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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |  |
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USDOL/OALJ STAA Whistleblower Digest DIVISION IV -- BURDEN OF PROOF AND PRODUCTION SUBDIVISION C -- PRETEXT [Last updated July 17, 2008]
In Bryant v. Bob Evans Transportation, 94-STA-24 (Sec'y Apr. 10, 1995), the Secretary rejected the Respondent's asserted reason legitimate, nondiscriminatory reason for discharge of the Complaint -- that the Complainant had refused available work. The Complainant had refused to accept an assignment with another driver who he considered dangerous. Although the Respondent did not formally fill out discharge papers until the Complainant had refused several more assignments with the other driver or another driver who the Complainant considered unsafe, the Secretary found that the Respondent discharged the Complainant for refusing to drive with the other driver. Nonetheless, the Secretary went forward with the analysis to find that Complainant's belief that the other driver was dangerous was not objectively reasonable, and therefore the Complainant failed to establish that he had engaged in protected activity.
[STAA DIGEST IV C 1]
Evidence that the employer routinely encouraged drivers to make written reports of safety defects affecting the vehicles is highly relevant evidence that militates against a finding of retaliatory motivation. Andreae v. Dry Ice, Inc., 95-STA-24 (ARB July 17, 1997). IV C 1 PRETEXT; SERIOUSNESS OF COMPLAINANT'S TRANSGRESSION Where, although the Complainant's transgression appeared mild and hardly deserving of discharge, but the Complainant failed to show by a preponderance of the evidence that the Respondent's stated reason for the discharge was pretextual, the complaint was dismissed. Williams v. Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11, 1995).
[STAA Whistleblower Digest IV C 2 a]
In Roberts v. Marshall Durbin Co., ARB Nos. 03-071 and 03-095, ALJ No. 2002-STA-35 (ARB Aug. 6, 2004), the Respondent alleged that it fired the Complainant because he repeatedly refused to adhere to the company's policy regarding post-trip inspections. The ARB found, however, that substantial evidence supported the ALJ's finding that this reason was pretext. Noting that after a case is fully tried on the merits, it is the complainant's burden to prove that the respondent's proffered reasons for the adverse employment action were a pretext for discrimination, the Board quoted Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-48 (2000), to wit:
[O]nce the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation . . . . Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
Slip op. at 16, quoting Reeves, supra. In the instant case, a meeting was held between the Complainant and managers to discuss the events surrounding the Complainant's refusal to drive. The Complainant tape recorded the meeting. The ARB found that substantial evidence supported the ALJ's finding that the transcript of the meeting indicated that a human resources employee was predisposed to fire the Complainant from the outset; the Complainant brought up his contact with the DOT at the outset of the meeting and the meeting itself was set up shortly after the Employer had been informed of that contact; the Complainant's refusal to drive based on defective windshield wipers (one of the Complainant's protected activities) was specifically complained about at the meeting; throughout the meeting the Complainant cited the federal requirements he believed were being violated, and the Respondent never explicitly stated that its policy met those requirements.
IV C 2 a Pretext established where, inter alia, employee handbook not followed In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), although the Respondent had established a need to lay off drivers, this reason for its selection of the Complainant for lay off was found to be pretextual where, inter alia, the Respondent's employee handbook indicated that the company would observe reverse seniority in making layoffs and the Complainant had more seniority than two other workers who retained their jobs.
The Respondent had also indicated that it selected the
Complainant that he had indicated that he was thinking about
retiring. The Respondent, however, made inquiries about whether
the thought of retirement was moving toward an intent to retire
at the same time Complainant was making internal safety
complaints, and before the Respondent knew that it would loose a
customer that precipitated the need for layoffs. In addition,
another employee who had expressed a definite intent to retire
was not laid off.
[STAA Whistleblower Digest IV C 2 a]
In Cefalu v. Roadway Express, Inc., 2003-STA-55 (ALJ May 20, 2004), the ALJ found that the Respondent's proffered legitimate business reason for firing the Complainant - falsification of his employment application -- was a pretext for discrimination where the Complainant was fired five hours after his statement (alleging that the Respondent had required him to falsify logs and work more hours than allowed), was proffered at a grievance committee hearing in support of another truck driver, and where the Respondent presented no evidence to establish that such was the reason for the discharge or that the Complainant did in fact falsify his application. The ALJ also found that even if the Respondent had offered such evidence, the timing of the case strongly suggested that the purported falsification was a pretext.
[STAA Whistleblower Digest IV C 2 a]
In Calmat Co. v. USDOL, No. 02 73199 (9th Cir. Apr. 19, 2004) (case below ARB No. 99 114, ALJ No. 1999 STA 15), the 9th Circuit Court of Appeals affirmed the ALJ's and ARB's holding that the Respondent's stated reason for suspending the Complainant without pay to investigate threats and harassment that the Complainant had allegedly made against a fellow employee were pretext for retaliation against the Complainant for raising the safety issue of excessive hours of work. The court found that the ARB's finding of pretext was supported by substantial evidence, "including the timing and severity of [the Complainant's] suspension and evidence of disparate treatment." The court cited the ALJ's findings that the suspension occurred a few days after the Complainant voiced safety complaints; the fellow employee's complaint against the Complainant emerged during investigation of the Complainant's safety complaint; suspension without pay was unusually severe for a long employee; the length of the suspension was beyond the criteria of the Respondent's progressive disciplinary standards; the Respondent treated complaints similar to the one lodged by the fellow employee less seriously. The ALJ also found the Respondent's primary witness not to be credible expressing reservations about the manner in which that witness had conducted the investigation of the Complainant.
