[Note: On October 31, 2007 the ARB reissued this decision, making slight revisions to the penultimate paragraph. See
Baughman v. J.P. Donmoyer, Inc., ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Oct,. 31, 2007)]
ARB CASE NO. 05-105
ALJ CASE NO. 2005-STA-005
DATE: September 28, 2007
In the Matter of:
ROBERT J. BAUGHMAN,
COMPLAINANT,
v.
J.P. DONMOYER, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Thomas L. Wenger, Esq., Wix, Wenger & Weidner, Harrisburg, Pennsylvania
For the Respondent:
Adam R. Long, Esq., McNees, Wallace & Nurick LLC, Harrisburg, Pennsylvania
FINAL DECISION AND ORDER
Robert J. Baughman
filed a complaint with the United States Department of Labor in which he
alleged that his former employer, J. P. Donmoyer, Inc., violated the employee
protection section of the Surface Transportation Assistance Act (STAA or the
Act)[1]
when it terminated his employment. After a hearing, a Labor Department
Administrative Law Judge (ALJ) concluded that Donmoyer did not violate the
Act. Baughman appealed. We affirm.
[Page 2]
Background
Donmoyer is a
company that transports limestone and limestone products. Donmoyer hired
Baughman in January 2002 to drive trucks to which trailers are attached.[2]
Baughman was dispatched on
Thursday, March 20, 2003, to the Hanover Quarry in Pennsylvania at
approximately 7:00 or 7:30 a.m. to pick up a load of pebble rock. While it
only took Baughman one hour to get to Hanover, he had to wait until 3 or 4 p.m.
before the pebble rock was loaded. As Baughman was pulling
out of the quarry, he noticed a loose strap through his mirror and thought that
if the strap was not tight he could “lose that skid or the load.”[3] Baughman
testified that he began to pull off the road, going about 4 or 5 miles per hour,
when the road “gave way.” One side of the truck and part of the trailer went
into a ditch.
Baughman contacted
Chris Eckman, the Donmoyer daytime dispatcher, at
approximately 4:30 p.m. to notify him of the incident. Baughman testified that
he stayed in contact with Donmoyer throughout the
ordeal, with the last contact occurring at approximately 10:30 p.m. According
to Baughman,
he returned to Donmoyer’s terminal at about 2 a.m. on Friday, March
21. Baughman checked his mailbox and retrieved a dispatch for a
3-stop run to Brooklyn, New York. Baughman thought that he had to begin this
trip immediately.[4] He testified that
he told Stephen Copp, the night dispatcher, “I’m tired, and
I ain’t got the hours to work” and that he could not take the trip to New York.[5]
But Copp
testified that Baughman told him he could not take the New York trip because he
was “not in the mood.”[6] After speaking with Copp, Baughman
left the
terminal and called Copp at 2:14 a.m. from his personal vehicle to verify that
he had been taken off duty.[7] At this time, according to
Baughman, he also informed Copp that he was sick.
[Page 3]
Later that
morning, the Donmoyer Safety Committee met and decided to terminate Baughman
for having three accidents in thirty days.[8] The Safety Committee consisted of Greg Myers, Frank
Costanza, Jim Kretz, Mike Eggbert, and Joyce Houser.[9]
Later
that day, Baughman called to check on his next assignment. Eckman told
him to come in on Monday, March 24th, between 8 and 9 a.m.
When Baughman arrived on the
24th, Stephen Fields, Baughman’s supervisor and Donmoyer’s Operations
Manager, motioned him into Myers’s office, where Fields told him that it was in
his own and the company’s best interest for his employment to be terminated.[10] Baughman
testified
that when he asked why, Fields informed him that it was because he refused to
take the New York trip.[11] Myers testified that neither
he nor Fields told Baughman that he was being discharged for
refusing the New York trip.[12]
Baughman filed
a STAA complaint with the United States Department of Labor on September 19,
2003. The Labor Department’s Occupational Safety and Health Administration investigated
and found that the complaint had no merit. Baughman requested a hearing. The
ALJ concluded that Donmoyer did not violate the Act. Baughman appealed.
Jurisdiction and Standard of Review
The Secretary of
Labor has delegated to the Administrative Review Board (ARB or the Board) the
authority to issue final agency decisions under, inter alia, the STAA and the
implementing regulations at 29 C.F.R. Part 1978 (2007).[13]
This case is before the Board pursuant to the automatic review provisions found
at 29 C.F.R. § 1978.109(a).
