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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |  |
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USDOL/OALJ STAA Whistleblower Digest DIVISION VI -- ADVERSE ACTION [Last updated October 17, 2007]
[STAA Digest VI A]
In Dendy v. Har-Con Construction Corp., ARB No. 05-121, ALJ No. 2005-STA-16 (ARB July 31, 2007), the Respondent argued that it was entitled to summary decision because the Complainant had not been terminated, but was only in non-pay status because he was receiving worker's compensation for an injury. Because the Complainant only produced hearsay statements from third party witnesses who purportedly had been informed by others that the Complainant no longer had a job with the Respondent, and because those individuals did not have authority to implement adverse action against the Complainant, the ALJ recommended granting summary decision. Upon automatic review, the ARB declined the recommendation and remanded for further proceedings. The ARB found that, for purposes of deciding whether to grant summary decision, it need not decide whether the Complainant was still employed, because the Respondent may have subjected the Complainant to adverse action by ending his medical and dental benefits, and not returning his phone calls inquiring about the status of his medical insurance. The ARB noted that the Respondent had admitted during a telephone conference call with the ALJ that it the Complainant's benefits "may have ceased." On appeal, the Respondent cited Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir. 1997), for the proposition that that only "ultimate employment decisions" qualify as adverse actions. The ARB, however, found that Mattern also indicated that ""'[u]ltimate employment decisions' include acts ‘such as … granting leave … promoting, and compensating.'"" USDOL/OALJ Reporter at 8 (citation omitted). The ARB found that the Complainant's medical and dental benefits constituted a form of compensation, and that after Mattern, the Fifth Circuit acknowledged that a "reduction in pay or benefits" could constitute an adverse employment action. The ARB found that the Respondent's contention that such benefits cease for any employee on extended workers' compensation absences did not support the suggestion that its decision was not discriminatory. The ARB therefore concluded that the Complainant had successfully shown that there was a genuine issue of material fact in dispute as to whether the Respondent subjected the Complainant to adverse employment action, and whether that action was discriminatory.
[STAA Whistleblower Digest VI A]
In Smith v. Jordan Carriers, ARB No. 05-042, ALJ No. 2004-STA-7 (ARB Aug. 25, 2006),
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the ARB found that substantial evidence supported the ALJ's finding that the Respondent did not fire the Complainant; rather the Complainant chose to sever his employment for reasons other than his complaint about faulty brakes.
[STAA Whistleblower Digest VI A]
In Ciofani v. Roadway Express, Inc., ARB No. 05-020, ALJ No. 2004-STA-46 (ARB Sept. 29, 2006),
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the ARB affirmed the ALJ's recommendation that the complaint be dismissed because no genuine issue of fact existed as to whether the complaint was moot. The Respondent had permanently withdrawn suspension letters that the Complainant alleged were issued in response to protected refusals to drive under the STAA. The Respondent also had removed all reference to the suspension letters in the Complainant's personnel file, and swore that it would not use the letters in any future discipline toward the Complainant. The Complainant had not served the suspensions or suffered any loss of time, pay, or benefits as a result of the letters, nor would he suffer such losses in the future. Moreover, the ALJ found that the Complainant had not proved that his case falls within the "capable of repetition, yet evading review" exception to the mootness doctrine.
[STAA Whistleblower Digest VI A]
A written warning is not an adverse employment action within the meaning of STAA absent evidence of a tangible job consequence. See West v. Kasbar, Inc., ARB No. 04-155, ALJ No. 2004-STA-34, slip op. at 4 (ARB Nov. 30, 2005) (and cases discussed therein). Thus the ARB in Agee v. ABF Freight Systems, Inc., ARB No. 04-182, ALJ No. 2004-STA-40 (ARB Dec. 29, 2005), observed that because the Complainant had challenged only the issuance of a warning letter and made no claim that the warning resulted in a tangible job consequence, the complaint did not allege a prima facie case of unlawful retaliation and could have been dismissed without a hearing on that ground alone. In the instant case, however, the issue on appeal was whether the case was moot because the warning letter no longer had any disciplinary or other effect under the applicable collective bargaining agreement.
VI A Adverse action element;
complainant's burden in regard to
prima facie case versus ultimate
burden of persuasion In Ass't Sec'y & Brown v. Besco Steel Supply, 93- STA-30 (Sec'y Jan. 24, 1995), the Secretary found, contrary to the ALJ, that the Complainant's testimony that he was fired established adverse action element of the prima facie case. In a footnote, the Secretary noted that this testimony, standing alone, would satisfy the adverse action element of a STAA claim if not contradicted and overcome by other evidence. Nonetheless, the Secretary found that the Complainant did not meet his ultimate burden of persuasion on the adverse action element. The Respondent "sufficiently articulated a legitimate basis for its actions, i.e., that it did not fire [the Complainant], but simply accepted his decision to resign." The Secretary adopted the ALJ's finding that the Respondent's co-owner believed the Complainant had resigned voluntarily. Thus, although the Complainant established a prima facie case that he was fired, he did not ultimately sustain the burden of persuasion in establishing that fact. Thus, the Secretary found that the Complainant failed to establish that the Respondent took adverse action against him because he engaged in protected activity. [Editor's note: The Secretary appears to be applying a burden of articulation for the Complainant in making a prima facie case.]
[STAA Whistleblower Digest VI A] In Howard v. Cool Express, Inc., ARB No. 06-012, ALJ No. 2005-STA-33 (ARB Feb. 28, 2007), PDF | HTM the ARB found that substantial evidence supported the ALJ's finding of fact that the Respondent hired the Complainant for one assignment and was not obligated to hire him again. The ARB found correct as a matter of law, the ALJ's ruling that the Complainant's failure to prove that the Respondent took an adverse action against him required dismissal of the complaint.