[STAA Digest IV C 2 a]
In Michaud & Ass't Sec'y v. BSP Transport, 95-STA-29 (ARB Jan. 6, 1997), Respondent contended that firing Complainant for photocopying time cards was legitimate because manifests were confidential. The Board, however, found, inter alia, that there was no proprietary information in the documents copied, that there were no written policies or verbal instructions against copying manifests, that drivers routinely made such copies without being fired, the manifests were not labeled as confidential, and the manifests were posted in a location where a driver from another company could see them. In sum, the Board concluded that the only true fear Respondent had about photocopying of time cards was that they might reveal violations of DOT regulations. Thus, Respondent's "legitimate" reason was not credible because the manifests had not been treated as confidential and the information on the manifests would not reveal much to competitors. IV.C.2.a. Complainant's request that Respondent either work him or fire him is not insubordination and does not qualify as a non-discriminatory reason for adverse action. In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a truck back to Respondent's truck yard after it had been placed out of service for safety violations. Respondents picked up Complainant and took him back to the truck yard. There, Complainant requested another driving assignment but was told by Respondent's dispatcher to wait for a while. After a half hour (during which Respondent's dispatcher criticized Complainant for Complainant's prior mechanical breakdowns) Complainant requested that Respondent's dispatcher either work him or fire him. At that time Respondent's dispatcher fired Complainant. Subsequently, Complainant's discharge was ratified by Respondent, who had the authority to discharge Complainant while the dispatcher did not. The Secretary held that Complainant's request that he be worked or fired was not insubordination but a request for resolution of the situation. Therefore, the request did not constitute an acceptable reason for Complainant's discharge. IV.C.2.a. Pretext established In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993), Respondent's proffered legitimate, nondiscriminatory reason for denying a driver reimbursement for lodging charges incurred when he had to stop due to fatigue prior to reaching his destination -- to dissuade drivers from visiting their supposed girlfriends -- was found to be pretextual. The Secretary concluded that rather than concern with girlfriends, Respondent's Relay Manager's concern was more likely the fact that some drivers refused to be intimidated into violating DOT regulations. IV.C.2.a. Articulation of nondiscriminatory reason for adverse action; complainant challenged supervisor to fight; provoked by respondent Where a complainant's challenge to fight his supervisor was spontaneous, was provoked by the supervisor's unlawful interference in the complainant's protected activity, and was far from egregious, no blow having been struck, the respondent could not rely on the challenge to terminate complainant's employment. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing
IV.C.2.a. Facially neutral policy used to violate STAA; dispatch policies did not offer protection for refusing to work due to fatigue In Hornbuckle v. Yellow Freight System, Inc., 92- STA-9 (Sec'y Dec. 23, 1992), the ALJ concluded that the respondent had legitimate, nondiscriminatory reasons for disciplining the complainant, that the complainant had forfeited his STAA protections by failing to present himself for work in a rested condition, "ignoring" the respondent's dispatch policies, and accepting an assignment. The Secretary examined the respondent's policies, and concluded that they offered no real measure of protection against discipline for refusing work due to fatigue. Compare Assistant Secretary of Labor for Occupational Safety and Bill J. Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992), slip op. at 7-8 (citing cases) ("[t]o permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits"). The respondent's policies included instructing drivers not to operate fatigued, but to discipline employees when they delay freight, regardless of whether it is fatigue related; permitting an employee a one time six-hour "slide" (i.e., a postponed assignment for up to six hours), provided that the driver calls before assigned (in the instant case, the complainant did not request a slide because he kept calling and kept being told that he was about to be assigned, and because he was not fatigued until later); a discretionary permission by the respondent to "mark off" the board for 24 hours in an emergency, but not because of fatigue. The Secretary concluded that the respondent had failed to show that its business interests in avoiding a one hour delay in this instance outweighed the policies underlying the STAA, particularly considering that the respondent was notified of the delay in advance. IV C 2 a Pretext; Respondent's failure to follow its own procedure In Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y May 18, 1994), Respondent contended that it suspended Complainant because of delinquent logs and not protected activity. The Secretary found that this reason was pretext because, inter alia, Respondent failed to follow its own written procedure which provided that a driver will be suspended if his logs are submitted 20 days late -- Complainant's logs were 15 days late. IV.C.2.a. Respondent's failure to follow disciplinary procedures Where, inter alia, the respondent's manager failed to follow his procedures for disciplining employees ("looking into" the reason for a delay) in the instant case, the Secretary concluded that a warning letter and a three-day suspension were issued in retaliation for the complainant's protected activity (stopping to sleep when fatigued and complaining about being given a disciplinary letter for the resulting delay). Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992) (the Secretary admitted that this was a "close" case). IV.C.2.a. Pretext Where Employer deviated from usual practice in dealing with a complainant's decision to forego delivery, failed to take action on complainant's complaint that left side delivery which required standing in traffic on the right side of his truck on one way streets was dangerous, and indicated at arbitration that one reason for the discharge was complainant's conduct of contacting OSHA and the New York Department of Transportation with regard to the unsafe operation of side reel delivery trucks, it was found that Employer had precipitated and seized upon missed deliveries to justify discharging a safety complainer who filed externally. Clay v. Castle Coal & Oil Co., Inc., 90-STA-37 (Sec'y Nov. 12 1991). IV.C.2.a. Despite earlier activity that may have justified a discharge, respondent waited until later protected activity Where the record indicated, inter alia, that Complainant's earlier conduct may have justified a discharge, but no action had been taken on the basis of such conduct until after Complainant had engaged in protected activity, Respondent failed to establish that it would have rejected Complainant for reemployment even if Complainant had not engaged in protected activity. Palmer v. Western Truck Manpower, 85-STA-6 (Sec'y Jan. 16, 1987). An additional aspect of Palmer is that Complainant had joint employers, a trucking company and a company that leased Complainant's services. The leasor refused to reemploy Complainant. The Secretary held that if the leasor's reason was motivated by Complainant's protected activity, the trucking company was liable by virtue of being a joint employer. The Secretary dismissed the ALJ's finding that the trucking company did not violate the STAA because it made genuine efforts to have the leasor reinstate Complainant and tried to place Complainant with other trucking companies. The Secretary found such actions irrelevant. [Editor's note: The leasor was not made a party before the ALJ.]
