In pursuing any claim, it is important to act in a timely manner. The deadlines and manner in which complaints alleging retaliatory action for protected whistleblower activity must be filed vary depending on the nature of the job and the employer. The failure to ensure an administrative complaint is mailed or received in the time required by law can result in the waiver of the right to recover.
The New Jersey District Court recently dismissed a whistleblower case due to the untimely filing of an administrative complaint, and in doing so, explained the manner in which the date of delivery is determined. If you believe your employer engaged in retaliatory tactics in violation of state or federal whistleblower laws, you should consult a skilled New Jersey whistleblower attorney to help you formulate a plan to seek damages.
Reportedly, the plaintiff worked for the defendant railroad transportation company as a conductor and brakeman. He alleged the defendant placed emphasis on productivity over compliance with the rules of the Federal Railroad Administration (FRA). Specifically, he was encouraged by his supervisors to follow the rules less stringently. The plaintiff claimed he vigilantly followed the rules set forth by the FRA but was penalized for doing so via a reduction in his lunch periods and threats. He initially alerted the defendant’s internal investigation office regarding the retaliatory threats in October 2015 and he was advised in November 2015, that no action would be taken.
Allegedly, the plaintiff’s supervisors then advised him they were aware of his complaints and that he should follow the instructions he was given regardless of whether they were in compliance with the FRA rules and regulations. He was further advised he would face disciplinary consequences if he failed to listen to his supervisors. The plaintiff’s train, which he previously complained had defective brakes, ran through a switch, after which the plaintiff was suspended. He was told his suspension was meant to be a lesson and that he was warned he would face adverse consequences if he continued to ignore management’s goal of increased productivity.
Subsequent Action Taken by Plaintiff
The plaintiff filed an FRSA complaint with the Occupational Safety and Health Administration (OSHA) Whistleblower office, alleging that reporting unsafe railroad equipment was a protected activity, and the defendant’s retaliatory acts violated his rights. The plaintiff alleged he filed the complaint within 180 days of when he became aware of the retaliatory action, but an administrative judge dismissed his complaint as untimely. The plaintiff then filed a lawsuit in the District Court of New Jersey, arguing he had exhausted his administrative remedies. The defendant subsequently filed a motion to dismiss, arguing the plaintiff’s FRSA complaint was untimely and therefore, he could not recover.
Invoking the Mailbox Rule to Determine the Date of Delivery
The Department of Labor requires FRSA complaints to be filed within 180 days of the alleged violation. The date the complaint is sent, whether by mail, fax, e-mail, telephone call, or in person, will be the date the complaint is filed. The court noted that the failure to file an administrative complaint in a timely manner results in the waiver of the right to recover for the harm alleged. The court noted that a plaintiff can show the timely filing of a complaint either through direct evidence or through the “mailbox rule.” The mailbox rule provides that if mail is proven to have been given to a mailman or post office, it is presumed it reached its destination at the regular time and was received by the person to whom it was sent. To invoke the mailbox rule, a plaintiff must offer proof of mailing. If no proof of mailing is available, a plaintiff can introduce other evidence of mailing, but self-serving testimony alone is insufficient.
Here, the plaintiff alleged the complaint was mailed on May 10, 2016, but it was not acknowledged by OSHA until November 28, 2016. The 180-day period for filing a complaint expired on October 3, 2016. The plaintiff offered only affidavits from his attorney that an unnamed individual mailed the complaint on May 10, 2016, via regular mail. As the plaintiff offered no other evidence of timely mailing the court found he could not invoke the mailbox rule, and granted the motion to dismiss his lawsuit as untimely.
Confer with a Seasoned New Jersey Whistleblower Attorney
If you believe your employer retaliated against you for reporting inappropriate activity, it is important to retain a seasoned whistleblower attorney in a timely manner to avoid waiving your right to recover damages. The New Jersey Whistleblower attorneys of The Jaffe Glenn Law Group will advise you of each step of the process and work tirelessly to help you in your pursuit of compensation. Contact our office at 201-687-9977 or via our online form to set up a free and confidential consultation.