[STAA Whistleblower Digest VI A] In Calhoun v. United Parcel Service, ARB No. 00 026, ALJ No. 1999 STA 7 (ARB Nov. 27, 2002), the ALJ had cited the Fourth Circuit's ruling in Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), for the proposition that in Title VII cases the question has focused on "whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating . . . . " The ARB, although agreeing with the ALJ's conclusions that Respondent had not engaged in adverse employment action under the STAA in the case sub judice, observed that subsequent developments in Title VII law have established that "adverse actions need not rise to the level of 'ultimate employment decisions.' See Von Gunten v. Maryland, 243 F.2d 858 (4th Cir. 2001)(Title VII case). In Von Gunten the Fourth Circuit stated that adverse action includes not only ultimate employment decisions such as firing or demotion, but also actions that result in "adverse effect[s] on the terms, conditions, or benefits of employment." Id. at 866. Similarly, the STAA prohibits an employer from "discharg[ing] . . . disciplin[ing] or discriminat[ing] against an employee regarding pay, terms, or privileges of employment. . ." 49 U.S.C. §31105(a)(1)."
[STAA Digest VI A]
In a recommended decision in Calhoun v. United Parcel Service, 1999-STA-7 (ALJ Jan. 6, 2000), the ALJ concluded that Fourth Circuit case law under Title VII precluded a finding that the following actions to reduce the amount of time Complainant was spending on pre-trip inspections were "adverse employment action" within the meaning of the STAA whistleblower provision:
The ALJ concluded that the decisions in Page v. Bolger, 645 F.2d 227 (4th Cir. 1981); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996); and Munday v. Waste Management of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997), "[t]aken as a whole . . .illustrate the fact that Fourth Circuit case law requires a complainant to show more than the use of mean-spirited or intimidation tactics by an employer. Rather, he must demonstrate some type of immediate and serious impact on his employment (e.g., termination, suspension, demotion, decrease in pay, refusal to grant leave, etc.)." The ALJ found that ARB and other federal court decisions cited by Complainant, such as Long v. Roadway Express, Inc., 1988-STA-31 (Sec'y Mar. 9, 1990) and Stone & Webster Engineering v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997), were not controlling because the case sub judice arose in the Fourth Circuit. VI.A. Complainants need not show disparate treatment in order to establish adverse action. In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar. 9. 1990), Complainants were dispatched by Respondent and encountered bad weather conditions. Upon notifying Respondent, Respondent insisted that Complainants take themselves out of service rather than have Respondent take the vehicles out of service. Subsequently, Respondent refused to pay Complainants for delay time. Respondent argued that it did not pay for delay time because Complainants' collective bargaining agreement provided only for compensation for time delayed because of impassable highways. Since the state of Texas did not close the highways and there was at least one driver who continued to drive through the storm, Respondent argued that Complainants were entitled to pay for delay time. The ALJ found that, since Complainants had not established their entitlement to the delay time pay, "the denial of said pay cannot be an adverse employment action because an employer is not guilty of discriminatory treatment by refusing to pay an employee if that employee is not otherwise entitled to be paid." Respondent argued that Complainants failed to establish discrimination by Respondent because Complainants did not submit evidence of disparate treatment. The Secretary held that it is not necessary for Complainants to prove that they were treated differently from other employees. Citing DeFord v. TVA, 700 F.2d 281 (6th Cir. 1983), the Secretary noted that to require that Complainants establish disparate treatment as an element of their claim would fail to take into account the possibility that more than one person might be exposed to the same type of discrimination.
VI.A. Nature of adverse action In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar. 9. 1990), Complainants were dispatched by Respondent and encountered bad weather conditions. Upon notifying Respondent, Respondent insisted that Complainants take themselves out of service rather than have Respondent take the vehicles out of service. Subsequently, Respondent refused to pay Complainants for delay time. Respondent argued that it did not pay for delay time because Complainants' collective bargaining agreement provided only for compensation for time delayed because of impassable highways. Since the state of Texas did not close the highways and there was at least one driver who continued to drive through the storm, Respondent argued that Complainants were entitled to pay for delay time. The ALJ found that, since Complainants had not established their entitlement to the delay time pay, "the denial of said pay cannot be an adverse employment action because an employer is not guilty of discriminatory treatment by refusing to pay an employee if that employee is not otherwise entitled to be paid." The Secretary held that the ALJ misunderstood "the nature of showing that must be made to establish that an averse action has been taken. Any employment action by an employee which is unfavorable to the employee, the employees, compensation , terms, conditions, or privileges of employment constitutes an adverse action." The possibility that the employer had a legitimate, non-discriminatory reason for taking the action is does not alter the fact that an adverse action affecting the employee took place. "Thus, regardless of the employer's motivation, proof that such a step or actio was taken is sufficient to meet the employees burden to establish that the employer took adverse action against the employee. VI.B.1. Adverse action; specific actions
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 Digest VI B 1]
In Pennsylvania State Police v. Suders, __ U.S. __, No. 03-95 (June 14, 2004), the U.S. Supreme Court rejected a Third Circuit decision under Title VII that a constructive discharge, if proven, constitutes a tangible employment action that renders an employer strictly liable and precludes recourse to the Ellerth/Faragher affirmative defense. Justice Ginsburg wrote:
See also Williams v. Administrative Review Board, USDOL, __ F.3d __, No. 03-60028 (5th Cir. July 15, 2004), 5th Cir. decision on applicability of Ellerth/Faragher hostile work environment analysis to ERA whistleblower complaints
[STAA Digest VI B 1]
It is not sufficient merely to allege that harassment occurred; rather, a complainant must prove by a preponderance of the evidence that he or she was harassed for engaging in protected activity. In Tierney v. Sun-Re Cheese, Inc., ARB No. 00-052, ALJ No. 2000-STA-12 (ARB Mar. 22, 2001), Complainant had been granted permission to leave early if he completed his duties in a timely fashion. Complainant complained about the brakes on the first truck to which he had been assigned, and was assigned a second truck, which had to first be unloaded. The mere fact that his supervisor disagreed with Complainant about the status of the brakes after taking the first truck out for a test drive, and told Complainant that he was not working fast enough to unload the second assigned truck to permit him to leave early, did not establish harassment nor such oppressive working conditions that a reasonable person would believe it necessary to resign. The ARB noted, in fact, that when Complainant announced that he intended to quit, Respondent pleaded with him to stay.