When reviewing
STAA cases, the ARB is bound by the ALJ’s factual findings if they are
supported by substantial evidence on the record considered as a whole.[14]
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a
[Page 4]
conclusion.”[15]
We must uphold an ALJ’s finding of fact 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.[16]
Discussion
The STAA
protects employees who engage in protected activity from discharge, discipline,
and discrimination. STAA protected activity occurs when the employee files a
complaint or begins a proceeding related to a violation of a commercial motor
vehicle safety regulation, standard, or order, or when an employee testifies or
will testify in such a proceeding. The STAA also protects employees who refuse
to drive because to do so would violate a regulation, standard, or order of the
United States related to commercial motor vehicle safety or health. An
employee who refuses to drive because of a reasonable apprehension of serious
injury to himself or the public because of the vehicle’s unsafe condition is
also protected.[17]
To prevail on
his STAA complaint, Baughman must prove by a preponderance of the evidence that
he engaged in protected activity, that Donmoyer was aware of the protected
activity, that he suffered an adverse action, and that Donmoyer took the
adverse action because of his protected activity.[18]
Protected Activity
When Baughman
returned to the terminal at 2:00 a.m. on March 21 and found out about his new
assignment, he had been on duty since 7:30 a.m. the previous morning,
approximately 18 hours. The ALJ found that had Baughman taken the New York trip, he would have violated the United States Department of Transportation (DOT)
hours of service regulation. In 2003, that regulation prohibited a driver from
driving for any period after having been on duty for 15 hours.[19]
Despite Baughman’s testimony that he told Copp that he would not take the New York trip because he was tired and out of hours, the ALJ found that Baughman told Copp
that he was
[Page 5]
refusing the trip because he was “not in the mood.” Therefore, the
ALJ concluded that Baughman did not engage in STAA protected activity.[20]
In so
concluding, the ALJ credited Copp’s testimony because of phone log entries Copp
made in the early hours of March 21. Copp made contemporaneous entries when a driver
called or came to the dispatch window. Thus, Copp recorded a driver calling
just after midnight on the 21st who told him that he did not have enough
hours. Copp’s log indicates that he called around and found a replacement to
take the driver’s assignment.[21]
The next log entry for March 21 indicates that Copp talked to Baughman at the
dispatcher’s window at 1:45 a.m. and that Baughman told him he was not going to
work that day because “[h]e is not in the mood.” Copp’s entry also says that
Baughman told him that he “will just get in [his] truck and call off sick.”[22]
The ALJ reasoned
that had Baughman claimed to be out of hours as a reason for refusing the load,
Copp would have recorded Copp’s proffered reason in the log just as he had done
an hour earlier with the other driver. Baughman argues that the ALJ erred
because he did not make credibility determinations.[23]
We agree that credibility findings as to Baughman and Copp would have been
helpful in determining whether Baughman told Copp that he was refusing the New
York trip because he was tired and out of hours. Even so, we accept the ALJ’s
finding that Baughman did not inform Copp about his lack of hours because
substantial evidence supports that finding.
Furthermore,
even if the ALJ erred in not determining whether Copp was credible, Baughman
nevertheless engaged in STAA protected activity. Baughman argues that after he
left the terminal on the 21st, he called Copp from his truck and informed him
that he was refusing the New York assignment because he was sick. Baughman
claims that this constitutes protected activity because DOT regulations forbid
driving while sick, ill or fatigued.[24]
The record
supports Baughman’s argument that he informed Copp that he was sick. Copp’s
own log verifies that Baughman told him that he was going to call in sick.[25]
Therefore,
[Page 6]
we find that Baughman informed Copp that he refused the New York assignment because to do so would violate the DOT prohibition against driving when
sick. Thus, we conclude that Baughman engaged in STAA-related protected
activity.
Employer Knowledge
To succeed on his STAA
complaint, Baughman must also prove by a preponderance of the evidence that the
Donmoyer officials who decided to terminate his employment knew that he refused
to take the New York trip. The ALJ found that the Safety Committee did not
know that Baughman refused to take that trip. Substantial evidence supports
this finding.
Baughman argues
that the Safety Committee must have known that he refused the trip because, according
to Copp’s log, Fields called Copp “for updates” at 6:05 a.m. on Friday, March
21. Therefore, Baughman argues, in updating Fields, Copp would have told him
that Baughman refused the New York trip and Fields, in turn, would have relayed
this information to Houser, a Safety Committee member.[26]
But Copp’s contemporaneous log indicates that when Fields called him for
updates, Copp discussed a separate incident that involved another driver whose
truck had partially submerged into a sink hole.[27]
The record
contains no evidence that Copp communicated Baughman’s refusal to Fields or
that Fields communicated the refusal to the Safety Committee. Both Houser and
Myers testified that they did not know about Baughman’s refusal, that his refusal
was not discussed in the Safety Committee meeting, and that the refusal did not
play a role in Baughman’s termination. Therefore, Baughman’s argument that the
Safety Committee knew about his refusing the New York trip is only
speculation. Thus, Baughman did not prove by a preponderance of the evidence
that the Donmoyer officials who decided to terminate him knew about his refusal
to take the New York assignment.
