Date: October 31, 1994
Case No. 93-STA-35
In the Matter of
DWIGHT E. TOLAND
Complainant
vs.
BURLINGTON MOTOR CARRIERS, INC.
Respondent
APPEARANCES:
Dwight E. Toland
Columbus, Ohio
ProSe
Michael Asensio, Esq.
Ellen Garling, Esq.
Baker and Hostetler
Columbus, Ohio
For the Respondent
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This action arises under the Surface Transportation Assistance
Act of 1982 (hereinafter "STAA"), 49 U.S.C. § 2305, and the
regulations found at 29 C.F.R. Part 1978. Section 405 of the STAA
provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules, or who refuse
to operate a vehicle when such operation would be a violation of
those rules.
STATEMENT OF THE CASE
The Complainant, Dwight Toland ("Toland"), filed a complaint
[PAGE 2]
with the Secretary of Labor, Occupational Safety and Health
Administration (OSHA) on September 14, 1992, alleging that the
Respondent, Burlington Motor Carriers, Inc. ("Burlington"), had
terminated his employment in violation of the STAA.
Toland, who was a driver-trainee during relevant time period,
alleges that he was forced by his Burlington driver-trainers to
submit falsified logs, and ordered to forego Department of
Transportation (DOT)-mandated safety inspections. He contends that
his employment was terminated because he complained to Burlington
about the violations, and threatened to report the violations to
the DOT.
The Secretary of Labor, acting through a duly-authorized
agent, investigated the complaint. On June 29, 1993, he dismissed
the complaint, based upon his finding that Toland's allegations
were without merit (Ad. Ex. 1)[1] . The Complainant filed a timely
objection to the findings by means of a letter dated July 16, 1993,
and the matter was referred to this office for a hearing (Ad. Ex.
2).
A formal hearing was held in this matter on November 30 and
December 1, 1993, in Columbus, Ohio, before the undersigned. At
that time, the parties were afforded full opportunity to present
evidence and argument.
ISSUES
The sole issue for determination in this case is whether
Toland was discharged from employment with Burlington as a result
of having engaged in protected activity.
STIPULATIONS
Pursuant to my prehearing order, the parties were instructed
to confer and to prepare a stipulation of facts which are not in
dispute. Each party submitted a document containing proposed
stipulations of fact (Ad. Exs. 9, 21). A comparison of the two
documents reveals that the following facts are not in dispute:
1. The Complainant is an "employee" as that term is defined
in 49 U.S.C. § 2301;
2. The Respondent is an "employer" as that term is defined
in 49 U.S.C. § 2301;
3. Burlington hired Toland as a driver/trainee in August,
[PAGE 3]
1992; and,
4. On or about September 14, 1992, Toland filed a complaint
under the STAA with the Secretary of Labor, OSHA.
Based upon my observation of the appearance and demeanor of
the witnesses who testified at the hearing and upon a thorough
analysis of the entire record in this case, with due consideration
accorded to the arguments of the parties, applicable statutory
provisions, regulations, and relevant case law, I hereby make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. FINDINGS OF FACT
Toland's short-lived career at Burlington began with his
attendance at a three day orientation program on August 17-19, 1992
(Tr. 202). During the orientation, trainees receive instruction on
how to drive defensively, how to fill out their log books, and on
various Burlington policies and procedures (Res. Ex. D; Tr. 159).
John Pinckney ("Pinckney"), Burlington's Safety Manager, presented
the portion of the orientation program dedicated to teaching the
trainees logging procedures and DOT safety regulations (Tr. 417-
18). He testified that the trainees were instructed to comply with
DOT hours of service regulations[2] , and to fill out their logs
accurately (Tr. 418-19). Toland's own testimony supports
Pinckney's testimony in this regard (Tr. 253-54, 330-31).
Pinckney also testified that the trainees were admonished not
to submit false logs, which could subject Burlington to substantial
fines from regulatory agencies (Tr. 418). He stated that the
trainees were instructed to call him immediately in the event they
were being required to falsify logs by their trainer (Tr. 421).
Toland could not recall whether Pinckney covered false logs in his
presentation. He also could not recall whether he had been
instructed to contact the Safety Department if asked to do anything
illegal (Tr. 331). Toland's purported lack of memory in this
regard is wholly unconvincing in light of the minute detail in
which he recalled other portions of Pinckney's presentation. In
addition, his signature appears on a document he signed during
orientation which provides, in part: "If you are having problems
completing your logs as required by the DOT and the Company,
contact the Safety Department." (Res. Ex. F).
Upon completion of the orientation program, Toland was
assigned to drive with Burlington trainer Matt Tobin ("Tobin") on
[PAGE 4]
August 20, 1992 (Tr. 202). Toland testified that Tobin engaged in
a number of safety violations. He stated that, immediately after
picking up their truck, Tobin opted not to go through the Burling-
ton safety inspection lane, because to do so would have taken too
long (Tr. 218). He further testified that on two occasions, he
began conducting DOT-mandated vehicle inspections, but was stopped
from completing them by Tobin, who insisted they would take too
long (Tr. 223-27). Toland acquiesced, and logged an inspection in
his log book as having taken fifteen minutes, despite the fact that
no inspection was conducted (Tr. 227). Toland summarized a vehicle
inspection in great detail at the hearing, and stated that a proper
inspection could not be completed in fifteen minutes (Tr. 224; 228-
33). Toland also claimed that Tobin told him never to log more
than fifteen minutes for time spent on duty, but not driving (Tr.
219). Finally, he claimed that Tobin instructed him to figure the
number of hours driven by dividing the total number of miles driven
by fifty miles per hour, instead of logging the actual time driven
(Tr. 219-20, 222).
After leaving from Daleville, Indiana on August 21, 1992,
Toland and Tobin stopped in Franklin, Ohio at Toland's request, in
an attempt to pick up an unemployment check (Tr. 219-20; Res. Ex.
EE[3] ). Continuing on, they managed to make it as far as
Dayton, New Jersey, apparently without any major incidents. Once
at their destination, they unhooked their trailer and proceeded in
the tractor to the grocery store (Tr. 221). Toland testified that
he and Tobin agreed to split the cost of the groceries fifty-fifty,
at Tobin's suggestion. However, once in the store, Tobin began
selecting expensive items, such as lobster, while Toland was
selecting relatively cheaper items, such as bologna. Id.
