DATE: October 25, 1994
CASE NO: 94-STA-7
Aaron N. Williams,
Complainant
v.
Carretta Trucking, Inc.
Respondent
Appearances:
Andrew F. Erba, Esquire
For Complainant
Steven I. Adler, Esquire
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Surface Transportation Assistance Act,
hereinafter the "Act", 49 U.S.C. app. §2305 (1982); which
prohibits covered employers from discharging or otherwise
discriminating against employees who have engaged in certain
protected activities.
Complainant filed his complaint on July 14, 1993, and on
October 26, 1993, the Occupational Safety and Health
Administration of the U. S. Department of Labor issued its
investigative findings to the effect that the complaint had no
merit (ALJ 1).[1]
[PAGE 2]
Complainant requested a hearing on November 6, 1993 (ALJ 2),
and an initial notice of hearing was issued on November 24, 1993
(ALJ 3) upon the November 23, 1993 assignment of this case to the
undersigned. After several continuances (ALJ 5, 9, 14), the
matter was tried on June 2 and 6, 1994. Initial briefs were
filed by September 16, 1994, with reply briefs finally filed by
October 12, 1994.
THE LAW
29 U.S.C. §2305. Protection of employees
(a) Prohibition against the discharge, discipline, or
discrimination for filing complaint or instituting
proceeding relating to a violation of a commercial
motor vehicle safety rule, regulation, etc.
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
other, or has testified or is about to testify in any such proceeding.
(b) Prohibition against discharge, discipline, or
discrimination for refusal to operate vehicle in
violation of Federal rule, regulation, etc., or because
of apprehension of serious injury due to unsafe
condition; reasonable person standard
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 heath, or
because of the employee's reasonable apprehension of serious
injury to himself or the public due to the unsafe condition of
such equipment. The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a reasonable
person, under the circumstances then confronting the employee,
would conclude that there is a bona fide danger of an accident,
injury, or serious impairment of health, resulting from the
[PAGE 3]
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.
COMPLAINANT'S CASE
Complainant argues that Respondent violated both sections
(a) and (b) of the Act in discharging him from its employ on July
13, 1993. He seeks an award for back wages (Tr. 24).
Complainant, a tractor-trailer driver, alleges that his
first driving experience on Respondent's behalf[2] consisted of
the constant breakdown and failure of critical mechanical (and
other) elements of the truck assigned to him for transport. He
ultimately made oral complaints regarding this experience and
expressed his concern over the safety of equipment to various of
Respondent's management employees.[3] He asked that he be
assigned to drive what his experience indicated to be the safer
"Freightliner" tractors, and noted that he would take any
"Peterbilt" vehicle assigned to him to a Department of
Transportation (DOT) weight station to be inspected (Tr. 127).
Moreover, Complainant alleges that the two tractors
ultimately offered to him for driving assignments[4] were unsafe
to drive (and, in fact, in the repair shop for service, CX 24-
25), and thus potentially presented a safety hazard to himself
and the public, proving that his operation of either of these
vehicles would have been a violation of federal safety
regulations.
In sum, Complainant alleges that he was terminated from
Respondent's employ because he made the foregoing complaints and
because he refused to drive the unsafe vehicles, all in violation
of sections (a) and (b) of the Act (Tr. 123-134).
THE DEFENSE
Respondent argues that it discharged Complainant for his
refusal to accept a work assignment (Tr. 24-36), and because he
lied to its management by stating that he never was given that
work assignment (Resp. Br. at 10).
According to Respondent, near the end of June, 1993,
Complainant was assigned to team up with another driver trainee
to go to its facility located in Forest City, North Carolina (Tr.
[PAGE 4]
63, 64). Complainant was instructed to pick up another tractor
at the Forest City facility for his use, and to drive a load to
Albany, New York. However, due to a death in Complainant's
family, he only drove the load to Paramus, New Jersey. The
tractor that was assigned to Complainant at that time was a
Peterbilt tractor, No. 89168. (Tr. 70, 84, 97-98). Moreover,
despite Complainant's allegation that he had several problems
with the tractor assigned to him during his trip to Paramus, New
Jersey, he conceded at the hearing that the events in North
Carolina are irrelevant to his claim. (Tr. 273). Complainant
did, in fact, drive the tractor safely to his destination. (Tr.
97-99 and 288). Additionally, during his trip from Forest City,
North Carolina to Paramus, New Jersey, Complainant neither
refused to drive tractor No. 89168 nor did Respondent refuse to
make any vital repairs to the tractor as requested by him. (Tr.
84-98). Furthermore, during his trip to Paramus, New Jersey,
Complainant passed several DOT weigh stations along the way which
could have inspected the tractor to determine whether it met DOT
standards. However, Complainant did not get the tractor
inspected, despite his allegation that the tractor was unsafe.
