ARB CASE NO. 03-005
ALJ CASE NO. 02-STA-39
DATE: April 30, 2004
In the Matter of:
RICKY DON FORREST,
COMPLAINANT,
v.
NATIONWIDE BOAT TRANSPORT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearance:
For the Complainant:
Ricky Don Forrest, pro se, Alvin, Texas
FINAL DECISION AND ORDER OF DISMISSAL
This case arises under the employee protection provisions of the Surface Transportation Assistance Act (STAA) of 1982, as amended, 49 U.S.C.A. § 31105 (West 1997) and implementing regulations at 29 C.F.R. Part 1978 (2003). The Complainant, Ricky Don Forrest, alleged that the Respondent, Nationwide Boat Transport (Nationwide), terminated his employment and subjected him to kidnapping in retaliation for activities protected under the STAA.
Responding to an Internet notice, Forrest drove from his home in Alvin, Texas to seek employment with the Respondent boat hauler at its Palmetto, Florida facility. Nationwide's manager, Brad Scruggs, hired Forrest on May 14, 2001, and provided him with motel accommodations. Apparently to put Scruggs on notice that Forrest was aware of his nondiscrimination rights under the STAA if the Respondent should ever consider taking any improper action against him,5 Forrest told Scruggs that he was already involved in STAA whistleblower proceedings.6[Page 3]
1 The complaint was not included in the record before us although OSHA's April 11, 2002 letter to the Department's Chief Administrative Law Judge enclosing its April 11, 2002 dismissal letter to the Complainant stated that it was enclosed. Instead, OSHA's letter encloses its Discrimination Case Activity Worksheet, which may have been substituted inadvertently for the original complaint. See 29 C.F.R. § 1978.104(b), requiring OSHA to file the complaint with the Chief Administrative Law Judge.
2This regulation provides, "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee."
3 The R. D. & O. did not contain any credibility determinations regarding the Complainant's testimony.
4 The ALJ's R. D. &. O. contains complete factual findings that we summarize for purpose of this decision.
7 The Connecticut police found no evidence supporting his kidnapping claim in the legal sense. Apr. 11, 2002 OSHA dismissal letter at 2.
8 The ALJ quoted a prior version of the refusal to drive provisions, inapplicable to this case. See R. D. & O. at 5. 49 U.S.C.A. § 31105(a)(1)(B) now provides:
A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because—
(B) the employee refuses to operate a vehicle because—
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
OSHA's dismissal letter stated that its investigation revealed that Nationwide informed Forrest that the replacement license plate information would be faxed to the service center. Id. at 2.