Toland stated that he became concerned because, not having worked
in over a year, he did not have a great deal of money, and he did
not want to subsidize Tobin's more expensive tastes. Id.
Toland testified that, as a result, a "discussion" ensued, and that
ultimately it was agreed that each man would pay for his items
separately (Tr. 221-22).
Upon returning to the tractor, they began working on their log
books (Tr. 222). Toland testified that Tobin instructed him to
calculate their driving time by dividing the total number of miles
driven by fifty miles per hour[4] . Toland claims he objected, and
left to telephone Burlington to report Tobin, which required him to
walk approximately two miles to a pay phone. Id. While on
his way to the phone, Toland saw Tobin drive off in the tractor
and, thinking that Tobin was leaving with his possessions, he
called the police (Tr. 222-23). By the time the police arrived,
Tobin had returned, and the police settled the matter by allowing
Toland to
[PAGE 5]
retrieve his possessions and vacate the tractor (Tr. 223).
Toland stated that he then spoke with John Patrick ("Pat-
rick"), Burlington's Trainee Fleet Manager, and complained that his
trainer was instructing him to ignore DOT regulations (Tr. 223).
Patrick responded by assigning Toland to a new trainer, Jerry
Neighbors ("Neighbors") (Tr. 227).
Tobin's version of these events was far different. He
testified that they did, in fact, go through the inspection lane at
Burlington's Daleville facility (Tr. 469-70). He denied instruct-
ing Toland to forego inspections, to log inspections which were
never conducted, or to calculate driving time by dividing the
actual miles driven by fifty miles per hour (Tr. 468-71). As to
the grocery store incident, Tobin testified that Toland began to
get upset whenever Tobin picked out an item Toland believed was too
expensive (Tr. 474). He stated that when he picked out deli-sliced
roast beef, rather than Oscar Meyer bologna, Toland threw a
"tantrum", cursing at Tobin and yelling that he (Toland) could not
afford to eat like that (Tr. 474-75). Tobin testified that he had
agreed prior to the trip to pay for all of the items, after which
Toland would make a donation for his "fair share." He attempted to
calm Toland by explaining that Toland was not expected to contrib-
ute to Tobin's more expensive items (Tr. 475). Toland continued to
curse at Tobin, however, and they left the store when it appeared
to Tobin that Toland was creating a scene (Tr. 476-77). Tobin paid
for all of the groceries, and was never reimbursed by Toland for
any of the cost (Tr. 478).
Tobin testified that when they returned to where the trailer
was located, Toland accused him of trying to "rob" his trainees,
and threatened to get Tobin fired by reporting to the DOT that
Tobin was forcing him to falsify logs (Tr. 479). When Tobin began
filling out a trainee evaluation report to document the incident,
Toland became increasingly agitated, began to curse at Tobin, and
threatened to beat him (Tr. 479-80, 487). Tobin stated that he
then dropped the trailer, and drove, with Toland, half a mile to a
pay phone, where he suggested they call Burlington and let their
supervisors handle the situation (Tr. 480-81). When they arrived
at a phone, Toland reached it first, and began to make a call,
motioning for Tobin to stay out of earshot (Tr. 481-82). Tobin
agreed to move away if Toland would hand over his spare set of
keys. When Toland refused, however, Tobin informed him that he was
taking the tractor to another phone, and he proceeded to do so (Tr.
482-83).
Tobin then called a Burlington dispatcher, and apprised him of
[PAGE 6]
the situation. The dispatcher, who had apparently spoken with
Toland in the meantime, told Tobin that Toland had called the
police. As a result, Tobin returned to the phone where Toland was
waiting (Tr. 483-84). Upon returning, Tobin explained the
situation to the police, who then allowed Toland to retrieve his
belongings, and required him to hand over his set of keys to Tobin
(Tr. 486).
On cross-examination, Toland was evasive concerning the
incident. When asked whether he and Tobin had had a dispute over
what groceries to buy, Toland responded "I don't care what
groceries he buys." (Tr. 346). Later, on rebuttal, Toland claimed
that the incident in the grocery store never occurred at all (Tr.
526). He denied being "very agitated", and claimed that Tobin
never asked for his (Toland's) set of keys until after the police
had arrived (Tr. 346-48). Contrary to his earlier testimony,
Toland stated on cross-examination that he "couldn't recall"
filling out log books with Tobin (Tr. 350). While he was sure that
he had seen Tobin working on his logs at times during the three day
period, he "could not recall" whether he and Tobin had ever
discussed Tobin's logs. Id. He admitted that, prior to his
removal from the truck, he had not complained about Tobin's alleged
DOT violations to anyone at Burlington besides Tobin himself (Tr.
351-52).
Patrick testified that when he spoke to Toland during the
reassignment of trainers, Toland told him that the problem with
Tobin had concerned only a dispute over groceries (Tr. 187).
Although he spoke with Toland three times during the reassignment,
Toland never mentioned any allegations concerning DOT violations at
that time (Tr. 189). The only notation on Burlington's "Driver
Training History" form concerning the incident explains that Toland
was removed from the truck because "Matt Tobin stated he was
impossible to get along with." Res. Ex. I.
Toland's new trainer was Jerry Neighbours ("Neighbours"), who
had been a trainer for Burlington for approximately six or seven
months at that time (Tr. 101). Toland testified that Neighbours,
like Tobin, also instructed him to falsify his logs at various
times. Toland alleged that on August 25th, he drove from Bridge-
port to Bloomsburg, Pennsylvania, a distance of approximately 100
miles, and that Neighbours instructed him to log only one hour of
driving time (Tr. 237-40). However, Toland's logs for that date
are not available, and Neighbors' log, which is available, belies
Toland's contention. It shows 1 1/2 hours on-duty, not driving at
that time, which presumably was when the trainer was observing, but
not driving (Com, Ex. 5). Toland first indicated that he did not
[PAGE 7]
complain to Neighbours at that time, for fear of losing his job
(Tr. 239-40). Later, Toland stated that he did object, after which
he again changed his mind and stated that he might have objected
(Tr. 242-43).
Toland testified that Neighbours also instructed him "not to
worry" about performing DOT-mandated vehicle inspections (Tr. 244-
45). He protested, but went along with the request anyway, in
order to keep his job (Tr. 245).