[STAA Digest VI B 1]
In Jackson v. Protein Express, 95-STA-38 (ARB Jan. 9, 1997), the Board rejected the ALJ's finding that Complainant abandoned his position and that no adverse employment action occurred. The Board held:
Thus, the Board concluded that when Respondent failed to respond to Complainant's request for another truck to drive and to his message asking for clarification of his status, and removed his belongings from the truck against his wishes, Respondent had indicated it had discharged Complainant. VI.B.1. Constructive discharge In Earwood v. D.T.X. Corporation, 88-STA-21 (Sec'y Mar. 8, 1991), Complainant refused to drive because he was ill with influenza and would also have been in violation of maximum permissible driving hours. Respondent told Complainant that he "could" be discharged for refusing the assignment. Complainant also believed that he had been unfairly penalized for his inability to complete a driving assignment when his vehicle was retained at Respondent's maintenance shop and Complainant was unable to locate it in time. The Complainant then quit his job. The Secretary noted that adverse consequences flowing from a violate employment decision, e.g. demotion, failure to promote, failure to provide equal pay for equal work, generally are insufficient to substantiate a finding of constructive discharge. The presence of aggravating factors is required. Whether a constructive discharge has occurred depends on whether working condition were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign. Watson v. Nationwide Ins. Co., 823 F.2d 360 361- 362 (9th Cir. 1987). In Earwood, the prospect of continued employment under a system that precipitated hours and logging violations and encouraged employees to drive when ill was unattractive. The Secretary found that Respondents pervasive coercion to violate DOT regulations was intolerable and in view of the totality of the circumstances, a reasonable person in Complainant's position would have felt compelled to quit. VI.B.1. Constructive discharge In Perez v. Guthmiller Trucking Company, Inc., 87- STA-13 (Sec'y Dec. 7, 1988), the Complainant's employment with the Respondent was terminated after the Complainant walked off the job. The Complainant testified that he walked off the job because of the unsafe condition of the truck. The ALJ credited the Complainant's testimony over that of the Respondent's witnesses, who stated that the truck was in safe driving condition and furthermore claimed that the Complainant quit his job as he walked off the job site. The Complainant stated that he did not quit his job but could no longer drive the truck provided to him by the Respondent. The ALJ found that it was "of negligible importance" whether or not the Complainant actually stated that he was quitting because he had been constructively discharged by the Respondent since the Respondent ignored the Complainant's alleged repeated complaints and insisted on accepting the Complainant's alleged resignation even after learning of his agitated state. The Secretary held that the focus of inquiry as to whether there was a constructive discharge is not, as the ALJ viewed it, the Complainant's work-related agitated state and the Respondent's knowledge that the Complainant was agitated. Rather the proper inquiry is whether the conditions under which the Complainant was required or permitted to work were so unsafe that a reasonable person, emotionally agitated or not, would feel compelled to remove himself or herself from the unsafe employment. Furthermore, the Secretary noted that even where such working conditions exist, it has been held in analogous situations arising under the Federal Coal Mine Health and Safety Act that "where reasonably possible" the employee should communicate his or her concern to the employer unless "unusual circumstances - such as futility" exist. Simpson v. Federal Mine Safety and Health Review Commission, 842 F.2d 453, 458 (D.C. Cir. 1988) VI.B.1. "Voluntary" resignation An employer telling an employee that the employee's refusal to drive an assigned cab because he considered unsafe was equivalent to the employee's "voluntarily quitting [his] job" may be a discharge under the circumstances. See Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993). VI.B.1. From president's viewpoint, resignation was not safety related In Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), a husband and wife driving team reported cracks in the frame cross members and a broken spring on the tractor they were driving, were told to bring in the truck to have it repaired, and when they arrived several days later (December 14, 1983) were told by Respondent's president that the tractor would be repaired and "to take their belongings out of cab." Respondent's president testified that Mr. Hollis asked for a few days off to move and he agreed. Mrs. Hollis interpreted the direction to remove belongings as a discharge, but several weeks later, when Respondent's president next saw Mr. Hollis he said Mr. Hollis was still driving for Respondent. [Editor's note: The Secretary's decision is unclear whether Complainant or Respondent's president said Mr. Hollis was still driving -- I think it was the president] In addition, for six days following the purported discharge, Mr. Hollis had noted in his log "Not fired, waiting on load." Upon being asked on December 27, 1983 why he hadn't returned to work, Mr. Hollis stated only "I got something better going than this." At that point Respondent's president asked for Mr. Hollis' company credit card. The Secretary concluded that since Mr. and Mrs. Hollis worked as a team, they both apparently voluntarily resigned. He also concluded that from Respondent's president's perspective, the resignation had nothing to do with the safety of the tractor because Mr. Hollis did not raise it on December 17, and Respondent had not previously refused to repair it. Thus, the complaints were dismissed. [Editor's note: Whether Mrs. Hollis was an employee was unclear, but the Secretary found that question moot in view of his finding that the resignation had nothing to do with safety.] VI.B.1. Constructive discharge In Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), there was conflict in the testimony about whether Complainant quit or was fired. The ALJ concluded that Complainant quit and therefore there could be no violation of section 2305(b). The Secretary, however, concluded that Complainant was constructively discharged. A constructive discharge occurs where "working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Held v. Gulf Oil Co., 684 F.2d 427, 434 (6th Cir. 1982); NLRB v. Haberman Construction Co., 641 F.2d 351 (5th Cir. 1981); Cartwright Hardware Co. v. NLRB, 600 F.2d 268 (10th Cir. 1979).
