July Trip to Arlington, Texas

   At the October 1 meeting, Bettner complained to Daymark about his July 22, 1998 assignment to deliver a load from New Kingston, Pennsylvania to Arlington, Texas on July 24, 1998. According to Bettner, the trip was originally set up for him to cover 1545 miles within 48 hours. Bettner contended that this would have required him to violate Department of Transportation regulations. (T. 71, JX 11, p. 2). At the hearing, Bettner testified that he did not receive the load in New Kingston until 10:30 p.m. on July 22, 1998, and the delivery was scheduled for 1900 hours on July 24, 1998. (T. 71). Bettner's log indicates he arrived in Arlington, Texas on July 25 at 1:00 p.m. (CX 1, p. 13). Bettner conceded, at the hearing, that Daymark did not discipline him for being late. (T. 195).

   Pierce's October 6 summary stated that this is a legal run, and, responding to Bettner's contention that he did not have the hours to run it, noted that Bettner's log showed him as "on-duty not driving" when he did not have loading or unloading responsibilities. "Your explanation was that you can't just go to sleep and you just walk around. We suggest you make efforts to gain sleep in the sleeper berth and avoid the fatigue factor the remainder of the day." (JX 11, p. 2).

   At the hearing, Pierce and Curtis Singleton, Daymark's Risk Manager since February 2000, both testified that it was possible to make a 1545-mile trip within two days. (T. 376, 377, 403). Singleton noted that the previous day's travel could affect the calculation. (T. 417, 418). He also conceded that on duty not driving time for activities such as refueling and vehicle inspection could have an effect. (T. 418, 419).

Unsatisfactory Performance Report for Late Delivery of August Load to Chattanooga and Failure to Weigh Load

Unsatisfactory Performance Report: September Late Delivery of Load to Fogelsville, Pennsylvania

   Bettner received an Unsatisfactory Performance Report from Daymark dated "9/03/98" for a delivery to Fogelsville, Pennsylvania. The reason marked on the report form was "Late for Delivery Appt. Time 14:00 Arrived at 15:01." (JX 5, p.1-3). Bettner's October 22 rebuttal, entered on the form, was that he was blocked in by three trucks in the early morning hours of September 3, and that Daymark ignored the facts that he sent an earlier dispatch on September 3 that he was stopping for safety reasons, that he had been on duty or driving on September 2 for 10.5 hours and was fatigued when he stopped, and that he received the load on September 2 at 9:00 p.m. in London, Ohio and had to travel 469 miles to Fogelsville. He further commented that the dispatch was very unreasonable and no doubt illegal and that he should get detention time. (JX 5, p. 2, 3).

   Pierce testified that Bettner's request for delay pay in connection with this run was discussed at the October 1 meeting. They reviewed his logs with him and showed him that he could have been on time if he had not spent so much time on the telephone talking with Pierce or doing other things. (T. 337-338). Pierce stated that Bettner did not receive delay pay because he was late for reasons within his control. (T. 340- 341). It was Singleton's opinion that Bettner was late due to poor time management. (T. 408).

   Pierce's October 6 summary with respect to the item "Delay Pay (Pa on 9-3-98)" stated,

The load had a 1400 hr appointment time. You accepted the appointment commitment the previous day with ample hours to accomplish. You admitted being one hour late and the receiver "worked you in" for delivery. Your excuse for being late was that you stopped at a truck stop and was blocked in. You qualcomm saying you were going back to bed and that "the load can get there when it gets there"… Delay Pay, as noted in our handbook, is paid for the excessive time between your appointment and unloading. You admit being late and not eligible for said pay.

(JX 11, p. 1).

Dispute over hiring lumpers

   On September 15, 1998, Bettner delivered a load in Chicago. (T. 143-144). Bettner testified that he hired two people, "lumpers", for $225, to unload the truck, and then sent a Qualcomm message asking Daymark to authorize payment. A series of exchanges ensued in which the Daymark dispatchers responded that they could not pay such a high amount. (JX 8, pp. 1-29). Bettner subsequently submitted a purchase order for $225 to Daymark, but did not receive reimbursement. Instead, he was paid $52, the standard rate for unloading the shipment himself. (T. 151-155, 344). Bettner testified that he had never been denied a request to hire a lumper before, but admitted on cross-examination that he had never requested so high an amount and that he sent in a purchase order for one lumper although he claimed to have hired two. (T. 150-152, 243-245, JX 9).