Toland testified that his first major incident with Neighbours
occurred in Salisbury, North Carolina, on August 28th, when
Neighbours instructed him to log sleeper berth hours for time
actually spent unloading the trailer (Tr. 245). Toland claimed
that he and Neighbours unloaded the trailer piece by piece, which
took some four hours to accomplish (Tr. 245-48). I credit Toland's
testimony as to this incident, because it is supported by addition-
al evidence. According to Neighbours' August 28th log, it took
only fifteen minutes to not only unload the trailer, but to conduct
a vehicle inspection as well (Com. Ex. 5). Pinckney, Burlington's
Safety Manager, testified that he had seen drivers who were able to
complete a vehicle inspection in twelve minutes (Tr. 421). This
would leave a total of three minutes spent unloading the trailer,
a wholly implausible scenario. When questioned as to this
discrepancy, Neighbours admitted that it had in fact taken longer
than fifteen minutes to unload the trailer that morning (Tr. 53-
54).
Toland characterized his discussion with Neighbours at that
time as "heated", and claimed to have told Neighbours: "This
(instructing him to falsify logs) is bull__it. I know I need a job.
I know you're havin' me falsify logs and I don't think its fair
that you're putting me into this position. . . ." (Tr. 246).
Nevertheless, Toland complied with Neighbours' request and logged
the unloading as sleeper berth time.
Toland testified that he was then required to drive from
Catawbe, South Carolina all the way to Daleville, Indiana, in
violation of the ten hour rule (Tr. 248-49). Neighbours' log shows
that he took over driving duties at Richwood (Com. Ex. 5). Toland
claims that was not the case, however, and stated that Neighbours
falsified the log in order to cover up the ten hour violation (Tr.
249). Toland also claimed that Neighbours had him log the sixty
mile trip from Lexington to Richwood, Kentucky as taking three
hours (Tr. 249-50). This allegation makes no sense, however.
Neighbours' log shows 4 1/4 hours of on-duty, not driving time
between Lexington and Richwood, which is actually more than Toland
[PAGE 8]
alleges. More importantly, if one were trying to falsify logs to
free up additional hours, adding time to a trip would be counter-
productive.
According to Toland, on August 30th after arriving in
Daleville, Indiana, he contacted Patrick, the Trainee Fleet
Manager, to complain about being ordered to falsify logs and omit
safety inspections (Tr. 251-53). He claimed that Patrick essen-
tially ignored his complaint, telling him that he "better go along"
or else he would be discharged under Burlington's policy of
allowing only one trainer reassignment (Tr. 253). Patrick denied
that Toland had ever complained to him about DOT violations on the
part of Neighbours (Tr. 156-57).
Patrick testified that he did speak with Neighbours on August
30, 1992, at a company picnic (Tr. 150-52). He stated that
Neighbours informed him that Toland was very hard to get along
with; that Toland's name-calling and abusive language were a
problem; and that he no longer wanted to be Toland's trainer (Tr.
150). He denied that Neighbours mentioned any DOT complaints by
Toland during the conversation (Tr. 152). Neighbours testified
concerning the conversation as well. He stated that he told
Patrick that he and Toland couldn't get along; that Toland had
called him an "a__hole"; and that Toland did not respond well to
criticism (Tr. 90). Neighbours testified that he also informed
Patrick of Toland's performance problems, such as poor lane
control, failing to use mirrors, and failing to pay attention to
signs (Tr. 91). Nevertheless, he told Patrick that he and Toland
could probably work things out, and he remained partnered with
Toland (Tr. 90). Toland's "Driver Training History" form notes a
complaint from Neighbours on August 31st, but noted only that
Toland was "hard to get along with" (Res. Ex. I).
Neighbours testified that throughout his time with Toland,
Toland could not accept constructive criticism or correction
concerning his driving, and would respond by calling Neighbours an
"a__hole" and a "f___ing idiot" (Tr. 105-06). He complained to his
dispatcher that he was fearful of Toland because of his sudden mood
swings (Tr. 107). Neighbours testified that after his conversation
with Patrick, he talked things over with Toland, and Toland
apologized and promised to curb his profane language (Tr. 108).
For a few days, Toland's behavior improved, but he soon reverted to
his previous ways, cursing Neighbours whenever Neighbours corrected
his driving (Tr. 109-10). Neighbours stated that Toland seemed to
become irrational, and that he feared Toland would become violent
(Tr. 111). On one occasion, Toland threatened to "kick his
(Neighbours) ass" (Tr. 112).
[PAGE 9]
Toland's testimony in this regard was extremely contradictory.
He testified that he "couldn't recall" ever calling Neighbours
names, and he denied ever getting angry when corrected by Neigh-
bours (Tr. 255). In fact, Toland went so far as to say that he
never had to be corrected on a driving procedure or technique.
Id. Later, he stated that he "might" have called Neighbours
an "a__hole" or a "f___in' a__hole" (Tr. 294). Still later, he
reversed himself again, and stated that he could "not recall" ever
calling Neighbours names (Tr. 528).
Toland alleged a number of additional instances of log
falsification by Neighbours during their second week together. He
testified that, upon leaving Daleville, Indiana with Neighbours,
they proceeded to Taylor, Michigan, where Neighbours stopped to
visit his father (Tr. 256). He claimed that Neighbours instructed
him not to record the stop on his log (Tr. 261). In fact, no stop
in Taylor, Michigan is noted in Neighbours' log for this period
(Com. Exs. 1-3). At the hearing, Neighbours admitted that he and
Toland stopped in Taylor, Michigan, but claimed he could not
remember exactly when (Tr. 44, 92-93). Toland also claimed that
Neighbours threatened to have him fired if he told Burlington about
the unscheduled stop (Tr. 261). I find sufficient evidence to show
that Neighbours may have falsified his log to omit the stop in
Taylor, Michigan. However, it is not clear from the record whether
this was done to cover up hours of service violations, or simply to
avoid having Burlington learn of the stop.
The next falsification alleged by Toland concerned a trip from
Piqua, Ohio to West Branch, Iowa. Toland claimed he was instructed
to log a stop in New Paris, Ohio at 2 p.m.[5] (Tr. 277). He
attempted to show a log falsification by arguing that his log shows
the 434.1 mile trip from New Paris to West Branch taking only 5 1/4
hours, which would require an average speed of over 82 miles per
hour (Tr. 282). His claim is nonsensical, however. As pointed out
by Toland himself, a fuel receipt places Toland and Neighbours in
New Paris, Ohio at 12:29 p.m. (Tr. 276-77; Com. Ex. 6). Thus,
adding in the additional time, the average speed drops to approxi-
mately 62 miles per hour. In addition, as Toland's log lists him
as driving the entire trip, no hours of service advantage would be
gained.
