DATE: June 22, 1994
CASE NO.: 94-STA-3
In the Matter of
WILLIAM WATSON,
Complainant,
v.
SMALLWOOD TRUCKING CO., INC.,
Respondent.
Appearances:
WILLIAM WATSON, Pro Se
For the Complainant
DAVID J. IRVINE, JR., ESQ.
For the Respondent
BEFORE: DANIEL A. SARNO, JR.
ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION AND ORDER
This proceeding arises from a complaint filed with the United
States Department of Labor (DOL) pursuant to Section 405(b) of the
Surface Transportation Assistance Act (STAA) of 1982 (49 U.S.C.
2301 et seq.)
On October 19, 1993, the Deputy Regional Administrator,
Occupational Safety and Health Administration, United States
Department of Labor, found that the complaint did not have merit
and dismissed the complaint.
The Complainant requested a hearing before an Administrative
Law Judge. A hearing was held in Newport News, Virginia on
March 3, 1993. At the conclusion of the hearing, a briefing
schedule was established and both parties submitted briefs.
STIPULATIONS
The parties stipulated to the following [Tr.7-9]:
1. Respondent, Smallwood Trucking Co., Inc. is engaged in
interstate trucking operations and maintains a place of business in
Windsor, North Carolina. In the regular course of this business,
Respondent's employees operate commercial motor vehicles in
interstate commerce principally to transport cargo. Consequently,
Respondent is a commercial motor carrier and subject to STAA
(Surface Transportation Assistance Act of 1992, 49 U.S.C. 2305, et
seq.).
2. Respondent is now and, at all times material herein, has
been a person as defined in Section 401(4) of STAAA (49 U.S.C.
2301(4)).
3. In November 1990, Respondent hired Complainant Watson as
a driver of commercial vehicles, to-wit: a tractor-trailer with
gross vehicle weight rating in excess of 10,000 pounds.
4. At all times material herein, Complainant Watson was an
employee and was a driver of commercial motor vehicles having a
gross vehicle weight rating of 10,000 pounds or more used on the
highways to transport cargo and in that, he was employed by
commercial motor carrier and, in the course of his employment,
directly affected commercial motor vehicle safety (Section
401(2)(A) of STAA (49 U.S.C. 2301(2)(A)).
5. On or about March 16, 1993, Complainant Watson filed a
Complaint with the Secretary of Labor alleging that Respondent had
discriminated against him in violation of Section 405 of the Act
(49 U.S.C. 2305). This Complaint was filed timely.
6. The Secretary, acting through his duly authorized agents,
thereafter investigated the above Complaint in accordance with 49
U.S.C. 2305(C)(2)(A), and determined that there was reasonable
cause to believe that Respondent had not violated Section 405(A) or
(B) of STAA.
ISSUE
DID THE RESPONDENT DISCRIMINATORILY DISCHARGE THE
COMPLAINANT FOR COMPLAINANT'S ALLEGED REFUSAL TO DRIVE IN
VIOLATION OF DEPARTMENT OF TRANSPORTATION HOURS OF
SERVICE OF REGULATIONS? (49 C.F.R.S. 339.3).
Preliminary Matter
Complainant submitted three proposed hearing exhibits with his
closing brief. They are marked for identification as follows:
CX 1: A one-page document purporting to reflect
Complainant's 1991 and 1992 wages.
CX 2: A one-page document purporting to reflect
Complainant's weekly wages on weeks ending
January 17, 1992 and January 24, 1992, respectively.
CX 3: A one-page document purporting to be Driver's Daily
Log for March 1, 1993.
By letter dated April 27, 1994, Respondent objected to the
receipt of proposed exhibits CX 1 and CX 2.
Turning first to Complainant's proposed exhibit, CX 1,
Respondent maintains that "[t]he legend at the top of the
Exhibit... and the dates 1991 and 1992 appear to have been added to
the document after its preparation". Thus, Respondent maintains
that the validity of this document is extremely questionable. I
agree. Other than by relying upon the dates which appear to have
been typed in using another machine, there is no way to determine
to the specific years to which these wages apply. I find the
validity of the dates to be questionable. Proposed exhibit CX 1 is
rejected as unreliable.