IV.C.2.a. Pretext; inconsistent employment
practices Inconsistent application of company policies has also been held to be evidence of retaliatory motive. Herman Bros. v. NLRB, 658 F.2d 201 (3d Cir. 1981). The Secretary found that the Respondent violated the Act when viewed under either the pretext or dual motive analysis.
[STAA Digest IV C 2 b]
PRETEXT; COMPLAINANT FAILED TO ESTABLISH THAT THE RESPONDENT DID NOT FIRE HIM FOR INSUBORDINATION RATHER THAN PROTECTED ACTIVITY
In Guay v. Burford's Tree Surgeon's, Inc., ARB No. 06-131, ALJ No. 2005-STA-45 (ARB June 30, 2008), the Respondent's president and owner stated that he fired the Complainant – not because he had reported drug use by other employees – but for insubordination because he had failed to provide the HR manager with a list of the employees he was accusing of using drugs after being told to do so and promising to comply. Because the Complainant presented no evidence to show that the Respondent's president and owner was not being truthful about the reason for the firing, the ARB affirmed the ALJ's finding that the Complainant had failed to establish pretext.
[STAA Digest IV C 2 b]
In Montgomery v. Jack in the Box, ARB No. 05-129, ALJ No. 2005-STA-6 (ARB Oct. 31, 2007), the ARB found that the reason articulated by the Respondent for firing the Complainant at the time of the firing was failure to report a company vehicle accident, regardless of other reasons given at the hearing. The Complainant had gotten stuck on a median and paid for towing himself. No damage was done to the truck, and the Complainant did not report the incident to the Respondent. The Respondent, however, learned of the incident and fired the Complainant following an investigation. On appeal, the Complainant argued that there had not been an accident that needed to be reported, that the Respondent had no policy defining what constituted an accident, and therefore the non-reporting ground for the firing was pretext. The ARB, however, found that substantial evidence supported the ALJ’s finding that the incident was, in fact, an accident. The ARB also found that even if the Respondent’s policy did define "accident," and even if the incident did not fall within that definition of "accident," the Complainant had not presented evidence that the Respondent terminated him because he complained about violations of DOT hours of service and condition of vehicle regulations.
[STAA Digest IV C 2 b]
In Wainscott v. Pavco
Trucking, Inc., ARB No. 05-089, ALJ No. 2004-STA-54 (ARB Oct. 31,
2007), the ARB agreed with the ALJ that the Complainant had failed to prove
that the Respondent's stated grounds for discharge – using a leased tractor
without authorization and leaving a HAZMAT trailer in a lay-by, both in
violation of company policy - were pretextual. The ALJ had found that the
Complainant had engaged in protected activity when he refused to drive in a
dangerous ice storm, but that he was discharged for leaving the HAZMAT trailer
unattended and taking the tractor home rather than for refusing to drive. The
Complainant established temporal proximity sufficient to establish a prima
facie case; however, the inference raised by a prima facie case is not
dispositive. The Complainant's burden is not to establish temporal proximity
but discrimination because of protected activity. Moreover, substantial
evidence supported the ALJ's findings that drivers were not allowed to take
tractors home without permission, and that a lay-by was not an authorized place
to leave a HAZMAT trailer under the Respondent's policy.
[STAA Whistleblower Digest IV C 2 b]
In Ridgley v. C.J. Dannemiller Co., ARB No. 05-063, ALJ No. 2004-STA-53 (ARB May 24, 2007), the Complainant complained that his trip sheet showed more stops than usual and might take over 14 hours to complete. The Respondent accommodated the Complainant by assigning a different driver and allowing the Complainant to go home. Under the company's arrangement with drivers, they were guaranteed full-time paychecks even when there were not eight hours of work to be performed on a particular day. There was no indication in the record, therefore, that reassigning the trip was adverse to the Complainant. That evening, the Complainant's supervisor called the Complainant to determine whether he planned to come to work the next day. Because the Complainant did not answer, he left a phone message which noted that the route had taken the other driver 8 hours and 20 minutes to complete "[s]o it wasn't quite as bad as it appeared I guess this morning." The ARB agreed with the ALJ that this message, a recording of which was entered into evidence, was delivered in a calm and patient manner.
When the Complainant returned the supervisor's call, he asked whether any stops had been removed from the route. The supervisor answered that they had not, and the Complainant replied that this was hard to believe. The supervisor asked if the Complainant was calling him a liar. The Complainant indicated that he was, and it was at that point that the supervisor fired the Complainant.