   Pierce stated that the $225 reimbursement request was denied because the amount claimed was excessive and Bettner did not request prior authorization for the hiring of the lumpers. (T. 341-344). He pointed out that the highest lumper reimbursement amount Bettner had previously received was $150, and stated that the company had sought the lumper Bettner identified, but was unable to find him. (T. 341-344; JX 12).

   Maribel Baker, Personnel Manager at Daymark, testified that Daymark had rejected other drivers' requests for lumper reimbursement, and noted that there were two problems with Bettner's reimbursement request: purchase order approval was not given for the amount which exceeded what the customer had contracted to pay, and the receipt showed one person being paid $225 to unload the truck but Bettner said he hired two. She noted that the company receiving the delivery had contracted to pay $70 for unloading and suggested a mistake might have been made in paying Bettner $52, rather than $70. (T. 438-441). Countering this possible underpayment, she observed that Bettner had been overpaid more than that amount for travel expenses to retrieve his truck after vacation. (T. 431-435).

   Pierce's October 6 summary noted that Bettner had hired the lumper without pre-authorization, and requested $225, although the 22 authorizations for lumpers he had received since May 27, 1998, averaged $75, with the highest being $150, and only five

Locksmith Charge

   At 3:00 a.m. on October 14, 1998, Bettner parked his truck and exited to relieve himself, leaving his keys in the vehicle. (T. 157). Leaving keys in the ignition violated Daymark policy. (T 355; RX10, Tab 10, Section 49). When he returned, he found that the truck's doors were locked. (T. 158). He called the dispatcher who arranged for a locksmith. (T. 161; JX-14, 15). Daymark paid the locksmith's charge of $127.25. When Daymark subsequently advised Bettner that it would be deducting the locksmith's charge from his pay, Bettner argued that the lock had malfunctioned and Daymark did not have authority to make the deduction. (T. 162). Bettner had executed a consent permitting Daymark to deduct "personal advances." Daymark considered this authorization for the deduction; however, Bettner did not. (T. 245, 356; JX 21). The lock malfunction was not listed on Bettner's trip report, the subsequent driver of Bettner's truck did not report any malfunction, and there was no subsequent report of the lock's repair during the period Pierce was with the company. (T. 355).

Communications Subsequent to the Locksmith Charge

   On November 13, 1998, Bettner sent a Qualcomm message to Lape, his dispatcher, stating "AT THE PRESENT TIME THIS WILL BE MY LAST LOAD FOR DAYMARK. YOU OR MR. PIERCE DEDUCTED $127 FROM MY CHECK AND TO ME AS I SAID BEFORE IS THEFT." (T. 163-164, JX 17, p. 2).

   Although Bettner testified that he never said "I quit," he confirmed the following exchange at his deposition:

Q Page 37. " Answer: All Bud Pierce had to do was put the $127.25, a Comm Check, and send it to me, and it wouldn't be my last load."

"Question: If he didn't do that, what did it mean then? If he didn't put the $127 back into your account, what does it mean then? It was your last load?"

"Answer": It means I would quit."

"Question: Okay. And Bud Pierce never put the $127 back in?"

"Answer: No, he didn't."

(T. 253).

   Pierce testified that both Lape and Bettner's wife told him that Bettner was leaving the company, and that he asked Mrs. Bettner to have her husband call him to discuss the matter. (T. 357, 360). On November 16, 1998, Bettner called Pierce about a cargo claim. When Pierce sought to discuss Bettner's quitting, Bettner responded that he did not have time to talk about it then, but would talk to him later. (T. 359-360). Bettner did not do so. (T. 360).

   Because Bettner had not called him back, on November 23, 1998, Pierce sent Bettner a letter which stated that he had attempted to contact Bettner to discuss both the deduction of the locksmith fee and Bettner's Qualcomm message resigning his employment with Daymark, and had left messages with Bettner's wife, but had not heard from him. (T. 360). The letter advised Bettner that Pierce considered Bettner's resignation effective November 13. (RX 5).

