ARB CASE
NO. 05-055
ALJ CASE
NO. 2004-STA-0036
DATE:
July 31, 2006
In the Matter of:
LOUIS MURPHY,
Complainant,
v.
ATLAS MOTOR COACHES, INC.,
Respondent
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
Louis
Murphy filed a whistleblower complaint with the U. S. Department of Labor
alleging that his employer, Atlas Motor Coaches, Inc., violated the employee
protection provisions of the Surface Transportation Assistance Act (STAA). The
STAA prohibits certain employers from retaliating against employees who
complain about or report violations of commercial motor vehicle safety
requirements.
After a hearing, a Department of Labor Administrative Law Judge (ALJ)
recommended that Murphy's complaint be dismissed. We automatically review an
ALJ's recommended STAA decision.
Since substantial evidence supports the ALJ's recommendation, we deny Murphy's
complaint.
[Page 2]
BACKGROUND
Atlas
is located in Orlando, Florida and at all relevant times was in the business of
providing bus transportation for tourist groups. In April 2003 it hired Murphy
to drive buses. Approximately one month later, Murphy began to notice that the
speedometers on some of the Atlas buses he drove did not function correctly. He
also found other mechanical problems and roach infestation. Up to the time he
was fired, Murphy continuously noted these deficiencies on the vehicle
inspection reports that he turned in to Atlas managers. Transcript (TR) 57-61,
124.
On
July 21, 2003, Murphy informed Atlas's dispatcher that bus #11 had an oil
leak. He also noted the leak on a vehicle inspection report that he handed to
the dispatcher. Beginning the next day, Murphy was assigned bus 11 for a three
day job shuttling tourists from the Miami Convention Center to local hotels.
While performing his pre-trip inspection of bus 11, he found that the oil leak
had not been fixed. He complained about the leak to two mechanics that were on
duty. He also noted the problem on a vehicle inspection report. He left Orlando in bus 11 at three a.m. and headed for Miami. En route, Murphy called Keith
Drake, Atlas's Operation Manager, and informed him of the oil leak. TR
62-73.
On
the next day, July 23, Murphy was cleaning out bus 11 after finishing his
driving. He found a cell phone. From the phone's menu he found a listing for "me
casa" (my house) and, using the cell phone, dialed that number. According
to Murphy, a woman answered. She told him that she was a deputy sheriff in Osceola County, near Orlando, and that she was relieved to hear that he had the phone. Murphy
testified that the woman told him that her son, who was at the Busch Gardens summer camp in Orlando, had not called her on the cell phone for three or four
days and this had scared her to death. Murphy testified that he told her that
he was in Miami but gave her Atlas's address and phone number so that she could
retrieve the phone once he got back to Orlando. Murphy testified that he only
made that one call on the cell phone. Murphy said that on the same day that he
found the phone, he used another phone to call the Atlas office in Orlando to report finding the cell phone. TR 92-95, 100, 154, 157.
Bus
11 broke down in Miami the next day, July 24. Murphy returned to Orlando on a bus driven by another Atlas driver. Upon arriving, Hugh Conner, an Atlas
dispatcher, confronted Murphy and asked for the cell phone. Conner told Murphy
that a woman had come to Atlas earlier to get her phone. He also questioned
Murphy about making additional calls on the cell phone. Murphy gave the phone
to Conner and left for a previously arranged three day vacation. TR 96.
Mr.
Juan Perez, Atlas's owner and president, gave a different version of the cell
phone incident. He testified that Murphy did not report finding the phone
until just before he arrived back in Orlando from Miami on July 24. TR 170, 172.
He testified further that a woman, later identified as Maria Diaz Curtis, had
called the Atlas office
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after she had spoken to Murphy. She asked that someone
get in touch with Murphy in order to retrieve the phone. According to Perez, Curtis
told Atlas that she had made numerous attempts to locate the lost cell phone,
but when she dialed the phone number, she kept getting a busy signal. Then she
got the call from Murphy. In a follow up letter she sent to Atlas, Curtis told
Atlas that she was very upset. Her letter states that she did not believe
Murphy's explanation to her that he had found the phone on July 23. TR
170-171: Respondent's Exhibit 1.
The
record is unclear, but it appears that Curtis told Atlas that she thought that
Murphy stole the phone. TR 169 (Perez testifying that he fired Murphy "due
to an incident that happened with a stolen property as reported by an Orange
County Sheriff's officer."). Perez testified that Curtis also reported
her concerns about the cell phone incident to Busch Entertainment, Atlas's main
client. Perez stated that Busch Entertainment subsequently informed him on or
about July 27 that it did not want Murphy to drive on any routes for which it
contracted with Atlas. Therefore, Perez decided to fire Murphy because he did
not "condone people who actually take private property from someone else"
and because his main client did not want Murphy to drive for Atlas anymore. TR
172-173, 187. Perez stated that he did not fire Murphy because of the safety
deficiencies Murphy noted in the vehicle inspection reports. TR 179.
JURISDICTION AND STANDARD OF REVIEW
The
Secretary of Labor has delegated to the Administrative Review Board the
authority to
issue final agency decisions under the STAA and the implementing regulations at
29 C.F.R. Part § 1978.
Under the STAA, the Administrative Review Board (ARB) is bound by the ALJ's
factual findings if substantial evidence on the record considered as a whole
supports the findings.
Substantial evidence is that which is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion."
