Donovan v. Hahner, Foreman & Harness, Inc., 83-1349

• Citation: 736 F.2d 1421
• Decision Date: 15 June 1984
• Docket Number: No. 83-1349,83-1349
• Parties: 11 O.S.H. Cas.(BNA) 1977, 1984-1985 O.S.H.D. ( 26,937 Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellee, v. HAHNER, FOREMAN & HARNESS, INC., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1421

736 F.2d 1421

11 O.S.H. Cas.(BNA) 1977, 1984-1985 O.S.H.D. ( 26,937

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Appellee, v. HAHNER, FOREMAN & HARNESS, INC., Appellant.

No. 83-1349.

United States Court of Appeals Tenth Circuit.

June 15, 1984.

Laura V. Fargas, Atty., U.S. Dept. of Labor, Washington, D.C. (Francis X. Lilly, Deputy Sol. of Labor, Frank A. White, Associate Sol., Washington, D.C., for Occupational Safety and Health, and Dennis K. Kade, Counsel for Appellate Litigation, U.S. Dept. of Labor, Washington, D.C., with her on the brief), for appellee.

Arthur S. Chalmers, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan. (Alan L. Rupe, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, Kan., with him on the brief), for appellant.

Before SETH, Chief Judge, and DOYLE and SEYMOUR, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

A. Legal Origin

This action arises out of Sec. 11(c) of the Occupational Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.). Originally, Wayne Kidd, a former employee of defendant-appellant Hahner, Foreman and Harness filed a complaint with the Secretary of Labor alleging that Hahner had discriminated against him by discharging him for exercising his rights under the Act.

B. Was the 30-Day Filing Requirement an Impediment?

The position of the appellant at the trial was that Kidd's complaint to the Secretary was filed beyond the 30-day time limit which is prescribed by statute. It is maintained by the defendant that this time limit is jurisdictional, the result of which is that a failure to conform to the 30-day limit deprives the court of jurisdiction. However, the trial court did not accept the proposition that it was without jurisdiction; rather the court held that the 30-day time limit was in the nature of the statute of limitations which was subject to equitable tolling. Based on the facts of the case, the trial court's holding was that the case was an appropriate one for equitable tolling. Accordingly, Kidd's complaint was timely. The trial court found for plaintiff on the merits of the case and held that defendant had violated the Act by discharging Kidd for engaging in activity protected by the Act.

C. Nature of the Injury and Facts Surrounding the Employment Termination

Wayne Kidd started to work for the defendant in 1979. He originally worked as a cement finisher foreman. In January, 1980, Kidd was working at defendant's "Shadyway" project. One Harold Rausch was the superintendent at that project.

Kidd was required as a cement finisher to work on scaffolding equipment. This consisted of two independently operated gondolas. Kidd and a man named Herman Thompson were using the gondolas but were unable to get them to operate properly. It was found by the trial court that Kidd's gondola was about to move upward while Thompson's gondola was descending despite the fact that the switch in Thompson's gondola was in the "up" position. Inasmuch as Thompson was unable to stop his gondola's descent, Kidd also switched his to the down position. At this time the platform which connected the two gondolas was at a 45 degree angle. Kidd reported the problem to Rausch, the project supervisor.

At a later date, January 16, Kidd and one Jack Houseberg were using the scaffolding and gondolas. Again the gondolas malfunctioned. At that time Houseberg and Kidd were some three or four stories above the ground.

This condition was reported by Kidd to Rausch, who eventually was able to get the machinery working again, after which he ordered Kidd and Houseberg to go back up. Both of them stated that they refused and would continue to do so until the machinery was properly examined. Rausch instructed Kidd that if he did not go back up on the gondola that he would find someone who would. He also told Kidd that he was fired.

Kidd then contacted a Mike Simpson, an employee of the Building and Construction Trade Safety Project of Wichita. He came to the site and talked with both Rausch and Kidd. After the meeting with Rausch, Simpson told Kidd that he was not fired but was laid off for lack of work until the scaffolding was repaired. Kidd also talked with another employee of defendant in an effort to ascertain his job status. This employee could not determine it.