Turning next to Complainant's proposed exhibit, CX 2,
Respondent maintains that it should be rejected because it is
hearsay and constitutes surprise evidence. I disagree. These wage
slips reflect wages earned in 1991 and 1992 from Respondent. These
appear to be Respondent's own business records. As such, they
certainly do not constitute surprise evidence. They appear to be
reliable. Thus, I find that Respondent's hearsay objection should
not be sustained. Accordingly, proposed exhibit CX 2 is received
into evidence.
FINDINGS OF FACT
Background
1. Smallwood Trucking Company, Inc. (Respondent) is a small
trucking company located in Windsor, North Carolina [Tr. 74].
2. Smallwood Trucking Company, Inc. has been in business for
six years. The Company owner and President is John Smallwood, Jr.
[Tr. 74].
3. Complainant was hired in November, 1990 [Stip. 3].
Complainant ceased working for Respondent on March 7, 1993 [Tr. 74,
75].
4. During the time he worked for Respondent, Complainant was
one of only three truck drivers for the company [Tr. 75].
5. John Smallwood, Jr. does not hold a license to drive
trailer trucks [Tr. 96]. He manages the business [Tr. 84].
6. Smallwood Trucking is in the general trucking business.
Most all of its business is associated with hauling trailers for
Perdue Farms, Inc. [Tr. 82, 86, 106].
7. Each driver was assigned a specific tractor. These
tractors were clearly marked with the Smallwood Trucking Company
name and logo [Tr. 82]. Moreover, each tractor was generally
pulling a clearly marked Perdue Farms owned trailer [Tr. 82].
8. Complainant normally made the same run four or five times
a week [Tr. 35]. A run began in Lewiston, North Carolina at the
home terminal. Complainant would go to Georgetown, Delaware with
an empty Perdue trailer to pick up Perdue chicken. He would then take the full trailer to Chesapeake, Virginia where it was
unloaded. From there, he would return with the empty trailer to
Lewiston, North Carolina [Tr. 35, 36].
Complainant's testimony
9. The Complainant testified that he was hired as a driver
for Smallwood Trucking Company, Inc. in 1990, and worked in that
capacity until March 7, 1993 [Tr. 15].
10. Complainant testified that on March 7, 1993, John
Smallwood, President of Respondent, asked him to deliver his
assigned truck to Timmy Hare's Garage at approximately 11:00 A.M.
Complainant further testified that Timmy Hare's Garage was where
all of Respondent's trucks were serviced [Tr. 16].
11. Complainant testified that upon arriving at the garage,
he showed Mr. Smallwood some mechanical problems he was having with
his assigned truck, which needed fixing [Tr. 17]. Thereafter, Mr.
Smallwood asked the Complainant "Where were you on Monday"
(March 1, 1993)? Complainant testified that he responded to this
question by saying that he was in the sleeper compartment of his
assigned truck. Complainant then testified that Mr. Smallwood told
him that he had a spare key to the truck and that he had looked
inside the truck and its sleeper compartment and Complainant was
not there [Tr. 17].
12. Complainant testified that Mr. Smallwood then fired him
for taking a 4 hour break. Upon cross-examination, Complainant
again testified that Mr. Smallwood explicitly stated to him that
Mr. Smallwood was firing Complainant for taking a 4 hour break [Tr.
47, 48].
13. Complainant then testified that he called for his
brother, James Watson, who was also at the garage on March 7, 1993,
and asked James Watson to come over and be a witness to the fact
that Mr. Smallwood was firing Complainant. James Watson had not
been involved in any of the conversation between Mr. Smallwood and
Complainant prior to this time. Complainant testified that Mr.
Smallwood stated to James Watson, "Well, I'm firing Mr. William
Watson." [Tr. 18, 46, 47].
14. Complainant testified that on February 28, 1993, he left
Lewiston, North Carolina, driving his assigned truck, at
approximately 10:00 P.M. and arrived in Georgetown, Delaware at
approximately 3:00 A.M. [Tr. 26, 27]. Complainant was driving a
tractor-trailer truck consisting of a tractor portion owned by
Respondent and a trailer owned by Perdue Farms, Inc.
15. Complainant testified that during the early morning hours
on March 1, 1993, he left Georgetown and delivered a load in
Chesapeake, Virginia, and that he arrived at Chesapeake, Virginia,
at approximately 7:30 A.M. on March 1, 1993 [Tr. 22, 23].
16. Complainant testified that he left Chesapeake, Virginia,
at approximately 10:30 A.M. after delivering his final load and
arrived at the Red Apple Market Truck Stop at Suffolk, Virginia, at
approximately 11:00 A.M., whereupon Complainant testified that he
slept in the sleeper compartment of the truck until approximately
4:00 P.M., at which time he awakened and drove his truck back to
Lewiston, North Carolina, arriving at 5:00 P.M. [Tr. 26-32].