Further, it is not necessary to show that the employer intended to force a resignation, only that he intended the employee to work in the intolerable conditions. Junior v. Texaco, Inc., 688 F.2d 377 (5th Cir. 1982); Bourque v. Powell Electric Mfg. Co., 617 F.2d 61 (5th Cir. 1980). In Hollis, Complainant sought correction of what he thought was an unsafe condition several times, but was asked to continue to drive the same truck, and Respondent refused to repair the condition. Finally, Complainant saw the only way out was to have the truck inspected by state inspectors, and when his fears about its lack of safety were confirmed, to resign. This was a constructive discharge. The Secretary found that the fact that Oregon state inspectors found the defect serious enough to place the truck out of service demonstrated the reasonableness of Complainant's concerns about the truck's safety. VI.B.1. Constructive discharge In Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992), the Secretary found that the ALJ had correctly applied the law of constructive discharge to find that the Respondent effectively fired the Complainant when the supervisor told the Complainant either to drive the unsafe vehicle or turn in his keys and go home. The ALJ cited NLRB v. Champ Corp., 933 F.2d 688 (9th Cir. 1990), for the proposition that no set words are required to constitute a discharge but words or conduct which would logically lead an employee to believe that his tenure has been terminated can be sufficient to establish a discharge. The ALJ continued, stating that the test depends on the reasonable inferences that the employee draws from the statements and conduct of the employer. Each situation is to be scrutinized on the examination of the particular facts. Phillips v. MJB Contractors, 92- STA-22 (ALJ Aug. 11, 1992). VI.B.2. Refusal to reimburse motel expenses In Spearman v. Roadway Express, Inc., 92-STA-1 (ALJ Mar. 2, 1993), the ALJ found that even though a collective bargaining agreement did not provide for the reimbursement of motel expenses incurred when a driver has to stop due to fatigue, where the Respondent had reimbursed other drivers for such expenses, its refusal to reimburse the Complainant did constitute adverse action. VI.B.2. Refusal to pay lodging Where the ALJ credited the testimony of drivers that Respondent reimbursed drivers for lodging when they ran out of hours before reaching the destination over the testimony of a Relay Manager that drivers were only paid for lodging upon reaching their destination, and the Secretary adopted those finding, Respondents's refusal to reimburse Complainant constituted adverse action. Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993). VI.B.3. Refusal to pay workers' compensation as adverse action An employer's refusal to pay claimed medical expenses under workers' compensation is an employment action unfavorable to the employee's "compensation, terms, conditions, or privileges of employment" and, therefore, constitutes an adverse action. See 49 U.S.C. app. § 2305(b). Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
[STAA Digest VI B 4] In Muzyk v. Carlsward Transportation, ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007),
the Complainant, who was in lay-off status, was called back to work for one day
to shuttle a bus and some passengers, and then returned to lay-off status. On
the day of the temporary service, the Complainant felt overcome by exhaust
fumes during the trip. The testimony conflicted about whether the Complainant
brought the exhaust fume issue to the attention of the Respondent on that date,
or days later when the Complainant inquired about workers’ compensation. The
Respondent conceded that it had intended to rehire the Complainant when the
busy season started up in the Orlando area. The ARB agreed with the ALJ that
the Complainant was in an employment relationship with the Respondent, and that
the Respondent engaged in adverse employment action when it decided not to
rehire the Complainant, though initially intending to do so.
[STAA Digest VI B 4]
In Calhoun v. United Parcel Service, ARB No.
04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant was a truck
driver with an excellent driving record and a strong commitment to safe
driving. He alleged that the Respondent retaliated against him by conducting
“excessive supervision” because of “his refusal to violate 49 C.F.R. §§ 392.3
and 396.13” which requires drivers not to drive unless they are satisfied that
the assigned vehicle is in good working order and safe operating condition. The
Respondent started supervising the Complainant’s pre-trip inspections because
other feeder drivers on the Complainant’s route averaged 36 minutes for their
pre-trip inspection, while the Complainant’s average was between 100 minutes
(for a preassembled double) and 109 minutes (assembling of doubles required). The
additional time disrupted service, caused late package deliveries or caused
other workers to work overtime, and resulted in larger annual pay to the
Complainant than other drivers. The ARB found that the Respondent’s supervision
of the Complainant’s pre-trip inspections was not adverse action (1) because the
Complainant’s interpretation of his rights pursuant to the FMCSRs was
unreasonable, and (2) because the Respondent had not discriminated against the
Complainant in regard to his pay, terms or privileges of employment, but had
taken legitimate actions designed to reduce the amount of time that the
Complainant was spending on his pre-trip inspection.
[STAA Digest VI B 4]
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 ALJ, concerned about the coincidence of the promotion suddenly being offered shortly after the alleged protected activity, found that the timing of the offer was an adverse employment action. The ARB disagreed. The ARB found that the meeting with the Complainant at which the promotion was offered had been previously scheduled, albeit on different matters, and that the executive who made the promotion offer had decided to do so at this meeting before the fire at the sorting facility had taken place. In addition, the ARB found that it was the Respondent's normal procedure to set short time frames for making decisions about promotions, and that the Respondent was not required to by the STAA to time its promotions (and accompanying relocations) according to the Complainant's home life. The ARB found that the Complainant knew that a promotion and relocation were in the works and that his failure to accept the transfer was blocking a promotion for another employee. The ARB found that the Respondent knew that the timing would be disruptive to the Complainant, but concluded that the demotion or resign options were attempts to accommodate the Complainant.
