It is unlawful under Minnesota law for an employer to
discharge an employee for reporting an employer's violation of
state or federal law. The Court of Appeals addressed the issue
whether the state law cause of action was preempted by the STAA.
The Court found that the STAA did not represent Congressional
effort at occupying the field of interstate motor carriers. It
also ruled that enforcement of the Minnesota statute would not
frustrate the purpose of the federal scheme. The state cause of
action was not preempted by the STAA. Parten v. Consolidated
Freightways Corp., 923 F.2d 580 (8th Cir. 1991).
[STAA Whistleblower Digest XIII A]
PRE EMPTION; MATTER COVERED BY THE LMRA DOES NOT PRE EMPT STAA WHISTLEBLOWER COMPLAINT
In Lane v. Roadway Express, Inc., ARB No. 03 006, ALJ No. 2002 STA 38 (ARB Feb. 27, 2004), the Respondent contended that consideration of the complaint as it related to waiting time pay was pre empted by the Labor Management Relations Act. The ARB, however, held that the LMRA, which governs contractual labor disputes, does not preclude the Secretary of Labor from determining whether discrimination occurred and ordering appropriate relief under the STAA.
XIII A Preemption of state law claim
In Davis v. Customized Transportation, Inc., 854 F.
Supp. 513 (N.D. Ohio 1994), the court held that section 405 of
the STAA preempted a state law claim involving a discharge in
retaliation for an employee refusing to violation Federal Motor
Carrier Safety Regulations.
XIII.A. Section §405 of the STAA Serves as
the Exclusive Remedy to Adverse Employment
Action, and the Plaintiff's RICO Claims will
be Dismissed.
Plaintiff-truck driver was terminated for failing to meet
time schedules. Plaintiff alleged that his employer fixed
destinations and time schedules that could not be met unless the
driver violated the Federal Motor Carrier Safety Regulations
regarding the maximum allowable road time without rest. He
brought civil RICO claims, as well as state law claims for
slander, interference with business relations, and tortious
breach of duties of good faith and fair dealing. Employer's
Fed.R.Civ. Proc. 12(b)(6) motion to dismiss is granted on the
grounds that §405 of the STAA serves as the plaintiff's
exclusive remedy over the allegations raised. Norman v. M.S.
Carriers, Inc., 741 F.Supp. 148 (W.D. Tenn. 1990).
A truck driver brought an action against his employer
alleging that he was terminated in retaliation for filing a
formal complaint with the Department of Transportation and for
challenging the employer's incorrect payment of mileage rates.
The evidence showed that the complaints to DOT were made two
months after complainant was terminated and that the employer had
no knowledge of the complaints. Further, mileage rates were
recalculated by the employer, and wage increases were paid to the
drivers, including to complainant. Although the court was
unpersuaded that the plaintiff could prevail on its claims in
light of the evidence adduced, it dismissed the action without
prejudice on the grounds that the plaintiff had failed to exhaust
administrative remedies. Zaleski v. Customized
Transportation, Inc., United States District Court for
the Eastern District of Michigan, Southern Division, 1991 U.S.
Dist. LEXIS 15965; Empl. Prac. Dec. (CCH), ¶41,026 (May 2,
1991).
[STAA Whistleblower Digest XIII C]
DEFERRAL TO ARBITRATION; ERROR TO DEFER WHERE GRIEVANCE PROCEEDING DISPOSED BASED ON SETTLEMENT
In Tuggle v. Roadway Express, Inc., ARB No. 03-081, ALJ No. 2003-STA-8 (ARB May 28, 2004), the Complainant had filed a CBA grievance and later a STAA complaint. The CBA grievance was settled. After DOL initially denied the STAA complaint, the Complainant requested a hearing before an ALJ. The ALJ granted the Respondent's motion to dismiss under 29 C.F.R. § 1978.112(c) based on deferral to the settlement of the CBA grievance. The ALJ found that the facts at issue were the same, that the settlement was "fair, regular and free of procedural infirmities." The ARB observed, however, that section 1978.112(c) also provides if a proceeding in another forum is "dismissed without adjudicatory hearing thereof, such dismissal will not ordinarily be regarded as determinative of the [STAA] complaint." Since the Complainant's case was settled, the ARB found that his STAA rights were not adjudicated and consequently the ALJ erred in deferring to the settlement.
[STAA Whistleblower Digest XIII C]
GRIEVANCE ARBITRATION; ALJ PROPERLY ADMITTED RECORD FROM GRIEVANCE PROCEEDING INTO THE STAA RECORD, BUT ALSO PROPERLY DECLINED TO DEFER
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 conclusion (and the ARB's affirmance of that conclusion) that she should not defer to CBA grievance arbitration proceeding because the legal issues in that proceeding differed significantly from, and did not address adequately all the factual issues important to, an STAA whistleblower proceeding. The court held that " [t]he Department of Labor's policy of deferring STAA claims to the outcome of an arbitration under a CBA only in narrow circumstances is consistent with the national policy favoring arbitration." Id. at 5123. See 29 C.F.R. § 1978.112(a)(3).
The court observed that the ALJ properly admitted and weighed as evidence the record from the arbitration, citing Roadway Express v. Brock, 830 F.2d 179, 180 82 (11th Cir. 1987).
[STAA Whistleblower Digest XIII C]
GRIEVANCE ARBITRATION; STANDARD FOR WHEN TO DEFER
In Germann v. Calmat Co., ARB No. 99 114, ALJ No. 1999 STA 15 (ARB Aug. 1, 2002), the ARB ruled that the ALJ's determination not to defer to a grievance arbitration was fully consistent with the standard enunciated recently by the ARB: "Under judicial and administrative precedent, this Board defers to the outcome of another preceding only if the tribunal has given full consideration to the parties' claims and rights under the STAA. Scott v. Roadway Express, Inc., ARB No. 99 013, ALJ No. [19]98 STA 8, slip op. at 9 (ARB July 28, 1999). See also Brame v. Consolidated Freightways, No. [19]90 STA 20, slip op. at 3, n. 3 (Sec'y June 17, 1992)."