Toland also alleged that on September 6th, he was instructed
by Neighbours to log his arrival in Weatherford, Texas at 12:45
a.m., instead of his actual arrival time of 2:30 a.m., to cover up
a violation of the ten hour rule (Tr. 304). Neighbours' log shows
off-duty and sleeper berth time from 1:15 p.m. onward on September
5th, and it is unclear why he simply wouldn't have taken over
[PAGE 10]
driving duties when Toland was approaching a ten hour violation
(Com. Ex. 7). Nevertheless, I credit Toland's version of this
incident. Toland's log for September 6th, which was turned in to
Burlington, contains the following notation: "THIS LOG IS FALSIFIED
LOG PER INSTRUCTIONS CO-DRIVER ARRIVED WEATHERFORD
TX 2:30 a.m." (Res. Ex. II). In addition, I did not find Neighbours'
testimony on this point to have been credible. Neighbours initially
"couldn't recall" seeing Toland's log notation, and "didn't
remember" whether or not he had instructed Toland to falsify his
arrival time in Weatherford (Tr. 97). Later, however, his memory
improved dramatically, and he testified that he had, in fact, seen
the log notation on September 8th (Tr. 128).
The final events leading to Toland's termination occurred on
September 8, 1992. Neighbours testified that when he and Toland
arrived at their delivery point in Forrest City, Arkansas, they
found plenty of parking available, despite the fact that when
Neighbours had called in earlier, he had been informed that there
was no parking available (Tr. 114). According to Neighbours,
Toland then began "ranting and raving", accusing Neighbours of
being a liar and unleashing a stream of obscenities. Id.
To make matters worse, their tractor-trailer developed a flat tire
and a problem with the air lines, necessitating a lengthy delay
while repairs were effected (Tr. 115; Com. Ex. 7). They were
finally able to have the trailer unloaded, and were then dispatched
to a pickup in Memphis, Tennessee (Tr. 116).
Before they could leave, however, Toland realized that his
eyeglasses were missing, and accused Neighbours of stealing them
(Tr. 117-18). Neighbours testified that he had nothing to do with
the disappearance of the glasses (Tr. 118-19). Toland "couldn't
recall" accusing Neighbours of hiding the glasses, but admitted
that he threatened to file a police report accusing Neighbours of
stealing them (Tr. 356-57). Neighbours offered to help Toland look
for the glasses, however, and they were eventually located on top
of Neighbours' bunk (Tr. 357-58). Neighbours testified that Toland
had not mentioned DOT compliance or violations up to this point
(Tr. 78-79). It is unclear who was at fault in the eyeglasses
incident. However, the ensuing argument alarmed Neighbours enough
to prompt him to call in to Burlington, where he spoke with driver
manager/dispatcher Susan Marks ("Marks"). Marks testified that
Neighbours called in at mid-morning and reported that Toland had
accused Neighbours of stealing his glasses (Tr. 505).
Once back on the road, Toland and Neighbours again began
arguing about the eyeglasses. Neighbours testified that Toland
then began to call him names, and lunged across the doghouse[6] at
[PAGE 11]
him (Tr. 116). This startled Neighbours, and he reacted by pulling
off of the highway and again calling in to Burlington (Tr. 116-19).
Toland admitted that a dispute had arisen over the missing
eyeglasses, but denied throughout the hearing that he had lunged
across the doghouse at Neighbours (Tr. 302, 355-58, 527). He
provided no alternative explanation, however, as to why Neighbours
pulled off the road to call Burlington and ultimately, the police.
I found Neighbours' testimony to have been more credible concerning
this incident.
Upon calling in, Neighbours spoke to Burlington dispatcher
Marks, who instructed him to take Toland to the bus station and put
him on a bus back to Burlington headquarters in Daleville, Indiana
(Tr. 120). Marks testified that she had the authority to fire
Toland, and that she was, in fact, firing Toland when she ordered
him out of the truck (Tr. 508). She further stated that she had
spoken with Patrick after the initial call from Neighbours earlier
in the morning, and that they had agreed at that time to terminate
Toland's employment (Tr. 509).
Neighbours also testified that during this incident, Toland
accused him of forcing Toland to falsify logs, and threatened to
report him to the DOT (Tr. 137-39). According to Neighbours, it
was the first time Toland had mentioned anything to him about DOT
violations (Tr. 138). Neighbours again called Marks at approxi-
mately 5 p.m., apparently in an attempt to find out how to pay for
Toland's trip back to Daleville. In this conversation, Neighbours
related to Marks the fact that Toland was accusing him of falsify-
ing logs in violation of DOT regulations (Tr. 83, 139). Marks
admitted at the hearing that she was made aware of Toland's DOT
allegations at that time (Tr. 509, 512-13).
Neighbours then returned to the truck, and informed Toland
that he was going to take him to the bus station, to which Toland
replied "you'll see, you'll see" (Tr. 87, 120-21). Neighbours
testified that he was scared by Toland's remarks, and as a result,
refused to get back in the truck with him. He again called
Burlington, and spoke to the night dispatcher, who instructed him
to call a cab to take Toland to the bus station (Tr. 121-22). When
the cab arrived, however, Toland refused to leave the truck, and
Neighbours again contacted the night dispatcher, who instructed him
to call the police (Tr. 122). The police arrived and instructed
Toland to gather his belongings from the truck, after which he left
in a taxicab (Tr. 122-24).
Toland testified that at some point the next day, September
9th, he spoke to Pinckney, Burlington's Safety Director, and
[PAGE 12]
complained about being forced by Neighbours to falsify logs (Tr.
300-01). On September 10th or 11th, Pinckney met with Toland in
person to discuss his allegations (Tr. 309-10). Pinckney's notes
concerning both conversations are contained in the record (Res. Ex.
O). Toland made various complaints concerning incidents where he
was instructed by Tobin and Neighbours to falsify his log entries,
and other alleged misconduct on the part of Neighbours having no
relation to the STAA. Id. In addition, he submitted to
Pinckney a sheet of paper on which he had attempted to document
each of the incidents of alleged log falsification (Res. Ex. N).
As a result of Toland's complaints, Pinckney ordered an audit of
the log books submitted by Toland and Neighbours. Two violations
were found in each man's logs: three instances where the "check
calls" documented by Burlington did not match the calls noted in
the logs, and one instance where the distance between two cities
could not have been covered in the time marked in Toland's log
entry (Tr. 431-440; Res. Exs. P, Q, W). Burlington found insuffi-
cient evidence to make a finding concerning Toland's allegations
(Tr. 440-41).