   According to Pierce, both he and Lape construed Bettner's Qualcomm message as a resignation. (T. 369). Pierce testified that Lape did not have authority to discharge Bettner, and that he did. However, he did not discharge Bettner. (T. 356-357). Bettner never indicated to Pierce that he wanted to remain with the company or that he did not want Lape to turn in his resignation. (T. 361).

   When Bettner and Pierce later had a conversation concerning how Pierce should respond to a reference inquiry from a prospective employer, CX Roberson, Bettner advised Pierce to tell Roberson that he had quit. (T . 365).

   In a handwritten letter sent to OSHA Regional Administrator Michael G. Connors, dated February 7, 1999, Bettner stated that he would like to file a charge against Daymark under the STAA and described the subject matter of the charge. He did not indicate that Daymark had discharged him, although he wrote that the charge "will also concern a constructive process to get to quit Daymark." (RX 11).

(1) Whether Daymark did not promptly restore Bettner to full health benefits because Bettner engaged in protected activities.

(2) Whether Daymark issued two unsatisfactory performance reports to Bettner because Bettner engaged in protected activities.

(3) Whether Daymark's treating Bettner's November 13, 1998 Qualcomm message ("AT THE PRESENT TIME THIS WILL BE MY LAST LOAD FOR DAYMARK.") as a resignation was a discharge motivated by Bettner's participation in protected activities.

(4) Whether Bettner was constructively discharged because he engaged in protected activities.

(5) Whether, after receiving Bettner's November 13 Qualcomm message, Daymark did not continue Bettner's employment, reinstate, or rehire him because Bettner engaged in protected activities.

   Bettner argues that the ALJ erred by failing to find that by stopping to sleep because he was fatigued or sleepy (from 11:30 p.m. August 26, 1998, to 1:30 a.m. on August 27, 1998, and 2:00 a.m. to 6:00 a.m on August 27, 1998, and from 11:15 p.m. on September 2 to 4:45 a.m. on September 3, 1998) he engaged in protected refusals to operate a motor vehicle (under 49 C.F.R. § 392.3), that Daymark had notice of that protected activity, and that Daymark's issuance of unsatisfactory performance reports for late delivery on August 27 and September 3, 1998, constituted adverse employment action in response to that protected activity. He also contends that the ALJ erred in finding that Daymark did not discharge him. Further, he urges that Daymark has not articulated legitimate nondiscriminatory reasons for its adverse actions, and that its articulated reasons are pretextual. Bettner suggests that the ALJ's findings that he engaged in protected activity by participating in activities related to his prior STAA complaint against Daymark and by making safety-related complaints are correct. In addition, he supports the ALJ's determination that Daymark violated the STAA by failing to promptly provide health insurance benefits.

   Daymark contends that the ALJ erred by finding that it violated the STAA by paying Bettner's insurance claims belatedly. It submits that the delay occurred solely because Bettner refused to fill out the necessary insurance forms. Futher, it argues, any violation which occurred was at most a violation of the reinstatement order and Settlement Agreement in Bettner's prior STAA case, Bettner could have filed a motion to enforce the Settlement Agreement but failed to do so, and Daymark processed Bettner's claims before he brought this case. Therefore, it urges, there was no violation of the STAA here. However, it states that in the event the ALJ's finding of a violation is affirmed, Bettner is not entitled to attorney's fees because Bettner's attorney did not engage in any activity that resulted in any affirmative action to abate the violation or any other remedy. Daymark otherwise supports the ALJ's findings and conclusions.

   The STAA provides in pertinent part:

    Prohibitions – (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because –

(A) The employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or

(B) the employee refuses to operate a vehicle because –

(1) the operation violates a regulation, standard, or order of the United States related to the commercial motor vehicle safety or health; or

(2) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.

