ARB CASE NO. 06-072
ALJ CASE NO. 2003-STA-28
DATE: August 30, 2006
In the Matter of:
ROBERT PALMER,
COMPLAINANT,
v.
TRIPLE R TRUCKING,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Complainant:
Robert
Palmer, pro se, Avalon, California
FINAL DECISION AND
ORDER
Robert Palmer filed a complaint under the employee
protection provisions of the Surface Transportation Assistance Act of 1982
(STAA), as amended and recodified, 49 U.S.C.A. § 31105 (West 1997), alleging
that Triple R Trucking fired him in violation of the STAA. A United States Department
of Labor Administrative Law Judge (ALJ) concluded that Triple R violated the
STAA and ordered Triple R to pay damages. On appeal, the Administrative Review
Board (ARB) affirmed the ALJ on the issue of liability, but vacated the damages
award and remanded the case for further proceedings. Palmer v. Triple R
Trucking, ARB No. 03-109, ALJ No. 03-STA-28 (Aug. 31, 2005).
The ALJ’s March 10, 2006 Recommended Decision and
Order (R. D. & O.) on Remand is now before the ARB pursuant to the
automatic review provisions of 49
[Page 2]
U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. §
1978.109(a)(2004).[1]
We affirm the ALJ’s damages award but modify the monetary amount.
Jurisdiction and Standard of Review
The Secretary of Labor has delegated her jurisdiction to
decide this matter to the ARB. See Secretary’s Order 1-2002, 67 Fed.
Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1978.109(c). Under
the STAA, the ARB is bound by the ALJ’s fact findings if substantial evidence
on the record considered as a whole supports those findings. 29 C.F.R. §
1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ
No. 01-STA-38, slip op. at 2 (ARB Feb. 19, 2004).
In reviewing the
ALJ’s conclusions of law, the ARB, as the Secretary’s designee, acts with “all
the powers [the Secretary] would have in making the initial decision . . . .”
5 U.S.C.A. § 557(b) (West 1996). Therefore, we review the ALJ’s conclusions of
law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th
Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos.
01-STA-22, 29, slip op. at 2 (ARB Oct. 31, 2003).
BACKGROUND
Palmer, an
owner-operator truck driver located in California, made three deliveries for
Triple R, headquartered in Mississippi, between February 7 and 17, 2003.
Triple R’s president, Charles Richard, refused to engage Palmer’s services after
Palmer threatened to complain to the United States Department of Transportation
(DOT) that Triple R had failed to arrange for him to take the DOT-required road
driving test, drug screen, and physical examination.[2]
Following an evidentiary hearing at which Triple R did not appear, the ALJ
found that Palmer engaged in activity the STAA protects by threatening to
report the company’s failure to provide the DOT-required tests, 49 U.S.C.A. §
31105(a)(1)(B)(ii), and concluded that Triple R terminated its relationship
with Palmer in retaliation for his protected activity.
[Page 3]
We affirmed the
ALJ’s conclusion that Triple R violated the STAA, but remanded the case for the
ALJ to consider reinstatement and to obtain additional evidence on damages. Palmer,
slip op. at 5. We noted that the ALJ might have to recalculate the amount of damages
to which Palmer is entitled, given the scant evidence of Palmer’s earnings with
Triple R, his ten-day employment, the lack of any agreement for future work,
and the passage of considerable time since the complaint. Id.
On remand, the
ALJ notified Palmer and Triple R of a supplemental hearing, which was held on
October 27, 2005. Palmer appeared at the hearing, but again Triple R did not,
and therefore his version of the facts remains unchallenged. Palmer testified
that he would not have gone back to work for Triple R because of the
“acrimonious dealings” with Richard over the required DOT testing. Hearing Transcript (TR) at 51, 53,
59. Palmer added that he was then 60 years old and would have kept on
driving until he reached 75, if he had not been forced to sell his truck after
Richard terminated his services. TR at 58, 63.
The ALJ asked
Palmer to submit documents showing his earnings to support the calculation of
his damages. TR at 69-70. Palmer testified that he had tax returns and W-2 forms
for 1999, 2000, and 2001, TR at 68, as well as 1040 forms for 2002, 2003, and
2004, TR at 71-72. Palmer later submitted only a 2005 W-2 showing gross wages
of $29,250.99 from his maintenance job, which he had held since April 2003.
The ALJ found
that reinstatement was impossible or impractical because of the animosity
between Palmer and Triple R. R. D. & O. at 6-7. He found that Palmer had
honestly and diligently sought suitable alternative employment, R. D. & O.
at 3, and ordered Triple R to pay Palmer (1) back pay of $70,875.00; (2) front
pay of $46,829.20, covering the period from April 1, 2003 until June 19, 2003;
and (3) front pay of $88.653.00 from June 19, 2003 until August 31, 2005. The
ALJ also ruled that front pay would continue at the monthly rate of $5,250.00 less
actual earnings until Palmer repurchased his truck, Triple R had paid all the
damages due, including interest, or Palmer reached age 65. R. D. & O. at
7-8.
