ARB CASE NO. 02-089
ALJ CASE NO. 02-STA-5
DATE: July 31, 2003
In the Matter of:
MICHAEL LEACH,
COMPLAINANT,
v.
BASIN WESTERN, INC., AND
PACIFIC INTERMOUNTAIN EXPRESS,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Respondent:
David A. Anderson, Esq., Parsons Behle & Latimer, Salt Lake City, Utah
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), as amended and recodified, 49 U.S.C.A. § 31105 (West 1997), and the implementing regulations at 29 C.F.R. Part 1978 (2001). The STAA protects employees from retaliation for engaging in specific types of activities that are related to motor carrier vehicle safety. 49 U.S.C.A. § 31105(a)(1)(A), (B). On June 13, 2001, the Complainant Michael Leach filed a complaint alleging that the Respondents, Basin Western, Inc. (Basin) and Pacific Intermountain Express (PIE), retaliated against him for engaging in a protected work refusal. Specifically, Leach alleged that the Respondents suspended him from his work driving a freight truck for a one-week period and terminated his employment at the end of that period because he had refused to accept a dispatch to drive a load of fuel on May 15, 2001. Leach further alleged that he declined to accept the assignment because it would have violated the Federal Motor Carrier Safety Regulations (FMCS regulations) that limit a truck driver's service hours and prohibit driving by a fatigued operator. The Department of Labor Occupational Health and Safety Administration investigated Leach's complaint and dismissed it as lacking merit on September 13, 2001. Leach requested a hearing before an Administrative Law Judge (ALJ), which was held on April 9, 2002. Following that hearing, at which Leach represented himself, the ALJ issued a Recommended Decision and Order (R. D. & O.) concluding that Leach had failed to establish a violation of the STAA employee protection provision.
Pursuant to 29 C.F.R. § 1978.109(a), (b), the ALJ forwarded the case to the Board for review. On July 8, 2002, the Board issued a Notice of Review and Briefing Schedule pursuant to Section 1978.109(c)(2), affording the parties an opportunity to file briefs in this matter. Basin filed a brief but neither Leach nor PIE did so. The Administrative Review Board has jurisdiction to decide this matter pursuant to 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002). Based on review of the record and the ALJ's decision, we adopt the ALJ's recommendation to dismiss the complaint. The ALJ's decision provides a thorough discussion of the relevant evidence and conclusions that are consistent with pertinent legal authority. Accordingly, with the clarification and supplementation of the ALJ's analysis that follows, we incorporate the attached R. D. & O. herein.
STANDARD OF REVIEW
Under the STAA, the Board is bound by the ALJ's factual findings if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); BSP Transp. Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). 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." Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
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In reviewing the ALJ's conclusions of law, the Board, as the Secretary's designee, acts with "all the powers [the Secretary] would have in making an initial decision. . . ." 5 U.S.C.A. § 557(b)(West 1996). See also 29 C.F.R. § 1978.109(c) (providing for issuance of a final decision and order by the Board). Therefore, the Board reviews the ALJ's conclusions of law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
1 The ALJ did not resolve the question of whether PIE and Basin both qualify as employers for purposes of STAA coverage and, in view of our dismissal of this complaint, it is similarly unnecessary for us to render a determination on that issue. See generally Cook v. Guardian Lubricants, No. 95-STA-43,slip op. at 11-14 and cases there cited (Sec'y May 1, 1996) (discussing cases involving joint employers that qualify for STAA coverage).
2 Like the ALJ, we use the following abbreviations in referring to the evidentiary exhibits and the hearing transcript: Leach's exhibits, PX; Basin's exhibits, RX; hearing transcript, Tr.
3 The ALJ provides a concise summary of the confrontation, which both Kehl and Leach testified was very brief and involved Leach angrily throwing a freight bill on the floor and using foul language suggesting how Kehl should dispose of the freight bill. R. D. & O at 7; see Tr. 88-90 (Leach), 148-50 (Kehl).
4 As the record in this case indicates, an employer may have the option of assigning a problematic dispatch to another driver or may have the flexibility of allowing the driver to accept the dispatch following an appropriate rest period. See Tr. 152-53 (Kehl).
5 The ALJ correctly identified the elements that a complainant must establish to prevail in a STAA complaint. R. D. & O. at 13-14 (citing BSP Transp., supra, Castle Coal & Oil, supra, and Moon v. Transp. Drivers, 836 F.2d 226 (6th Cir. 1987)). In this case which has been fully tried on the merits, however, it was unnecessary for the ALJ to discuss the proof necessary to establish a complainant's prima facie case. R. D. & O. at 13; see Johnson v. Roadway Exp., ARB No. 99-111, ALJ No. 1999-STA-5, slip op. at 7 n.11 (ARB Mar. 29, 2000). The relevant inquiry in this case, which the ALJ did answer through his weighing of the conflicting evidence, is whether the complainant has established the elements of his case by a preponderance of the evidence. See Johnson, supra. The recommended decision contains further statements of law relevant to the parties' burdens under the employment discrimination complaint framework initially set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and under the dual, or mixed motive doctrine that are not wholly accurate. R. D. & O. at 13-14. Any error in those statements is harmless, however, as it did not carry over into the ALJ's analysis. R. D. & O. at 13-15. For a concise discussion of the principles relevant to evaluation of conflicting evidence pursuant to the McDonnell Douglas paradigm and the dual/mixed motive doctrine in a STAA case, see Shannon v. Consol. Freightways, ARB No. 98-051, ALJ No. 96-STA-15, slip op. at 5-7 (ARB Apr. 15, 1998), aff'd, 181 F.3d 103 (Table) (6th Cir. May 14, 1999).