On appeal, the ARB found that substantial evidence supported the ALJ's finding that, although the Complainant engaged in protected activity, he failed to prove by a preponderance of the evidence that the reason for termination was a pretext to discrimination. The ALJ found that when the supervisor called, he had no intention to fire or discipline the Complainant, and that in fact if was not in the Respondent's interest to do so during a busy holiday season. The Complainant argued on appeal that well established case law holds that when an employee engaged in impulsive behavior, such impulsive conduct does not remove the right to engage in protected activity or provide the employer with a legitimate, nondiscriminatory reason for adverse action. The ARB, however, observed that the impulsive behavior standard applies to impulsive conduct incidental to the protected activity. Moreover, the ARB agreed with the ALJ's finding of fact that the supervisor had not provoked the Complainant or otherwise unlawfully interfered with his protected activity. Rather, the ARB affirmed the ALJ's finding that the Complainant was fired for insubordination.
[STAA Digest IV C 2 b]
In Chapman v. J.B. Hunt Transportation Co., ARB No. 05-097, ALJ No. 2004-STA-44 (ARB June 29, 2007), the Complainant failed to establish that the Respondent's articulated reason for firing him – insubordination and lack of professionalism during a review of his driving – was pretext for discrimination. Under the Respondent's procedure the team leader, fleet manager, and safety manager confer with a driver to discuss driving incidents upon receiving four complaints about the driver from members of the public. During this meeting the Complainant became hostile and was unreceptive to any criticism regarding his driving. The Board wrote: "Chapman strongly disagreed with Hunt's instruction and criticism regarding his driving methods. Nevertheless, the issue before us is not the merit of Hunt's suggestions. Hunt fired Chapman because of his insubordinate behavior during the multiple complaint review,
and Chapman's insubordinate behavior does not constitute STAA-protected activity. Chapman has therefore failed to prove an essential element of his claim, i.e., that Hunt terminated his employment because he engaged in protected activity." USDOL/OALJ Reporter at 6 (footnote omitted).
[STAA Digest IV C 2 b]
In Luckie v. United Parcel Service, Inc., ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. He was given 24 hours to make a decision. If he declined the promotion, his options were to accept a demotion and wait for future promotion opportunities, or to leave the company with three weeks of severance pay. The promotion offer, which had been in the works for some time, was ill-timed for the Complainant for personal reasons. The Respondent knew about the Complainant's timing issues. The Complainant chose none of the options and announced that he would continue to do his present job, whereupon the Respondent fired him. The ALJ found that the proximity of the promotion offer and the protected activity raised an inference of a causal link, and that the Respondent's proffered legitimate, non-discriminatory reason for making the offer when it did was pretext.
The ARB disagreed. Before the fire occurred, a need arose to replace an outgoing manager and the decision was made to select the Complainant. Instructions had already been given to inform the Complainant of the decision and move immediately on filling the vacancy. The district manager to whom the Complainant had complained about the fire investigation's inadequacy had not communicated with the corporate headquarters officials who played a role in selecting the Complainant for the promotion and transfer. The ARB found no support in the record for the ALJ's conclusion that employees are normally interviewed prior to being offered a promotion. The ARB agreed with the ALJ that the district manager was irritated with the Complainant, but found that the Complainant had offered no evidence to establish that "she [was] so irritated that she was motivated to take action to adversely affect Luckie's employment." The ARB found it not credible that the Respondent would force an employee to "self-terminate" based on a good faith complaint about the fire investigation where he had a good record, the Employer had invested 25 years in him, and there was no evidence of prior discord between the Complainant and other employees.
[STAA Whistleblower Digest IV C 2 b]
In Carney v. Price Transport, ARB No. 04-157, ALJ No. 2003-STA-48 (ARB May 31, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant was fired for a legitimate, non-discriminatory reason – tampering with the Respondent's truck by clamping a turbo hose to increase power at the expense of possibly voiding the mechanical warranty on the truck or causing severe damage.
The ALJ found the testimony of the Respondent's witnesses to be credible as to the likely damage and the fact
that other employees had been repeatedly warned not to tamper with the turbo hose. The ALJ found not credible the Complainant's explanation
that his apparent admission to clamping the hose was merely an attempt to get his job back. The ARB also noted that the Complainant made no showing that the Respondent did not believe that the Complainant had clamped the hose. Unconverted testimony also showed that the Respondent had fired another employee, who had not engaged in protected activity, for the same offense. Finally, the ALJ found no evidence of retaliatory animus and no evidence that the Complainant had ever been disciplined for complaints about hours of service.
[STAA Whistleblower Digest IV C 2 b]
In Martin v. United Parcel Service, ARB No. 05-040, ALJ No. 2003-STA-9 (ARB May 31, 2007), the ARB found that substantial evidence supported the ALJ's finding that the Complainant was fired for a legitimate, non-discriminatory reason – repeated violation of the collective bargaining agreement by failing to record stops and taking more than one hour of meal period. The Complainant did not explain why he failed to adhere to the meal policy or properly log all of his stops, and did not dispute that he knew he was to log all stops on the Respondent's computer system. The ARB found substantial evidence to support the ALJ's finding that the log failures had not stemmed from safety concerns.
[STAA Whistleblower Digest IV C 2 b]
In Ridgley v. C.J. Dannemiller Co., ARB No. 05-063, ALJ No. 2004-STA-53 (ARB May 24, 2007), the Complainant complained that his trip sheet showed more stops than usual and might take over 14 hours to complete. The Respondent accommodated the Complainant by assigning a different driver and allowing the Complainant to go home. Under the company's arrangement with drivers, they were guaranteed full-time paychecks even when there were not eight hours of work to be performed on a particular day. There was no indication in the record, therefore, that reassigning the trip was adverse to the Complainant. That evening, the Complainant's supervisor called the Complainant to determine whether he planned to come to work the next day. Because the Complainant did not answer, he left a phone message which noted that the route had taken the other driver 8 hours and 20 minutes to complete "[s]o it wasn't quite as bad as it appeared I guess this morning." The ARB agreed with the ALJ that this message, a recording of which was entered into evidence, was delivered in a calm and patient manner.