(Tr. 284-86). Approximately a week later, on July 12, 1993,
Complainant showed up at the Respondent's Paramus, New Jersey
facility unannounced contrary to Respondent's practice of calling
drivers to report for work. (Tr. 99 and 253-54). Despite
Complainant's not being scheduled to come to work on that day,
Hernandez[5] accommodated his request for work by presenting him
with a choice of two tractors to utilize. Both tractors were
Peterbilt tractors, Nos. 89173 and 89027. (Tr. 235-37; CX 26,
27). Although Complainant was given the choice to select either
tractor, he refused to drive either one (CX 26, 27). Moreover,
he did not perform a pre-trip inspection on either tractor. (Tr.
236-248). Also, he did not review the Vehicle Condition Report
(VCR) for either of the tractors assigned to him by Hernandez.
(Tr. 258-259). Respondent asserts therefore that Complainant had
no knowledge concerning whether there were any safety problems
with either of the two tractors that were offered to him.
Complainant had informed Hernandez that "I'm not driving no
Peterbilt because they are pieces of junk." (Tr. 237), and
Respondent insists that he had no specific knowledge concerning
the condition of either vehicle and simply wanted to drive a more
desirable Freightliner tractor. Notwithstanding his refusal to
accept an assignment on July 12, 1993, Complainant renewed his
effort on July 13 to obtain a Freightliner. On July 13, 1993,
Hernandez again assigned Complainant a tractor, No. 89027. That
tractor was a Peterbilt and one of the two tractors that had been
assigned to Complainant the day before and which had not gone out
due to his refusal to drive same. (Cx 26). Complainant again
[PAGE 5]
refused to accept the assigned tractor and did not perform a pre-
trip inspection on it. Therefore, per Respondent, he again had
no knowledge of the vehicle's condition. On July 13, 1993,
Hernandez referred Complainant to Denise Schipper (Tr. 263) who
was the Fleet Manager to whom Hernandez reported (Tr. 173).
During Complainant's conversation with Schipper, which was tape-
recorded by Complainant (CX 15, 16), Complainant demanded a
Freightliner tractor (Tr 117). Schipper referred Complainant to
Kenneth Godek, Director of Human Resources for Respondent (Tr.
120). Later that day, Complainant met with both Godek and James
Simmons[6] to discuss his concerns. During their conversation,
Complainant demanded that he be assigned a vehicle that would
pass DOT inspection. (Tr. 123). He also advised that he was not
assigned a tractor when, in fact, Hernandez on both July 12 and
July 13 assigned him tractors. (Tr. 128 and 189). After this
meeting, Simmons became aware that Hernandez assigned Complainant
tractors on both July 12 and July 13. It was at that point in
time that Simmons terminated Complainant. (Tr. 194-95).
FINDINGS OF FACT
AND CONCLUSIONS OF LAW
I find, on this record, that there is precious little, if
any, evidence of a violation of section (a) of the Act, and an
abundance of evidence that there was no violation of section (b)
of the Act.
SECTION 2305(a)
For purposes of this determination, without the benefit of
research in respect thereof, I will accept Complainant's proposal
(Compl's Br. 2-8) that Complainant's internal safety complaints
to management[7] constitute protected activity for purposes of
29 U.S.C. §2305(a). Moreover, there is no question that
temporal proximity of adverse employment action to any such
complaint compels a very close look at (i.e., raises a red flag
with respect to) the motivation behind such action.
I find, therefore, that Complainant's internal complaints to
Respondent's management relative to his concern for the safety of
its equipment merit the status of protected activity under the
Act. I find also that Respondent discharged Complainant within a
relatively short period of time from the making of his
complaints.
However, the circumstantial evidence from which Complainant
asks me to draw the inference of retaliation is scant at best.
[PAGE 6]
That Hernandez failed to advise Complainant that his refusal to
pre-trip the tractors identified was ultimately to be construed
as a refusal to accept a work assignment, i.e., a violation of
company policy and presumably a dischargeable offense, is a non-
event in my view. Hernandez was admittedly attempting to
accommodate Complainant with a "Freightliner" truck, and had no
apparent reason to warn or threaten Complainant of possible
adverse employment action. The evidence suggests only that
Hernandez's job was to assign work, not to take measures to
discipline employees, offer them advice, or keep them "in line."
Complainant's assertion that Hernandez did not advise his
superior of Complainant's refusal to accept the work
assignment[8] is belied by the record (Tr. 235). Furthermore, I
find the differences between Hernandez's handwritten statement
(CX 27) and the later typed version (CX 26) to have been
adequately and credibly explained (Tr. 236-241). Finally,
Complainant's proposal that because Respondent's management may
have had no knowledge of the actual condition of the tractors
assigned to Complainant, there existed no "...basis to assert
that [these tractors] would have passed a pre-trip inspection"
(Complt's Br., 14), is, in my view, neither relevant nor
probative on the question of retaliatory discharge. This,
because Respondent's basis for the subject discharge was not that
Complainant refused to accept a work assignment to drive a pre-
trip passable tractor, but that Complainant refused simply to
accept a work assignment. Whether Respondent knowingly offered
to Complainant a pre-trip passable tractor has no bearing on the
issue whether Complainant refused a work assignment.[9]
Insofar as Section (a) is concerned, this record is devoid
of evidence permitting the inference that Complainant was
discharged because he expressed safety complaints. We are left
only with the asserted unproven, generalized suspicion of
employer animus to any complaining employee, which falls far
short of establishing a case for retaliatory discharge under the
Act.
