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Engineer’s petition over dismissal of retaliation charge untimely

Posted On: May. 13, 2019 10:19 AM CST

train engineer

A train engineer missed his deadline to file an appeal over the dismissal of his lawsuit alleging he was fired for reporting a workplace safety violation.

In Sparre v. U.S. Department of Labor, a three-judge panel of the 7th U.S. Circuit Court of Appeals unanimously affirmed on Friday an administrative review board’s denial of the engineer’s petition for review of his complaint.

John Sparre worked for Norfolk Southern Railway Co., based in Norfolk, Virginia, and in March 2010, reported a safety violation to the Federal Railroad Administration that resulted in a $8,000 fine against the railroad company. In November 2014, Mr. Sparre was terminated for excessively exceeding the speed limit while operating a train. He filed a complaint with the U.S. Occupational Safety and Health Administration alleging that he was terminated in retaliation for his 2010 safety complaint. OSHA investigated his complaint but found that it had no merit and dismissed.

Mr. Sparre then requested a hearing in front of an administrative law judge, who granted Norfolk’s motion for summary judgment after finding no evidence that Mr. Sparre’s protected activity was a contributing factor in the railroad company’s decision to terminate him four years later. The ALJ’s decision also provided a 14-day timeline in which Mr. Sparre could petition for review. He filed his appeal 30 days later with the 7th Circuit rather than petitioning to the Administrative Review Board.

The U.S. Department of Labor moved to dismiss his claim for failing to exhaust his administrative remedies, which the appellate court remanded to the board. The board agreed with the Department of Labor and issued a final order affirming the administrative law judge’s decision.

Mr. Sparre appealed again, but the appellate court again dismissed his appeal as untimely. The court held that Mr. Sparre missed the fining date by 16 days, and found that the board’s reasoning for finding the appeal untimely was not arbitrary or capricious.

Although Mr. Sparre said his delay in filing was due to extraordinary circumstances, the board found that this “smorgasbord of arguments” failed to show extraordinary circumstances, and the appellate court agreed.

The court, therefore, denied Mr. Sparre’s petition for review and affirmed the board’s dismissal of his petition.

John Duffey, a partner with Stuart & Branigin LLP in Lafayette, Indiana, who represented Norfolk, said the court made a good decision. The attorney for Mr. Sparre did not immediately return a call for comment.