................................
In the Matter of: :
:
TERRY W. TANKERSLEY, : DATE: JUNE 14, 1994
Complainant :
:
:
v. : CASE NO. 92-STA-0008
:
:
:
TRIPLE CROWN SERVICES, INC., :
:
and :
:
NORTH AMERICAN VAN LINES, INC.,:
Respondents :
...............................:
Terry W. Tankersley Elliott R. Lewis, Esquire
Pro se Mark D. Perrault, Esquire
Counsel for Respondents
Before: JULIUS A. JOHNSON
Administrative Law Judge
OUTLINE
RECOMMENDED DECISION AND ORDER AFTER REMAND
[PAGE 2]
Background to the Remand
Issues
Findings of Fact and Conclusions of Law
I. The Oral Settlement Agreement: Its Validity and
Memorialization
A. Background
B. Disposition Regarding the Settlement Agreement
II. Alternative Disposition on the Motion for Summary
Decision
A. The Summary Decision Provisions
B. The Whistleblower Provisions
C. The Contentions and Underlying Facts
1. The General Nature of the Service Failures
2. Complainant's Employment and Training
3. Service Failures and Complainant's Responses
(a) The Initial Service Failures
(b) Subsequent Service Failures:
Disciplinary Action and Discharge
(1) The fourth failure on rocking
the trailer
(2) The fifth failure and a stuck trailer:
absenteeism, a clutch and a bumper
(3) The imposition of probation for
excessive service failures
(4) The sixth service failure and
discharge
4. Respondents' Affidavit on Service and the
Service Failures
5. Complainant's Allegations of Refusals,
Respondents' Response, and the "Protected
Activity"
D. Establishing a Prima Facie Case under the
Whistleblower Provisions
1. Protected Activity
2. Complainant Received Adverse Action
3. Respondents' Awareness of Protected Activity
4. Protected Activity as the Likely Reason for
Adverse Action
E. The Appropriateness of Summary Decision
F. The Necessity for Summary Decision
III. Conclusion
[PAGE 3]
Recommended Order
................................
In the Matter of: :
:
TERRY W. TANKERSLEY, : DATE: JUNE 14, 1994
Complainant :
v. : CASE NO. 92-STA-0008
:
TRIPLE CROWN SERVICES, INC., :
and :
NORTH AMERICAN VAN LINES, INC.,:
Respondents :
...............................:
Terry W. Tankersley Elliott R. Lewis, Esquire
Pro se Mark D. Perrault, Esquire
Counsel for Respondents
Before: JULIUS A. JOHNSON
Administrative Law Judge
RECOMMENDED DECISION AND ORDER AFTER REMAND
REINSTATING APPROVAL OF ADJUDICATORY SETTLEMENT AND
ALTERNATIVELY GRANTING SUMMARY DECISION FOR RESPONDENTS
This matter arises under the Surface Transportation
Assistance Act of 1982 (the "Act"), 49 U.S.C. § 2305, which
provides employee protection from discharge, discipline or
discrimination for filing a complaint about commercial motor
vehicle safety and operation that may constitute a violation of
Federal motor vehicle safety and health regulations. Filing such
a complaint is regarded as "protected activity" under Federal
"whistleblower" provisions, including the regulations set forth
at 29 C.F.R. § 1978.
The present consideration involves a remand from the
Secretary of Labor for reconsideration of a settlement agreement
recommended for approval by this administrative law judge after the
parties announced an agreement that was recanted by the complainant
before it was reduced to writing. The remand requires consideration of
any "memorialization" of the agreement and any other outstanding
matter.
Background to the Remand
While this matter was pending for formal hearing on August
18,
[PAGE 4]
1992, in St. Louis, Missouri, the parties, then all represented
by counsel, related to the administrative law judge here that they
had reached a settlement of the case. Complainant had advised
his attorney to settle the case for what he could get and his
attorney, who has since been allowed to withdraw, obtained a settlement
in negotiations with respondents' counsel for $10,000. Before the
settlement agreement could be reduced to writing, complainant
rejected it. The primary question here relates to the binding
effect of that settlement agreement.
On October 20, 1992, this judge rendered a recommended
Decision and Order Approving Proposed Adjudicatory Settlement and
Dismissing Complaint, finding the oral settlement agreement
binding on the parties. The record was forwarded to the Secretary of
Labor for review and the parties were advised to express to the
Secretary their apposition or opposition to the Decision and Order.
On February 18, 1993, the Secretary issued a Decision and
Order of Remand, requiring further consideration of this matter
by the judge. Noting that the regulations specifically provide that
"[a] copy of the settlement shall be filed with the ALJ or the
Secretary as the case may be" (29 C.F.R. § 1978.111(d)(2)),
the Secretary stated:
... Because this record contains no written settlement
signed by all parties, or other memorialization of an
entire agreement to which each party has consented,
Respondents' motion for Approval of Adjudicatory
Settlement must be denied. (Citation omitted)
Accordingly, this case is REMANDED for further
proceedings consistent with this opinion, including an
evidentiary hearing on the merits of complainant's
claim, if appropriate. As a preliminary matter, however,
Respondent's motion for Summary Judgment remains
pending before the ALJ.
Dec. and Ord., pp. 4-5.
On May 4, 1993, the administrative law judge issued to the
parties an Order for Submission of Settlement Agreement, or any
memorialization of the agreement the parties might have.
On May 26, 1993, complainant filed a Motion for Summary
Decision. On June 3, 1993, respondents filed Supplement to
Respondents' Motion for Approval of Adjudicatory Settlement,
together with Supplemental Affidavit of Elliot R. Lewis, Attorney
[PAGE 5]
for North American Van Lines, Inc., in Support of an Agreed Upon
Compromise and Settlement.[1]
Issues< /B>
I. Is the oral settlement agreement valid and binding upon
complainant who authorized his attorney to get what he could in
negotiating with respondents and his attorney obtained an
agreement which complainant later sought to reject?
II. Against respondents' motion for summary decision,
supported by affidavit and documentary evidence, are
complainant's mere allegations in response sufficient to withstand
such motion citing complainant's discharge as a tractor-trailer driver
for documented "service failures" where complainant claims such
citations were retaliatory for his "protected activity" as a
whistleblower in "refusing" to violate Department of
Transportation rules?
Findings of Fact and Conclusions of LawI. The Oral Settlement Agreement: Its Validity and
MemorializationA. Background
In the initial Decision and Order of October 20, 1992, it
was found that complainant authorized his attorney to settle the case
for what he could get and that his attorney obtained a settlement.
There was a specific finding of no illegality, fraud, duress,
undue influence, mistake, or derogation of overriding public policy in
this settlement. It was concluded that complainant had made a
binding agreement although it was never reduced to writing. This
judge accepted the averments of counsel for both parties as to
the terms of the settlement, as complainant did not ever deny that he
gave his attorney authority to settle this matter "for what he
could get"; it was just that he, complainant, felt he should have
settled for more than $10,000.
Complainant's memorandum of August 7, 1992, stating that he
instructed his attorney "to settle the claim for what you can
get," (attached as Appendix B to Respondents' August 14, 1992 Motion
for Approval of Adjudicatory Settlement) is clear evidence that David
Heimos, then complainant's attorney, was, in fact, authorized to
make a settlement.
Based on what the parties have submitted in response to the
order issued after remand, there is this memorialization.