Complainant agreed that Mr. Smallwood would have had a reason to be
concerned if he had been leaving the tractor trailer unattended for
up to ten hours at a time at the truck stop [Tr. 50-51].
17. Complainant agreed that the Red Apple Market Truck Stop
in Suffolk, Virginia, is approximately sixty miles (one hours
driving time) from Lewiston, North Carolina [Tr. 38]. Complainant
testified that he frequently and regularly stopped in Suffolk,
Virginia, at the Red Apple Market Truck Stop to get fuel.
Complainant also testified that he had on occasions other than
March 1, 1993, stopped at the Red Apple Market Truck Stop in
Suffolk, Virginia, to eat meals and to occasionally sleep [Tr. 34,
44].
18. Counsel for Respondent questioned Complainant about his
daily driver's logs [RX 5, CX 3], which the U. S. Department of
Transportation requires that truck drivers maintain accurately
[Tr. 41]. With the exception of the driver's log for March 1,
1993, none of the driver's logs submitted into evidence in this
case, show any stops by Complainant in Suffolk, Virginia [CX 3, RX
5].
19. Complainant's driver's log for March 1, 1993, shows that
from 11:30 A.M. through 4:00 P.M., Complainant indicated that he
was in Suffolk, Virginia and was off duty [CX 3]. The driver's
logs have 4 categories of action by the driver including (1) off
duty, (2) sleeper birth, (3) driving, and (4) on duty (not driving). Complainant testified that was instructed by persons at
Perdue Farms, Inc. to indicate that he was "off duty" even when he
was in the truck's sleeper birth [Tr. 40, 50, 52].
20. Complainant testified that he made approximately
$22,000.00 the year prior to ending his employment relationship
with Respondent [Tr. 36]. The Complainant further testified that
he was out of work for approximately 4 months after his employment
with Respondent ended [Tr. 36]. Complainant indicated that he
believed a figure between $7,000.00 and $8,000.00 would be
reasonable and fair compensation for his allegations of
discriminatory discharge [Tr. 147, 148].
21. Complainant agreed that fellow employee and driver, Joe
Thompson, could probably have seen his truck parked at the Red
Apple Truck Stop in Suffolk, Virginia on numerous occasions [Tr.
55]. However, Complainant denied that Thompson would have seen his
truck unattended at the truck stop [Tr. 55].
22. During cross-examination of Complainant, counsel for
Respondent asked Complainant whether he knew a fellow employee
named Leon Henderson. Complainant responded that he did not [Tr.
55]. Counsel for Respondent then asked Complainant whether he knew
one of his co-workers, a man named Leon Henderson, who was one of
the truck drivers for Smallwood Trucking Company, Inc. Complainant
again stated that he did not know such an individual [Tr. 56].
Counsel for Respondent then asked Complainant whether he was
related to someone named Leon Henderson, who was a truck driver.
Complainant said he was not [Tr. 56]. Complainant later conceded
in response to questioning by the Judge that he did know a man
named Lloyd Henderson, that Lloyd Henderson was one of his co-
workers and one of the three truck drivers for Respondent, and that
Lloyd Henderson married his first cousin. [Tr. 104-106].
Mr. Smallwood's testimony
23. John Smallwood, Jr., testified that during the last six
months of Complainant's employment, he began receiving complaints
that Complainant was leaving his truck unattended in the Red Apple
Truck Stop in Suffolk, Virginia [Tr. 78-83].
24. Mr. Smallwood testified that the other company drivers,
Messrs. Thompson and Henderson, made a number of these reports.
Moreover, Mr. Smallwood received such reports from other, non-
employee, drivers [Tr. 80, 81].
25. Mr. Smallwood testified that he had discussed
Complainant's unsatisfactory working habits on several occasions
prior to March 7, 1993, and that Complainant would become
defensive, use curse words, and would say to Mr. Smallwood "go
ahead and fire me so I can get my unemployment." [Tr. 87, 88].