Baughman’s Other Arguments
Exhibits
Baughman argues
that the ALJ “disregarded” or “set aside” certain exhibits; to wit, Claimant’s
Exhibits (CX) 7, 8, 11, 12, and 14.[28]
Baughman, however, offers no evidence to support this argument. The ALJ
admitted sixteen exhibits into evidence.[29]
After examining the
[Page 7]
exhibits, the ALJ decided that CX 11, 12, and CX 14 were
not helpful and that CX 7 and CX 8 were relevant only for damages.[30]
Thus, the ALJ did not “disregard” these exhibits.
The Pennsylvania Unemployment Compensation Determination
Baughman filed
an unemployment compensation claim shortly after Donmoyer terminated his
employment. Donmoyer did not oppose this claim. On or about April 4, 2003,
the Pennsylvania Department of Labor determined that Donmoyer discharged
Baughman for insubordination in refusing to take the New York trip. According
to the Notice of Determination, Baughman showed that he had good cause for
refusing the trip and was therefore entitled to unemployment benefits.[31]
Baughman contends that the ALJ erred because he did not defer to that decision
and accord it probative weight.[32]
STAA
regulations, which Baughman did not cite, permit an ALJ to defer to the outcome
of other proceedings in limited circumstances.[33]
But Baughman did not argue this point to the ALJ. In his post-hearing brief, Baughman
argued only that the ALJ should find that he filed the unemployment claim, was
granted benefits, and that Donmoyer did not oppose the decision to grant
benefits. Baughman did not refer to the STAA regulations permitting an ALJ to
defer to the outcome of the unemployment proceedings. In fact, he did not
argue that the ALJ should defer.[34]
Under our well-established precedent, we decline to consider an argument that a
party raises for the first time on appeal and therefore will not consider
Baughman’s argument concerning deference.[35]
[Page 8]
Conclusion
Baughman did not
prove by a preponderance of the evidence, as he must, that the Donmoyer
officials who decided to terminate his employment knew about his protected
activity in refusing to take the New York trip because he was ill. Therefore,
we must DENY this complaint.
SO ORDERED.
Oliver M. Transue
Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105 (a) (West 1997). The STAA has been amended since
Baughman filed his complaint. See Implementing Recommendations of the
9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). Even
if the amendments were applicable to this complaint, they would not affect our
decision.
[2] Donmoyer Brief at 4, 6-7.
[3] Tr. at 21.
[4] Tr. at 32.
[5] Tr. at 33.
[6] Tr. at 127.
[7] Tr. at 33; RX 3 at 1 (Copp’s log).
[8] Baughman admitted
to having two other traffic accidents. Tr. at 39. The first accident occurred in Worchester, Connecticut, on February 27, 2003. The second accident occurred on March 17, 2003.
[9] R. D. & O. at 6.
[10] Tr. at 35-36.
[11] Tr. at 36.
[12] Tr. at 158.
[13] Secretary’s Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
[14] 29 C.F.R. § 1978.109(c)(3) (2006); Lyninger v. Casazza Trucking
Co., ARB No. 02-113, ALJ No. 01-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
[15] Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[16] See Universal Camera Corp., 340 U.S. at 488; McDede
v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 03-STA-012,
slip op. at 3 (ARB Feb. 27, 2004).
[17] See 49 U.S.C.A. § 31105 (a).
[18] Ridgley v. C. J. Dannemiller, ARB No. 05-063, ALJ No. 04-STA-053, slip op. at 5 (ARB
May 24, 2007).
[19] 49 C.F.R. § 395.3(a)(2) (2002).
[20] R. D. & O. at 13, 14 n.11.
[21] RX 3 at 1.
[22] RX 3 at 1.
[23] Brief at 6-8.
[24] Brief at 16-19. A driver shall not operate, and a carrier shall not
require or permit a driver to operate, a commercial motor vehicle while the
driver’s ability or alertness is impaired through “fatigue, illness, or any
other cause, as to make it unsafe.” 49 C.F.R. § 392.3 (2002).
[25] See RX 3 at 1 (At 1:45 a.m. Baughman told Copp that “He will
just get in the truck and call off sick from the truck.”).
[26] Brief at 15; RX 11 (Fields’s Dep.) at 24-25.
[27] RX 3 at 2 (“6:05: S Fields called for updates. Told him of Butler
Situation and what I did with Taylor. He said the Butler customer really
needed it today, because of him renting a crane.”).
[28] Brief at 5, 21, 23.
[29] R. D. & O. at 1. n.2.
[30] R. D. & O. at 10 n.7.
[31] CX 7.
[32] Brief at 21-22.
[33] See 29 C.F.R. § 1978.112 (c); Peters v. Hal Indus., ARB
No. 02-045, ALJ No. 2002-STA-002, slip op. at 4-5 (ARB July 30, 2003).
[34] Complainant’s
Suggested Findings of Fact and Conclusions of Law at 3.
[35] See Rollins v. Am. Airlines, Inc., ARB No. 04-140, ALJ
No. 2004-AIR-009, slip op. at 4 n.11 (ARB Apr. 3, 2007 (corrected)); Carter
v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-023, slip op. at 7
(ARB Sept. 29, 2006).
