Guerra v. Consolidated Rail Corp, No. 18-2471 (3d Cir. 2019)Annotate this Case
The Federal Railway Safety Act (FRSA) provides that if railroad carriers retaliate against employees who report safety violations, the aggrieved employee may file a complaint with OSHA within 180 days after the alleged retaliation, 49 U.S.C. 20109(d)(2)(A)(ii). The Secretary of Labor then has 210 days to issue a final decision. If the Secretary takes too long, the employee may file suit. Guerra, a Conrail conductor and brakeman, alleged that Conrail urged him to ignore safety regulations. When he refused, Conrail threatened him and eliminated incidental perks of his job. Guerra reported this to Conrail’s compliance office. He says he was told that if he kept reporting safety issues, there would be “undesirable consequences.” Soon after Guerra filed complaints about allegedly defective braking systems, a train Guerra was operating failed to brake properly and ran through a railroad switch. On April 6, 2016, Conrail notified Guerra that he would be suspended. On May 10, Guerra’s attorney, Katz, allegedly filed a FRSA complaint. Receiving no response, on November 28, Katz followed up with OSHA by email. OSHA notified Guerra that his claim was dismissed as untimely because OSHA first received Guerra’s complaint 237 days after the retaliation. Guerra attempted to invoke the common-law mailbox rule’s presumption of delivery. The district court dismissed for lack of jurisdiction. The Third Circuit affirmed on other grounds. FRSA’s 180-day limitations period is a non-jurisdictional claim-processing rule. Guerra’s claim still fails because he has not produced enough reliable evidence to invoke the common-law mailbox rule.