ARB CASE NO. 99-111
ALJ CASE NO. 1999-STA-5
DATE: March 29, 2000
In the Matter of:
DANNY JOHNSON,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan
Minnesota
For the Respondent: Sally J. Scott, Esq., Franczek Sullivan, P.C., Chicago
Illinois
DECISION AND ORDER OF REMAND
This case arises under the employee protection provisions of the Surface
Transportation Assistance Act (STAA) of 1982, as amended and recodified, 49 U.S.C. §31105
(1994). Complainant Danny Johnson (Johnson) claimed that his employer, Respondent Roadway
Express, Inc. (Roadway), violated STAA when it discharged him on February 21, 1995, because he
had been unavailable for dispatch on February 19, 1995. A Department of Labor Administrative
Law Judge (ALJ) issued a Recommended Decision and Order1 in which he concluded that Roadway had violated §31105. The ALJ issued
[Page 2]
1 Citations to the record are as follows:
Recommended Decision and Order (R. D. & O. ___); Hearing Transcript (Tr. ___); Joint Exhibit (JEX ___);
Complainant Exhibit (CEX ___); Respondent Exhibit (REX ___).
2 For reasons not reflected in the
record, the Assistant Secretary did not issue his written findings until August 31, 1998. JEX 1.
3 The applicable agreement is the
National Master Freight Agreement and the Central States Area Supplemental Agreement signed by
Roadway and the Teamsters Union. Drivers get one week of vacation after their first year of employment.
From two to seven years a driver earns two weeks per year. From eight to fourteen years a driver earns three
weeks of vacation. From fifteen to twenty years a driver earns four weeks of vacation per year. Beyond
twenty years a driver earns five weeks of vacation per year. JEX 21 at 227-28.
4 Johnson could not recall the driver
foreman with whom he spoke. Tr. 31-32.
5 Johnson did not identify with whom
he spoke. Tr. 40; 116.
6 There is conflicting evidence in the
record regarding whether Johnson returned to work on the 20th or the 21st. Roadway produced two
documents regarding Johnson's work status on February 20, 1995. In response to Johnson's discovery request
Roadway produced a list of Johnson's absences. Tr. 207; CEX 3. This document does not indicate Johnson
was off duty on February 20. Roadway also produced another list of absences which it introduced as part
of Respondent's Exhibit 7. This list indicates that Johnson was absent February 20, due to sickness (flu).
Roadway officials could not conclusively state that Johnson did not work on February 20. Tr. 339-340; 389;
429-30. The ALJ found that Johnson worked that day. R. D. & O. 11 n.5.
7 DOT's ill or fatigued operator
regulation provides in relevant part: "No driver shall operate a commercial motor vehicle . . . while the
driver's ability or alertness is so impaired . . . through fatigue, illness, or any other cause, as to make it unsafe
for him/her to begin or continue to operate the commercial motor vehicle." 49 C.F.R. §392.3
(1999).
8 This recommendation was made
in the body of the ALJ's July 21, 1999, R. D. & O. Id. 17. The ALJ made the reinstatement order
explicit in a subsequent Corrective Order issued July 26, 1999.
9 The employee protection provisions
of STAA provide, in relevant part:
(a) Prohibitions
(1) A person may not discharge an employee . . . 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.
(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 confronting the employee would
conclude that the unsafe condition establishes a real danger of accident, injury, or serious
impairment to health.
49 U.S.C. §31105.
10See n.7, supra.
For reasons that the ALJ did not articulate, he ruled that the other STAA refusal to drive provision
(commonly referred to as the "reasonable apprehension" provision (49
U.S.C.§31105(a)(1)(B)(ii)) "is . . . not applicable to this case." R. D. & O. 6. However,
Johnson's refusal to drive may have been protected by that provision since he could have had a reasonable
apprehension of serious injury if he had to drive in his ill state. 49 U.S.C. §31105(a)(1)(B)(ii).
See n.9, supra; see also Somerson v. Yellow Freight Sys., Inc., ARB Case Nos. 99-
005, 036, ALJ Case Nos. 98-STA-9, 11, ARB Final Dec. and Ord., slip op. at 15, Feb. 18, 1999
("§31105(a)(1)(B)(ii) also encompasses situations where a driver's physical condition causes an
employee to have 'a reasonable apprehension of serious injury to the employee or the public'").
Because we conclude that Johnson's refusal to drive was protected under the "actual violation"
provision (§31105(a)(1)(B)(i)), we do not decide whether it was also protected under the
"reasonable apprehension" provision.
11 The ALJ first concluded that
"complainant has demonstrated, by a preponderance of the evidence, a prima facie case of
discrimination under Section 31105 of the Surface Transportation Assistance Act." R. D. & O. 13.
