DATE: April 8, 1994
CASE NO.: 94-STA-00002
In the Matter of
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
DAVID CHAPMAN
Complainant
v.
T.O. HAAS TIRE COMPANY
Respondent
Before: Ainsworth H. Brown
Administrative Law Judge
DECISION AND ORDER
This is a proceeding under §405 of the Surface
Transportation Assistance Act (STAA), 49 U.S.C. §2305 (1982)
and the implementing regulations issued by the Secretary of Labor
at 29 C.F.R. Part 1978. Section 405 prohibits discharge,
discipline or discrimination against any employee for filing a
complaint or instituting proceedings relating to violation of
commercial motor vehicle safety rules and regulations; or for
refusal of such employee to operate a vehicle in violation of
federal rules and regulations or because of reasonable
apprehension of serious injury due to unsafe conditions.
This proceeding was initiated when a complaint was filed
with the Secretary of Labor by the complainant, David Chapman,
alleging that the respondent discharged him because he had not
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driven a portion of his route on February 25, 1993 due to snow.
On September 10, 1993, the Regional Administrator, Occupational
Safety and Health Administration issued a determination that Mr.
Chapman's discharge constituted a violation of Section 405(b) of
the Act. At that time the respondent was ordered to reinstate
Mr. Chapman, to clear his personnel record, and to effect back
pay to him. The respondent filed objections timely and requested
a hearing.
The hearing took place on November 22, 1993 in Lincoln,
Nebraska. The parties were to file post hearing arguments and
they did so in late January and early February 1994.
Stipulations
The parties entered into the following agreements:
1. (a) Respondent, T.O. Haas Tire Company, is engaged in
interstate trucking operations and maintains a place of business
in Lincoln, Nebraska. In the regular course of this business,
respondent's drivers operate commercial motor vehicles in
interstate commerce principally to transport cargo.
Consequently, respondent is a commercial motor carrier.
(b) Respondent is now and, at all times material
herein, has been a person as defined in Section 401(4) of STAA
(49 U.S.C. 2301.(4)).
2. (a) In May, 1992 respondent hired complainant, David
Chapman, as a driver of a commercial motor vehicle, to wit, a
straight truck with a gross weight rating in excess of 10,000
pounds.
(b) At all times material herein, complainant was an
employee in that he was a driver of a commercial motor vehicle
having a gross vehicle rating of 10,000 or more pounds used on
the highways in interstate commerce to transport cargo and in
that he was employed by a commercial motor carrier and, in the
course of his employment, directly affected commercial motor
vehicle safety (49 U.S.C. 2301(a)(A)).
3. Complainant was terminated by respondent from his
employment with respondent on March 1, 1993.
4. (a) On or about March 1, 1993, complainant filed a
complaint with the Secretary of Labor alleging that respondent
had discriminated against him in violation of Section 405(b) of
STAA (49 U.S.C. 2305). This complaint was timely filed.
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(b) The Secretary, acting through his duly authorized
agents, thereafter investigated the above complaint in accordance
with Section 405(c)(2)(A), (49 U.S.C. 2305(c)(2)(A)), and has
determined that there is reasonable cause to believe that the
respondent has violated Section 405(b) of STAA.
5. At the time of his termination from his employment by
respondent, complainant was earning $375.00 per week.
6. During the course of his employment with respondent,
complainant earned the following amounts in commissions:
Period Ending Amount
08-25-92 $230.82
09-25-92 347.22
10-25-92 318.79
11-25-92 338.75
12-25-92 425.89
01-25-93 257.48
02-25-93 186.24
Average Per Month $300.74
7. For the period from March 1, 1993 to October 31, 1993,
complainant has earned $9.290.00.
Contested IssuesThe disputed questions are:
(1) Whether Mr. Chapman engaged in activity protected
under Section 405(b) of the Surface Transportation
Assistance Act.
(2) Whether Mr. Chapman's protected activity was the
likely reason for his discharge.
(3) Was Mr. Chapman's discharge motivated by a
legitimate nondiscriminatory reason; or are
respondent's proffered reasons mere pretext or was
respondent at least partially motivated by Mr.