49 U.S.C.A. § 31105.

   Before this Board, Bettner submits that Daymark took five adverse actions against him because he engaged in protected activity: to wit, it illegally discriminated against him by: 1) failing to promptly pay his medical bills, 2) issuing an unsatisfactory performance report in connection with a delivery to Chattanooga, Tennessee on August 27, 1998, 3) issuing an unsatisfactory performance report in connection with a delivery to Fogelsville, Pennsylvania on September 3, 1998; 4) discharging Bettner; and 5) not rehiring Bettner or allowing him to rescind his conditional "resignation." Complainant's Brief Supporting In Part, And Opposing In Part, The ALJ's Recommended Decision and Order (C. Br. R. D. & O.). We note that before the ALJ, Bettner also contended that he was constructively discharged because of the unpleasant conditions created by Daymark's issuance of the two unsatisfactory performance reports, refusal to pay any part of the lumper charge, deduction from his pay for locksmith services, refusal to pay delay pay for the Fogelsville delivery, and refusal to pay Bettner's medical charges. Complainant's Post-Hearing Brief at 21-24 (C. P-H Br.). We consider each of these allegations in turn, and whether the ALJ's findings with respect to them are supported by substantial evidence.

   Because this Board defers to an ALJ's credibility determinations which are based on the witnesses' demeanor, we note at the outset that the ALJ found the testimony of Bettner and his wife was generally creditable, that Baker and Pierce were "forthright and credible" witnesses, and that Singleton was credible, with the caveat that he was not at Daymark during the Bettner issue, and that his testimony therefore should be given appropriate limitation and weight. (R. D. & O. at 5-7). He found the deposition testimony of Lape added little to the case and gave it no weight. Id. at 8.

Health Insurance and Payment of Medical Claims

    Bettner charges that Daymark violated the agreement settling his prior STAA case because he was not promptly provided full medical benefits when he was reinstated to work, and that that settlement agreement violation also constitutes a new and separate violation of the STAA. The ALJ agreed, concluding that the violation was de minimus and no further remedy was required. He separated the health benefits issue from the other issues raised by Bettner, finding that Daymark's failure to promptly provide benefits was related solely to the resolution of Bettner's prior complaint and was unrelated to any protected activity occurring after his reinstatement. We agree that the violation of a settlement agreement may constitute a new and separate STAA violation. See Gillilan v. Tennessee Valley Auth., 91-ERA-31, slip op. at 5 (Sec'y Aug. 28, 1995) and cases cited therein. However, to qualify as a new discriminatory act, the settlement agreement violation must meet all of the required criteria of a STAA violation. See STAA Requirements above. The delay in reinstatement of Bettner's medical benefits here does not do so.

   More specifically, Baker testified that everybody in the company was required to complete a new enrollment form so that the insurance company could place all the personal information for the employee and dependents in the system and so that payroll had authorization to make deductions for premiums paid by the employee. (T. 297, 301). Bettner refused to complete the enrollment form until July, despite being counseled at length about it by Pierce. (T. 319). Although it may have been bureaucratic, there is no evidence that the requirement that the enrollment form be completed was a pretext for discrimination.

   The insurance company also sent Bettner a letter requesting that he submit a certificate of prior coverage. That letter was routinely sent to all employees hired after the switch in insurance companies. (T. 292). Because he was under the impression that Bettner had insurance with his prior employer, and because submission of the certificate would enable Daymark to cover Bettner's claims for pre-existing conditions under its excess insurance coverage, Pierce also requested that Bettner submit the certificate. (T. 326, 327). When Bettner told Pierce that he had not had qualifying prior coverage, Daymark paid the claims out of pocket. (T. 328). Both Baker and Pierce testified that to their knowledge the Bettners' insurance claims were not held up in retaliation for anything. (T. 301, 320).

   The evidence thus does not show that the delay in paying Bettner's health claims was motivated by Bettner's protected activity. Bettner therefore has not proven all the requisite elements of a STAA violation. Consequently, we do not adopt the ALJ's determination on this issue.