We must uphold an ALJ's factual finding that is supported by substantial
evidence even if there is also substantial evidence for the other party and
even if we "would justifiably have made a different choice had the matter
been before us de novo."
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In
reviewing the ALJ's legal conclusions, the ARB, as the Secretary's designee,
acts with "all
the powers [the Secretary] would have in making the initial decision . . . ."
Therefore, we
review the ALJ's legal conclusions de novo.
DISCUSSION
As
noted above, the STAA provides that an employer may not "discharge,"
"discipline" or
"discriminate" against an employee-operator of
a commercial motor vehicle "regarding
pay, terms, or privileges of employment"
because the employee has engaged in certain protected activity. The protected
activity includes filing a complaint or beginning a proceeding "related to a violation of a
commercial motor vehicle safety regulation, standard, or order."
To prevail on this STAA claim, Murphy must prove by a preponderance of the evidence
that he engaged in protected activity, that Atlas was aware of the protected activity,
that Atlas took an adverse employment action against him, and that a causal
connection exists between the protected activity and the adverse action.
Both
parties were pro se before the ALJ and both are pro se before
us. Despite being invited to do so, neither party filed a brief. Murphy
contended below that he was fired because he reported safety-related
deficiencies concerning Atlas's buses. He also claims that Atlas blacklisted
him. Atlas argued below that it fired Murphy because of the cell phone
incident and because of the fact that its major client, Busch Entertainment,
asked it not to let Murphy drive. Recommended Decision and Order (R. D. &
O.) at 2.
The
parties stipulated that the STAA applies to this case. Furthermore, they
stipulated that Murphy engaged in protected activity when he made internal
complaints relating to safety discrepancies and that Atlas was aware of this
protected activity. They also stipulated that Atlas terminated Murphy on or
about July 27, 2003. Id. Thus, the only issue before the ALJ was
whether Murphy proved by a preponderance of the evidence that Atlas terminated
and blacklisted him because of protected activity.
[Page 5]
The
ALJ found that Perez's testimony that he fired Murphy because of the circumstances
surrounding the cell phone incident and Busch's request not to employ Murphy evidenced
legitimate, nondiscriminatory reasons. R. D. & O. at 7. Therefore, Murphy
had the burden of proving by a preponderance of the evidence that these reasons
were false and that the protected activity was the real reason for the
termination and blacklisting. But since Murphy offered no evidence whatsoever
that Atlas's reasons were false or that his protected activity played any part
in the decision to fire him, the ALJ concluded that Atlas did not retaliate
because of protected activity. Furthermore, the ALJ found that Murphy adduced
no evidence that Atlas blacklisted him. Therefore, he recommended that Murphy's
complaint be dismissed. R. D. & O. at 7-8.
We
have thoroughly reviewed this record. Substantial evidence supports the ALJ's
finding that Murphy did not prove that Perez's reason for terminating him was a
pretext. Murphy and Perez were the only witnesses at the hearing. Their
versions of the cell phone incident differ and the ALJ did not make a
credibility determination. According to Murphy, he did not steal the cell
phone. When he found it on July 23, he called Curtis and she was happy to hear
that he had found the phone. Murphy testified that he only used the phone one
time, and that was to call Curtis. Furthermore, he testified that he informed
Atlas on July 23 that he found the phone.
On
the other hand, Perez testified that Curtis was angry because she believed that
Murphy had found the phone and used it before calling her to tell her he had
found it. And when Curtis told Busch Entertainment about the incident, and
Busch then demanded that Murphy not work on its contract, Perez decided that he
had to fire Murphy. The ALJ accepted Perez's version of the events surrounding
the cell phone incident when Murphy could not demonstrate by a preponderance of
the evidence, as he must, that the Perez version was false. Therefore, the
Perez version constitutes substantial evidence, and we must uphold the ALJ's
finding that Atlas fired Murphy for legitimate, non-discriminatory reasons.
As
to Murphy's claim that Atlas blacklisted him, the ALJ found that Murphy adduced
no evidence to support this claim. R. D. & O. at 8. We have already
stated that, to succeed, Murphy must prove by a preponderance of the evidence
that Atlas blacklisted him because he engaged in protected activity. Murphy
testified that after leaving Atlas, he applied for a position at another
company and talked to a person who also had formerly worked at Atlas. Murphy
stated that when he told this person his name, he "kind of brushed me off."
TR 120. Murphy had a "gut feeling" that Atlas was blacklisting him,
but he had "no factual proof." TR 121.
This Board has defined the elements of a blacklisting
claim:
Blacklisting
occurs when an individual or a group of individuals acting in concert
disseminates damaging information that affirmatively prevents another
person from finding employment. . . . In addition, blacklisting requires
an objective action–there must be evidence that a specific act of blacklisting
occurred. Subjective feelings on the part of a complainant toward
an employer's action are insufficient to establish that any actual blacklisting
took place.
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Thus,
since Murphy offered no specific act of blacklisting but only a "gut
feeling" to support his blacklisting claim, the ALJ correctly concluded
that Murphy did not prove that Atlas blacklisted him.
CONCLUSION
We DENY Murphy's STAA complaint because
substantial evidence supports the ALJ's finding that Atlas fired him for
legitimate, non-discriminatory reasons, not for protected activity. Murphy's
blacklisting claim fails because he did not adduce objective evidence that
Atlas blacklisted him.
SO ORDERED.
OLIVER
TRANSUE
Administrative
Appeals Judge
M.
CYNTHIA DOUGLASS
Chief
Administrative Appeals Judge