[PAGE 6]
In their Supplement to Respondents' Motion for Approval of
Adjudicatory Settlement, respondents present a supplement to the
affidavit of respondents' counsel, Elliot R. Lewis, senior
counsel for North American Van Lines, Inc. (Appendix A) Offered
as the best evidence of the settlement agreement between the parties
are Mr. Lewis' notes made during the telephone conversation with
complainant's counsel, Mr. Heimos, on August 11, 1992, during
which Mr. Heimos, referring to an earlier conversation on July 31,
1992 states, "we had a deal, Tankersley - he authorized it." (See
Lewis' Supplemental Affidavit, ¶ 1)
Respondents offer additional evidence: one letter and two
memoranda that explain the negotiations, which culminated in the
agreed upon settlement. The letter, attached to Mr. Lewis'
Supplemental Affidavit, dated July 22, 1992, from Mr. Lewis to
Mr. Heimos, represents a counter-offer to complainant's most recent
demand of $200,000. The letter shows that respondents offered a
settlement payment of $7,500 which would be construed as follows:
$5,000 for attorney's fees and $2,500 for Mr. Tankersley, and in
addition, respondents would agree "to release any claims they had
against Mr. Tankersley for the $7,500 of damages incurred in
connection with the repossession of the equipment [tractor]."
Respondents state that this letter crystallized respondents'
position, which led to the additional negotiations that resulted
in a settlement nine days later on July 31, 1992.
The first memorandum, dated July 24, 1992, sets forth
respondents' settlement offer at that time of $7,500 and an
agreement to forgo collection efforts against complainant for
$7,500, the amount reported to have been incurred in respondents'
repossession of the tractor. (See Lewis' Supp. Affidavit) The
hearing was scheduled for August 18, 1992.
Documents show that based on the settlement agreement, Mr.
Lewis made plans to attend an American Bar Association Convention
in San Francisco, California, from August 7-11, with plans for
departure August 6, and that he would not have been able to
attend, because of needed preparation, unless the case had been settled.
(Lewis' Supp. Affidavit, p. 2)
The second memorandum, dated August 18, 1992, prepared by
Mr. Lewis, states, among other things, that during the July 31, 1992
telephone conversation Mr. Heimos told Mr. Lewis that they "had a
deal" and that the matter was settled for $10,000, and further
shows that on August 6, 1992, respondents' attorneys were
informed that complainant was having "second thoughts." (Lewis' Supp.
Affidavit, Appendix 6)
[PAGE 7]
This evidence represents respondents' showing respecting
memorialization of the settlement agreement. Complainant's only
response to the order for evidence of memorialization was
"Complainant's Motion for Summary Decision," stating that "now
complainant will submit his evidence to support his claim."
B. Disposition Regarding the Settlement Agreement.
There is no dispute that complainant authorized his attorney
to get what he could. The only question here, without any
specific writing of the agreement itself, is whether complainant should be
allowed to repudiate a settlement which his attorney obtained for
him pursuant to complainant's own authorization. There is solid
precedent why the simple answer must be no.
In O'Sullivan v. Northeast Nuclear Energy Co.,
90-ERA-35 and 36 (Sec'y Dec. 10, 1990) both parties represented at the
administrative law judge hearing that a settlement had been
reached and would be filed shortly with the judge. At the time of the
hearing, the complainant told the judge he agreed with the
settlement; however, several weeks later he wrote the judge
stating that "[due to ... harassment, intimidation and ridicule ... I am
unable to sign the agreement as promised ...." The judge found
that the complainant was bound by the settlement because he
"knowingly, voluntarily and purposely orally consented to [it],"
citing Macktal v. Brown & Root, Inc., 86-ERA-23 (Sec'y
Nov.14, 1990) (when consent to a settlement is "voluntary and knowing
... [a] settlement [is] binding, final and conclusive ... and a
party is bound by [it] even though he later realizes the
agreement is disadvantageous ... or he changes his mind."
The Secretary agreed with the administrative law judge,
stating that:
[S]ettlements need not be reduced to writing to be
enforceable, and if a party "who has previously
authorized a settlement changes his mind when
presented with the settlement document, that party
remains bound by the terms of the agreement.
Fulgence v. J. Ray McDermott & Co., 662 F.2d
1207, 1209 (5th Cir. 1981); accordBrock v. The
Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988).
(Emphasis added)
Here, complainant authorized his attorney to settle the case
[PAGE 8]
for whatever he could and changed his mind after his attorney
negotiated a settlement of $10,000. The settlement agreement was
never reduced to writing but complainant is still bound by it
even though he wished his attorney had gotten more. Complainant has
never denied the authorization given to counsel or the agreement
reached. Complainant knowingly, voluntarily, and orally
consented to the best settlement he felt his attorney could get. That it
might not have been as much as he might have otherwise desired is
now irrelevant.
The total circumstances, including complainant's admission
that he authorized his attorney to settle the case for what he
could get and the actions of respondents' counsel in reliance on
the agreement that the parties ultimately achieved - not to
mention complainant's own counsel's voluntary withdrawal of a
representation embarrassed by complainant's repudiation - all
compel the finding of a fully consummated agreement. There is,
therefore, no basis for permitting complainant's renunciation of
the oral settlement agreement. It is binding and should be
enforced. To allow otherwise would permit a party to make a
mockery of others negotiating in good faith, and to make a
mockery of the legal process.
Respondents' motion for approval of adjudicatory settlement
should be granted.
II. Alternative Disposition on the Motion for Summary
Decision
Setting aside the fact complainant is bound by his voluntary
settlement agreement, respondents' preliminary motion for summary
decision deserves an alternative ruling.
By respondents' motion for summary decision filed July 15,
1992, and the supplement to that motion, the instant complaint
can be examined to its core. Respondents contend that there is no
genuine issue of material fact and that they are entitled to
judgment as a matter of law. They contend that complainant has
not designated any specific facts showing a genuine issue of fact
requiring a hearing and they, therefore, should be accorded a
summary decision.
Complainant filed an Opposition to the Motion for Summary
Decision on July 20, 1992, alleging, among other things, some
misunderstanding between complainant and respondents' agents.
A. The Summary Decision Provisions[PAGE 9]
The motion for summary decision is provided for under 29
C.F.R. § 18.40, as here pertinent:
(a) Any party may, at least twenty (20) days
before the date fixed for any hearing, move with or
without supporting affidavits for a summary decision
on all or any part of the proceeding.
....
(c) ... When a motion for summary decision is made
and supported as provided in this section, a party
opposing the motion may not rest upon the mere
allegations or denials of such pleading. Such response
must set forth specific facts showing that there is a
genuine issue of fact for the hearing.
(d) The administrative law judge may enter
summary judgment for either party if the pleadings, affidavits,
material obtained by discovery or otherwise, or matters
officially noticed show that there is no genuine issue
as to any material fact and that a party is entitled to
summary decision. . . .
Section 18.41 provides, in pertinent part:
....
(1) Where no genuine issue of a material fact is
found to have been raised, the administrative law judge
may issue a decision to become final as provided by the
statute or regulations under which the matter is to be
heard. ...
These provisions are comparable to those of Rule
56(a),(c)and (e) of the Federal Rules of Civil Procedure.[2]
B. The Whistleblower Provisions
The applicable Federal employee protection provisions of the
Act, 49 U.S. § 2305(a), makes it unlawful for any employer
to retaliate against an employee for filing a complaint relating to
a violation of safety rule or regulation:
No person shall discharge, discipline, or in any
manner discriminate against any employee with respect
to the employee's compensation, terms, conditions, or
privileges of employment because such employee . . . has
filed any
[PAGE 10]
complaint or instituted or caused to be instituted any
proceeding relating to a violation of a commercial
motor vehicle safety rule, regulation, standard, or order, or
has testified or is about to testify in any such
proceeding.
Under 49 U.S.C. 2305(b), there is a prohibition against such
discrimination for refusal to operate a vehicle in violation of a
Federal rule or because of apprehension of serious injury due to
an unsafe condition:
No person shall discharge, discipline, or in any manner
discriminate against an employee with respect to . . .