26. On the morning of March 1, 1993, Mr. Thompson again
reported that Complainant's truck was sitting unattended at the Red
Apple Market Truck Stop [Tr. 81]. Mr. Smallwood testified that he
and his wife left at noon and traveled to Suffolk, Virginia, on
that date and discovered the truck assigned to Complainant in the
parking lot of the Red Apple Market Truck Stop in Suffolk, Virginia
[Tr. 88-89]. Mr. Smallwood attempted to locate Complainant, but
was unable to do so. Mr. Smallwood inquired in the Truck Stop
Restaurant concerning Complainant's whereabouts and was told that
Complainant had not been there for some time. Mr. Smallwood
thereafter used his spare key to unlock the truck, which was
idling. The Complainant was not in the truck. Mr. Smallwood left
the truck idling and locked the doors [Tr. 89-93].
27. Mr. Smallwood and his wife then traveled to Norfolk to
visit relatives. They returned to the truck stop at about 8:00
P.M. that same evening. Complainant's assigned truck had not been
moved, was still idling, and was still unattended [Tr. 95-96,
129]. The Smallwoods proceeded to go home to Windsor, North
Carolina, about 60 miles away [Tr. 97].
28. Mr. Smallwood testified that since Complainant was on the
road making runs all week, he waited until the following Saturday
to talk to Complainant about what occurred the previous Monday
[Tr. 101].
29. Mr. Smallwood testified that he confronted Complainant
about his repeated unexcused absences from his assigned truck on
March 7, 1993, at Timmy Hare's Garage in Bertie County, North
Carolina [Tr. 98]. Upon being confronted, Complainant grew
defensive and angry, responded to Mr. Smallwood, that "I ain't
gonna have nobody following me." Thereafter, Complainant quit his
employment with Respondent [Tr. 99-100].
30. Mr. Smallwood denied that he fired Complainant for taking
a four hour rest break. Rather, Mr. Smallwood insisted that he
merely wanted to discuss the matter with Complainant and did not
fire him at all. Complainant quit. Mr. Smallwood explained that
he would not have fired Complainant even for cause because he
needed him as a driver [Tr. 101, 103-104, 106].
31. Mr. Smallwood acknowledged that James Watson was at
Hare's Garage on March 7, 1993. However, Mr. Smallwood insisted
that Complainant never called his brother over. According to Mr.
Smallwood, James Watson was not a party to or privy to their
conversation. James Watson stayed approximately 75 feet away from
them [Tr. 101].
Conclusions of Law
To prevail on an STAA complaint, a complainant must establish
that the respondent took adverse employment action against him
because he engaged in an activity protected under Section 405. A
complainant initially must show that it was likely that the adverse
action was motivated by a protected complaint or work refusal. The
respondent may rebut such a showing by producing evidence that the
adverse action was motivated by a legitimate, nondiscriminatory
reason. The complainant then must prove that the proffered reason
was not the true reason for the adverse action. Roadway Exp., Inc.
v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). In the event
that a complainant demonstrates that the respondent took adverse
action in part because he engaged in a protected complaint or
refusal, the burden shifts to the respondent to demonstrate that
the complainant would have been discipline even if he had not
engaged in the protected activity, Cf. Pogue v. U.S. Dept. of
Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991); Mackowiak v.
University Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984).
STAA Section 405(a) prohibits discrimination because an
employee has filed a complaint "relating to a violation of a
commercial motor vehicle safety rule, regulation, standard, or
order...." 49 U.S.C. app. 2305(a). Internal complaints e.g., to
an employer, are protected. Protection is not dependent on
actually proving a violation. Yellow Freight System, Inc. v.
Martin, 954 F.2d 353, 356-357 (6th Cir. 1992). STAA Section 405(b)
provides that "[n]o person shall discharge...an employee...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." 49 U.S.C. app. 2305(b).
DOT regulation 392.3 provides:
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 a motor
vehicle.
49 C.F.R. 392.3.
Complainant's Prima Facie Case
Complainant has failed to establish that he was fired by
Respondent for engaging in protected activity on March 1, 1993.
The evidence submitted by Complainant is contradictory and
therefore falls short of a prima facie showing.
Complainant's testimony is self-contradictory as to the reason
he may have been terminated. At various times in his testimony,
Complainant insisted that Mr. Smallwood fired him specifically for
taking a DOT sanctioned four hour rest break on March 1, 1993.
However, he also conceded to the Presiding Judge that Mr. Smallwood
fired him for leaving the company truck unattended on that date.