Pinckney testified that he approached Patrick on September 9,
1992, and informed him that Toland had complained to him about
being instructed to falsify log entries (Tr. 443). Pinckney stated
that he had nothing to do with the decision to fire Toland, and
that when he told Patrick of Toland's complaints, Patrick responded
that he had already decided to fire Toland because of his behavior
toward his trainers (Tr. 443-44). Patrick testified that he had in
fact decided to discharge Toland following the incident on
September 8th when Neighbours called in to report their dispute
concerning Toland's eyeglasses (Tr. 170-72). He admitted that
Pinckney had informed him of Toland's allegations as to log
falsification on September 9th, but stated that he told Pinckney
that Toland was already on his way back to Daleville so that he
could be discharged in person, rather than over the phone (Tr. 174-
75). Pinckney expressed concern that the discharge, coming so soon
after the complaint, could have STAA implications, but Patrick
declined to reconsider, as he had allegedly determined to fire
Toland before ever hearing about Toland's allegations. Id.
Whatever the machinations occurring at Burlington notwith-
standing, it is clear that Toland was not informed that he was
being terminated until September 11th (Tr. 303, 365). Toland's
contention in this regard is supported by Pinckney's notes. They
reveal that when he was put out of the truck on September 8th,
Toland believed that he was being called in to Daleville so that
his logs could be inspected and his complaints investigated (Res.
Ex. O). Patrick explained that the reason Burlington paid to have
Toland returned to Daleville was so that he could be fired in
[PAGE 13]
person, pursuant to company policy (Tr. 189). However, when Toland
finally arrived on the bus, Patrick did not have a company car
available to pick him up at the bus station. After waiting for a
time, Toland finally decided to take a cab to a motel (Tr. 175).
Patrick testified that when Toland called in from the motel,
Patrick told him over the phone that he was being fired as a result
of his conduct toward his trainers (Tr. 176). Patrick also
allegedly reminded Toland that he had been warned that only one
trainer reassignment would be permitted. Id. According to
Patrick, Toland made no mention of any DOT violations at the time
he was informed of his discharge (Tr. 193).
Toland's testimony did not contradict Patrick's on this point,
however. In fact, Toland testified that he could not recall
whether it was Patrick or Pinckney who fired him, although he
believed it was Pinckney (Tr. 303, 366). He also could not recall
what reasons, if any, were given for his termination at that time
(Tr. 366).
Burlington's "Driver Training History" form for Toland notes
on September 8th that Neighbours called in to report that he and
Toland could no longer get along (Res. Ex. I). On the same date,
it notes that Toland accused Neighbours of stealing his glasses,
and that Neighbours was instructed to put Toland on a bus.
Id. No mention is made on that date of a decision to fire
Toland; nor is any mention made of Toland having lunged across the
doghouse at Neighbours. Id. The "Driver Status Change"
form filled out by Patrick which memorializes Toland's termination
is incomplete: it refers the reader to comments contained on an
"S/R contact screen", apparently a computer file in Burlington's
computer system (Res. Ex. K). Those comments were not produced by
Burlington at the hearing.
Pinckney prepared a report concerning his investigation of
Toland's allegations, despite the fact that Toland had already been
discharged from employment (Res. Ex. T). The report essentially
parallels Pinckney's testimony at the hearing, noting that two
false log entries were found in both Neighbours' and Toland's logs.
Id. Toland's problems with each of his trainers were also
mentioned. Id. Curiously, however, the report does not
even mention that Toland had been fired.
Pinckney's report also mentions the results of a background
check on Toland performed at Burlington's request after Toland's
discharge. Pinckney testified that he ordered the report because
of safety concerns arising from Toland's conduct on September 11th,
the day of his discharge and threats of bodily harm allegedly made
[PAGE 14]
to his trainers (Tr. 417, 442). The report, prepared by James E.
Van Ella and Associates, contains a listing of various criminal
charges which have been brought against Toland and their disposi-
tions (Res. Ex. R). Two felony convictions are noted in the
report, in 1963 and 1991[7] . Toland admitted that he had marked
on his employment application that he had never been convicted of
a felony (Tr. 323-24; Res. Ex. E). He claimed that his 1963
conviction had been expunged, and that he believed he did not have
to report it on employment applications as a result (Tr. 324-25).
As to the 1991 conviction, Toland testified that he believed that
it was also going to be expunged, but that he "could not recall"
the process by which this was to occur (Tr. 327).
While Toland's assertion as to the 1963 conviction is
plausible, I am wholly unconvinced by his attempt to explain his
failure to note the 1991 conviction on his Burlington application.
However, I am also unconvinced by Pinckney's explanation as to why
the background check was requested by Burlington. Pinckney claimed
to have made the request at the time of Toland's termination,
because of security concerns raised by Toland's actions on
September 11th. The report notes that the request was not
received, however, until October 14, 1992 (Res. Ex. R). A separate
report by the same company, concerning a check into Toland's
employment history, notes a request date of September 15, 1992
(Res. Ex. T, attachment to Pinckney's September 28th report). As
the inquiry into Toland's criminal history was not requested until
over a month after his termination, and well after the filing of
his STAA complaint, I find that it was most likely requested in an
attempt to discover additional evidence to justify Toland's
termination[8] .
Patrick testified extensively concerning Burlington's policy
of firing a trainee after failing to get along with two different
trainers. He stated that when he explained the training process to
the trainees during orientation, he instructed them that they were
to cooperate with their trainers (Tr. 159-60). He also stated that
he did not like switching trainers, and that only one such
reassignment would be permitted (Tr. 160). Patrick admitted that
it was common for a personality conflict to develop between a
trainer and a trainee (Tr. 163). He also claimed that he had never
made an exception to the policy of firing a trainee rather than
assigning a third trainer. However, only one trainee other than
Toland ever failed to get along with two trainers (Tr. 164).
Toland "could not recall" whether Patrick had explained the policy
at orientation (Tr. 344). He admitted, though, that Patrick had
told him at the time of his reassignment that he would be fired if
he could not get along with his second trainer (Tr. 353-54, 360).
[PAGE 15]
II. CONCLUSIONS OF LAW
Section 2305 provides, in part:
(a) 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 (or any
person acting pursuant to a request of the employee) has
filed any 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.