Kidd's testimony at the trial was that he believed that he had been laid off. His attempt to find work elsewhere was not successful. Therefore, he filed for unemployment in February of 1980. On March 15, 1980, Kidd received a letter from the Kansas Employment Service. This letter advised him that defendant was challenging his benefits on the ground that Kidd had been terminated.

The next step that Kidd took was to file a complaint with OSHA alleging a violation of Sec. 11(c) which provides that:

No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter * * * or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

29 U.S.C. Secs. 660(c)(1).

This cited statute also provides the procedures and time limits for filing such a complaint. The Act provides that any employee who feels that he or she was discriminated against by any person may, within 30 days after such violation occurs, file a complaint with the Secretary, alleging the discrimination. 29 U.S.C. Sec. 660(c)(2).

D. The Issue of Right to Refuse to Work Under Hazardous Conditions

The right which Kidd maintained that he was being deprived of was the limited right to refuse to work under circumstances which involved a hazardous condition. This was pursuant to 29 C.F.R.1977.12(b). This regulation provides that occasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace. If the employee does not have any reasonable alternative, and refuses in good faith to expose himself to the dangerous condition, he would be protected. That regulation has been upheld in Marshall v. Whirlpool Corp., 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed. 154 (1980).

E. The Trial Court's Decision

In essence, this was the issue that the trial court considered, and as indicated above, the finding was in favor of plaintiff. At the outset the trial court rejected the contention that the 30-day time limit for filing was a jurisdictional prerequisite. The holding was that the 30-day time limit was in the nature of a statute of limitations subject to equitable tolling. Also, on the facts, the trial court held that the case was an appropriate one for equitable tolling because the defendant had misled Kidd into believing he had only been laid off. Finally, the court held that the defendant had violated the Act in discharging Kidd. Appeal followed, with defendant challenging all these rulings, and we must consider them on a separate basis.

The threshold, and perhaps the most important issue in the case, is the ruling that the time limitation set forth in 29 U.S.C. Sec. 660(c)(2) was a statute of limitations subject to equitable tolling, rather than a jurisdictional provision to be used as a preventive measure. 29 U.S.C. 660(c)(2) provides, "Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary, alleging such discrimination." The defendant's argument is that this 30-day time limit is a jurisdictional prerequisite, as noted above. In other words, the defendant takes the position that Kidd was discharged on January 16, 1980, but failed to file a complaint with the Secretary until April 3, 1980, or more than thirty days after his discharge. According to the defendant, in view of the fact that the 30-day time limit is jurisdictional, plaintiff's action is time barred. The trial court, however, ruled that this 30-day time limit was a statute of limitations subject to tolling. We agree.

There has been only one federal court case on this issue, and that is Donovan v. Peter Zimmer America, Inc., 557 F.Supp. 642 (D.S.C.1982). The district court's ruling was that the 30-day time limit was a statute of limitations subject to equitable tolling. Both the court in Peter Zimmer and the court below analogized the question presented to the issue presented in Zipes v. Trans World Airlines, 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982), a Title VII case. In the Zipes case the Supreme Court had the question before it whether the time limit for filing a complaint with the EEOC under Title VII of the Civil Rights Act of 1964 was a jurisdictional prerequisite or a statute of limitations. The Court in Zipes, held that the 180-day limit for an individual to file with the appropriate administrative agency was a statute of limitations subject to waiver, estoppel and equitable tolling. The Court relied on the congressional policy underlying Title VII, the reasoning of other cases and the structure of Title VII. After applying these factors to the Occupational Safety and Health Act, this court must come to the conclusion that the time limit specified in 29 U.S.C. Sec. 660(c)(2) is also a statute of limitations subject to waiver, estoppel and equitable tolling. This is not the first time that Title VII has been used as an analogy in an Occupational Safety and Health Act case. See, e.g., Donovan v. Square D Co., 709 F.2d 335 (5th Cir.1980), and Marshall v. Intermountain Electric Co., 614 F.2d 260 (10th Cir.1980).

The court must first address the congressional policy underlying the Act. As was noted by the trial court the history of the Act does not shed any light on this specific question. However, the underlying purpose of the Act is clear:

The Congress declares it to be its...