[STAA Whistleblower Digest VI B 4]
In Blackann v. Roadway Express, Inc., ARB No. 02-115, ALJ No. 2000-STA-38 (ARB June 30, 2004), the ARB affirmed the ALJ's grant of summary decision as to disciplinary actions relating to the Complainant's fatigue. Although observing that cases turn on their particular facts, the ARB stated that in individual situations it does not violate the STAA to take employment action against a driver who is unable to meet the physical demands of the job on a sustained basis. In Blackann, taking the facts in the light most favorable to the Complainant, the ARB found that the Complainant "was unable to adapt to a physical requirement of his employment, namely [driving ] at night and prepar[ing] for work by sleeping during the daytime. Accordingly, we do not believe that Roadway violated the STAA in issuing warning letters for Blackann's failure to meet established running times on four nearly successive nights, and so hold."
[STAA Whistleblower Digest VI B 4]
In West v. Kasbar, Inc., ARB No. 04-155, 2004-STA-34 (ARB Nov. 30, 2005), the Complainant alleged that he was issued a second warning letter which could have led to his discharge. The Complainant, however, did not assert that the written warning resulted in actual job consequences. Consequently, the ARB held that the Complainant had failed to allege the essential element of his STAA claim of an adverse action, and his complaint failed as a matter of law. The ARB rejected the Complainant's argument in favor of an expansive interpretation of the "adverse action" element. The ARB agreed that the STAA was aimed at preventing employer intimidation of employees for exercising their rights, but held that "intimidation does not equate with adverse action." USDOL/OALJ Reporter at 5. The ARB held that language from Stone & Webster Eng'g Corp. v. Herman, 115 F.3d 1568, 1573 (11th Cir. 1997), stating that an adverse action is "simply something unpleasant, detrimental, even unfortunate" was only a description and not a definition. The ARB also ruled that while economic harm is not required under the STAA cause of action, tangible job consequence is.
[STAA Whistleblower Digest VI B 4]
Following the hearing in which the ALJ ruled that he would recommend dismissal of the complaint based on the Complainant and Complainant's attorney's failure to comply with the ALJ's orders – but before the ALJ formalized that ruling in a written decision, the Complainant's attorney indicated in filings that he had visited the District Chief ALJ about the case. The District Chief ALJ had suggested that the Complainant's attorney file a motion to reconsider with the presiding ALJ. The Respondent thereafter filed a motion objecting to ex parte communications and requesting a "gag order" during the pendency of the Complainant's complaint before the ALJ. The Complainant then filed a complaint with OSHA alleging that the Respondent's motion constituted an adverse action pursuant to, and per se violation of, the whistleblower provisions under the STAA and TSCA. The Respondent shortly thereafter withdrew the "gag order" motion. Eventually a different ALJ granted summary judgment against the Complainant on the ground that the new complaint about the "gag order" motion did not establish a cause of action because Complainant failed to establish the existence of an adverse employment action. The ARB, noting that the Complainant had failed to allege and to adduce evidence in support of this essential element of his complaint, affirmed the ALJ's recommendation of dismissal. Howick v. Campbell-Ewald Co., ARB Nos. 03-156 and 04-065, ALJ Nos. 2003-STA-6 and 2004-STA-7 (ARB Nov. 30, 2004).
[STAA Whistleblower Digest VI B 4]
In Samsel v. Roadway Express, Inc., ARB No. 03-085, ALJ No. 2002-STA-46 (ARB June 30, 2004), the Complainant's dispatch did not occur after he complained that the steering wheel rubbed against his stomach (thereby causing a safety hazard) and he consequently requested assignment of a different vehicle. The Complainant is approximately 5 feet, 5 inches tall and weighs 350 pounds. He alleged that he had previously been assigned tractors that did not have the steering wheel problem.
The ARB remanded the case for a hearing where it found that the ALJ erred in granting summary judgment to the Respondent, there being genuine issues of material fact in dispute as to whether the Respondent subjected the Complainant to adverse employment action. Although not reaching other issues in the case, the ARB did note in a footnote that the ARB had issued several decisions determining that an employer does not violate the STAA by taking adverse action because a driver cannot meet job requirements. The Board observed that "it is axiomatic that one cannot refuse to do that which it is physically impossible for one to do."
VI B 4 Issuance of employee discipline
reports as adverse action The issuance of employee discipline reports constitutes adverse action. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).
[STAA Whistleblower Digest VI B 4]
In Howick v. Campbell Ewald Co., 2004 STA 7 (ALJ Feb. 27, 2004), the ALJ recommended granting summary decision in favor of the Respondent where the Complainant's complaint was based on the Respondent's filing of a motion in a prior case before a different ALJ objecting to ex parte communications by the Complainant and his legal counsel and requesting therein a "gag order" during the pendency of the matter. The ALJ recommended dismissal because such a complaint does not include the necessary element of an adverse employment action. The ALJ wrote: "The available relief for inappropriate action by legal counsel in a legal proceeding is to request sanctioning of counsel by the court, not an independent cause of action under the STAA." See also Howick v. Campbell Ewald Co., 2004 STA 7 (ALJ Feb. 5, 2004) (order to show cause citing recent ARB decision in Somerson v. Mail Contractors of America, ARB No. 03 042, ALJ No. 2003 STA 11 (Oct. 14, 2003) (Respondent's filing of request for protective order not shown to be adverse employment action; distinguishing Connecticut Light & Power Co. v. USDOL, 85 F.3d 89 (2d Cir. 1995), cited by Complainant because it involved gag orders in settlement agreements, and did not contain a holding that "gag orders" are illegal per se)).