[the matters stated above] for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or order
applicable to commercial motor vehicle safety or
health, or because of the employee's reasonable
apprehension of serious injury to himself or the public
due to the unsafe condition of such equipment. The
unsafe conditions causing the employee's apprehension of
injury must be of such nature that a reasonable person, under
the circumstances then confronting the employee, would
conclude that there is a bona fide danger of an
accident, injury, or serious impairment of health, resulting
from the unsafe condition. In order to qualify for
protection under this subsection, the employee must have
sought from his employer, and have been unable to obtain,
correction of the unsafe condition.
(Emphasis added)
From all that complainant initially alleged, respondents
terminated his contract because of his refusal to violate U.S. Department
of Transportation (DOT) rules by falsifying his driving log or because
of his refusal to violate several other DOT safety provisions.
C. The Contentions and Underlying Facts
It appears that complainant first made his complaint to the
U.S. Department of Labor shortly after his contract termination
on January 30, 1991. Respondents were first advised of a complaint
regarding termination of a contractor operating agreement by a
letter from the Department dated February 14, 1991, some two
weeks after the discharge. (Secretary's Findings, Appendix (App.)
A)[3]
Respondents allege that their first notice of any "complaint"
was the letter from the Department advising of the termination of
[PAGE 11]
the contract for complainant's refusal to falsify his driver's
log.
Between November 14, 1990 and January 29, 1991, respondent
North American Van Lines (hereafter North American or NAVL)
cited complainant, a tractor driver, for failing to meet his
responsibilities as a contractor moving loaded and empty trailers
for shippers and receivers within a 75-mile radius of St. Louis,
Missouri, and respondent Triple Crown's terminal near the Norfolk
and Western Railway Company rail line in St. Louis. These
"service failures" over a four-month period ranged from arriving late for
work to failing to carry out particular assignments. These
cumulative failures culminated in termination of the contractor
operating agreement on January 29, 1991. Respondents allege that
complainant was discharged from employment because he had been on
probation for service failures, he had given false information
about his record of duty status, and he had not maintained his
driver's log properly. (Secretary's Findings, App. A)
Complainant denies any service failures on his part
(Complainant's Deposition (Dep.) 173, App. B) and alleges that
as an independent haul deliverer, his operator contract was
terminated because of his refusal to violate Federal transportation rules,
which, since the complaint,[4] have become more specifically the
following:
(1) his refusal to follow respondents' instruction to
improperly record his duty status;
(2) his refusal on January 7, 1991 to drive while fatigued;
(3) his being instructed to drive on January 13, 1991 in
excess of hours permitted under DOT rules;
(4) his being required on January 14, 1991 to drive excess
hours; and
(5) his being required on January 29, 1991 to drive excess
hours.
Complainant would rely on DOT provisions that are alleged to
have been violated. Those apparently invoked are cited by
respondents[5] and will be addressed after consideration of the
primary and interrelated events leading to complainant's
dismissal as a driver for North American. Those events, resulting
in the "service failures" assessed against complainant for
unsatisfactory performance, are themselves claimed by complainant
to have been in
[PAGE 12]
retaliation for his refusals.
Respondents allege that the contract termination was for six
documented service failures by complainant over the four-month
period between November 14, 1990 and January 29, 1991. Of the
six, there are essentially two, the last ones in January 1991, that
appear to be most in real contention.[6]
1. The General Nature of the Documented Service
Failures
Complainant's six service failures were generally as
follows:
(1) On November 14, 1990 - arriving one hour late for
service;
(2) Also on November 14, 1990 - refusing to deliver a third
load;
(3) On November 16, 1990 - refusing to deliver a fourth
load;
(4) On December 13, 1990 - "rocking" his trailer during
inspection by a dispatcher underneath;
(5) On January 7, 1991 - being absent for service; and
(6) On January 29, 1991 - refusing to make a delivery he
had accepted.
2. Complainant's Employment and Training
Complainant applied for employment with North American as an
intermodal hauling division (IHD) tractor-trailer driver in
February 1990 and after a week's training at the Fort Wayne,
Indiana, headquarters he began work on March 27, 1990. Following
a short assignment in Jacksonville, Florida, he requested and
began work out of Triple Crown's terminal in St. Louis, Missouri,
servicing an area within 75 miles of the city. (Dep. 56, 61,
71-75; App. C)
During the orientation training for new NAVL-IHD drivers,
complainant was furnished the IHD's driver's manual which
addressed, among other matters, "Driver Expectations" and "Hours
of Service" in respondents' competitive business (Dep. 71-76; App.
B, Exh. C)[7] Among the items emphasized were the importance of
communications with the dispatchers, timeliness for all deliveries
and pickups, and compliance with all DOT rules. (Exh. C, ¶
2) Complainant acknowledged in deposition that the manual and
[PAGE 13]
orientation stressed these matters and that NAVL-IHD's work was
time-sensitive in nature:
Q I just called your attention to paragraph number two
which states that you must communicate to dispatcher the
hours you were working and particularly . . . that we
will work with you and not ask you to go over any legal
limit, but we need to know from you if you are close or
over? . . . Was that information given to you in the
orientation?
A Yes, it was.
Q Paragraph three states that each load you are given
for pickup should always make the train. If there are
any possibilities that you are not going to make the
train, call us as soon as possible. Was that advice or
instruction given to you?
A Yes.
Q Paragraph four states that you are to be on time for
all deliveries and pickups. If you have any problems,
call in as soon as possible? ... Was that stated?
A Yes.
Q Paragraph twelve again talks about communication.It
says be sure to communicate at all times. You cannot
call too often. Problems can be prevented or minimized
for you just by us know[ing] what is going on. Please do
not assume we know something. We would rather hear
something twice rather than not hear it at all. And
paragraph 13 says when in doubt, call in. Was this
information communicated in the orientation?
A Yes.
Q It sounds like they make quite a point of
communication between the driver and dispatcher?
A Oh, yes. They [NAVL personnel] did so. (Dep.
72-74)
3. Service Failures and Complainant's Responses
Although complainant denies all of the service failures, his
sworn responses in deposition, his pleadings in the pre-hearing
[PAGE 14]
statement, and his answer to interrogatories, shed light on the
validity of the contentions. (Dep. 73-74)
(a) The Initial Service Failures
The first three service failures resulted in oral
warnings to complainant, and no direct controversion of those
failures appear in this matter:
(1) On November 14, 1990, complainant was one hour late
arriving for service. It was noted on the Notice to North
American of Driver Failure Form that complainant's explanation
was that "[h]e got 'hung up' house hunting with his wife." (Exh. H)
(2) Also, on November 14, 1990, complainant refused to
deliver a third load after making two deliveries. Complainant's
explanation is noted as "he did not know that it was mandatory
that he take the load - he thought it was optional. I [dispatcher]
advised him that as long as he had the hours to run legally he
needed to do so." It was noted that complainant "now
understands policy" and an "oral warning [was] given." (Exh. G)
(3) On November 16, 1990, complainant refused to deliver a
fourth automotive load when he had hours available to do so.
Complainant maintained that "8 hours were required to qualify for
base pay and since [he] had run 8 hrs [he] was not going to pull
any more." (Exh. I)[8]
(b) Subsequent Service Failures:
Disciplinary Action and Discharge
(1) The fourth service
failureresulted in a written warning on December 13, 1990, for
complainant's failing to have his trailer properly inspected by
rocking it while the inspector was underneath inspecting the
railwheel, causing "a very unsafe condition" for the inspector,
Charles Richard. Complainant's explanation was noted as: "I
have been pulling so many loads today that I seem to lose track of
what trailer I am pulling." (Exh. L) Complainant apparently denied
such conduct in response to respondents' interrogatory or claimed
insufficient recall to admit or deny the allegation. (Exh. G)[9]
On December 20, 1990, six days later, complainant was given
a written notice by North American fleet administrator Jan
McLeister:
"This is to warn you that one more service failure or incident of
driver carelessness will cause you to be placed on a 30 day
probation." (Exh. N)[10]
[PAGE 15]
(2) The fifth service
failure for absenteeism resulted in a thirty-day probation on
January 7, 1991, for a two-and-a-half-hour late arrival for service,
with a warning of possible termination of the contract:
[O]n January 7, 1991 you were late arriving at the
assigned time to pick up a load at Doe Run,
Herculaneum, Mo. At approximately 10 p.m 1/6/91 Ken
Jordan (dispatcher) told you to come in at 0700 1/7/91 in
order to get an empty for a Doe Run pick-up. You arrived at
0930. When asked why you were late you said you
"worked all night trying to get your tractor freed up."
