I am pleased to announce that today the Sixth Circuit U.S. Court of Appeals has reversed a decision of the U.S. Department of Labor’s Administrative Review Board (ARB) 
and reinstated the whistleblower claim that my client Harry Smith made against the trucking company CRST. In the photo, Harry Smith stands between his wife and fellow truck driver Scooter McNutt. Smith was fired right after he threatened to take the company’s defective trailer to the Department of Transportation for inspection. The Department of Labor had dismissed Smith’s complaint against CRST after the Occupational Safety and Health Administration (OSHA) sent him a dismissal notice, showing that a copy was sent to me, his lawyer. However, OSHA did not actually send me the copy of the dismissal notice until after Smith’s time to appeal had expired. Smith does not recall receiving the dismissal notice at all. CRST and the Department of Labor (DOL) tried to blame Smith for failing to appeal on time. The Sixth Circuit says today that, “it appears to us that it falls even more heavily at the feet of OSHA, in failing to send the notice to Renner for some two months after the fact, despite the indication to Smith to the contrary.”
Here is more of the Sixth Circuit’s opinion:
To hold that the doctrine of equitable tolling should be applied in this case is clearly in keeping with the principle underlying our opinion in Andrews, the cases upon which it relied and the opinions that it spawned: that a complainant should not be punished for missing a filing deadline when he is affirmatively misled in a manner that causes the delay. As we observed in Jones, equitable tolling is appropriate when “congressional purposes [are] effectuated by tolling the statute of limitations in given circumstances.” 747 F.2d at 1040 (quoting Burnett v. New York Central R.R. Co., 380 U.S. 424 (1965)).
The purpose of the Transportation Act’s employee-protection provisions is “to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles.” Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987). When a statute permits a complainant’s representation before an agency by counsel and counsel has informed the agency that he represents the complainant and has provided the agency with his contact information, the complainant may reasonably expect that counsel will at least be copied on the agency’s communications to him. When the agency sends its findings directly to the complainant with a clear indication that his counsel has contemporaneously received those same findings, but does not actually notify counsel until after expiration of the statutory period for filing objections, the refusal to permit a late objection is unjust. This injustice threatens the purposes of the Act’s employee-protection provisions, and a grant of equitable tolling in Smith’s case is consistent with effectuating them.
I particularly appreciate the Court’s focus on the purpose of the Surface Transportation Assistance Act (STAA). Many bad whistleblower decisions would go in our favor if the courts shared this type of focus on the statutory purpose.
Harry Smith’s prospects of prevailing on remand are pretty good when one considers that he has already prevailed after a hearing against CRST’s contractor, Lake City Enterprises. You can read the 153-page decision of the Administrative Law Judge (ALJ) here.