[STAA Digest XIII C]
DEFERRAL TO OTHER PROCEEDINGS
The ARB defers to the outcome of another proceeding only if that tribunal has given full
consideration to the parties' claims and rights under the STAA, and if it affords all of the procedural
protections provided in hearings before ALJs. Scott
v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28,
1999).
[STAA Whistleblower Digest XIII D]
MOOTNESS DOCTRINE
In Lane v. Roadway Express, Inc., ARB No. 03 006, ALJ No. 2002 STA 38 (ARB Feb. 27, 2004), the ALJ recommended dismissal because the Respondent had removed the complained of warning letter from the Complainant's file, thereby rendering the complaint moot. The ARB, however, found that the ALJ had overlooked the fact that the complaint had contained two separate adverse actions discipline and lost wages and remanded for further proceedings. In regard to the mootness doctrine, the Board wrote:
Under Article III of the Constitution, the jurisdiction of federal courts extends only to actual cases and controversies. A federal court may not adjudicate disputes that are moot. McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir.1997) (en banc) (quotation omitted). Although administrative proceedings are not bound by the constitutional requirement of a "case or controversy," the Board has considered the relevant legal principles and case law developed under that doctrine in exercising its discretion to terminate a proceeding as moot. See, e.g., United States Dep't of the Navy, ARB No. 96 185 (ARB May 15, 1997); see also Assistant Sec'y and Curless v. Thomas Sysco Food Servs., No. 91 STA 12, slip op. at 4 7, Sec'y, Sept. 3, 1991, vacated on other grounds sub nom., Thomas Sysco Food Servs. v. Martin, 983 F.2d 60 (6th Cir. 1993).
Mootness results "when events occur during the pendency of a litigation which render the court unable to grant the requested relief." Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986), citing Southern Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498 (1911). Allegations become moot when a party "has already been made whole for damage it claims to have suffered." Madyun v. Thompson, 657 F.2d 868, 872 (7th Cir. 1981). The burden of demonstrating mootness rests on the party claiming mootness. Ammex, Inc. v. Cox, 351 F.3d 697, 705, (6th Cir. 2003), citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
[STAA Whistleblower Digest XIII D]
MOOTNESS DOCTRINE; AVAILIBILITY OF ATTORNEY'S FEES DOES NOT PREVENT A CASE FROM BECOMING MOOT; REQUEST FOR ABATEMENT; CAPABLE OF REPETITION, YET EVADING REVIEW STANDARD
In Agee v. ABF Freight System, Inc., 2004-STA-40 (ALJ Sept. 27, 2004), the Complainant called in sick and several days later the Employer issued a warning notice citing the Complainant for habitual absenteeism. Thereafter the Complainant filed a STAA whistleblower complaint alleging that the warning notice violated the STAA, and requesting that the Employer be ordered to expunge the letter from the Complainant's file, abate the violations, and pay the Complainant's attorney's fees and costs. Under the relevant collective bargaining agreement warning notices were required before the Respondent could discipline employees for habitual absenteeism. The CBA also provided that such notices only remain in effect for nine months. By the time the matter reached the ALJ, the nine months had passed and the Respondent moved for summary decision under the doctrine of mootness.
The ALJ found the Complainant's response to the motion for summary decision was unpersuasive and that the case was moot. The Complainant argued that the Complainant was entitled to an award of attorney's fees. The ALJ, however, found that potential entitlement to attorney's fees was not a sufficient interest to save the claim from mootness. The ALJ found that the Complainant's demand for an order of abatement did not present an actual case or controversy because the expiration of the notice, in effect, healed his injury. The ALJ found that the Employer had never exploited the warning notice and was not engaged in any ongoing activity that the ALJ could direct it to abate. The ALJ also found that the Complainant had not demonstrated that the "capable of repetition, yet evading review" exception to the mootness doctrine applied.
[STAA Whistleblower Digest XIII D]
SUMMARY JUDGMENT; MOOTNESS DOCTRINE; EMPLOYER WITHDREW SUSPENSION LETTERS AND COMPLAINANT HAD SUFFERED NO LOST TIME, WAGES OR BENEFITS
In Ciofani v. Roadway Express, Inc., 2004-STA-46 (ALJ Nov. 18, 2004), the ALJ recommended summary judgment in favor of the Respondent where, prior to hearing, the Respondent rescinded all suspension letters that had been the subject of the complaint, the Complainant had not served any of the suspensions, and all references to the suspension letters were removed from his personnel file. The Complainant did not incur any lost time, wages or benefits related to the suspension letters. The ALJ agreed with the Respondent that the complaint had been mooted, and noted that the Sixth Circuit had so ruled in a similar case, Thomas Sysco Food Services v. Martin, 938 F.3d 60 (6th Cir. 1993). The Complainant contended that the dispute was not moot because there remained claims for attorney fees and costs, a request for an order of abatement, and his belief that he could be subjected to the same action in the future. The ALJ rejected these contentions, finding that attorney fees or costs could not be awarded because the Secretary had not issued an order under § 31105(a)(3)(A), that an order to abate was not appropriate because the Secretary had found no merit to the complaint and because the withdrawal of the letters left nothing to abate. Finally, the ALJ did not find facts sufficient to support a "capable of repetition, yet avoiding review" exception to the mootness doctrine.