Chapman's protected activity.
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(4) Whether Mr. Chapman is entitled to back pay.
Factual BackgroundMr. Chapman, a route delivery driver for respondent, was
in northeastern Kansas the evening of February 24, 1993 in the
midst of a delivery trip. He was in Lawrence, and scheduled to
make deliveries the next day in Lawrence, Oskaloosa, Tonganoxie,
and Topeka before returning to the warehouse - headquarters in
Lincoln, Nebraska, north of where he was situated in his route.
Upon arising early on the morn of February 25, he observed the
presence of significant snow fall. The decision that Mr. Chapman
made was to effect the deliveries where he could utilize major
highways, avoiding the delivery stops in terrain he described as
hilly and winding, Oskaloosa and Tonganoxie. He had attempted to
reach his supervisor by phone but was unsuccessful.
On March 1, 1993, Mr. Chapman was terminated from his
employment ostensibly on the basis of his action of February 25.
Burden of Proof
The complainant has the burden of establishing a prima facie
case that the act perpetrated by the employer was done with
knowledge of engagement in protected activity, and that an
inference could be derived that the protected activity was the
likely reason for the employer's adverse action. The employer
may rebut the prima facie case by presenting evidence that the
adverse action was the product of a legitimate and non-
discriminatory reason. Then, the employee may offer evidence
that the proffered reasons were pretextual and that the employer
was at least, in part, motivated by the protected action.
Findings of Fact and Conclusions of Law
I. Whether there is a prima facie showing of a
violation
The prima facie showing of a protected activity concerns, as
pertinent here is a question of operating a vehicle in hazardous
conditions. There is no serious factual dispute between the
parties about the weather conditions as they existed in this
section of Kansas on February 25, 1993.
Where the parties diverge in their positions is the validity
in the eyes of the company over the decision the employee made on
that fateful morning to drive on the interstate and a U.S.
highway to make certain deliveries before returning to Lincoln by
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mid afternoon instead of waiting to ascertain if the weather and
consequently the road conditions would improve so that he could
make all of the stops on is route, including the deliveries in
the small towns in the area that was undisputedly described as
hilly and winding.
The arguments made by the respondent raises to that of a
"Straw" person contention in that no one alleged that Mr. Chapman
was ordered to drive in dangerous conditions. The point is that
in terms of proximity of time he was discharged for failing to
make the deliveries in the two small towns. The argument was
made that if he felt that it was reasonable to be driving, it
would be reasonable to follow his route. This syllogism became
apparent during the course of the day's testimony as to the
company's understanding of what its "policy" meant that did not
coincide with the understanding of the complainant. In part of
its closing argument, the conclusion is expressed that, and it is
argued that the "policy" is not the focus of the hearing;
however, when a company official testified at hearing that what
Mr. Chapman did on February 25, was "unacceptable" in the context
of his discussion with Mr. Chapman's first line supervisor who
exercised his authority to fire Mr. Chapman the "policy" and its
interpretation became integral to this proceeding. Haas at one
point argues that the policy was clear cut and that everybody
knew it so that it was the respondent that put the policy in
issue and as the complainant artfully pointed out at page 17-20
in his closing argument the policy was susceptible to varying
definitions according to whom one asked to describe it. From his
perspective, Mr. Chapman's implementation can not be seen as
incorrect or unreasonable.
As far as the question of seeking to correct unsafe
conditions is concerned the complainant attempted to contact his
supervisor the morning after the snow and followed a route he had
reason to believe was safe in comparison with regular route.
Respondent's Non-Discriminatory Reasons
The respondent adduced testimony from several witnesses to
short comings in Mr. Chapman's work performance beginning a
couple of months before his termination. These reasons offered
by Haas to justify Mr. Chapman's firing were customer complaints
concerning his failure to make adjustments, not assisting in
unloading of product, and the slowness in paying for a gun
purchased from one of the customers. These problems emerged in
the period of December 1992 through early February 1993. The
documentary record contains the monthly evaluations of Mr.
