Madison v. U.S. Dept. of Labor, Administrative Review Bd.

Bd. did not err in dismissing as untimely plaintiff’s appeal of ALJ’s order granting defendant employer’s motion for summary judgment in action alleging that defendant fired plaintiff in retaliation for filing complaint with OSHA. Applicable rules required that plaintiff file petition for review of ALJ’s decision within 14 days of date of decision, and record showed that said petition was not filed until 25 days after date of decision. Moreover, while record showed that decision was mailed to plaintiff’s old address, and that plaintiff’s attorney did not receive ALJ’s decision until the last day of filing period, plaintiff could not invoke equitable tolling to render her petition timely, since: (1) plaintiff’s counsel received email five days prior to deadline that alerted counsel to fact that ALJ had rendered decision in case; and (2) plaintiff’s counsel failed to either file petition or file motion seeking extension of time to file said petition within remaining five days of filing period.