Furthermore, you failed to call and notify us you would
be late. At approximately 10:30 a.m. 1/7/91 after your
tractor was pulled free and you had been assigned another
load, you put yourself out of service, saying your
clutch needed adjusting. (Exh. O) (Emphasis added)
The recommendation was for "written suspension."
Complainant acknowledged that as a part of his training he
understood the importance of communicating with the dispatcher
"at all times," which was emphasized along with communicating his
working hours: "You must communicate to [the] dispatcher the
hours you were working . . . [W]e will work with you and not ask you to
go over the limit, but we need to know from you if you are close
or over." (Dep. 73)
No one instructed him in training, or at any other asserted
time, that the rules "had to be bent." He acknowledged that he
had been instructed that it was NAVL policy for all drivers to
comply with DOT hours of service rules. (Dep. 73-75)
Complainant admitted his absence for the Doe Run on January
7. He explained that his tractor was stuck in snow the evening
before and efforts to free it were to no avail. He stated he signed out
from work at 9:00 p.m., but did not leave the terminal until
10:30 p.m. - too late for him to get the rest he felt he needed in
order to report for work at 7:00 the next morning as instructed. (Dep.
172-75)
His own explanation of events, necessary to quote at some
length (Dep. 172-82) - and with some emphasis, is revealing:
[Respondents' counsel] When were you supposed to go to
Doe Run [on January 7]?
[PAGE 16]
A Seven a.m. that morning, but my truck is stuck in the
yard.
Q Did they try to help you with your tractor?
A Yes. They couldn't get it undone that night if I
recall correctly.
Q Did anyone tell you to come back in the
morning?A Yes. But after those long hours, tell me I am
going to be there to work frantically to get a truck out
there again. I am sorry.
Q Were you told there would be people there in the
morning to help you?
A When I did get there, no one pulled the truck out.
Q I am asking you, Mr. Tankersley, were you told the
night before that when you came back in the morning at
seven o'clock that there would be people there to help
you?
A Night shift dispatch[er] did say something to that
effect. They would try to get someone out there to
help me get unstuck. They did do so. They tore up
my front bumper. My clutch was hot.
Q Did you ever get your clutch repaired?
A No. It was just adjusted and that was it.
Q Did you do the adjusting?
A No. A friend adjusted it. It was bad the day
they repossessed the truck because it happened again.
...
....
Q How many hours are you supposed to be allowed off
under DOT [rules]?
A Eight hours.
Q Were you asked to be there ... at seven a.m. on
January 7, 1991?
[PAGE 17]
A I was requested to be there.
Q Did you show up?
A No. I did not because of leaving the yard late.
...
Q Did you ever call to say you would be late?
A I told them that night I wouldn't be back in. That
night.
Q Did they say that was okay?
A I don't recall what was said would be okay. It
wouldn't have really mattered because I was tired
that evening and I knew to be back there at that hour of
the morning again that much more tired, I sure wouldn't
have felt like driving even had they been able to get the
truck straight out.
Q Did you think of taking yourself out of service for
the next day?
A No. I did not. I did after they pulled the truck out
and tore up my bumper. I went off duty at eleven a.m.
and I called Ft. Wayne.
Q Do you [agree] ... that you failed to call us and tell
us you were going to be late?
A No. I do not. I told you that night that I was not
going to be in. ... I told the night shift dispatcher[.]
....
Q Didn't they make it clear to you that they
wanted you to pick up something at Doe Run?
A How can it be made clear ... when the truck is
stuck in the yard and was over two hours after I arrived
at the yard before they pulled the truck out. So
if there was anything of any real importance, any
movement, why didn't they act sooner and get my truck
pulled out because I immediately put myself out of
service. I was there at the yard from nine to eleven
[that morning on January 7] and I put myself out of
service.
[PAGE 18]
....
QWhat is the name of your friend that fixed
the clutch?
A On the clutch, you want a friend. I will give you
a friend.
Q What is the name of the person that fixed the clutch?
A On the clutch?
[Complainant's attorney] Just answer the question.
....
A It's still unfixed.
Q Was it ever fixed?
A Oh, maybe to a degree enough that it would keep
pulling?
Q Who was the friend that fixed the clutch?
A Me. But ... I'm not a certified mechanic and
it's not adjusted that much. [Complainant admitted he
was not a mechanic and that he had never worked on a
clutch before] (Dep. 186, 190)
....
Q You stated under oath, sworn testimony under
penalties of perjury within the last ten minutes that
you had a friend fix your clutch as a result of the
incident on January 6, 1991?
A Um-hum.
Q Let the record reflect that Mr. Tankersley told his
attorney softly that he was the one that fixed his
clutch. Why did you change your story, Mr. Tankersley?
A I need to speak to counsel. [Complainant later
[PAGE 19]
explained, "A friend had told me how, but I personally
adjusted it."] (Dep. 181-182)
Complainant first explained that a friend "Walt Wolf [told
him] how to do it," but that he had asked for advice from
"numerous drivers at the yard." (Dep. 181, 185)
Complainant later explained that no one could have freed his
tractor from the snow in his absence because he took the ignition
keys with him when he left the evening before. (Dep. 184)
Complainant also explained, having testified earlier about a
medical restriction from previous employment due to an allergy to
grease and oil,[11] that he did adjust the clutch himself
notwithstanding. (Dep. 184-89)
On the seriousness of the mechanical problem:
Q How serious a problem did you think the clutch was
on
January 7th?
A I don't know. I'm not a mechanic. I can't diagnose
how serious. I have had drivers tell me it's hot, let it
cool down. ...
Q What adjustments did you make to the clutch?
A I tried to adjust it.
Q Can you describe?
A Not really. I don't even think I knew exactly what
I was doing.
Q So you were working on the clutch and you didn't
even know what you were doing?
A No. Because my pedal was still funny. I don't
even know.
Q Don't you think that that in itself created a
safety issue?
A No. I do not.
Q Why not?
[PAGE 20]
A Clutch. Keeps it from pulling if it is bad.
....
Q When did you work on your clutch ....?
A Sometime thereafter. Exact day and time I don't know.
... I don't believe . . . [it was on January 7].
Q Isn't that why you said that you couldn't take the
load?
A No. Back track. ... [T]hey destroyed my bumper. That
is what I said. ...
Q So your bumper and your clutch were damaged as a
result of the incident on January 6th?
A Well, I am saying my clutch was. I could smell
it and I am saying it was a clutch. (Dep. 189-
191)
Complainant did not know exactly what day he
worked on his clutch, but he stated he did work the next day, January 8,
but the condition of the clutch "didn't prevent me from working." (Dep.
192)
Complainant acknowledged that he did no work, "either
driving or on duty non-driving work" after 9:00 p.m. January 6, and felt
the time "trying to get my truck unstuck" should not have been
recorded in his log: "I know what the law says." (Dep. 193-94)
He acknowledged he could have driven the next morning, with
qualification:
Q So when could you have driven again?
A When could I have legally driven again? Eight hours
from nine p.m.