[STAA Whistleblower Digest VI B 4]
Where credible testimony indicated that Respondent had specific methods for maintaining contact with dispatch while leaving hotels at foreign domiciles, the ARB found that Respondent did not violate 49 C.F.R. § 395.8(f)(7) by directing Complainant to log compensated layover time as "off duty." Complainant had maintained that he was confined to his hotel room during such layovers. According to a witness sympathetic to Complainant on this issue, remaining in readiness in a motel room with nowhere to go could promote a "fatigue situation." Monde v. Roadway Express, Inc., ARB No. 02 071, ALJ Nos. 2001 STA 22 and 29 (ARB Oct. 31, 2003).
[STAA Whistleblower Digest VI B 4]
Where a complainant is understood by the employer to have resigned, it has no obligation to rescind that resignation, or to rehire the complainant when it was dissatisfied with his conduct or previous work record. Bettner v. Daymark, Inc., ARB No. 01 088, ALJ No. 2000 STA 41 (ARB Oct. 31, 2003).
[STAA Whistleblower Digest VI B 4]
In Somerson v. Mail Contractors of America, ARB No. 03 042, ALJ No. 2003 STA 11 (ARB Oct. 14, 2003), Complainant alleged that Respondents' filing of a request for a protective order and witness interview restriction in a prior case constituted a violation of STAA whistleblower law. The ALJ found the complaint to be completely specious and granted summary dismissal of the matter. See Somerson v. Mail Contractors of America, 2003 STA 11 (ALJ Jan. 10, 2003). On reviewing the facts in the light most favorable to Complainant, the ARB agreed with the ALJ that Complainant had "failed to rebut the Respondents' motion to dismiss with a demonstration of a dispute in material fact and that he has failed to allege and to adduce evidence in support of an essential element of his complaint, i.e., that the filing of the request for a protective order constituted >discipline or discriminat[ion] against an employee regarding pay, terms, or privileges of employment.'" The motion for protective order asserted that Complainant had transmitted anonymous, implicitly threatening, e mails to persons named as witnesses in the prior proceeding and established anonymous websites directed at its counsel which contain vulgar, abusive and implicitly threatening messages. The motion sought a protective order against the abusive e mails and websites, and requested restrictions on Somerson's contact with prospective witnesses. See Somerson v. Mail Contractors of America, Inc., 2002 STA 44 (ALJ Dec. 16, 2002) (ALJ ultimately dismissed case based on Complainant's misconduct). The ARB noted that the ALJ in the instant proceeding had found Complainant's attorney's pursuit of the instant complaint was intimidation and harassment under the guise of representing a client, and reported the attorney's actions to the appropriate board of professional responsibility.
[STAA Whistleblower Digest VI B 4]
Where Complainant walked away from a meeting with management officials (about Complainant's verbal confrontation with an operations agent) without giving a requested assurance that he would not engage in further threatening behavior and without thereafter returning to work, the ARB affirmed the ALJ's finding that Respondent had not engaged in an adverse action, as Complainant chose not to be dispatched by not reporting to work. The record established that Respondent's policy was not to contact contractors for dispatch. Waters v. Exel North American Road Transport, 2002 STA 3 (ALJ June 4, 2002).
[STAA Whistleblower Digest VI B 4]
See Somerson v. Mail Contractors of America Inc., 2003 STA 11 (ALJ Jan. 10, 2003).
[STAA Whistleblower Digest VI B 4] In Calhoun v. United Parcel Service, ARB No. 00 026, ALJ No. 1999 STA 7 (ARB Nov. 27, 2002), the ARB considered whether Respondent's program to reduce Complainant's pre trip inspection time was an adverse employment action taken in retaliation for protected activity. The ARB wrote:
Complainant was considered a good driver with an impressive safety record. Respondent, however, in performing an audit of the amount of time spent on pre trip inspection identified Complainant (and other drivers) as taking well outside the time Respondent considered appropriate in ideal conditions and the large majority of drivers. Drivers were paid for pre trip inspection time, and Respondent began a program designed to reduce the time spent on this function by drivers whose record was to conduct uncharacteristically long inspections. Complainant alleged that a number of Respondent's actions were in retaliation for protected activity. The ARB found that none of Respondent's actions, however, were retaliatory:
Similarly found not to be disciplinary or discriminatory were Respondent's pre assembly and pre inspection of Complainant's trailers; Respondent's informing Complainant that the mechanics preassembling his trailers would be disciplined if Complainant found defects in his equipment (the ARB finding that this instruction was related to a concern that mechanics perform their tasks properly and that drivers not be slowed down by "break downs on property"); requiring Complainant to attend morning meeting (an accepted business practice for communicating company concerns) and to count restroom breaks against his meal time allotment (which applied to all drivers at the facility); and written criticisms. Compare Daniel v. TIMCO Aviation Services, Inc., 2002 AIR 26 (ALJ June 11, 2003) (ALJ argues that "tangible consequences" should not be merely ones that impact on narrow pecuniary interests, but also ones likely to stifle protected activity).