DISCUSSION
As s a successful litigant under the STAA, Palmer is entitled
to an order requiring Triple R to reinstate him “to [his] former position with
the same pay and terms and privileges of employment.” 49 U.S.C.A §
31105(b)(3)(A)(ii).[3]
See Dale v. Step 1
[Page 4]
Stairworks, Inc., ARB No. 04-003, ALJ No. 02-STA-30,
slip op. at 4 (Mar. 31, 2005) (reinstatement under the STAA is an automatic
remedy designed to re-establish the employment relationship). While
reinstatement is the statutory remedy, circumstances may exist in which
reinstatement is impossible or impractical. Assistant Sec’y & Bryant v.
Bearden Trucking Co., ARB No. 04-014, ALJ No. 03-STA-36, slip op. at 7-8
(ARB June 30, 2005), appeal docketed, No. 05-1965 (4th Cir. Sept. 6, 2005). See
Creekmore v. ABB Power Sys. Energy Servs., Inc., 93-ERA-24, slip op. at 9
(Sec’y Feb. 14, 1996) (front pay in lieu of reinstatement may be appropriate
where the parties have demonstrated “the impossibility of a productive and
amicable working relationship”).
Initially, the ALJ
failed to address or order reinstatement. On remand, only Palmer testified about
his business relationship with Triple R. Based on Palmer’s uncontested testimony,
the ALJ concluded that the animosity between the parties would make reinstatement
impossible or impracticable.[4]
R. D. & O. at 7. We affirm the ALJ’s finding as supported by substantial
evidence and unchallenged.
The STAA also
provides that a complainant is entitled to compensatory damages, including back
pay. 49 U.S.C.A § 31105(b)(3)(A)(iii). Back pay liability begins when the
employee is wrongfully discharged and ends when the complainant is reinstated
or declines the employer’s bona fide, unconditional offer of reinstatement. See Michaud v. BSP Transp., Inc., ARB No. 97-113, ALJ No. 95-STA-29, slip op. at 5-6 (ARB
Oct. 9, 1997) (reasonable refusal of offer of reinstatement ends employer’s
back pay liability but may subject it to front pay liability). When the
ALJ finds reinstatement impossible or impractical, front pay needs to be
considered.
On remand, the ALJ
stated that the “ARB bound itself” to a number of facts in his previous
decision, among them that Palmer’s “salary” with Triple R was $5,250.00 a
month. R. D. & O. at 3. The ALJ is incorrect. We did not find that Palmer
received a salary from Triple R – he was paid by the load and mileage. He
drove a total of 3,964 miles for Triple R, which grossed him $3,567.60 at 90
cents a mile, although he submitted a 2002 tax form, which he contested, showing
income from Triple R of $7,418.10. Complainant’s Exhibits 1-2. The $5,250.00
figure was the ALJ’s construct, the monthly income that the ALJ had found
Palmer to have “averaged driving his truck the previous five years,” based on
his uncontested testimony that he had netted about
[Page 5]
$63,000.00 annually as a
self-employed owner-operator.[5]
Palmer v. Triple R Trucking, ALJ No. 03-STA-28, slip op. at 6 (June 19, 2003).
In remanding
this case for further proceedings, we expected the ALJ to obtain additional
evidence on the terms and conditions of Palmer’s business relationship with
Triple R as an owner-operator of his truck, as well as financial documents that
would support an accurate measure of damages. While the ALJ indicated that
Palmer should submit tax documents showing his earnings, only a 2005 W-2 form
was admitted into the record. Palmer testified that he intended to work
exclusively for Triple R, TR at 61-63, but the record still contains scant evidence
of a contractual arrangement between Palmer and the company.
Following the
hearing on remand, the ALJ again found that Palmer was entitled to $70,875.00
in back pay for the period from February 17, 2002, the date of Palmer’s last
delivery for Triple R, until April 1, 2003, when he found another job. R. D.
& O. at 7. The record shows that Palmer made only three trips for Triple R
and submitted a tax form showing income of $7,418.10, which he claimed was
fraudulent because Triple R never paid him. TR at 21, 32; CX 1; ALJ Exhibit
5. We decline to endorse the ALJ’s methodology of using five years of previous
net earnings to calculate a $5,250.00 monthly income as a preferred measure of
damages. Nonetheless, we affirm the back pay amount of $70,875.00 for thirteen
months as uncontested and not clearly erroneous.