(b) No person shall discharge, discipline, or in any
manner discriminate against an employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders
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 circum-
stances 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.
49 U.S.C.A. § 2305 (Supp. 1994).
Claims under the STAA are adjudicated pursuant to the standard
articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Under that framework, the Complainant must initially
establish a primafacie case of retaliatory dis-
charge, which raises an inference that the protected activity was
likely the reason for the adverse action. Once a primafacie case is established, the burden of production then
shifts to the Respondent to articulate, through the introduction of
admissible evidence, a legitimate, nondiscriminatory reason for its
employment decision. If the Respondent is successful, the
primafacie case is rebutted, and the
[PAGE 16]
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reasons proffered by the Respondent were but a
pretext for discrimination. Moon v. Transport Drivers,
Inc., 836 F.2d 226, 229 (6th Cir. 1987); SeealsoTexas Dep't. of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981).
The Supreme Court recently addressed the burden-shifting under
such statutes in extensive detail in St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993). In that case, Justice Scalia,
writing for the Court, held that in meeting its burden of produc-
tion, an employer need only articulate a legitimate reason for the
adverse action, and that no credibility assessment is appropriate
at that time. Id. at 2748. In proving that the asserted
reason is pretextual, the employee must do more than simply show
that the proffered reason was not the true reason for the action.
Instead, he or she must prove both that the asserted reason is
false (i.e. not the true reason for the action), and that discrimi-
nation was the real reason for the adverse action. Id. at
2752-56. Such a requirement is necessary in that it is the
employee who bears the ultimate burden of persuading the trier of
fact that he or she was the victim of intentional discrimination.
Texas Dep't. of Community Affairs v. Burdine, 450 U.S. at
253; SeealsoHicks, supra, 113 S.Ct.
at 2751.
To establish a primafacie case of retaliatory
discharge, the Complainant must prove: (1) that he engaged in
protected activity under the STAA; (2) that he was the subject of
adverse employment action; and (3) that there was a causal link
between his protected activity and the adverse action of his
employer. Moon, supra, 836 F.2d at 229. The
Secretary has taken the position that, in establishing the "causal
link" between the protected activity and the adverse action, it is
sufficient for the employee to show that the employer was
aware of the protected activity at the time it took the
adverse action. SeeOsborn v. Cavalier Homes, 89-
STA-10 (Sec'y July 17, 1991); Zessin v. ASAP Express, Inc.,
92-STA-0033 (Sec'y Jan. 19, 1993).
Toland's Prima Facie CaseProtected Activity
Under subsection (a) of § 2305, protected activity may be
the result of complaints or actions with agencies of federal or
state government, or it may be the result of purely internal
activities, such as internal complaints to management, relating to
a violation of a commercial motor vehicle safety rule, regulation,
standard, or order. 49 U.S.C.A. § 2305(a) (Supp. 1994);
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24,
1992); Davis v. H.R.
[PAGE 17]
Hill, Inc., 86-STA-18 (Sec'y Mar. 18, 1987).
Toland testified that he complained to Patrick about being
forced by Tobin to submit falsified logs in violation of DOT
regulations (Tr. 223). Patrick denied that Toland mentioned DOT
violations on any one of the three occasions on which he spoke with
Toland during his reassignment (Tr. 187, 189). Toland testified
that he also complained to Patrick about being forced to falsify
logs by Neighbours (Tr. 251-53). Patrick denied ever hearing those
complaints from Toland as well (Tr. 156-57). However, various
allegations by Toland of complaints concerning DOT violations are
uncontroverted by Burlington.
Toland noted a log falsification allegedly ordered by his
trainer on his September 6th log, and it is undisputed that the log
was subsequently turned in to Burlington (Res. Ex. II). In
addition, Neighbours testified that Toland threatened to report his
alleged log falsifications to the DOT, and admitted that he, in
turn, conveyed Toland's complaints to the Burlington dispatcher
(Tr. 83, 139). Neighbours' testimony in this regard was buttressed
by the testimony of Marks, the Burlington dispatcher with whom he
spoke (Tr. 509). Finally, Toland testified that he spoke with
Pinckney concerning alleged log falsifications ordered by
Neighbours on September 9th (Tr. 300-01). Pinckney verified such
a conversation, and further testified that he in turn conveyed
Toland's allegations to Patrick on the same date (Tr. 443). I find
that each of these latter three communications by Toland to
Burlington personnel is sufficient to constitute protected activity
under subsection (a) of § 2305.
Under subsection (b) of § 2305, an employee engages in
protected activity when he or she refuses to operate a commercial
motor vehicle where such operation would constitute a violation of
a commercial motor vehicle rule or regulation, including DOT hours
of service regulations. Greathouse v. Greyhound Lines,
Inc., 92-STA-18 (Sec'y Aug. 31, 1992). Subsection (b) is not
invoked, however, unless there is proof of a work refusal. There
was no evidence produced at the hearing of any refusal to drive on
the part of Toland. Therefore, I find no evidence to support a
finding of protected activity under subsection (b) of § 2305.
Adverse Employment Action:
Although there is some dispute over when Toland's employment
with Burlington was terminated, neither party disputes that Toland
was terminated by Burlington at some point between September 8th
and 11th, 1992. It is also not controverted that Toland was not
[PAGE 18]
officially informed of his discharge until September 11th. As the
termination of one's employment certainly constitutes "adverse
employment action", I find that this element of the Complainant's
primafacie case has been established.
Causal Relationship:
The final element of the Complainant's primafacie case is the establishment of a causal link between the
protected activity and the adverse employment action. As noted
previously, an inference of causation may be raised by proof that
Burlington had knowledge of Toland's complaints at the time it
engaged in the adverse employment action. By the same token,
however, where it is proven that the employer was unaware of the
protected activity at the time of the adverse employment action, no
primafacie case can be made. Greathouse v.
Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992).
Toland alleged that he twice complained personally to Patrick
about being instructed to submit falsified logs by Tobin and
Neighbours, respectively. As noted previously, however, Patrick
denied that either of the two alleged conversations took place.