This conclusion is problematic for two reasons. First, as we have stated repeatedly, in analyzing the evidence
presented in a case such as this, which has been fully tried on the merits, it is not necessary to determine, as
the ALJ did (R. D. & O. 13-14), whether Johnson established a prima facie case, and whether
Roadway rebutted that showing. Once a respondent produces evidence in an attempt to articulate a
legitimate, nondiscriminatory reason for its personnel action, it no longer serves any analytical purpose to
determine whether the complainant presented a prima facie case. Instead, the relevant inquiry is
whether complainant prevailed, by a preponderance of the evidence, on the ultimate question of liability.
If he or she did not prevail on the ultimate question of liability, it matters not at all whether he or she
presented a prima facie case. If he or she did prevail on the ultimate question of liability, ipso
facto he or she presented a prima facie case. Somerson, ARB Case Nos. 99-005, 036
slip op. at 8 (and cases cited therein). In a case fully tried on the merits there is simply no reason for an
adjudicator to dance what one court has aptly called "the judicial minuet." Sime v. Trustees
of the California State University and Colleges, 526 F.2d 1112, 1114 (9th Cir. 1975).
Second, it is simply a misnomer to characterize the complainant's burden of persuasion
as one of proving a prima facie case by a preponderance of the evidence. Complainant's ultimate
burden, rather, is to prove the elements of a violation here that Johnson engaged in protected
activity and that Roadway took adverse action against him because of that activity by a preponderance of
the evidence.
12 Although Dr. Durany's medical
license was put on indefinite probation by order of the Medical Licensing Board of Indiana dated March 18,
1994, she was not prohibited from practicing medicine. Resp't Brief Ex B. It is true that Dr. Durany received
an Order to Show Cause for failure to comply with the Licensing Board's March 18, 1994 Order. However,
the Order to Show Cause was dismissed by the Board's March 8, 1995 Order. While that Order did modify
certain reporting requirements of the March 18, 1994 Order, it did not further restrict Dr. Durany's license
to practice medicine. Id. The probation was lifted by Order dated September 24, 1996. Id.
The fact that Dr. Durany's license was later suspended in 1998 is not relevant to her diagnosis of Johnson's
condition some four years earlier.
13 The February 21, 1995, Discharge
Letter listed two previous violations of a similar nature, i.e., a July 4, 1994, warning letter for
absenteeism and a November 14, 1994, warning letter for absenteeism. JEX 4.
14 In its Statement of Facts, Roadway
claims that Johnson did not use reasonable diligence in seeking employment after it discharged him. Resp't
Brief 11. However, an employer must meet both prongs of the Rasimas test before the
burden of going forward with evidence that he or she exercised due diligence shifts back to the employee.
OFCCP v. Cissell Mfg. Corp., Case No. 87-OFC-26, Ass't Sec'y Final Dec. and Ord., slip 18 n.13,
Feb. 14, 1994. Roadway did not establish that there were substantially equivalent jobs available. In any
event, although Johnson did not have to establish that he exercised reasonable diligence, his actions
demonstrate that he did. Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989)
(complainant can satisfy mitigation requirement by demonstrating a continuing commitment to be a member
of the work force). A complainant is only required to make reasonable efforts to mitigate damages, and is
not held to the highest standards of diligence. Rasimas, 714 F.2d at 624. Such efforts include
checking want ads, registering with employment agencies, discussing employment opportunities with friends
and acquaintances. Sprogis v. United Air Lines, Inc., 517 F.2d 387, 392 (7th Cir. 1975). A review
of the record reveals that Johnson satisfied the test for reasonable diligence. The day after his discharge,
Johnson contacted his union business agent to see if there were jobs available. Tr. 60. He checked with the
business agent frequently, once or twice a week. Id. He applied for a position with Yellow Freight
System, a unionized company, but was not hired. Tr. 62-63. Johnson also looked for a non-union truck job
and checked the want ads, Tr. 64; called all over the country looking for work, Tr. 64-66; and took jobs
outside the trucking industry, Tr. 67, 74-75. These efforts demonstrate Johnson's "continuing
commitment to be a member of the work force." Donnelly, 874 F.2d at 411.
15 The burden of proof for supporting
payment of these expenses rests with Johnson. Hufstetler, Case No. 85-STA-8 slip op. at 48. In
order to restore Johnson fully, Roadway also "must pay sufficient monies into the health and welfare
fund to permit [Johnson's] immediate coverage upon reinstatement." Moyer v. Yellow Freight Sys.,
Inc. [Moyer I], Case No. 89-STA-7, Sec'y Final Dec. and Ord., slip op. at 9, Sept. 27, 1990, rev'd
on other grounds sub nom. Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).