Q What time would that be .... ?
A ... That would have been five in the morning if I was
not tired. (Dep. 194-95)
Complainant said he told dispatcher Ken Gordon "somewhere
around ten o'clock[,] [m]aybe 10:30" that he was going to be
late coming in the next morning because his tractor was "stuck in the
yard" and he was sure he said, "I would not be in at seven a.m.
[PAGE 21]
[because] [i]t was too early. I had to have some rest." (Dep.
196)
Yet, complainant explained about his logging off and the
need for rest:
Q ... [I]f your're going to run the time from 10 or
10:30 on, perhaps, your log should have reflected it?
A I wasn't working. No, sir.
Q Well then, I don't understand how you can run eight
hours [from] 10:30[;] why don't you run it from nine
o'clock the way the DOT [rule] says you're supposed to
run it?
A I don't understand your question.
Q You logged off at nine o'clock?
A I was off duty at nine o'clock.
Q So under the DOT, you could have been back at five
a.m.[,] is that correct? That's eight hours later?
A If am not fatigued or tired. Can you judge whether I
was tired or not[?] (Dep. 197, 198)
More on the clutch and bumper:
Q I am looking at your log, which is the January sixth
log and you have stated while we were off the record
...
that your handwriting in the log that says called NAVL
dash bumper destroyed is what you wrote up there; is that
correct?
A I wrote that there. Yes.
Q ... [I]s that what you told North American in Ft.
Wayne?
A If I recall correctly, I told them that my bumper was
damaged and being pulled out of the yard, and asked if
insurance would cover it or someone would.
Q Did the damage to the bumper prevent you from
driving the tractor safely?
A No, sir.
[PAGE 22]
Q There's no mention here in your handwriting as to
the clutch. Yet, a little while ago you stated the
clutch was damaged?
A I stated it was and strongly feel it was.
Q Did you tell Ft. Wayne about that?
A I told Jan [McLeister] I think the clutch got hot.
You could smell it. But that doesn't mean it was
burn[ed] or bad.
Q How come you didn't write something about the clutch
on this log?
A We're talking adjustment. This [bumper] was
visible damage. You could actually tell that. I
couldn't tell anything with the clutch, sir, but I can
tell [with] the bumper. ... (Dep. 199-201)
(3) The imposition of probation for service
failures
Complainant was cited for a service failure on January 13,
1991, for (1)committing to delivering a load to Wentzville,
Missouri, but claiming later when he came to the yard that he did
not have the hours for the assignment and (2) for failing to
give the dispatcher sufficient notice regarding his available hours
left to work. (Exh. P) This notice, less than a week after
recommended suspension for the service failure on January 7, is not regarded
here by respondents as a basis for the contract termination.
However, on January 15, 1991, complainant was notified by fleet
administrator McLeister that:
Per our conversation on 1/15/91, you are on a 30 day
probation for excessive service failures.
Any further problems will necessitate a decision
toward termination. (Exh. S)
(4) The sixth service failure and discharge
The sixth and final service failure on January 29, 1991 was
for accepting a pickup assignment for Mt. Vernon, Illinois, and
failing to carry it out. This resulted in termination of the
[PAGE 23]
contract. (App. C)
Specifically, on January 29, 1991, complainant was cited for
refusing a work assignment, in that:
[You] accepted a dispatch and failed to perform the
assignment at 1830 to pickup a load at General Tire in
Mt. Vernon[,] IL. You asked if you could deliver one more
load to Chrysler and then go to Mt. Vernon. At that time
you were told that it would be OK. You arrived back at
the yard at approximately 2115 with an empty [trailer].
You were asked if you were going to take the empty you
were hooked to, to General Tire. You said that you were.
After the dispatcher checked in your trailer you advised
him that you had only 3 more hours and could not make
the run. You were then told to run to General Tire with the
empty and layover. You still said "You couldn't do it,
even though it is only 79 miles and you would have plenty
of running time left to do it. (Exh T)
Again, complainant's own statements are revealing.
In a written statement complainant made on March 4, 1991,
several weeks after his discharge from the contract, to the
Occupational Safety and Health Administration, U.S. Department
of Labor (Exh. U), complainant stated that he had 6.3 hours
available on his driver's log and was given an assignment by the
dispatcher for a run to Mt. Vernon:
I informed [day dispatcher] Brian due to the adverse
weather conditions and I would not make it back from Mt.
Vernon ... in time for the train and also would be out of
hours on my log. Brian then assigned me another
Chrysler trailer to deliver. I then returned to the ... yard
and informed the evening dispatcher ... Chuck [Richard] ...
that I could not make the Mt. Vernon ... run because
I was out of hours on my log. Chuck then told me
to take an empty trailer to Mt. Vernon and lay over. I
then informed Chuck that I did not have the hours available
and [that] would be illegal. Chuck then put me out of
service. (Exh. U) (Emphasis added)
In deposition, complainant explained that while he
had earlier loads that day, both from St. Louis to Fenton, Missouri, he did
not refuse to go to Mt. Vernon because he was "out of hours" - it
was due to the weather: "I told him [Richard] due to the
weather,
[PAGE 24]
there was no way I would make it or even go due to weather."
(Dep. 222-23)
Complainant stated that he did not know the actual weather
conditions in Mt. Vernon, but based on his judgment regarding
local "bad" conditions ("freezing rain and snow") and radio reports
"[t]he weather was severe in local and the outlying areas."
(Dep. 225)
At first complainant stated that he had not talked to anyone
about the weather conditions, but later said that he did. He
first stated that he relied upon the weather report, but later stated
"I'm not exactly going with the weather report .... I'm going
with what I am seeing. Freezing rain and snow and sleet just coming
down. At that time it worsened." (Dep. 225-26) Despite those
conditions, he drove locally:
Q But yet, you were still driving?
A On locally, yes. (Dep. 225)
He first denied talking to anyone about the weather
conditions, but then stated that he did:
Q Did you talk to anybody about what the weather was
like outside of St. Louis?
A There was nobody to talk with.
Q So if this case goes to a hearing, we're not going to
hear from you that you talked to somebody and they told
you the weather on the highway was bad?
A With my knowledge and intelligence of knowing
weather and of the area and traveling it, whenever we have got
severe weather right here on the immediate St. Louis
area, especially snow, it always shuts down I 64 because
it is unsheltered interstate. ...
Q So you talked to no one about what the weather was
like between St. Louis and Mt. Vernon on January 29th?
A Prior to when?
Q Anytime that day?
A Late in that evening I did. I spoke to ... Bill
[PAGE 25]
McRoberts and Walter Wolf. (Dep. 225-26)
Following this service failure on January 29, 1991,
complainant's contractor operating agreement was terminated.
4. Respondents' Affidavit on Service and the Service
Failures
In affidavit, John Smith, manager of NAVL Intermodal Hauling
Division ("IHD") from September 1990 until May 1991, was
responsible for IHD's arrangements with independent contractor
drivers around the country, including those operating out of St.
Louis, and an immediate concern was improving the reliability of
IHD's service to its principal customer, Triple Crown Services,
Inc.:
...
... Our service involved moving loaded and empty
trailers on the highway between Triple Crown terminals and
shippers and receivers within an average 75-mile radius
of the terminals ... [footnote omitted] [or moving the
trailers directly between the terminals and the shipper
and receiver, by rail or over the highway]. The
trailers, using either their own retractable rail axles
and wheels or a detachable rail bogey, could move either
on the highway or the rails. Triple Crown's business was
and is highly service competitive, its shipment being
readily divertible to competitors operating strictly over
the highway. Not surprisingly, Triple Crown demanded a
very high and consistent level of service from IHD.
... One obvious means of improving IHD's customer service
reliability was improving the reliability of its contractor drivers.