We turn to front
pay, where we make several adjustments in the ALJ’s calculations. The ALJ awarded
Palmer front pay from April 1, 2003, until June 19, 2003, the date of his
initial decision. He subtracted from the monthly $5,250.00 earnings the amount
Palmer actually earned as a maintenance worker during that period of 11 weeks
and three days, which was $1,213.00 a month. The ALJ then erroneously multiplied
the difference of $4,037.00 by weeks instead of months, and arrived at a total
of $46,829.20. R. D. & O. at 7. This figure is obviously incorrect. The
correct duration is 80 days, which is 11.4 weeks or 2.66 months (assuming an
average 4.3 weeks in each month). The correct amount of front pay for this
period then is $10,738.42 (2.66 months times $4,037.00).
Next, the ALJ awarded
front pay from June 19, 2003, to August 31, 2005, the date of the ARB’s
decision remanding the case. The ALJ again decreased the monthly amount of
$5,250.00 by Palmer’s earnings during that time, and reached a total of
$88,653.00. But the ALJ apparently did not consider Palmer’s hourly pay increases
during that period. And it appears that the ALJ did not factor in the 2005 W-2
statement.
[Page 6]
To try to arrive at more correct amounts,[6]
we consider five calculation periods, starting from June 19, 2003.
For the first
period, Palmer earned $1,213.00 a month until April 1, 2004. R. D. & O. at
3. Thus, from June 19, 2003, to April 1, 2004, Palmer was earning $1,213.00 a
month or $11,365.81 (9.37 months times $1,213.00) for that period. Subtracting
that amount of earnings from $49,192.50 (9.37 times the monthly earnings of $5,250.00)
yields $37,826.69 in front pay from June 19, 2003, until April 2004.
For the second
period from April 1, 2004, when Palmer received a raise to $8.50 an hour, until
October 1, 2004, Palmer earned $1,470.00 a month or $8,820.00 (6 times
$1,470.00). Subtracting that amount from $31,500.00 (6 months times $5,250.00)
yields $22,680.00 in front pay for that period.
Third, from
October 1, 2004, until January 2005, Palmer testified that he had been paid
$10.00 an hour or about $1,730.00 a month. TR at 55; R. D. & O. at 3. From
October 1, 2004, until 2005, Palmer earned $5,190.00 (3 months times
$1,730.00). Subtracting that amount from $15,750.00 (3 months times $5,250.00)
yields $10,560.00 in front pay for that period.
Fourth, Palmer
submitted the 2005 W-2 showing gross income of $29,250.99. Subtracting that
amount from $63,000.00 (12 months times $5,250.00) totals $33,749.01 in front
pay for 2005.
Fifth, we
consider the period from January 1, 2006, until the date of the ALJ’s decision,
March 10, 2006. The record contains no evidence of Palmer’s earnings during
this period. If he was still being paid $10.00 an hour or $1,730.00 a month, Palmer
earned $3,961.70 (2.29 months times $1,730.00). Subtracting this amount from
$12,022.50 (2.29 times $5,250.00), yields $8,060.80.
In sum, the correct
amount of front pay is $123,614.92 from April 1, 2003, through March 10, 2006.
That amount added to the back pay award of $70,875.00 equals a total monetary award
of $194,489.92, plus interest. See 26 U.S.C.A. § 6621(a)(2) (West
2002); Ass’t Sec’y & Cotes v. Double R. Trucking, Inc., ARB No.
99-061, ALJ No. 98-STA-34, slip op. at 3 (ARB Jan. 12, 2000).
[Page 7]
Finally, we now
address the ALJ’s order on the duration of the front pay award. The ARB has
required both parties in a whistleblower case, in which the employer has been
found liable, to “submit relevant evidence demonstrating both the amount and
the duration of a front pay award,” which “while often speculative, cannot be unduly
so.” Bryant, slip op. at 9.
At the October
27, 2005 supplemental hearing, Palmer submitted only the 2005 W-2. Although
asked to do so, he did not submit any pay stubs or other evidence of his net
earnings. Triple R, which had ample notice of both the first and second hearings,
failed to appear at either one and has waived any opportunity to contest
Palmer’s evidence. Without deciding whether the ALJ properly determined the
duration of Palmer’s front pay based on three contingencies – Palmer’s repurchase
of a truck, Triple R’s payment of the award, or Palmer’s reaching age 65, we agree
at least that Palmer’s reaching retirement age is an appropriate end point. We
affirm the ALJ’s order regarding duration of front pay as uncontested and not
clearly erroneous.
CONCLUSION
We affirm the ALJ’s order regarding
the amount of the back pay award and the duration of Palmer’s front pay as
uncontested and not clearly erroneous. We MODIFY the monetary amount of
front pay as calculated to be $194,489.92, as of the ALJ’s March 10, 2006
decision, plus interest, and continuing at $5,250 a month less the amount of
Palmer’s monthly earnings.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