[STAA Whistleblower Digest VI B 4] In Calhoun v. United Parcel Service, ARB No. 00 026, ALJ No. 1999 STA 7 (ARB Nov. 27, 2002), the ARB found that copies of audits and evaluations of Complainant's performance dating back to 1978 had not negatively impacted Complainant's pay, terms or privileges of employment such to violate 49 U.S.C. §31105(a)(1). The ARB stated that "[a]lthough the documents do contain negative comments regarding Calhoun's job performance, the purpose of the documentation was to record that training or instruction took place or to serve management as a tool; these documents do not provide the basis for subsequent employment decisions with respect to discipline, compensation, or job assignments. ... Moreover, the comments contained therein are consistent with Calhoun's own interpretation of his performance. ... Calhoun has failed to show that the criticism was in retaliation for his protected activity and he has failed to show how it has affected his pay, terms or privileges of employment. The Board also finds that UPS had a nondiscriminatory reason for placing these comments in Calhoun's file." (citations omitted). In this regard, the ARB cited Harrington v. Harris, 118 F.3d 359, 366 (5th Cir. 1997) and Shelton v. Oak Ridge National Laboratories, ARB No. 98 100, ALJ No. 1995 CAA 19 (ARB Mar. 30, 2001), for the proposition that a supervisor's criticism of an employee, without more, does not constitute an adverse employment action.
[STAA Whistleblower Digest VI B 4] In Becker v. West Side Transport, Inc., ARB No. 01 032, ALJ No. 2000 STA 4 (ARB Feb. 27, 2003), Respondent had reported Complainant's work history to a company that maintains employment histories of commercial truck drivers, and included a statement that Complainant had a record of "excessive complaints." Citing Earwood v. Dart Container Corp., 1993 STA 16 (Sec'y Dec. 7, 1994) and Leideigh v. Freightway Corp., 1988 STA 13 (Sec'y June 10, 1991), for the proposition that communication of an adverse recommendation in retaliation for protected activity is a violation of the STAA, Complainant argued that Respondent violated the STAA by providing negative information about his job performance to the employment history services company. The ARB, however, distinguished Earwood and Leideigh insofar in both those cases the communication of an adverse recommendation was shown to be motivated by retaliation for STAA protected activity. The observed that the words "excessive complaints" would not necessarily be understood referencing STAA protected activity. Moreover, the ARB found that the record showed that Complainant had made a wide variety of complaints to management, most of which were not STAA related. Thus, the ARB concluded that Complainant had not shown by a preponderance of the evidence that Respondent had provided the information to the reporting company in retaliation for his STAA related activity.
[STAA Digest VI B 4]
In Atkins v. The Salvation Army, 2000-STA-19 (ALJ Mar. 23, 2000), the ALJ concluded that the following events did not constitute harassment: Complainant's supervisor disagreed with Complainant about the state of the brakes on an assigned truck; the supervisor's telling Complainant that he was not working at a pace sufficient to permit him to leave early (Complainant having previously arranged to leave early that day if he got his work done); and the supervisor's telling Complainant he did not want him to quit after Complainant stated that he was quitting because of harassment. Because the ALJ found that these events did not constitute harassment, or any adverse employment action against Complainant, she likewise found that Complainant's constructive discharge theory had not been established.
[STAA Digest VI B 4]
In Scott v. Roadway Express, Inc., ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), the ARB agreed with the ALJ's analysis under the "complaint" clause of the STAA whistleblower provision, 49 U.S.C. § 31105(a)(1)(A), concerning the issuance of warning letters by Respondent to Complainant for placing himself on the sick board when he had no sick days remaining. The ARB quoted the ALJ:
Id. @ 11, quoting Scott v. Roadway Express, Inc., 1998-STA-8 @ 26, slip op. at 27-28 (ALJ Nov. 6, 1998) (additional citations omitted).
[STAA Digest VI B 4]
In Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11 (ALJ Feb. 18, 1999), one Complainant alleged that Respondent retaliated against him by three acts of sabotage, and the other Complainant alleged he was also retaliated against by another act of sabotage. The ARB observed that, in order to prevail on these claims Complainants had to prove, first, that Respondent deliberately intended to commit the alleged acts of sabotage; and second, that Respondent engaged in this sabotage in order to retaliate against the Complainants for engaging in protected activity under the STAA. The ARB found that nothing in the record, other than the first Complainant's accusation and supposition, showed that anyone acting at Respondent's direction deliberately committed the alleged acts of sabotage, and that since Complainants failed to establish the first principle, they also failed to prove the second.
[STAA Digest VI B 4]
In Scott v. Roadway Express, Inc., 1998-STA-8 (ALJ Nov. 6, 1998), Complainant made complaints to his supervisors, his union, and eventually OSHA, related to the discipline he received for taking sick days, and the ALJ found that this constituted protected activity. The ALJ, however, found that Respondent neither disciplined nor discharged Complainant because of these complaints. Complainant's refusal to drive for illness was also found by the ALJ to constitute protected activity. The ALJ found that Respondent violated the employee protection provision of the STAA when if disciplined Complainant for the refusal to drive as it did other drivers pursuant to its "absence/attendance" policy. Complainant was later discharged. Although the discharge was based in part on his protected activity, Respondent successfully established that it would have discharged Complainant even in the absence of his protected activity. Finally, the ALJ held that Respondent's "facially-neutral policy of disciplining employees who have engaged in statutorily-protected activity violates the Act." Slip op. at 33. As a remedy, the ALJ recommended the posting of a "Notice of Findings" concerning the recommended decision at Respondent's facility to the effect that:
[STAA Digest VI B 4]
In Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998), Respondent argued that the ALJ erred in finding a causal connection between Complainant's protected activity (refusing to drive when too sick to do so safely) and the suspension. The ALJ had relied on Ass't Sec'y & Curless v. Thomas Sysco Food Svc., 91-STA-12 (Sec'y Sept. 3, 1991), remanded for vacatur on grounds of mootness, 983 F.2d 60 (6th Cir. 1993), in which the Secretary had ruled that the respondent violated the STAA when it gave the complainant, who was under a doctor's order not to drive, a verbal warning for excess absences under a company policy the Secretary concluding that the complainant ran afoul of the company's policy because he engaged in protected activity. Respondent argued that Curless is no longer viable because of the U.S. Supreme Court holding in Hazen Paper v. Biggins, 507 U.S. 604 (1993), to the effect that in an age discrimination complaint, years of service were "analytically distinct" from age. The ARB found that Hazen was not fatal to Curless because "there is no distinction, analytical or otherwise, between [the Complainant's] protected activity of refusing to drive while impaired by illness and his absence from work. They are the same thing." 91-STA-21 @ 7.