Unsatisfactory Performance Reports:

Unsatisfactory Performance Report for Late Delivery of August Load to Chattanooga and Failure to Weigh Load

   The ALJ determined that this report was issued for legitimate nondiscriminatory reasons and there was no discriminatory conduct presented in Daymark's treatment of Bettner. We agree.

that his comment to Lape was "the equivalent of applying for a truck driving job with Daymark." C. Br. R. D. & O. at 21. Pierce specifically testified that Bettner never contacted him seeking to rescind the resignation or alleged discharge, or to be rehired, even though Bettner previously had called him at least once a week. (T. 321). Further, Bettner brushed off Pierce's efforts on November 16 to discuss the November 13 Qualcomm message, did not subsequently respond to his requests to discuss the matter, did not respond to Pierce's November 23 letter, and did not speak to Pierce again until Pierce again initiated contact because he had received a reference request from another employer. (T. 356-365). These facts, found by the ALJ and supported by record evidence, militate against finding that Bettner ever sought to rescind his November 13 message, although he knew Daymark was treating it as a resignation, or ever asked Daymark to rescind his alleged discharge or to rehire him. See R. D. and O. at 36-37. Bettner cites no support for the proposition that Daymark was obligated to rescind his resignation, or to rehire him, solely on its own initiative, and we know of none apposite. There is thus no basis for finding that Daymark did not rescind the resignation or alleged discharge or rehire Bettner because of Bettner's protected activity.

   It is true that Baker, when asked by counsel whether Daymark would rehire Bettner, responded that the company probably would not rehire him because of the way in which he had treated Daymark's employees; however, that is in the realm of the hypothetical and did not constitute a bona fide application by Bettner for re-employment and an actual refusal of employment by Daymark. (T. 446-447). Had there been such a refusal to rehire, we would agree with the ALJ that the explanation proffered by Baker constituted a legitimate non-discriminatory reason for not rehiring him. The record evidences that Bettner cursed while on the phone with Daymark employees and was therefore told to call Pierce directly, not anybody else, and that he was "bad" with Daymark's office staff, and the staff of the company administering Daymark's health insurance; the third-party administrator complained that Daymark was verbally abusive and so disruptive that they could not let a claims manager work with him. Further, Baker, who previously received Bettner's calls when Pierce was out of the office, and now would be the person having to deal with Bettner (because the company no longer has a vice-president for human resources) does not want to have to deal with his unpleasant attitude. (T. 239, 323-325, 446-447). None of the reasons cited by Baker constitute a refusal to rehire based on protected conduct.

Constructive Discharge

to resign…."). We agree. Daymark's actions were consistent with the employee-employer relationship and would not have been intolerable for a reasonable person. Moreover, Daymark enunciated legitimate, nondiscriminatory reasons for each action and Bettner failed to show that those reasons were not credible or were a pretext for discrimination under the STAA. The reasons for the two unsatisfactory performance reports and the delay in paying medical benefits are discussed above; the lumper charge was not paid because Daymark considered it too high, it was not pre-approved, and only one lumper was listed on the claim submission although the amount claimed was for two persons. (T. 341-344, T. 150-152, 243-245, JX9); Daymark deducted the locksmith charge because it believed it had authority to do so and that Bettner had violated company policy by leaving his keys in the truck (T. 245, 355, 356, JX 21, RX 10: Tab 10, Section 49); and Daymark did not pay delay pay because it did not make such payments to drivers who delivered their loads late (T. 340-341, JX 11, p. 1). Moreover, the record does not show that these actions, despite their apparent legitimacy as individual acts, constituted parts of a plan, established as a consequence of Bettner's protected activity, to make Bettner quit his employment with Daymark.

Protected Conduct

   Bettner urges us to find that he engaged in protected conduct by sleeping on certain occasions, arguing that those stops to sleep were refusals to drive in violation of the DOT fatigue rule or refusals to drive based on a reasonable apprehension that driving would violate the rule. Further, he asks us to find that the ALJ misinterpreted the legal standard for a protected refusal to drive and incorrectly found that Daymark did not have notice of Bettner's protected activity. Because we have found that Daymark set forth legitimate, nondiscriminatory reasons for its actions and Bettner failed to show that those reasons were false or were pretexts for discrimination, Bettner failed to sustain his burden of proof with respect to an essential element of his claims (causation) and cannot prevail. We therefore decline Bettner's invitation to address additional issues relating to protected conduct.

   For the preceding reasons we do not adopt the ALJ's recommendations regarding the portion of Bettner's complaint relating to payment of health insurance and medical benefit payments. We do adopt the ALJ's recommendations with respect to Bettner's complaint in all other respects. Accordingly, we DISMISS the complaint.

   SO ORDERED.

      JUDITH S. BOGGS
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge