Madonia v. Dominick's Finer Foods, Inc. and Mavo Leasing, Inc., 1998-STA-2 (ALJ Oct. 29, 1999)

	U.S. Department of Labor Office of Administrative Law Judges

www.oalj.dol.gov

[skip navigational links] Search | A-Z Index

Find It! on DOL | OALJ Home | OALJ Law Library | About Us

September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter

Madonia v. Dominick's Finer Foods, Inc. and Mavo Leasing, Inc., 1998-STA-2 (ALJ Oct. 29, 1999)

U.S. Department of Labor Office of Administrative Law Judges
Seven Parkway Center - Room 290
Pittsburgh, PA 15220
(412) 644-5754
(412) 644-5005 (FAX)
DOL
Seal

Date: October 29, 1999
Case No: 1998-STA-2

In the Matter of

MICHAEL MADONIA
Complainant

DOMINICK'S FINER FOODS, INC. and
MAVO LEASING, INC.
Respondents

RECOMMENDED DECISION AND ORDER ON REMAND

This case arises under Section 405 (employee protection provision) of the Surface Transportation Assistance Act of 1982 ("STAA") (codified as amended at 49 U.S.C. § 31105). Congress included Section 405 in the Surface Transportation Assistance Act to insure that employees in the commercial motor transportation industry who make safety complaints, participate in STAA proceedings, or refuse to commit unsafe acts, do not suffer adverse employment consequences because of their actions. See Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987) (citing 128 Cong Rec. 29192, 32510 (1982)). The Act prohibits discipline of trucking employees who raise questions about violations of commercial motor vehicle rules or other unsafe activities. See Brock v. Roadway Express, Inc., 481 U.S.252, 258 (1987); Yellow Freight Sys., Inc. v. Reich, 8 F3d 980 (4th Cir. 1993); Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 356 (6th Cir. 1992); Lewis Grocer Co. v. Holloway, 874 F.2d 1009, 1011 (5th Cir. 1989).

Procedural History

Michael Madonia ("Complainant") was employed by Mavo Leasing, Inc. ("Mavo") and leased to Dominick's Finer Foods, Inc. ("Dominick's") (collectively referred to as "Respondents"), as a truck driver from 1986 until August 25, 1997, when the Respondents terminated him from employment (MX 13 and 13a; CX 15).¹

[Page 2]

On October 14, 1997, the Complainant filed a complaint with the Secretary of Labor alleging discriminatory termination. The Secretary issued her findings on November 13, 1997 determining that the complaint had no merit. The Complainant objected to the Secretary's findings and requested a formal hearing. Formal hearings were held in Chicago, Illinois on February 2 and 27, 1998. I found in favor of the Complainant in a decision issued on October 5, 1998.

On October 21, 1998, Respondents filed a Motion with the Administrative Review Board ("ARB"), seeking the remand of this case to reopen the record to admit newly obtained evidence and to reconsider the Recommended Decision and Order in light of the new evidence. They requested a stay of the Reinstatement Order pending reconsideration. On January 22, 1999, the ARB issued an Order remanding this matter for consideration of the new evidence and vacating the Order of Reinstatement.

A Supplemental Hearing was held on April 13, 1999. The hearing was limited to the presentation of newly obtained evidence on the issue of the date(s) on which Respondents inquired about Complainant's compliance with the psychotherapy program required by the 1996 Settlement Agreement.

Supplemental Findings of Facts

Three pieces of evidence were added to the record during the Supplemental Hearing held on April 13, 1999. This evidence was not available in the initial hearing and contributes to the overall issue of whether the Respondents made any inquiries concerning the Complainant's compliance with the settlement plan before he filed the safety complaint.

The Respondents presented an envelope postmarked August 7, 1997, that carried the letter that Dr. Cochran sent to the Respondents informing them that Complainant had been terminated as a patient due to his lack of attendance at sessions. (MX-6A) This letter was introduced into evidence in the prior hearing dated July 7, 1999 and time stamped as being received by the Respondent on August 8, 1997. (MX-6)

The Respondents entered into evidence another letter written by Dr. Cochran. This letter, sent to the Complainant, terminated the doctor-patient relationship due to Mr. Madonia's lack of compliance with the Doctor's recommendations. The letter was dated July 7, 1997. The envelope it was sent in was postmarked July 24, 1997. (MX-B1)

Finally the Complainant introduced a letter dated March 15, 1999 from Dr. Cochran to Mrs. Madonia. This correspondence stated that the letter which terminated their doctor/patient relationship was sent to the Respondent on July 7, 1997. (CX-21)

[Page 3]

Discussion

Standard

In my first recommended decision and order, I came to the conclusion that the Respondents terminated the Complainant for discriminatory reasons under the dual motive standard applied in the third prong of the McDonnell Douglas Test.² Dual Motive exists where there are legitimate reasons for discharge in addition to the unlawful reasons. The employer then bears the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee's protected activity. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). Clean Harbors Environmental Services, Inc., v. Herman, 146 F.3d 12, (1st Cir. 1998). Due to the suspicious timing of the events in the case, I found that the safety complaints made by the Complainant prompted the Respondents to check on his compliance with the settlement agreement. I came to this conclusion by reasoning that the evidence tended to prove that the inquiries were made after the Complainant filed another safety complaint.³ (RD&O-15)

Prima Facie Case

The supplemental evidence does not change my earlier finding that the Complainant demonstrated, by a preponderance of the evidence, a prima facie case of discrimination under Section 31105 of the Surface Transportation Assistance Act. (RD&O-11-12) The proximity between the protected activity and the adverse action established a causal link that is not broken by the newly admitted evidence. Therefore, it is necessary to analyze further under McDonnell Douglas. supra.

Respondents' Reason for Termination

The Respondents assert that their reasons for terminating the Complainant from employment are not discriminatory because they terminated the Complainant for failing to complete a psychotherapy program as required by a settlement agreement that was agreed to by the parties. (CX- 9) The Respondents rely on the supplemental evidence as further proof that they were aware of the settlement violation before the Complainant filed his second safety claim.

Like the first decision and order, the Respondent has met its burden of rebuttal by offering a legitimate non-discriminatory reason for the termination of the Claimant. An employer attempting to rebut a prima facie case of discrimination must produce evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court

[Page 4]

that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The evidence, however, must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. Id. at 255.

The Complainant may prevail on his complaint of discriminatory termination upon a showing that the reasons for termination proffered by the Respondent were a mere pretext for discriminatory animus. A pretext is defined as an "ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretense." BLACK'S LAW DICTIONARY 1187 (6th ed. 1991).

In the initial decision, I found that the stated basis for the termination was pre- textual because there was not sufficient proof that the Respondents had in fact inquired into whether the Complainant was complying with the settlement agreement before the Complainant made the safety violation complaint. I found that the Respondents seized upon the Complainant's non-compliance as grounds for termination the day after the Complainant submitted a safety complaint.

I agree that on its face, the reason given for the Complainant's discharge was legitimate given his violent and strange behavior. (RD&O-13) However, after a detailed examination of the original record (before the supplemental hearing), I concluded that the evidence was vague and the witnesses were not credible.

The Respondents argue that they had checked whether the Complainant was complying with the psychotherapy requirement of the 1996 settlement agreement in late June or early July. This argument was challenged by conflicting dates on the letter the Respondents received from the Doctor treating the Complainant. The letter was dated July 7, 1997 but was date-stamped by the Respondents as being received by their office on August 8, 1997.

In the original decision, I was troubled by the large gap of time between the date on the letter and the date it was received by the Respondents. I reasoned that perhaps the July 7 date on the letter was an error and was suppose to read August 7, 1997. If that were true it would lead to the conclusion that the August 7 safety complaint prompted the inquiry that same day.

The envelope entered into evidence at the latest hearing was post-marked August 6. The August 6, 1997 postmark date refutes my theory about the mistaken date on the letter, for a letter cannot be delivered if it is not yet written. Furthermore, the newly admitted envelope provides additional support for Respondents' position that they were aware of the settlement violation by the Complainant before the August 7, 1997 safety violation complaint filed by Madonia.

The Respondents further argue that Dr. Cochran's letter to the Complainant terminating the doctor/patient relationship is further proof that there were inquiries made about Madonia's compliance with his psychotherapy program before the safety complaint on August 7, 1997. This letter to the Complainant was also dated July 7 and was postmarked on July 24, 1997. (MX 6).

[Page 5]

This letter does not directly make reference to an inquiry by the Respondents, but it is significant that both letters written by Dr. Cochran are dated July 7, 1997. The significance comes from the likelihood that the Doctor wrote the letters in conjunction with each other after he was confronted with a question as to the status of his patient, the Complainant.

As stated in the initial opinion, I determined that under the dual motive theory, the Respondents did not meet their burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the Complainant's protected activity.

The supplemental evidence presented by the Respondents at the most recent hearing changes the outcome of the initial decision. The envelope postmarked August 6, 1997 and the second letter written by Dr. Cochran dated July 7, 1997 taken together, support Respondents argument that the Complainant was indeed discharged for not following the guidelines of their agreement. Therefore, the Respondents have met their burden of proving by a preponderance of the evidence that they knew about the Complainant's non-compliance with the settlement agreement before he filed a safety complaint against the Respondents.

Conclusion

The Complainant presented a prima facie case of discrimination under the STAA. The Respondents rebutted by presenting a legitimate, non-discriminatory reason for terminating the Complainant. The Respondents' reason for the termination was not pretext. Instead, a dual motive existed for the Complainant's discharge. The supplemental evidence admitted by the Respondents proves by a preponderance, that the Complainant would have been fired in spite of the protected activity.

The newly admitted envelope containing a postmark together with the Doctor's letter prove that some type of inquiry was made by the Respondents before August 7, 1997, the day the Complainant filed his safety complaint.

ORDER

It is recommended that the Complainant be dismissed for the reasons set out in this Recommended Decision and Order.

GERALD M. TIERNEY
Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. §1978.109(a); 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ Record references are indicated as follows:

    CX - Complainant's Exhibits
    MX - Respondent Mavo Leasing's Exhibit
    DX - Respondent Dominick's Finer Foods Exhibit
    TR1 - Hearing Transcript, February 3, 1998
    TR2 - Hearing Transcript, February 27, 1998
    TR3 - Remand Hearing Transcript, April 13, 1999
    RD&O-Recommended Decision and Order, October 5, 1998
    STR-Supplemental Hearing Transcript, April 13, 1999

² A Claim of retaliatory discharge under 49 U.S.C. § 31105(a)(1)(A), is governed by the framework set forth in McDonnell Douglas Corp. V. Green, 411 U.S. 792 (1973). Texas Dept. Of Comm Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) summarized the test as:

First, the [complainant] has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the [complainant] succeeds in proving the prima facie case, the burden shifts to the [respondent] to articulate some legitimate, non- discriminatory reason for the employee's rejection. Third, should the [respondent] carry this burden, the [complainant] must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the respondent were not its true reasons, but were a pretext for discrimination.

³ [Editor's Note: Footnote 3 is empty on the original slip opinion]