SECTION 2305(b)
To establish a violation of Section (b) of the Act,
Complainant must show that he was discharged because he refused
to operate a vehicle when such operation would constitute a
violation of Federal safety rules, or because of his
"...reasonable apprehension of serious injury to himself or the
public due to the unsafe condition of such equipment." Further,
in order to qualify for relief under this section, "...the
employee must have sought from his employer, and have been unable
[PAGE 7]
to obtain, correction of the unsafe condition" (The Law,
supra).
As Complainant admittedly was unaware of the condition of
the tractors offered to him for work assignment (Tr. 236-248,
258-259)[10] , his operation of these tractors could not be said
to have constituted a violation of Federal safety rules.[11]
Moreover, for the same reason, I find that Complainant could
not have harbored a "..reasonable apprehension of serious
injury..." (emphasis added) within the meaning of the Act, since
he admitted that not all "Peterbilt" tractors were unsafe, and
that only a pre-trip inspection of a given tractor would
determine its condition relative to safety worthiness (Tr. 247-
248). In my judgment, absent the pre-trip inspection, there
existed no "...unsafe condition[s]...of such nature that..."
Complainant could reasonably have"...conclude[d] that there [was]
a bona fide danger of an accident...resulting from the unsafe
condition." Section 2305(b).
Finally, Complainant fails to qualify under Section 2305(b)
because he did (could) not seek from Respondent - and was not
unable (could not be unable) to obtain, correction of the unsafe
condition. No such condition was presented to Respondent for
correction, as no such condition was ever identified.
I also find on this record as a whole, that Respondent
dismissed Complainant for appropriate non-pretextual reasons,
i.e., because of his failure to accept a work assignment and
because of his unqualified denial that such assignment was made.
In summary, I find that Complainant has failed to make out a
case of retaliatory discharge under Section 2305(a) or (b). As I
see it, the Act effectively authorizes an employee to refuse,
with impunity, to drive an unsafe vehicle. The Act also
authorizes an employee to complain, with impunity, to his
employer and/or appropriate government authorities about his
safety concerns. The Act does not, however, authorize an
employee to demand a particular type of vehicle for work
assignment, which type vehicle, in his view, would more likely be
safe consonant with his limited experience. The Act will not
protect or sanction employee action (nor prohibit adverse
employment consequences with respect thereto), where such action
violates rational employer policy requiring the mandatory
acceptance of a work assignment unless employee pre-operation
inspection of a vehicle discloses unsafe vehicle conditions.
ORDER[PAGE 8]
On the basis of the foregoing, I recommend this matter be
DISMISSED.
RALPH A. ROMANO
Administrative Law Judge
[ENDNOTES]
[1] References to the record are: "ALJ" - Administrative Law
Judge exhibits; "CX" - Complainant's exhibits; "RX" -
Respondent's exhibits; "Tr" - transcript of trial.
[2] From Forest City, North Carolina, to Respondent's Paramus,
New Jersey facility, in a "Peterbilt" tractor (Tr. 70-98).
[3] Hector Hernandez, Denise Schipper, Jim Simmons, and Ken
Godek. (Tr. 99-132).
[4] "Peterbilts" numbered 89-027 and 89-173.
[5] Respondent's Driver Manager.
[6] Respondent's Director of Operations.
[7] In addition to his threat to management to bring any
assigned tractor for immediate DOT inspection.
[8] Suggesting that only a minor infraction of company rules had
occurred with such refusal, thus rendering Respondent's alleged
reason for discharge pretextual.
[9] I find also that Complainant has failed to establish by
competent evidence that the offered tractors were in the repair
shop when offered (see CX 24, 25; Tr. 155, 156). Counsel's
speculative interpretation of the notations, dates, etc.
appearing on CX 24 and CX 25, is not evidence. See ftn.11,
infra.
[10] He did not visually inspect, pre-trip inspect, or examine
the VCRs of, the subject tractors.
[11] I note that I declined to grant Respondent's motion to
dismiss at trial upon Complainant's presentment of CX 24 and 25
which suggested that the offered tractors were in something other
than drivable condition i.e., in the repair shop (Tr. 135-156).
Had Complainant been able to establish this fact (see ftn.9
supra), as well as his then knowledge of same, my finding
on this aspect of his Section 2305(b) claim may have been
different. Furthermore, the establishment of this fact may have
impacted upon my finding (infra) of non-pretextual
discharge. That is, if the subject tractors were knowingly not
available for assignment, then Respondent presumably could not
have assigned work to Complainant, who, in turn could not have
refused a work assignment. Respondent, it could then be argued,
could not have dismissed Complainant for this reason.