I was not satisfied with the existing effort to monitor the
customer service quality of the contractor drivers and took steps
to better identify and correct service quality problems. We
began documenting contractor driver service failures and
attempted, in a cumulative fashion (warning up to
terminating the driver's Contractor Operating Agreement),
to either improve the driver's service or failing that,
to sever his/her relationship as an independent
contractor. An incident initially handled as a service
failure was subject to discussion with the driver and if
the evidence showed the driver had not in fact failed to
meet his/her obligations, or if there was significant
[PAGE 26]
doubt, the matter would be treated as "no action" and the
driver's record would be unaffected.
... Complainant Terry W. Tankersley ... was assessed six
service failures during the period November 14, 1990
through January 29, 1992 [1991]. The first three, which
were based on incidents on November 14 (two) and
November 16, 1990, resulted in oral warnings; the fourth, on
December 13, 1990, resulted in a written warning; the
fifth, on January 7, 1991, in probation and a warning
that any further problem would necessitate a decision
toward termination[;] and the sixth, on January 29, 1991,
in termination of Complainant's Contractor Operating
Agreement. In none of these service failures was I
advised by Complainant, or anyone else, that Complainant
believed NAVL was attempting to require him to violate
Department of Transportation rules.
... There were other incidents concerning complainant
which were initially handled as service failures. Upon
discussion with those involved, however, those were
treated as "no action" and did not affect Complainant's
record as a contractor. One of these concerned the
asserted failure of Complainant to carry out a commitment
to transport a load to General Motors on January 13-14,
1991. This matter was treated as "no action" and was not
considered in the subsequent decision to terminate
Complainant's Contractor Operating Agreement. (Exh. C)
(Emphasis added)
5. Complainant's Allegation of Refusals to Violate
DOT Rules, Respondents' Response, and the
"Protected Activity"
Complainant does assert five instances of service failure
assessments as a result of his refusal to violate DOT rules.
His assertions are therefore considered in the context of applicable
service violations, respondents' response under the DOT rule he
would apparently invoke, and the view compelled here as to the
existence of "protected activity."
Complainant asserts that he was engaged in protected
activity when he refused instructions to operate his vehicle in violation
of DOT rules. (Pre-Hearing Statement, ¶¶ 9-10) Of the
five specific instances asserted of retaliatory service failure
for his "protected activity," three, viewed to be the more important
ones and the subject of respondents' citations precedent to
complainant's contract termination, are deemed to warrant some
[PAGE 27]
consideration here:[12]
(1) On various occasions, complainant was instructed to
operate his vehicle in violation of 49 C.F.R. § 395.8(a),
(c), and (d) in that respondents instructed him to falsify his
driver's log or not to properly record his duty status.[13] The
gist of the allegation, as revealed during deposition, amounts to
this: Complainant was instructed, more than once he says, to log
only one contract number, which he "thought" was contrary
to DOT rules:
Q Did the defendants ... ever ask you to falsify logs?
...
A I feel so, yes. ... [T]hey said put one
contract number down, at least. (Dep. II 24,
App. F) (Emphasis added)
Complainant has not shown that this single instance - which
is all he has offered - of an instruction - even if given as he
describes - amounts to falsification or a violation of DOT rule.
Moreover, as respondents note, complainant has not alleged any
refusal on his part to comply with this instruction or any
related refusal to operate his vehicle. He offers no specific
information or any evidence that he was ever instructed to falsify his
working hours on his log. (Dep. II 24-31, App. F) Since there is no
evidence of any "activity" or refusal to operate his vehicle
whatever, there is no showing of any "protected" activity.
(2) On January 7, 1991, complainant was instructed to
operate his vehicle in violation of 49 C.F.R. § 392.3 prohibiting
operation of a vehicle when the driver is ill or fatigued.[14]
Complainant states that as a result of his tractor being
stuck in snow in the yard at the end of his service on January 6 and
his leaving the terminal at 10:30 p.m., "after those long hours" he
chose not to return to duty the next morning at 7:00 as he
acknowledged he was instructed. (Dep. 175-77) Complainant admits
that he had actually signed off from duty at 9:00 p.m. and that
had he actually gone home at 10:30 p.m., he still would have had more
than the required eight hours rest. (Dep. 193-94)
Apart from the fact that there was no violation of any rule
by requiring complainant to report to work at 7:00 a.m. the next
day, there is no evidence whatever that complainant asserted to
any dispatcher that he was or would be so fatigued that he would not
be able to safely operate his vehicle that morning. The normal
procedure would have been to report to the dispatcher and take
[PAGE 28]
himself out of service. (Dep. 178; Dep. Exh. C, PE-8, No. 6)
Instead, without approval and without communication, he simply
reported for work at 9:00 a.m. and made it clear approval or
disapproval "wouldn't have really mattered because I was tired
that evening." (Dep. 178)
Complainant did not refuse to operate his vehicle the next
day but merely reported two hours late for which he was assessed the
service failure. He was not assessed a service failure for any
alleged refusal to operate his vehicle because he never refused
to do so. He chose to take himself out of service when his vehicle
was freed around 11:00 a.m. apparently because of the condition
of the bumper or the clutch, not because of fatigue or illness.
There was no "protected activity." Moreover, complainant's explanation
of the incident is so riddled with his own inconsistencies as to
defy belief. (See above, pp. 13-20)
(3) On January 29, 1991, complainant was assessed a
service failure for accepting a pickup assignment in Mt. Vernon,
Illinois, and failing to carry it out, when to have done so, he asserts,
would have required violating DOT rules. This service failure,
after prior warnings, probation and suspension, resulted in
termination of the contractor operator agreement with North
American for excessive service failures. Complainant asserts
that his pickup of the Mt. Vernon load would have apparently required
him to violate the ill or fatigued operator rule,[15] or the
adverse driving conditions rule, § 395.10.[16]
Complainant was deemed to have acted irresponsibly either in
accepting the assignment in the first place or in not advising
the dispatcher that he would be out of hours for this particular
assignment, as it was his responsibility to do (Exh. C, PE-8,
No. 2). Moreover, reliance on the DOT adverse weather conditions
rule, § 395.10, is inapposite, applying, as respondents note, to
drivers who have already commenced to drive and are permitted to
drive additional hours. Because of obvious inconsistencies, a
few additional comments are appropriate.
On Insufficient Hours
Complainant asserts in his Pre-Hearing Statement of Position
that he could not carry out his commitment because as of 9:00
p.m. on January 29, he had been on duty for more than 70 hours in a
period of eight consecutive days.[17]
As respondents note and complainant acknowledges, drivers,
not dispatchers or other company agents, maintain their own logs of
the number of hours they drive and it is their responsibility to
advise
[PAGE 29]
dispatchers if an over-hours situation is developing. (Exh. C,
PE-8, No. 2) There is no indication whatever that claimant would not
have been able to drive to Mt. Vernon, some 79 miles away, to
make the delivery, which he admitted in deposition he had the hours to
do, but, most important, he admits he "may not have" advised the
dispatcher that he might not have had available hours. (Dep.
229)
The service failure, however, was based on complainant's
irresponsibility in accepting an assignment for a delivery at
6:30 p.m. when he knew, or should have known, he would be out of hours
for performing the assignment later. (Exh C, p PE-8, No. 2)
On Weather Conditions
This claim of refusal to drive because of weather conditions
must be viewed as nothing more than apocryphal.
The evidence shows here that complainant made no claim of
adverse weather conditions to the dispatcher at the time he was
expected to carry out the assignment. Instead, in complainant's
own statement, signed under notice of penalty for falsification
and made to the Department of Labor only a month after the events of
January 29, 1991, complainant stated he "could not make the Mt.
Vernon, Illinois run because ... [he] was out of hours on ...