When the Complainant returned the supervisor's call, he asked whether any stops had been removed from the route. The supervisor answered that they had not, and the Complainant replied that this was hard to believe. The supervisor asked if the Complainant was calling him a liar. The Complainant indicated that he was, and it was at that point that the supervisor fired the Complainant.
On appeal, the ARB found that substantial evidence supported the ALJ's finding that, although the Complainant engaged in protected activity, he failed to prove by a preponderance of the evidence that the reason for termination was a pretext to discrimination. The ALJ found that when the supervisor called, he had no intention to fire or discipline the Complainant, and that in fact if was not in the Respondent's interest to do so during a busy holiday season. The Complainant argued on appeal that well established case law holds that when an employee engaged in impulsive behavior, such impulsive conduct does not remove the right to engage in protected activity or provide the employer with a legitimate, nondiscriminatory reason for adverse action. The ARB, however, observed that the impulsive behavior standard applies to impulsive conduct incidental to the protected activity. Moreover, the ARB agreed with the ALJ's finding of fact that the supervisor had not provoked the Complainant or otherwise unlawfully interfered with his protected activity. Rather, the ARB affirmed the ALJ's finding that the Complainant was fired for insubordination.
[STAA Whistleblower Digest IV C 2 b]
In Crowell v. Americoach Tours, ARB No. 04-173, ALJ No. 2002-STA-33 (ARB Jan. 16, 2007) (reissue of Dec. 29, 2006 decision),
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the Complainant was a co-driver on a educational bus tour tracking an underground railroad route. During the trip some teenage students because disorderly and disruptive, and the Complainant called in to the Respondent to state that he may not drive because it had become unsafe. Later, however, when asked if he needed a relief driver he indicated that everything had been worked out. After the tour completed, the client's program director called the Respondent to complain that the Complainant had used profanity in front of the teenagers and had tried to extort money to continue driving. The program director followed up the conversation with a written statement. The co-driver on the trip wrote to the Respondent that the Complainant had threatened not to drive in Toronto and had asked the program director, "what's in it for me," if he continued. The Respondent thereafter fired the Complainant. The ARB affirmed the ALJ's finding that the Complainant engaged in protected activity when he reported safety concerns regarding his hours of service and the disruptive behavior of his passengers, but also affirmed the ALJ's finding that the Complainant failed to show that the Respondent's stated ground for firing him (the profanity and the attempted extortion) were pretext in view the program director's and co-driver's statements.
[STAA Whistleblower Digest IV C 2 b]
In Jenkins v. Old Dominion Recycling, Inc., ARB No. 05-013, ALJ No. 2004-STA-13 (ARB Jan. 27, 2006), the ARB found that substantial evidence supported the ALJ's dismissal of the complaint on the ground that the Complainant did not prove that the ground stated by the Respondent for his discharge -- an extended argument with his foreman -- was a mere pretext for retaliation for activity protected under the STAA.
IV.C.2.b. Pretext not shown Where Respondent had articulated a legitimate non-discriminatory reason for firing the Complainant, the Complainant had failed to show either that the reason was pretextual or that the Respondent was motivated at least in part by discriminatory intent. Moon v. Transport Drivers, Inc., 86-STA-1 (Sec'y 1986).
[STAA Whistleblower Digest IV C 2 b]
In Poll v. R. J. Vyhnalek Trucking, ARB No. 99 110, ALJ No. 1996 STA 35 (ARB June 28, 2002), the ALJ found that the Complainant failed to establish the causation element of a prima facie case because the Respondent alleged that it had discharged the Complainant because of an accident, which followed the protected complaint by about two weeks and preceded the discharge by a matter of days. The ARB, however, citing authority relating to the raising of an inference of causation based on temporal proximity, declined to adopt the ALJ's finding that a prima facie case had not been established. Rather, the ARB found "the accident somewhat less compelling in light of case precedent and the three week period at issue here. The accident simply does not represent the confluence of compelling evidence to the contrary cited by courts that have rejected the inference." The ARB, however, went on the consider the case under the pretext analysis and adopted the ALJ's alternative finding that the Complainant had failed to prove that Respondent's articulated nondiscriminatory reason for discharging the Complainant was pretext. In other words, although the evidence of an intervening event the accident was insufficient to prevent the invocation of the inference of causation under the prima facie analysis, once the Respondent articulated a nondiscriminatory reason for the adverse employment action, the prima facie analysis dropped out of the case, and it was Complainant's burden to prove pretext. Mere evidence of proximate timing was found inadequate to sustain Complainant's ultimate burden of proof by a preponderance of the evidence, given proof of the intervening accident and credible testimony of Respondent's president as to motivation for the discharge. To the same effect: Gale v. Ocean Imaging, ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002).