Complainant's testimony also is inconsistent with that of his
brother James. Both insist that Complainant called his brother
over to witness the firing on March 7, 1993. However, Complainant
specifically recalled that Mr. Smallwood only stated to James
Watson that he was firing William Watson. However, James Watson
specifically recalled that Mr. Smallwood stated that he was firing
Complainant for taking a four rest break.
The fact that Complainant's testimony is self-contradicting as
well as inconsistent with that of his brother, leads me to
seriously question the credibility of the testimony offered by both
men. At best, I can state that the weight of the evidence
submitted by Complainant objectively fails to establish a prima
facie case that Complainant was fired for engaging in protected
activity on March 1, 1993.
Rebuttal
Assuming, arguendo, that Complainant had made a prima facie
showing, the weight of the contrary probative evidence clearly
rebuts Complainant's prima facie case.
First, I find the testimony offered by Mr. and Mrs. Smallwood
to be credible. I believe their testimony that on Monday, March 1,
1993 in the early afternoon, they travelled from Windsor, North
Carolina to the Red Apple Market Truck Stop in Suffolk, Virginia.
There, they observed the tractor trailer assigned to Complainant in
the parking lot idling and unattended. Moreover, I believe their
testimony that when they again checked the tractor/trailer later
that evening, it was still unattended and idling. I find the
contrary evidence of the Complainant not to be credible. I do not
believe his testimony that he slept in the sleeper compartment for
four hours and then immediately drove to Lewiston, North Carolina.
Complainant points to his driver's log of March 1, 1993 to support
his assertion that he took a four hour rest break in the sleeper
compartment. I find that this log is not entitled to any probative
value. By Complainant's own admission, he had been to that truck
stop on numerous occasions. Indeed, Mr. Smallwood had received
numerous reports that Complainant had left his truck unattended
there - many times. However, not one of the driver's daily logs
from January 1993 to March 1993, with the exception of the March 1,
1993 log, notes that he never stopped at the Red Apple Market Truck
Stop. Consequently, I will draw the inference that the accuracy of
Complainant's driver's daily logs is seriously in question. As
such, I find then entitled to no weight.
The most compelling evidence of record on the question of
whether or not Complainant took a four hour rest on March 1, 1993,
is that of Mr. and Mrs. Smallwood. Assuming Complainant had shown
prima facie evidence of a rest break, the testimony of Mr. and Mrs.
Smallwood compels the conclusion that on March 1, 1993, Complainant
did not engage in the protected activity alleged, i.e. a four hour
rest break. The credible testimony of the Smallwoods establishes
that Complainant left his company tractor-trailer unattended and
idling for numerous hours on that date at the Red Apple Market
Truck Stop in Suffolk, Virginia.
The Respondent has also rebutted any prima facie showing by
establishing that no adverse action was taken against Complainant
on March 7, 1993. Mr. Smallwood reasonably explained that
Complainant represented one-third of Respondent's truck drivers and
that Mr. Smallwood needed Complainant as a driver. I believe Mr.
Smallwood when he testified that he was well aware that Complainant
had left his truck unattended in the past and that he had spoken
with Complainant about this on numerous occasions. Moreover, I
believe Mr. Smallwood's testimony that on March 7, 1993, he merely
intended to speak to Complainant again and not fire him. Although,
both Complainant and his brother, James Watson insisted that Mr.
Smallwood fired Complainant, I place little, if any, weight on
their testimony. As stated previously, their respective testimony
is contradictory in regard to the reason given for the alleged
firing by Mr. Smallwood. I find this contradictory testimony to
also adversely affect the reliability of their testimony in
general. Therefore, I find that Respondent has presented credible
testimony by Mr. Smallwood which establishes that Complainant was
not fired on March 7, 1993. Accordingly, there was no adverse
action taken against Complainant on that date.
Finally, I believe Mr. Smallwood's testimony, as corroborated
by the testimony of his wife, that Complainant on numerous
occasions got belligerent and suggested to Mr. Smallwood that he
fire Complainant so that he could collect unemployment. I believe
Mr. Smallwood's testimony, that on March 7, 1993 Complainant again
got belligerent and quit after he found out he had been followed on
March 1, 1993. Based upon the foregoing, I believe that even if
Complainant had established a primafacie case,
Respondent has rebutted it by establishing that Complainant was not
fired on March 7, 1993 for having engaged in protected activity on
March 1, 1993.
Accordingly, IT IS RECOMMENDED that the complaint
of William Watson BE DENIED.
DANIEL A. SARNO, JR.
ADMINISTRATIVE LAW JUDGE
