to whether the ALJ should have considered the essential elements of

Equitable Tolling as they might apply to my tardiness case.” 48

Complainant also stated that he calculated his deadline based on his

interpretation of 29 C.F.R. § 18.32(a)(1)(i), which states, “[e]xclude the day of the

event that triggers the period,” and 29 C.F.R. § 18.32(a)(2), which states that “the

‘last day’ ends at 4:30 p.m. local time.” Based on his reading of these regulations,

Complainant mistakenly believed the 30-day deadline expired on November 18,

2022, at 4:30 p.m. 49

DISCUSSION

Here, the ALJ did not address whether Complainant’s explanations for his

tardy filing met any of the grounds for equitable modification. Summary dismissals

Id. (citations omitted); see also Hyman, ARB No. 2009-0076, slip op. at 6 (“Equitable

tolling focuses on the plaintiff’s excusable ignorance of the employer’s discriminatory act.”

(citing Rhodes v. Guiberson Oil Tools Div., 927 F.2d 876, 878 (5th Cir. 1991))).

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

See Petition at 14 (incorporating his Answer, which contained his explanations for

his tardiness and are substantially similar to his arguments in his Opening Brief); see also

Complainant’s December 7, 2022 email at 1-2; Answer at 4-6.

Complainant’s December 7, 2022 email at 1-2; Answer at 5.

Complainant’s December 7, 2022 email at 2; Answer at 5.

Complainant’s Motion to Submit New Evidence at 5-6. Despite a thorough review of

the record, we are unable to dispositively rule out the possibility that Complainant made

this argument below, a finding that is best made by the ALJ. Cf. Answer at 4-5.

Complainant’s December 7, 2022 email at 2; Answer at 6-7.

with no record cites or analysis of applicable legal principles or cases may expedite

matters, but “it leaves the parties and the Board scrambling to divine by guesswork

the decision’s reasoning and outcome.” 50 Accordingly, we vacate the ALJ’s Order of

Dismissal granting Respondent’s Motion to Dismiss and remand with instructions

to make factual and legal findings in accordance with Board precedent.

Complainant also contends that the ALJ’s Order of Dismissal was issued

prematurely, prior to the conclusion of Complainant’s 14-day deadline to file an

opposition to Respondent’s Renewed Motion to Dismiss. 51 Because we vacate the

ALJ’s Order of Dismissal, we also vacate the ALJ’s Order That Complainant’s

Response is Moot, 52 and instruct the ALJ to reconsider whether to admit

Complainant’s Opposition to Respondent’s Renewed Motion to Dismiss, along with

Respondent’s Reply, if applicable.

Finally, because we vacate the Order of Dismissal and remand to the ALJ for

further proceedings in accordance with the above instructions, all motions pending

before the Board are denied as moot. 53

Complainant has invoked his pro se status to excuse tardiness in several

filings before the ALJ and this Board. 54 Complainant is reminded that pro se

complainants are equally bound to follow the rules of practice and procedure as

complainants represented by counsel. 55 The Board has afforded this Complainant

some latitude in our review of his submissions and the record, but “[w]hile a pro se

Perkins v. Cavicchio Greenhouses, Inc., ARB No. 2022-0018, ALJ No. 2019-ACA00005, slip op. at 10 n.59 (ARB Sept. 30, 2022); accord Debuse v. Corr Flight S., ARB

No. 2022-0019, ALJ No. 2020-AIR-00015, slip op. at 10 (ARB May 13, 2022) (citations

omitted).

Petition at 2.

See Order That Complainant’s Response Is Moot, The Complaint Has Been

Dismissed, and The Dismissal Appealed at 1.

The pending motions are: Respondent’s Motion to Strike Complainant’s Opening

Brief; Complainant’s March 20, 2023 Motion to Submit Documents; and Complainant’s

April 13, 2023 Motion to Submit New Evidence. Although the Board granted Respondent’s

Motion to Hold Proceedings in Abeyance on April 25, 2023, because we are remanding this

case to the ALJ for further proceedings, the briefing schedule need not be reestablished.

See, e.g., Petition at 4-5; Complainant’s Reply to Response at 8; Complainant’s

Opposition Response to Respondent’s Motion to Strike Complainant’s Opening Brief at 6.

Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No. 2018-STA-00013, slip op.

at 12 (ARB May 13, 2020) (citations omitted).

litigant must of course be given fair and equal treatment, he cannot generally be

permitted to shift the burden of litigating his case to the courts, nor to avoid the

risks of failure that attend his decision to forgo expert assistance.” 56

CONCLUSION

Accordingly, the Board VACATES AND REMANDS the ALJ’s Order

Granting Respondent’s Motion to Dismiss for further proceedings in accordance

with this Order. 57 The Board further DENIES as moot Respondent’s Motion to

Strike Complainant’s Opening Brief and DENIES as moot Complainant’s March

20, 2023 and April 13, 2023 Motions to Submit Documents and New Evidence.

SO ORDERED.

__________________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

__________________________________________

IVEY S. WARREN

Administrative Appeals Judge

Coates v. S.E. Milk, Inc., ARB No. 2005-0050, ALJ No. 2004-STA-00060, slip op. at 9

(ARB July 31, 2007).

In any appeal of this Decision and Order, the appropriately named party is the

Secretary, Department of Labor, not the Administrative Review Board.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.