[STAA Digest IV C 2 b]
In Frechin v. Yellow Freight Systems, Inc., 96-STA-34 (ARB Jan. 13, 1998), Respondent articulated the legitimate, nondiscriminatory ground for discharging Complainant that Complainant wasted company time -- specifically, taking excessive time to depart from the terminal. Complainant contended that this ground was pretextual, inter alia, because Respondent did not have a written policy requiring drivers to leave the terminal within 15 minutes of receiving their manifests. The ARB found that the fact that the policy was not written did not negate its existence, pointing out evidence establishing that Complainant and other drivers were aware of the policy. IV C 2 b Evidence of pretext; contemporary writings; inconsistency with recent positive performance evaluation In Ass't Sec'y & Dean v. Triad Transportation, 94-STA-37 (Sec'y June 5, 1995), the Secretary found that the Respondents' purported reasons for discharging the Complainant were pretext where they conflicted with a contemporary written log of the reason for discharge and where they were inconsistent with a positive performance evaluation approximately three months before the discharge. IV.C.2.b. STAA - complainant's failure to establish pretext Complainant's STAA complaint was dismissed where she introduced no evidence to prove that respondent's proffered legitimate, nondiscriminatory reasons for discharge of complainant were pretextual. respondent's reasons included demonstrated inexperience in operating commercial motor vehicles and in scheduling assigned deliveries and pickups; her inability to complete her driving logs correctly; and her husband's reportedly having driven her assigned vehicle, and unauthorized practice. Bergeron v. Aulenback Transportation Inc., 91-STA- 38 (Sec'y June 4, 1992). IV. C. 2. b. Pretext not established In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994), the Respondent stated that it discharged the Complainant because he refused to move his truck because he was owed $40, and when later confronted about the incident, stated that he would refuse to drive in the future if the same circumstances arose again. The Secretary held that where the employer did not discharge the Complainant immediately after the refusal of a dispatch, but rather only after the Complainant stated that he would again refuse to drive if the Respondent owned him money, the Complainant failed to establish pretext. IV.C.2.b. Pretext; treatment different from similarly situated employees The complainant and the Acting Assistant Secretary failed, in Kimball v. Misty Moon Transportation, Inc., 92-STA- 15 (Sec'y Oct. 29, 1992), to establish that the respondent's asserted legitimate reason for firing the complainant, refusal to abide by the company's uniform requirement, was not credible because other drivers were not discharged for their violations of the regulations but where "bobtailed" (sent home without a paying load) for similar violations. The record revealed that the respondent did not always use bobtailing as the discipline for uniform violations, but when it was the only alternative to dispatching a driver out of uniform. The respondent tried, but failed, to get the complainant to take the uniform requirement seriously; other drivers capitulated and conformed. The record, therefore, did not establish that the complainant was treated differently from another similarly situated driver. Compare Dysert v. Westinghouse Elec. Corp., 86-ERA-39 (Sec'y Oct. 30, 1991), slip op. at 5 (no pretext or disparate treatment shown where other employee did not engage in same degree of aggressive behavior as complainant). IV.C.2.b. Behavior outside bounds of normal work place demeanor; complaints were taken seriously Where a complainant's behavior was so outside the bounds of normal work place demeanor that the Secretary found that the Respondent reasonably deemed it unacceptable. That insubordination and aggressive behavior were not pretextual reasons for discharging Complainant was supported by the fact that Respondent investigated Complainant's complaints and ultimately took disciplinary action against a driver who had falsified a log. Toland v. Werner Enterprises, 93- STA-22 (Sec'y Nov. 16, 1993). IV. C. 2. b. Pretext not established In Paquin v. J.B. Hunt Transport, Inc., 93-STA-44 (Sec'y July 19, 1994), the Respondent stated that it discharged the Complainant because he refused to move his truck because he was owed $40, and when later confronted about the incident, stated that he would refuse to drive in the future if the same circumstances arose again. The Secretary held that where the employer did not discharge the Complainant immediately after the refusal of a dispatch, but rather only after the Complainant stated that he would again refuse to drive if the Respondent owned him money, the Complainant failed to establish pretext.
4 c 2 b Where the ALJ's findings were supported by substantial evidence on the record considered as a whole, the Secretary recognized those findings as conclusive and found that the complainant had failed to establish that the employer's proffered reason for discharging the complainant had not been shown to be pretextual. The ALJ had found that the complainant habitually listed any vehicle defects in his daily log, and that he had not listed the defect now complained of when he first noticed it -- factors that undercut the complainant's testimony that his refusal to drive was based solely on the safety of the vehicle. In addition, the Secretary found that the ALJ's credibility determinations were supported by substantial evidence, as was his finding that the real reason the manager fired the complainant was his refusal to transport the company's cash after the manager had denied a pay advance. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992). IV.C.2.b. Refusal to follow reasonable instructions for correction of problem
Where the complainant was instructed to remove his belongings
from the assigned truck, he could not complete the assigned job,
he did not return to work for the respondent thereafter, and he
was denied rehire several months later, this evidence was
sufficient to make a prima facie case of adverse action despite
the respondent's characterization of the incident as a voluntary
quit. The Secretary found, however, that the complainant failed
to carry his ultimate burden of establishing that the respondent
took adverse action against him in retaliation for refusing to
drive an overweight truck. Specifically, she found that the
record as a whole did not establish the respondent's adverse
action was in retaliation for protected conduct. Rather, the
record showed that the complainant refused to follow instructions
concerning a reasonable correction of the overweight load, and
accordingly, the respondent legitimately replaced him for that
work assignment. According to the Secretary, such a replacement
for a specific assignment is not a protected work refusal under
the STAA. Galvin v. Munson Transportation, Inc.,
91-STA-41 (Sec'y Aug. 31, 1992).