[his] log." (Exh. U at 2) Notably, in this signed statement no
mention is made by complainant that he ever claimed to the dispatcher
that adverse weather conditions prompted his refusal.
Moreover, weather conditions could not have validly served
as a basis for such refusal. Complainant had been driving that day
locally under weather conditions about which he has offered no
evidence were any worse then than at 6:30 p.m. when he accepted
the assignment and a short time later when he was to carry it out.
(Exhs. T, U) He states he relied upon radio weather reports of
worsening conditions, then the reports of two drivers who had
been on the interstate highway; then he ultimately says he relied on
his own judgment. He has not demonstrated that he sought to obtain
correction of what he deemed an unsafe assignment, or that he was
somehow better informed than the dispatcher about conditions.
In sum, it is to be noted that complainant does not allege
at the time of the service failure citations themselves that he was
invoking DOT rules to justify his conduct. His complaint to the
DOL was not made at any time during the four-month period he
received the citations, but only within the two weeks after the
contract termination. He does not allege that he sought, and
was
[PAGE 30]
unable to obtain, correction of a situation requiring him to
operate his vehicle under any unsafe condition or in violation of
a DOT rule. None of the instances in complainant's allegations
of instructions to violate DOT rules, as well as asserted
refusals to do so, is supported by the ample record in this matter.
D. Establishing a Prima Facie Case under the
Whistleblower
Provisions
To establish a prima facie case as a whistleblower
under Section 2305(b) of the Act, complainant must show (1) that
he was engaged in protected activity, (2) that he was subjected to
adverse action; (3) that respondents were aware of this protected
activity when they took adverse action, and (4) that the
protected activity was the likely reason for the adverse action.
(1) Protected Activity
Complainant scarcely alleges, much less establishes, that he
engaged in any protected activity, that is, filing or making any
complaint with respondents or the Labor Department before early
February 1991. He clearly has not shown any specific facts
showing that respondents terminated his contractor operating agreement
because of his refusal to violate DOT rules by falsifying his
driving log or because of his refusal to follow any other
instructions by respondents, the latter allegation being made for
the first time just since the pendency of this matter.
(Complainant's Pre-hearing Statement)
There is no evidence of any protected activity associated
with any of the service failures.
A mere reading of complainant's sworn testimony and
statements on these matters leading to the service failures reveals their
utter lack of credence. His "refusals" to perform as he was
required, or his "apprehensions," whatever the excuse offered
under Section 2305(b), would not impress a reasonable mind that they
could be conceivably justified as "protected activity."
(2) Complainant Received Adverse Action
Termination of the contractor operator agreement was an
adverse action.
(3) Respondents' Awareness of Protected Activity.
There being no protected activity to begin with, there can
be
[PAGE 31]
no awareness of it by respondents.
(4) Protected Activity as the Likely Reason for
Adverse Action
Complainant has not identified any credible instances of
protected activity from any refusal to operate a vehicle in
violation of any Federal rule, or, for that matter, any instance
of a reasonable apprehension of such a violation. Moreover,
complainant has not identified where he "must have sought from
his employer, and have been unable to obtain, correction of [any]
unsafe condition" that he might have thought existed.
On the other hand, respondents have identified six
documented service failures of complainant over a four-month period,
culminating in written warning, probation, and termination of
the contractor operator agreement. The adverse actions preceded the
making of any complaint by complainant and they preceded any
thought complainant must have had regarding any "instructions" to
violate Federal rules. The fact that there are citations
contemporaneous with actual, documented occurrences - and
repeated notices to complainant of "failures" - militate against any
argument of "fabrications" or "semantic differences," as
complainant would claim, and warrant the conclusion that there
were ample legitimate reasons for terminating complainant's contract.
Those reasons were not at all based on complainant's supposed
"refusal" to violate rules he admitted himself he had been
trained to observe.
E. The Appropriateness of Summary Decision
Summary decision is akin to summary judgment. The
purpose of summary judgment is "to pierce the pleadings and to
assess the proof to see whether there is a genuine need for
trial." United States v. General Motors Corp., 518 F.2d
420, 441 (D.C. Cir. 1975).
"The very object of a motion for summary judgment is to
separate what is formal or pretended in denial or averment from
what is genuine and substantial, so that only the latter may
subject a suitor to the burden of a trial." Richard v. Credit
Swisse, 152 N.W. 110, 111 (1926) (Judge, later Justice,
Cardozo)
It has as one of its most important functions, the
elimination of a waste of time and resources of both litigants and
adjudicator in a case where a hearing or trial would be a useless formality.
Zweig v. Hearst Corp., 521 F.2D 1129, 1135 (9th Cir. 1975,
cert.
[PAGE 32]
denied, 423 U.S. 1025 (1975). Bloomgarden v. Coyer,
479 F.2d 201, 206 (D.C. Cir. 1973)
The summary judgment motion "serves as an instrument of
discovery in its recognized use to call forth quickly the
disclosure on the merits of either claim or defense on pain of
loss of the case for failure to do so." 10 Wright, Miller & Kane,
supra, § 2712 at 569-71; see Prakash v. American
Univ., 727 F.2d 1174, 1182 n. 49 (D.C. Cir. 1984), citing
Wright, Miller & Kane.
Summary judgment would be appropriate where the pleadings,
affidavits, admissions, discovery materials or other matter show
there is no genuine issue on any material fact. 29 C.F.R.
§§ 18.40, 18.41.[18]
When a movant for summary judgment makes out a convincing
showing that genuine issues of fact are lacking, the adversary is
required to demonstrate by receivable facts a real, not formal,
controversy exists. Curl v. International Bus. Mach.
Corp., 517 F.2d 212 (5th Cir. 1975).
The adversary cannot defeat such a motion by resting on
pleadings, allegations or denial. § 18.40(c); Foster v.
Arcata Associates, Inc., 772 F.2d 1453, 1459 (9th Cir. 1985)
cert. denied, 475 U.S. 1048 (1986). The "response must
set forth specific facts showing that there is a genuine issue of a
fact for the hearing. § 1840(c). The non-moving party's
showing must be of a substantial character. Bloomgarden v.
Coyer, supra, 479 at 208; United States v. General
Motors Corp., supra, 518 F.2d at 442.
... The judgment sought shall be rendered
forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits ... show that there is no genuine issue as
to any material fact and the moving party is entitled to
judgment as a matter of law.
Rule 56(c), F.R.Civ.P.
... [A]n adverse party may not rest upon the mere
allegations or denials of his pleading, but [his]
response, by affidavit or as otherwise provided ...must
set forth specific facts showing that there is a genuine
issue for trial. If he does not so respond, summary
judgment, if appropriate, shall be entered against him.
Rule 56(e), F.R.Civ.P.
In this case discovery had been completed and all
pleadings
[PAGE 33]
made before the scheduled hearing date considered. Respondents
filed their motion for summary decision, including substantial
portions of complainant's own deposition, statements, and
answers to interrogatories, and the affidavit of NAVL manager John Smith,
among other affidavits,[19] showing that there was no genuine
issue as to any material fact and that respondents were entitled
to judgment as a matter of law. The motion pierced the pleadings
and required complainant to come forth with disclosures on the merits
of his complaint to demonstrate that a real, not merely formal,
controversy existed. It was incumbent upon complainant's
response to set forth specific facts showing that there was a genuine
issue and that showing was required to be of a substantial character.
Complainant, at most, has only renewed his allegations that
service failures were fabricated against him because of his refusals to
violate Federal rules, allegations which neither the facts as
they should be reasonably viewed nor his own credibility could
possibly support.
F. The Necessity for Summary Decision
Respondents motion for summary decision has exposed the
complaint to its core.
About the crucial events, complainant has asserted that any
differences in what might have been said between him and
respondents' agents may be only "semantic" and any
inconsistencies in complainant's own testimony may only be grounds
for assigning lesser weight to it, not granting summary decision.