See Tr. 156-57, 187, 189. I find no reason to discredit
Patrick's testimony on this point, and overall, I found him to be
a much more credible witness than Toland. Therefore, the relevant
protected activity in this regard consists of the three complaints
by Toland of which Burlington was indisputably aware. Toland's
September 6th log, which contained a notation that it was falsified
on Neighbours' instructions, was not turned in to Burlington until
some later date, which was not established at the hearing. The
incident in which Neighbours conveyed Toland's threat to contact
the DOT to the Burlington dispatcher occurred at approximately 5
p.m. on September 8, 1992. Finally, Toland's complaint to
Pinckney, which prompted the log audit, was made on September 9,
1992. Both Patrick and Marks contended, in their testimony, that
the decision to discharge Toland was made during the afternoon of
September 8, 1992. As a result, a question exists as to whether
Burlington had knowledge of any of Toland's protected activity at
the time it initiated the adverse employment action.
Marks testified that sometime after 1 p.m. on September 8th,
Neighbours called in to report that Toland had continued to argue
with him about the eyeglasses, and had lunged across the doghouse
at him, causing him to pull off the road (Tr. 505-07). She further
stated that she had spoken with Patrick after Neighbours' earlier
call, and that they had decided to discharge Toland (Tr. 508-09).
According to Marks, by ordering that Toland be put out of the truck
[PAGE 19]
during her second conversation with Neighbours, she was discharging
Toland (Tr. 508). Patrick testified that after hearing about the
dispute over the eyeglasses, he told Marks to put Toland on a bus
back to Daleville, so that he could discharge Toland in person,
pursuant to company policy (Tr. 171-73). He further stated that,
when he finally heard of Toland's DOT allegations from Pinckney on
September 9th, he told Pinckney that he had decided to fire Toland
the on September 8th, and that Toland was already on a bus back to
Daleville (Tr. 174).
After fully considering all of the testimony and evidence on
this point, I find insufficient evidence to justify a finding that
the decision to discharge Toland was made on September 8th, before
either Marks or Patrick had knowledge of his DOT allegations, for
the following reasons. Both Marks and Patrick emphasized that by
putting Toland out of the truck, they were discharging him, and
that his return to Daleville was a mere formality required by
company policy. However, no evidence was produced of a written or
formal Burlington policy requiring all discharges to be effected in
person. To the contrary, Patrick admitted that Toland was
ultimately fired over the phone, because Patrick did not have a
company car available to bring him in from his motel. Thus, if
such a policy existed, it was not strictly applied. Moreover, it
seems unlikely that Burlington would go to the trouble and expense
of paying for a bus ticket and a motel room for Toland in order to
follow such a policy, only to disregard the policy after getting
Toland all the way back to Indiana.
Other evidence belies Burlington's assertion as well.
Although the "Driver Training History" form contains a note on
September 8th that the dispatcher was instructed to put Toland on
a bus back to Daleville, it does not state that Toland was being
discharged (Res. Ex. I). Burlington's "Driver Status Change"
report, which memorializes Toland's discharge, lists the effective
date of the discharge as September 11, 1992 (Res. Ex. K). And
finally, Patrick himself testified that such employees are paid up
to the date that they are actually informed of the termination (Tr.
189). Based upon all of these factors, I find that Toland's
discharge occurred on September 11, 1992, at which time both
Patrick and Marks admittedly had knowledge of his protected
activity.
In establishing a primafacie case, the
proximity in time of the protected activity and the adverse
employment action is sufficient to raise an inference of causation.
Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19,
1993); Bergeron v. Aulenback Transp., Inc., 91-STA-38 (Sec'y
June 4, 1992). Toland's
[PAGE 20]
protected activity took place on September 8th and 9th, 1992, and
his discharge occurred on September 11th. I find this proximity
sufficient to raise an inference of causation, and as a result, I
find that the Complainant has successfully established a
primafacie case of retaliatory discharge.
Rebuttal of the Prima Facie Case
Since Toland has established a primafacie case
of retaliatory discharge, the burden of production now shifts to
Burlington to establish a legitimate, nondiscriminatory reason for
Toland's discharge. To carry its burden, Burlington needs only to
produce evidence of some legitimate grounds for the termination, a
task which involves no credibility assessment at this stage of the
proceedings. St. Mary's Honor Center v. Hicks, 113 S.Ct.
2742, 2748 (1993).
Patrick testified that his decision to discharge Toland was
based on the fact that serious complaints had been lodged against
Toland by two separate trainers, and that Toland had been warned
that a second reassignment would not be permitted (Tr. 173, 176).
Patrick also considered Toland's conduct, specifically that Toland
had falsely accused both trainers of stealing from him (both of
which accusations resulted in police being called to the scene);
been verbally abusive to both trainers; and lunged across the
doghouse at Neighbours (Tr. 171-73; Ad. Ex. 21, Exhibit B (Affida-
vit of Patrick)). Each of these asserted grounds for the termina-
tion, if credited, would constitute legitimate and non-discrimina-
tory grounds for terminating Toland's employment. Therefore, I
find that Burlington has successfully carried its burden of
production. As a result, it is now incumbent upon Toland to prove
that Burlington's asserted reasons are pretextual, i.e. that they
were not the true reasons for his discharge, and that retaliation
for protected activity was in fact the true motivating factor.
Pretext
I have previously found that certain of Toland's allegations
of log falsification on the part of his trainer, Neighbours, have
merit. I have also found that Toland took his log falsification
complaints to his superiors at Burlington prior to his discharge.
At first glance, Toland's discharge from Burlington only a few days
after his protected activity suggests a causal connection between
the two events. In reality, however, I find that any such
connection is illusory.
In addition to his protected activity, Toland's discharge was
[PAGE 21]
also immediately preceded by his second major altercation with a
trainer in his just over two weeks of employment. The first
altercation, with Tobin, arose over the selection of groceries.
The second incident, with Neighbours, arose over Toland's accusa-
tion, which later proved unfounded, that Neighbours had for some
reason intentionally hidden Toland's eyeglasses. Even had both
trainers' conduct been as Toland described (which I have found not
to be the case), neither would justify the type of hostile response
evoked from Toland.
In both incidents, Toland became so belligerent that police
had to be called to the scene. Two separate trainers had com-
plained not only about Toland's verbal abusiveness and use of
obscenity, but about physical threats as well. Toland is an
extremely large man. On his Burlington application, he listed his
height as 6'11" and his weight as 280 pounds, and those figures
appeared to be accurate from my observation of the Complainant at
the hearing. As a result, both trainers were understandably and
justifiably intimidated by Toland's threats of physical violence.
These incidents culminated in the events of September 8, 1992. On
that day, Toland not only became involved in an altercation with
Neighbours, but went so far as to move toward Neighbours across the
doghouse while the vehicle was in motion.