[STAA Whistleblower Digest IV C 3]
In Bettner v. Crete Carrier Corp., ARB No. 06-013, ALJ No. 2004-STA-18 (ARB May 24, 2007), the Complainant had been recruited for the Respondent's dedicated fleet, which required pick-up and delivery of freight at specific times. He was assigned a dispatch, but failed to complete on-time deliveries due to DOT hours of service limitations. The Respondent determined that the failure was based on the Complainant's inability to properly plan and execute his dispatches, and thus decided to transfer the Complainant to the Respondent's national fleet, which did not demand time sensitive pick-up and delivery. In addition, the Complainant was informed that his next dedicated fleet dispatch had been assigned to a different driver. The Complainant then cleaned out his truck and left a message indicating that he had not quit, but had concluded that he had been fired. Negotiations for the Complainant's return to work were unfruitful, and the Complainant filed a STAA whistleblower complaint. The Complainant argued that there were significant differences in the working conditions between the dedicated and national fleets. The ALJ granted summary decision on several grounds. On appeal to the ARB, the focus was on the Complainant's failure to address whether the Respondent's articulated legitimate non-discriminatory reason for transferring the Complainant was pretextual. The ARB noted that the ALJ had granted summary decision because the Complainant had adduced no evidence to suggest that the reason for transfer was pretextual, and found that the Complainant arguments on appeal – trying to convince the ARB that the lack of timely deliveries and pick-ups were not his fault – failed to address the question of whether the transfer was grounded in protected activity rather than the Respondent's belief that that the untimely pick-ups and deliveries resulted from poor planning by the Complainant. Thus, the ARB affirmed the ALJ's grant of summary decision.
IV.C.3. Legitimate, nondiscriminatory motive;
employer's subjective perception of circumstances Where the complainant complained that the schedule did not allow sufficient time for a requisite eight hour layover and was discharged after completing the run, a prima facie case under 49 U.S.C. app. § 2305 was established. However, where the employer presented evidence of a legitimate business reason to discharge complainant -- falsification of logs and records -- and where the evidence permitted an inference that the employer believed that the schedule could be run legally and believed that complainant illegally and unnecessarily falsified his logs to cover up a self-imposed violation, the complaint was dismissed. It is the employer's subjective perception of the circumstances which is the critical focus of the inquiry. Allen v. Revco D.S., Inc., 91-INA-9 (Sec'y Sept. 24, 1991).
[STAA Whistleblower Digest IV C 3] In Bettner v. Crete Carrier Corp., ARB No. 06-013, ALJ No. 2004-STA-18 (ARB May 24, 2007), the Complainant had been recruited for the Respondent's dedicated fleet, which required pick-up and delivery of freight at specific times. He was assigned a dispatch, but failed to complete on-time deliveries due to DOT hours of service limitations. The Respondent determined that the failure was based on the Complainant's inability to properly plan and execute his dispatches, and thus decided to transfer the Complainant to the Respondent's national fleet, which did not demand time sensitive pick-up and delivery. In addition, the Complainant was informed that his next dedicated fleet dispatch had been assigned to a different driver. The Complainant then cleaned out his truck and left a message indicating that he had not quit, but had concluded that he had been fired. Negotiations for the Complainant's return to work were unfruitful, and the Complainant filed a STAA whistleblower complaint. The Complainant argued that there were significant differences in the working conditions between the dedicated and national fleets. The ALJ granted summary decision on several grounds. On appeal to the ARB, the focus was on the Complainant's failure to address whether the Respondent's articulated legitimate non-discriminatory reason for transferring the Complainant was pretextual. The ARB noted that the ALJ had granted summary decision because the Complainant had adduced no evidence to suggest that the reason for transfer was pretextual, and found that the Complainant arguments on appeal – trying to convince the ARB that the lack of timely deliveries and pick-ups were not his fault – failed to address the question of whether the transfer was grounded in protected activity rather than the Respondent's belief that that the untimely pick-ups and deliveries resulted from poor planning by the Complainant. Thus, the ARB affirmed the ALJ's grant of summary decision. IV.C.3. Whether Complainant actually caused a breakdown In Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987), Respondent's articulated reason for discharging Complainant was that Complainant deliberately caused a breakdown of his vehicle. Respondent presented evidence that it had good reason to believe that Complainant deliberately unplugged the marker light connector on his tractor. The Secretary examined the evidence in detail and concluded that there was no evidence that Complainant was dishonest or that prior breakdowns were not legitimate, that Respondent's equipment was generally not in good condition, that it was not proved that Complainant deliberately unplugged the marker light but the evidence did lead to the conclusion that Respondent was watching to catch Complainant in a deliberate breakdown and seized upon the tractor maker light incident as an excuse for getting rid of Complainant. Thus, the Secretary found that the articulated reason was pretextual. [Editor's note: The Secretary's factual findings are detailed, and concentrate a great deal on whether there was proof that Complainant actually caused a breakdown. Query whether the focus should have been more on whether Respondent believed that Complainant caused a breakdown.] IV.C.3. Circumstances must provide substantial indication that the employee is not innoccent before an employer's actions based on employee misconduct can be credited In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a truck back to Respondent's truck yard after it had been placed out of service for safety violations. Although Respondent instructed its workers to check for mechanical problems each day, Complainant was unable to detect the mechanical problems on the day on the day in question. Complainant testified that Respondent's mechanics did not always repair all reported defects. Following Complainant's breakdown, Respondents contacted a mechanic who attempted to make roadside repairs. When the mechanic was unable to make all repairs necessary to place truck back in service, Respondents had the mechanic tow the truck to the state line. At that point, Respondent's asked Complainant to remove the out of service stickers and drive the truck back to the truck yard. Upon the Complainant's refusal to do so, Respondents picked up Complainant and took him back to the truck yard. There, Complainant requested another driving assignment but was told by Respondent's dispatcher