(Complainant's Opposition, pp. 3-5) Much of what complainant has
had to say about the events here have been under oath or some attestation.
His version - rather, versions - of critical events cannot change
without further diminishing an already severely impeached
credibility.
When summary judgment is appropriate, it "shall be rendered
forthwith." Had the parties not undertaken amicable negotiations
and reached a binding settlement, this motion for summary
decision would have required earlier decision. The decision now, after
review of the record upon remand, makes it no less compelling
than it would have been before. For it is quite apparent that this
complaint is not at all about "refusal" and "whistleblowing," but
about a grievance over a contract cancellation for deficiencies
this complainant had full opportunity - and notice - to correct.
The complaint is not about supposed instructions to violate
Federal rules but about a complainant's determination to follow his own.
A hearing on this matter promises no greater clarification
of the positions of the parties, no more probative evidence than
that already found to be persuasive, and no greater understanding of
the relative merits of the complaint and the defense. A hearing, yet
potentially burdensome to a litigant, would be a mere formality.
It surely cannot bestow truth upon a complaint - despite the
volume and vehemence - where the obligation for disclosure and an
ample record have revealed none.
Summary decision is compelled for respondents.
III. Conclusion
The settlement agreement by the parties should be upheld as
binding. Alternatively, summary decision should be granted for
respondents.
Recommended Order
It is recommended that the settlement agreement of the
parties, sufficiently memorialized to show its validity and
effectuation in good faith, should be upheld as binding and
ordered implemented in accordance with its terms. Alternatively,
summary decision should be granted for respondents.
JULIUS A. JOHNSON
Administrative Law Judge
[ENDNOTES]
[1]
Respondents filed a motion to strike complainant's pro se
Motion for Summary Decision for untimeliness, which motion to
strike is granted. (Complainant's summary decision motion,
nonetheless reviewed, contains no new matter affecting
determinations here - likewise, his Affidavit and Closing
Statement of March 30, 1994.) Also, respondents filed a motion
for approval of adjudicatory settlement, as supplemented in response
to order, (Counsel's letter dated January 18, 1994), which is decided
implicitly here. (In the same letter, respondents note
complainant's action of January 25, 1993, in the U.S. District
Court for the Eastern District of Missouri, on the same claims
here was dismissed October 16, 1993.)
[2]
... The judgment sought shall be rendered forthwith if
the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits
...
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment
as a matter of law. ...
Rule 56(c)
... When a motion for summary judgment is made
and supported ... an adverse party may not rest upon the
mere allegations or denials of the ... pleadings, but the
adverse party's response, by affidavits or as otherwise
provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial. ...
Rule 56(e)
[3]
References to appendices are to those attached to
respondents' Motion for Summary Decision.
[4] See Complainant's Pre-Hearing Statement of Position.
[5] Respondents' Motion for Summary Decision, pp. 14-27.
[6] See below, pp. 13-22, 25-29.
[7] Exhibit (Exh.) references hereafter are to Appendix B of
respondents' Motion for Summary Decision, unless otherwise
indicated.
[8]
Other service failures, some noted as "previous violations,"
appear on the Notices for September 18, 1990, November 12, 1990,
November 27, 1990, and November 29, 1990, but are neither the
apparent basis for disciplinary action nor for contention here.
(Exhs. F, H, J)
[9]
Although complainant received a service failure for "shouting and
cursing" dispatcher Richard the next day, December 14, this
notice of "insubordination" - apparently no longer a basis for driver
failure, is not relied upon to support disciplinary action.
[10]
Complainant said he took exception to the letter and the service
failures on which it was based - not in writing, but by calling
McLeister. (Dep. 172-73)
[11]
Complainant admitted to having an allergy to these substances
serious enough to cause his removal from jobs in a previous
employment and to have a medical restriction of "[n]o working in
or about grease or oil." (Dep. 14-16, 25; see also 186-89:
"Anytime I work in it I break out.")
[12]
The two other instances asserted by complainant relate to service
failures (1) on January 13, 1991 (being required to drive excess
hours, which he conceded did not violate the DOT rule (Dep. 208;
Exh. Q) and (2) on January 14, 1991 (being too fatigued to make a
delivery or not having sufficient hours, when any actual
communication with the dispatcher was doubtful (Exhs. P, Q, R;
Dep. 201-02, 210-11, 213-16)) As stated, these service failures were
not among those considered in complainant's discharge from the
operating contract (Exh. C, p. 3), and are given no further
consideration here.
[13] This provision of the rules (hereafter by section only),
§ 395.8, "Driver's record of duty status, states, in part:
(a) Every motor carrier shall require every driver
... to record ... duty status for each 24-hour period
....
....
(c) For each change of duty status ... the name of
the city, town, or village ... shall be recorded.
(d) The following information must be included
...:
....
(11) Shipping document number(s), or
name of shipper and commodity ....
[14] This provision, on "Ill or fatigued operator," states, in
part:
No driver shall operate a motor vehicle, and a motor
carrier shall not require or permit a driver to operate
a motor vehicle, while the driver's ability or alertness
is so impaired, or so likely to become impaired, through
fatigue, illness, or any other cause, as to make it
unsafe for him to begin or continue to operate the
motor vehicle. ...
[15] Complainant's Pre-Hearing Statement, ¶ 8(e).
See "Ill or fatigued operator" rule, § 395.3, at note 14.
[16]
As respondents note, complainant has posited several
theories to justify his conduct, one, having been the excess hours claim
(being on duty for more than 70 hours in a period of eight consecutive
days). (Respondents' Motion, pp. 23-24) Complainant also relied
upon the ill or fatigued operator rule (Complainant's Pre-Hearing
Statement of Position, ¶ 8(e); however, this theory was
abandoned to posit a justification on weather conditions (see
Complainant's Answers to Interrogs. No 5, App. H; Dep. 222-23,
237), which is his explanation principally addressed here.
(Complainant has stated: "I never stated I had only three hours
remaining and that I could not make the run to General Tire.
Instead, I said that I could not and would not make the run
because of the weather." (App. H) (Emphasis added)
The provision, § 395.10, on Adverse driving conditions,
states, in part:
(a) ... [A] driver who encounters adverse driving
conditions ... and cannot, because of those conditions,
safely complete the run within the 10-hour maximum
driving time permitted ... may drive and be permitted
or required to drive a motor vehicle for not more than 2
additional hours in order to complete that run or to
reach a place offering safety for vehicle occupants and
security for the vehicle and its cargo.
....
(c) "Adverse driving conditions" means snow,
sleet, fog, other adverse weather conditions, a highway
covered with snow or ice, or unusual road and traffic
conditions, none of which were apparent on the basis of
Information known to the person dispatching the run at the
time it was begun.
[17] The DOT rule, § 395.3(b)(2), provides:
(b) No motor carrier shall permit or require a
driver of a commercial motor vehicle to drive, nor shall
any driver drive, regardless of motor carriers using the
driver's services, for any period after -
....
(2) Having been on duty 70 hours in any
period of 8 consecutive days if the employing motor
carrier operates motor vehicles every day of the week.
[18] Title hereafter by section only.
[19]
The affidavit of Carl Hadley (App. D), NAVL director of safety
administration, addressing complainant's falsifying information
on the application for employment and for certification as an
independent contractor (App. C), and the affidavit of Dr. Roland
C. Ahlbrand, NAVL medical director, addressing complainant's
omission of relevant medical information on his qualifications for
certification (App. I), are unnecessary to consider here on
respondents' assertion of complainant's non-entitlement to relief
because of his initial lack of qualifications for the position he
was given. It is deemed unnecessary to decide that question in
view of the determination on the merits of the instant complaint
itself.