It was only during the second of these altercations that
Toland took his complaints about Neighbours' log falsification to
his superiors at Burlington. At that point, Toland's conduct
toward his trainers had regressed to such a point that no responsi-
ble employer, in my opinion, would have entrusted him with driving
a commercial truck on public highways.
In light of Toland's allegations that he was forced to falsify
logs by Neighbours virtually from the start of their training
relationship, I find it significant that he waited until after the
altercation over the eyeglasses to bring his allegations to
Burlington. Pinckney testified that, during orientation, he
informed the trainees that log falsification was the most severe
type of DOT violation, and instructed them to contact him immedi-
ately in the event they were told to falsify logs by their trainer
(Tr. 418-21). Toland "could not recall" being instructed to
contact the Safety Department in such an event (Tr. 331). I credit
Pinckney's testimony on this point. Toland was given a document
instructing him to contact the Safety Department in the event he
was "having problems completing [his] logs as required by the DOT"
(Res. Ex. F). Furthermore, when Toland finally did make a
complaint to Pinckney, Pinckney confronted Patrick with it the very
next morning. In sum, I find that most likely scenario was that
[PAGE 22]
Toland, who had experience with STAA claims (Res. Exs. CC, DD)[9]
, viewed Neighbours' log violations as a means of gaining leverage
on Burlington in the event it attempted to fire him for his
unacceptable behavior toward his trainers.
I have fully considered the possibility that, were it not for
Neighbours' log violations, his altercations with Toland would
never have occurred. An employer may not provoke an employee to
the point of committing an indiscretion and then seize on the
incident as a legitimate rationale for discharge. Moravec v. HC
& M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992),
citingMonteer v. Milkway Way Transp. Co., 90-STA-9
(Sec'y Jan. 4, 1991). In Moravec, the Secretary found that
the employee's challenge of a supervisor to a fight did not justify
termination where the challenge was spontaneous and provoked by the
employer's unlawful conduct. Id. The Secretary emphasized,
however, that, no blows having been struck, the employee's conduct
in that case was not egregious. Id.
In the instant case, however, while Neighbours may have
engaged in log falsification, it was Toland's false accusation that
Neighbours stole his eyeglasses which prompted the outburst that
led to Toland's dismissal. Moreover, Toland's behavior, which
included not only abusive language and threats of violence, but a
lunge across the doghouse at the driver of a moving vehicle, was
egregious by any standard. Therefore, I conclude that Toland's
complaint should be dismissed.
In evaluating the entire record, I conclude that the over-
whelming weight of the evidence demonstrates that the reasons
advanced by Burlington for Toland's discharge are legitimate and
not pretextual. The evidence in this case is susceptible to no
conclusion but that Burlington would have reached the same
employment decision even in the absence of the protected activity
in which Toland engaged.
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint of Dwight E. Toland be
DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
NOTICE: This Recommended Decision and Order an the
administrative file in this matter will be forwarded for review by
the Secretary of Labor to the Office of Administrative Appeals,
U.S. Department of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Avenue, N.W., Washington, D.C. 20210. The Office
of Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] In this Decision, "Com. Ex." refers to the Complainant's
Exhibits, "Res. Ex." refers to the Respondent's Exhibits, "Ad.
Ex." refers to the Administrative Exhibits, and "Tr." refers to
the Transcript of the hearing.
[2] Hours of service regulations are DOT limitations on the
number of hours a commercial truck driver may operate his or her
vehicle before stopping for rest. There are three such regula-
tions relevant to this proceeding. Briefly summarized, the "ten
hour rule" states that a driver may accumulate a maximum of ten
driving hours before stopping for eight hours of off-duty time.
The "fifteen hour rule" applies to time spent on duty, but not
driving, such as loading and unloading, vehicle inspections,
etc., and requires that a driver accumulate no more than fifteen
duty hours (which includes driving and non-driving time) before
stopping for eight hours of rest. Finally, the "seventy hour
rule" forbids the accumulation of more than seventy total duty
hours in an eight day period. These regulations are contained in
the Federal Motor Carrier's Safety Regulations, 49 C.F.R.
§ 395.3. In addition, the regulations allow the required
off-duty time to be cumulated in the sleeper berth, provided
certain conditions are met. Id. at § 395.1(h).
[3] Respondent's Exhibits EE and NN are identical. Both are
"reconstructed" logs, i.e. logs which the Complainant prepared
after the fact concerning his driving during the period of August
21-31, 1992. The original logs for this period were no longer
available, having been discarded by Burlington after six months
as part of a routine purging procedure (Tr. 12). The Complainant
was able, through OSHA, to obtain copies of his actual logs for
the period of September 1-7, 1992 (Res. Ex. II).
[4] Presumably, the purpose of calculating driving time in this
manner, rather than recording actual driving time, was to maxi-
mize available hours of service. By dividing the miles driven by
fifty miles per hour, a driver could lessen the impact of time
spent in traffic delays, where less than fifty miles were driven
in an hour.
[5] A fifteen minute break appears in Toland's September 1st log
at 2 p.m. However, the name of the town in which the stop
occurred is not noted (Res. Ex. II).
[6] The term "doghouse" refers to the hump in the cab of a
tractor which covers the engine, separating the driver and the
passenger (Tr. 116).
[7] Under the Federal Rules of Evidence, as applicable to these
proceedings pursuant to Department of Labor regulations, evidence
of a felony conviction older than ten years may not be used to
impeach the credibility of a witness. 29 C.F.R. §
18.609(a), (b). However, evidence of Toland's felony convictions
has independent relevance in this case, as it bears directly upon
the truthfulness of Toland's assertion on his Burlington employ-
ment application that he had never been convicted of a felony.
As such, it was admitted into evidence for that purpose.
[8] Burlington's motivations in conducting the further background
check could have relevance in determining the application of the
so-called "after-acquired evidence" doctrine in the event I found
Toland's STAA complaint to have merit. However, my subsequent
determination as to the merits of the claim, infra, render
the after-acquired evidence question moot.
[9] Evidence of prior acts is not admissible to prove the charac-
ter of a person in order to show action in conformity therewith.
29 C.F.R. § 18.404(b). It is admissible for other purposes,
however, such as proof of a plan, or knowledge. Id. To
that end, I have considered Toland's prior STAA actions only to
the extent that they reflect his knowledge of the STAA and its
protections.