to wait for a while. After a half hour (during which Respondent's dispatcher criticized Complainant for Complainant's prior mechanical breakdowns) Complainant requested that Respondent's dispatcher either work him or fire him. At that time Respondent's dispatcher fired Complainant. Subsequently, Complainant's discharge was ratified by Respondent, who had the authority to discharge Complainant while the dispatcher did not. The Secretary held that this was not a case where the employer harbored an honest, albeit mistaken, belief that the employee engaged in misconduct (by not conducting a thorough inspection of the truck prior to driving) and therefore, the case is not removed from the pretext mode. In order to establish that the employer was acted with the belief that the employee had engaged in misconduct, it is necessary for the "circumstances to provide substantial indication that the employee is not innocent before the employer's belief can be credited." NLRB v. Charles Batchelder, Co., Inc., 646 F.2d 33, 42 n.1 (2d Cir. 1981)(Newman, J., Concurring). IV.C.4. Discrimination against similarly situated employees In Spearman v. Roadway Express, Inc., 92-STA-1 (ALJ Mar. 2, 1993), the ALJ found that even assuming that drivers were not entitled to reimbursement of motel expenses incurred when a driver has to stop due to fatigue, the Complainant could still prevail on his whistleblower complaint because an employer cannot escape liability merely because it discriminates against other similarly situated employees. IV.C.5. Balancing of business interests with safety concerns In Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993), slip op. at 8-9 n.7, quoting ALJ's Partial Recommended Decision & Order at 23-24 (ALJ Nov. 13, 1992), the Respondent had a dispatch policy which put employees in the following situation:
The Secretary held that the Complainant did not forfeit STAA protection by failing to remove himself from the board because of fatigue prior to being dispatched or by failing to notify the Respondent of delays related to fatigue. The Secretary noted that in Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992), under similar circumstances a respondent's legitimate business interests in scheduling and management did not outweigh the safety policies underlying the STAA. See also LaJoie v. Environmental Management Systems, Inc., 90- STA-31 (Sec'y Oct. 27, 1992), appeal docketed, No. 92-2472 (1st Cir. Dec. 28, 1992). He also noted the ALJ's finding that there was no evidence adduced in this case to show that the delays damaged the Respondent, and he noted himself that there was testimony that the Complainant's low position on the seniority extra board explained his three instances of fatigue in a three-month period. The Secretary emphasized that the problem of driver fatigue pervades the transportation industry and has resulted in extensive DOT regulation. See, e.g., 49 C.F.R. §§ 392.3, 392.4, 395.8.
[STAA Whistleblower Digest IV C 5] In Harrison v. Roadway Express, Inc., ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), Respondent had a policy that trailer could be "red tagged" (put out of service for safety related reasons) by yard personnel only after they had communicated with supervisory personnel and been granted permission to apply the tag. The ALJ had applied by analogy the test in Self v. Carolina Freight Carrier Corp., 1991 STA 25 (Sec'y Aug. 6, 1992), to find that Complainant had been retaliated against for his red tagging activity. The ARB, however, found Self to be distinguishable both in regard to the nature of the protected activity and its relation to the employer's policy. The ARB found that in Self, the employer's "availability" policy put the driver in the position of either driving while fatigued in violation of federal safety regulations or facing discipline. In the instant case, Complainant was free to make safety complaints B the policy merely restricted Complainant's ability to take equipment out of service. The ARB also observed that the ALJ had not correctly applied the balancing test found in Self, weighing legitimate business interests against Congressional intent to promote road safety. The ALJ had merely stated the interests, and had not proceeded to determine which of the policies was entitled to greater weight in the particular circumstances of the case. The ARB found that because Complainant was free to voice safety concerns, there was no conflict between competing policies (in fact, since there was no conflict, it was not even necessary to employ the balancing test). Employer's policy in the instant case was to prevent unqualified personnel from pulling equipment out of service unnecessarily. IV.C.5. Failure to follow established procedure for dealing with fatigue when fatigue arises unexpectedly In Yellow Freight Systems, Inc. v. Reich, No. 93- 1205 (4th Cir. Oct. 29, 1993) (available at 1993 U.S. App. LEXIS 28378), the employer had a set of procedures to permit drivers to avoid taking runs when fatigued. It argued that it disciplined Complainant for failing to follow those procedures rather than for engaging in protected activity (pulling over for a nap). The Secretary found that, however, that these procedures did not help a driver in Complainant's situation -- someone who had thought his dispatch was imminent for many hours, whose departure was delayed upon arrival at the terminal due to Board logistics and repairs, but who thought he was not too tired to make the trip but became fatigued during the drive. The court noted that fatigue is not always predictable. In sum, the court noted that:
[Editor's note: The dissent noted testimony of record that indicated that Complainant had voiced an opinion that he was statutorily protected in setting the pace of his dispatches, concluding that Complainant was taking on dispatches when fatigued in the belief that he could rest without fear of discipline. The dissent concluded that "Were we to require companies . . . to institute additional procedures that give drivers more control in determining the schedules based on fatigue considerations, the companies could not long remain in business." The majority's position, however, was that the dissent improperly departed from the reviewing court's obligation to defer to the Secretary's findings, and noted that the Secretary had found that there was no pattern of delay of freight by Complainant and that Complainant's testimony was that he did not believe he was too tired when he took the load.] In Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987), the Secretary found that Respondent's articulated reason for discharging Complainant was pretextual. That, however, was not the end of the analysis. The Secretary then considered Respondent's rebuttal arguments that not all of Complainant's breakdowns were safety related (the Secretary found that a significant number of them were), that it did not single out for discipline another driver who made more complaints over a longer period of time than Complainant (the Secretary noted that Complainant did not have "to prove that similarly situated individuals are treated differently." Wells, slip op. at 9, citing DeFord v. Tennessee Valley Authority, 700 F.2d 281, 286 (6th Cir. 1983).)
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