(Tr. 104, 177). Mason responded:
I can't work part-time. I can't afford it. I said you either want me
to work for you full-time or not. And make up your mind, are you
going to fire me or not. (Tr. 104). At this point, Hunt said
"its been nice knowing you Craig" and hung up. (Tr.
178).
Mason interpreted Hunt's statement to mean that he had been terminated
and subsequently filed a complaint with the Secretary of Labor alleging that Respondent fired
him because he refused to "bobtail" his vehicle in inclement weather. In view of the
allegedly retaliatory nature of his termination, Mason argued that Respondent violated the
employee protection provisions of the STAA which state, in relevant part:
(a) Prohibitions (1) A person may not discharge an employee, or
discipline or discriminate against an employee regarding pay,
terms, privileges or employment, because
(B) the employee refuses to operate a vehicle because-
49 U.S.C. §31105(a).
Ultimately, this matter was referred to an Administrative Law Judge
("ALJ") who held an evidentiary hearing. Respondent took the position that Hunt's
statement to Mason on January 24th was not intended to terminate him and, consequently,
Mason's loss of employment is due to the fact that he quit. The ALJ rejected Respondent's
argument finding that, under the circumstances of this case, Hunt's statement effectively
terminated Mason's employment on January 24th. (Tr. 273, RD). The ALJ also found that
Mason's refusal to bobtail his vehicle constituted protected activity under the STAA. However,
the ALJ went on to find that Respondent's decision to terminate Mason was based on legitimate,
non-discriminatory reasons. Therefore, by Recommended Decision and Order
("RD&O") dated November 1, 1999, the ALJ recommended that Mason's complaint
be dismissed.
The decision of the ALJ is now before the Board pursuant to the automatic
review procedures under 29 C.F.R. §1978.109(c)(1) (1999). To prevail on a claim under
§31105(a), the complainant must prove that he or she engaged in protected activity as
defined in §31105(a)(1)(A) or §31105(a)(1)(B)(i) or (ii); that his or her employer
was aware of the protected activity; that the employer discharged, disciplined or discriminated
against him or her; and that there is a causal connection between the protected activity and the
adverse employment action. BSP Trans., Inc. v. United States Dep't of Labor , 160 F.3d
38, 45 (1st Cir. 1998); Clean Harbors Envtl. Servs., Inc. v. Herman , 146 F.3d 12, 21 (1st
Cir. 1998); Yellow Freight Sys., Inc. v. Reich , 27 F.3d 1133, 1138 (6th Cir. 1994);
Moon v. Transport Drivers, Inc. , 836 F.2d 226, 228 (6th Cir. 1987). Mason argues that
the Board should not adopt the ALJ's decision, in part, because:
The ALJ overlooked the fact that, although Complainant was the
subject of customer complaints and was alleged to have violated
company policy, these were never the reasons that were articulated
by the Respondent as forming the basis for terminating the
Complainant. In a letter to the New York State Unemployment
Insurance Appeal Board, Veronica Hunt claimed that the
Complainant "walked off the job." (CX6) Mr. George
Hunt, the President of the Respondent, claims that Mr. Mason quit
and has not articulate (sic) any reason for firing Mr. Mason
because, he claims he did not fire Mr. Mason.
The ALJ did not view this issue as one of decisional significance, nor do
we. Mason has not cited, nor are we aware of, any general rule that prohibits a party from
offering alternative theories in a case simply because it may have relied on only one theory in
another proceeding before a different administrative agency applying different laws. Thus,
Respondent can properly assert that it did not terminate Mason and alternatively argue that, even
if such a termination occurred, the discharge was for a legitimate, non-discriminatory reason.
Mason next cites the following testimony by Hunt:
In the real world, we bobtail. Your bobtailing expert, I'd like him
here today. I read the report and I read the, you know, at best it's
ridiculous some parts of it. I can be a self-proclaimed expert. I've
been in this business all my life. In the real world we bobtail . . .