[STAA Digest VI B 4]
In Robinson v. Shell Oil Co., No. 95-1376 (Feb. 18, 1997) (available at 1997 U.S. LEXIS 690), the United States Supreme Court held that term "employees" in Title VII includes former employees. Thus, a former employee may sue a former employer for alleged retaliatory post-employment actions, such as negative references to prospective employers. [Editor's note: Please note that this is a Title VII decision, and did not involve an STAA, or a nuclear or environmental whistleblower complaint]. VI B 4 Failure to recall as adverse action Where, shortly after being laid off, the Complainant was informed that he was eligible for recall for one year, and the Respondent hired several drivers during that year, but did not recall the Complainant, the failure to recall was an adverse action. Nolan v. AC Express,STA-37 (Sec'y Jan. 17, 1995). VI.B.4. Habitual offender status A driver's status as an habitual offender of absenteeism which may render an employee subject to monitoring, responsible for furnishing doctors' releases, and specifically vulnerable to discipline, clearly constitutes a condition of employment. Since this condition was imposed as a result of protected activity, the employer's action violated section 2305(b)'s prohibition that "no person shall . . . in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment . . . ." Self v. Carolina Freight Carriers Corp., 89-STA-9 (Sec'y Jan. 12, 1990). VI B 4 STAA, absenteeism policies Complainant does not forfeit his STAA protection as a condition of employment under an employer's rules. Where the respondent's absenteeism policy advances the complainant on the disciplinary tract for refusing to work while impaired by the use of medication, then the complainant's refusal constitutes protected activity and the respondent must restore the complainant's work history to eliminate the effects of the adverse employment action. Curless v. Thomas Sysco Food Serv., 91- STA-12 (Sec'y Sept. 3, 1991). VI.B.4. Denial of monetary payment over and above regular compensation is an adverse action. In Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar. 9. 1990), Complainants were dispatched by Respondent and encountered bad weather conditions. Upon notifying Respondent, Respondent insisted that Complainants take themselves out of service rather than have Respondent take the vehicles out of service. Subsequently, Respondent refused to pay Complainants for delay time. Respondent argued that it did not pay for delay time because Complainants' collective bargaining agreement provided only for compensation for time delayed because of impassable highways. Since the state of Texas did not close the highways and there was at least one driver who continued to drive through the storm, Respondent argued that Complainants were entitled to pay for delay time. The ALJ found that, since Complainants had not established their entitlement to the delay time pay, "the denial of said pay cannot be an adverse employment action because an employer is not guilty of discriminatory treatment by refusing to pay an employee if that employee is not otherwise entitled to be paid." Respondent argued that it paid Complainant's their full compensation and stated that under the terms of the collective bargaining agreement, delay time is extraordinary pay and constitutes a form of compensation over and above the norm. The Secretary rejected Respondent's argument noting that under both Title VII and the NLRA, the denial of monetary payments over and above regular compensation, e.g., bonuses, overtime, vacation pay, have been held to be within the purview of those statutes. VI.B.4. "Bobtailing" "Bobtailing" is a form of discipline where an owner- operator is sent home without a paying load. Kimball v. Misty Moon Transportation, Inc., 92-STA-15 (Sec'y Oct. 29, 1992). VI.B.4. Replacement as an adverse action In Holloway & Murray v. Lewis Grocer Co., 87- STA-16 (Sec'y Jan. 25, 1988), Complainant's refused to drive vehicle they believed Respondent had failed to repair. Respondent replaced Complainants for that driving assignment and subsequently discharged them. Respondent argues that Complainants were merely replaced by other drivers and that, due to overstaffing, Respondent continued to use other drivers rather than Complainants. The Secretary determined that replacement of an employee because he engages in a protected activity is just as much a prohibited act under the STAA as discharge for that reason.
[STAA Whistleblower Digest VI C]
In Agee v. ABF Freight Systems, Inc., ARB No. 04-182, ALJ No. 2004-STA-40 (ARB Dec. 29, 2005), the Board dismissed the complaint finding that it could not redress the Complainant's alleged injury from a warning notice for excessive absenteeism that no longer had any disciplinary or other effect under the applicable collective bargaining agreement. The Complainant had alleged that the warning notice violated a federal motor carrier safety regulation that prohibits motor carriers from requiring truck drivers to drive while likely to be impaired through fatigue or illness. The Board found that the Complainant had not shown that a § 31105 complaint based on a written notice issued pursuant to the local bargaining agreement in effect in 2003 necessarily evades review or that it is reasonably likely that the Respondent will issue such a notice to him in the future. Moreover, the Board held that neither the Complainant's attorney fees nor his request for injunctive relief preserved the case from mootness.
[STAA Whistleblower Digest VI D]
In Calhoun v. United Parcel Service, ARB No. 00 026, ALJ No. 1999 STA 7 (ARB Nov. 27, 2002), the Respondent's program to monitor drivers whose pre trip inspection time was uncharacteristically long, and to reduce that time was found under the facts of the case not to constitute a hostile work environment, but actions that were "legitimate, logical and effective measures...."
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