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Chapman' performance from the time he started working as a
driver. These evaluations yield an insightful perspective to the
validity of the asserted reasons:
July 1992 - C
"Dave is off to a good start...."
August - B
"Dave has performed his duties very well..."
September - B
Thanks!, Dave
October - A
" for the extra effort...."
November - A
Thanks for helping the company grow in Kansas."....
December - B
Remember to drive defensively. Make sure to price all
customers credits as soon as they come back to you.
Make copies & take back to customers."
January 1993 - C
"Dave's had a rough January, but with a little
determination & renewed commitment to his health &
success. I expect this to be behind us. Dave, take a
little time each day to exercise, do some walking & ask
customers to help you in lifting the heavy stuff. Most
of all take time off, to smelltheroses.
At hearing, the respondent offered R-1, the February 1993
evaluation. This document was completed according to Mr. Knapp,
its author, on March 10, after Mr. Chapman's firing. The
mark circled was "F" and Mr. Knapp wrote "Dave's performance,
attitude & ambitions have been a real disappointment to the
Kansas Division. Lack of common sense, combined with failure to
follow easy to understand procedures have resulted in Dave's
review rating and also his termination from the Kansas Division."
This after-the-fact rationale, aside from its self-serving
facet, does not support even an inference that there was a
substantial non-discriminatory basis for Mr. Chapman's discharge.
Further, as argued at the bottom of page 13, of the prosecuting
party's closing argument the customer complaints problems would
cause some action in early February 1993, but there was no
allegation of problems developing for the rest of the month.
The import of the "report cards" described above do not support a
finding other than that the precipitating factor was the failure
to make deliveries at Oskaloosa and Tonganoxie. It is also the
purport of the testimony from Mr. Gaston and Mr. Knapp that
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despite the persiflage of the customer complaints, the basis for
the discharge was the protected activity of February 25.
At the close of the respondent's argument an "exception" is
taken to my lengthy examination of the company's
witnesses. Later, it is asserted that there was an "apparent
denial of an impartial hearing." This position misconceives the
role of the administrative law judge in that it is the trial
judge's duty to be sure that the record is fully developed.
With respect to the reference to 20 pages of questions
versus two pages by the prosecuting party all I can say is that
while listening to the witness' direct testimony I took note of
certain areas that I though deserved clarification. When they
were not covered on cross-examination I felt a responsibility to
try to elicit further information.
I note that no objection was lodged at the time of my
inquiry and that the parties were offered the opportunity to
inquire if perchance I had gotten the wrong slant on any
particular topic. I observed no discomfort from the demeanor of
the witnesses I questioned. The respondent may not have liked
the results of the inquiry, but that does not make the question
partial or unfair. The company was allowed to put in its exhibit
over the objection of the prosecuting party to make sure that it
was allowed a full exposition of its defenses. Frankly, this
belated complaint appears to be an effort to conjure up another
argument to obscure the basis for the discharge.
Haas violated Section 405(b), and attention now turns to the
appropriate remedy.
Recommended Remedy
In evaluating this question I must take into account Mr.
Knapp's off hand "offer" of a job in the warehouse. His
testimony was clear that there was no actual offer, but merely
the raising of the possibility that Mr. Chapman could secure a
job in the nature of what he had engaged in before. The
testimony failed to show that this was a serious proposal.
The parties have agreed that from March 1, 1993 through
October 31, 1993, Mr. Chapman earned $9,290.00 and would have
earned $15,530.92 had he remained an employee of the respondent.
His testimony at hearing was that at that time he was earning in
the range of $250.00 - 260.00 weekly. The prosecuting party also
made a projection for the period through the time of the
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submission of the closing argument that appeared to be reasonable
and would seem to apply in an ongoing fashion, absent any change
in Mr. Chapman's wages. This should continue so long as the
respondent has failed to make a good faith offer of
reinstatement.
The other relief that Mr. Chapman is entitled to is the
clearing of his personnel records and the modification of his
last report card to his grade of "C" with compensation
commensurate therewith.
It is my recommendation to the Secretary of Labor that the
foregoing relief be afforded to Mr. Chapman.
Ainsworth H. Brown
Administrative Law Judge