Well, the train of thought was on bobtailing, right, and if there was
any problem with bobtailing that day. There was no problems (sic)
with bobtailing that day. As I said, in the real world, when you
come to me as a certified CDLA New York State driver, capable
and licensed to drive a tractor trailer, I expect you to drive the
tractor trailer. If it's terrible road conditions, we're not going to
make you drive the tractor-trailer, nor did we. We're not going to
make you bobtail, nor did we. But in the real world, as the fellow
who sat here before me, he didn't stay in Glenn Falls that night, he
drove. So it's part of the business. The expert, I would like to
have asked the bobtailing expert if his drivers bobtail because it's
the evil of the beast. It's maybe people don't like to bobtail, it's
part of the business. It's like having teeth. We don't like to go to
the dentist, but if you want to have teeth you go to the dentist.
Okay. And bobtailing is similar, it's part of the business.
In light of this testimony, Mason contends that the ALJ erred in finding that his refusal to
bobtail was not the real reason for his discharge.
This testimony is, at best, ambiguous. Hunt gave this testimony in
response to a written statement from Mason's expert (introduced as Mason's exhibit CX7) who
asserted that a trucker should never bobtail on icy or snowy roads. Although Hunt's testimony
could mean that Hunt expects all of his truckers to drive in inclement weather, it could also mean
that Hunt is leaving the matter entirely to the discretion of the trucker. In any event, as the ALJ
pointed out in his decision, "[t]here is no necessity, in logic, to extend [Hunt's] disputation
to conclude that if Hunt's truckers refused to "bobtail", they would be fired!"4 Given the ambiguous nature of Hunt's
testimony, we are not compelled to reach a contrary conclusion.
The remainder of Mason's brief is essentially a challenge to the ALJ's
conclusion that Respondent had legitimate, non-discriminatory reasons for terminating him. In
the RD&O, the ALJ articulated the reasons for his decision. Specifically, the ALJ stated:
First, Complainant, in his relatively short tenure at Respondent,
had been the subject of violations of company policy and
numerous customer complaints relative to poor job performance
and customer relations (Tr. 149-161; 229-231). And, Hunt had
continually discussed these problems with Complainant (156-7).
Indeed, just prior to Complainant's discharge, there were several
instances of customer complaints and discussions thereof between
Hunt and Complainant (Tr. 61; 80-1; 85-8), with Hunt warning
Complainant and encouraging him to correct his behavior, ending
in Hunt's disillusioned realization that, on the heels of these
discussions, a still further complaint was forthcoming (Tr. 159-60).
Second, after his normal run and refusal to "bobtail"
on the afternoon of January 22, 1999 (Tr. 38-42), Complainant left
his tractor-trailer, still running, unparked in the yard, contrary to
company procedure known to Complainant (Tr. 91-94; 221-22).
Finally, Complainant refused to attend a meeting on January 24,
1999 with Hunt and Ludwig, arranged by Hunt to discuss the
issues in contention surrounding Complainant's employment and
to finalize Complainant's status, as promised Complainant the
previous day (Tr. 101-3; 172-178).
Hunt and Ludwig credibly and convincingly testified as to the
above events and circumstances. The January 23, 1999
conversation between Complainant and Hunt, secretly recorded by
Complainant (CX 13), totally corroborates Hunt's state of mind
and motivation in discharging Complainant, and includes Hunt's
consistently repeated disclaimer that complainant's refusal to
"bobtail" had any bearing upon Hunt's then concern
with Complainant's work performance, nor, inferentially, upon the
later reached (intended but aborted) decision of a one-day
suspension, nor, inferentially, upon the ultimate discharge.
I find that Respondent discharged Complainant for the legitimate,
non-discriminatory reasons set forth above, and Complainant has
entirely failed to prove otherwise.
RD&O at 4-5.
We find substantial evidence in the record to support the ALJ's findings.
See 29 C.F.R. §1978.109(c)(3) (2000). Accordingly, we find that Mason has failed to
establish that his termination violated the employee protection provisions of the STAA and
concur with the ALJ's recommendation that the complaint should be dismissed.
SO ORDERED .
CYNTHIA
L. ATTWOOD
RICHARD
A. BEVERLY
[ENDNOTES]
1
2
3
4
