DATE: January 18, 1995
Case No.: 94-STA-11
IN THE MATTER OF
LORAINE WHITE,
Complainant,
v.
MAVERICK TRANSPORTATION, INC.,
Respondent.
APPEARANCES: Kathleen Caldwell, Esq.
For the Complainant
Russell Gunter, Esq.
For the Respondent
BEFORE: Richard K. Malamphy
Administrative Law Judge
RECOMMENDED DECISION AND ORDERPRELIMINARY STATEMENT
Complainant, Loraine White, brought this action against Respondent, Maverick
Transportation, Inc., alleging that Respondent discriminated against her in violation of the
whistleblower provisions of Section 405 of the Surface Transportation Assistance Act of 1982
("STAA"), 49 U.S.C. Appx. § 2305. Specifically, Ms. White contends that she was
discharged in retaliation for her complaints about being required to drive in violation of
Department of Transportation Rules and Regulations. Ms. White asserts that she resisted and
complained, one, when she was required to drive excessive hours, two, when Maverick caused
her truck to be overloaded, and three, when, on one occasion, she was instructed by the
dispatcher to drive around a weight scale because her truck was overloaded. As a result of
her complaints, Ms. White posits that she was tagged and marked as a trouble maker or
[PAGE 2]
whistleblower, which resulted in her discharge.
Respondent contends that Ms. White did not engage in any protected conduct, and was
discharged because she had a propensity to run overweight loads in violation of company
policy, and because she had a bad attitude. According to the Respondent, Complainant has
failed to set forth even a prima facie case of illegal discrimination under the STAA
because she cannot show that she filed any complaint or instituted or caused to be instituted
any proceeding relating to a violation of any Department of Transportation rule or regulation.
Ms. White filed a complaint with the U.S. Department of Labor on December 24,
1992, alleging that she was fired by Maverick Transportation, Inc. because she refused to
violate Federal Motor Carrier Safety Regulations. The Department's Regional Administrator
investigated the complaint pursuant to Section 405 of the Surface Transportation Act, 49
U.S.C. § 2305 (1982). He found, first, that Ms. White had exceeded the regulatory
hours of service and was counseled and placed in a probationary status for this violation.
Second, the Administrator noted that there was no "neutral" evidence regarding Ms. White's
allegation that she refused instructions to avoid weight enforcement points (scales) when she
was overloaded. Because the issue was "one's word against the other," the Administrator
concluded that this issue was unresolved. Finally, the Administrator concluded that Ms.
White was not fired for her refusal or complaints about hauling overweight loads. Rather, she
was discharged after, twice in one month, she violated Maverick's policy against hauling
overweight loads. Ms. White requested an administrative hearing.
The hearing in this matter was held on June 7 and 8, 1994, in Little Rock, Arkansas.
Both parties appeared at the hearing and submitted post-hearing briefs.[1]
STIPULATIONS
The Complainant and the Employer stipulated to the following, and I find:[2]
1. Respondent, Maverick Transportation, Inc., "Maverick," is engaged in interstate
trucking operations and maintains a place of business in Little Rock, Arkansas.
2. In the course of its business, Respondent's employees operate commercial
motor vehicles principally to transport common freight.
3. Complainant, Loraine White, was such an employee and, as a driver, she
hauled commercial freight for Respondent.
4. Respondent, Maverick Transportation, Inc., was at all material times a person
as defined in Section 401.4 of the Surface Transportation Assistance Act, 49 U.S.C. Appx.
§ 2301 (4).
5. On April 23, 1992, Maverick Transportation, Inc., hired Loraine White as a
driver of a commercial motor vehicle, namely a tractor-trailer with gross weight rating in
excess of ten thousand pounds.
6. That as a driver of a commercial motor vehicle, Loraine White used highways
[PAGE 3]
and interstate commerce to transport common freight on behalf of her employer, Maverick
Transportation, Inc.
7. That Loraine White, as a driver of a commercial vehicle, acting as an employee
of Maverick Transportation, Inc., and operating to transport cargo, in the course of said
employment directly affected commercial motor vehicle safety, pursuant to 49 U.S.C. Appx.
§ 2301 (2)(A).
8. From date of hire (April 23, 1992) to date of termination (October 29, 1992)
Loraine White earned gross wages from Maverick Transportation, Inc., in the amount of
$11,652.52.
9. Loraine White made adequate efforts to find subsequent employment sufficient
to fulfill her obligation to try to mitigate her damages.
ISSUE
WHETHER LORAINE WHITE ENGAGED IN
PROTECTED ACTIVITY UNDER THE
SURFACE TRANSPORTATION ACT OF 1982,
RESULTING IN HER DISMISSAL ON OCTOBER 29, 1992?
FINDINGS OF FACT[3]
I. Maverick Transportation's Company Policy
Maverick Transportation, Inc., "Maverick" or "Respondent," based in Little Rock,
Arkansas, is engaged in interstate trucking operations in which its employees operate
commercial motor vehicles principally to transport common freight. Maverick has instituted
numerous policies concerning safety, number of hours to be driven, and the hauling of
overweight loads. These policies are published and distributed to Maverick's employees in
the Company Policies Manual. (RX-2).
Maverick's policy on driving hours is set forth in the Company Policies Manual as
follows:
1. Do not drive over ten hours without a legal eight-hour break.
2. Make and show a vehicle inspection every 24 hours.
3. When you reach 15 hours on duty, you must take a legal eight-
hour break before driving again.
* * *
If you have any questions about DOT logging regulations or our
log policy, please contact the log department.
[PAGE 4]
(RX-2 at 37-38). Maverick's employees testified that it is the policy of Maverick
Transportation for its drivers to run legal hours, without exception. (TR-197-98, 218-19, 238-
30, 366).
Maverick's policy with regard to hauling overweight loads is also set forth in the
Company Policy Manual as follows:
The driver will be held responsible for overload/overweight
tickets.
* * *
Weigh all loads. Do not assume weight is correct and load
placement on trailers is correct. Maverick will not pay
overweight tickets.
* * *
Never accept estimates of any customer as to the weight of his
load. If they do not have a scale, find one; weigh your load.
Customers do not pay estimates! Customers will not pay your
overweight fine if their estimate is wrong.
(RX-2 at 10, 14, 22).
Complainant was instructed in the Company's policy through the Company Policy
Manual and Company orientation when she began work. (TR-91).
II. Complainant
Loraine White, "Complainant," was hired by Maverick Transportation, Inc.,
Respondent, on April 23, 1992, as a flatbed tractor-trailer driver. (TR-18). She has been
driving commercial tractor-trailers since 1988. (TR-19). Complainant testified that each time
she has been hired on to a new job driving commercial trucks and trailers, including her hire
with Maverick Transportation, Inc., she was given a written examination on all the rules and
regulations pertaining to driving an eighteen-wheel vehicle. (TR-22). Complainant contends
that she was fired by the Respondent because she resisted and complained about Maverick's
requirement that she drive in violation of these rules and regulations.
A. Excessive hours
Under the United States Department of Transportation Federal Motor Carrier Safety
Regulations, a driver is prohibited from driving more than ten hours following eight
consecutive hours off duty. As well, after drivers of large vehicles have been on duty for
fifteen hours, including non-driving time, they may not drive without taking eight consecutive
hours off duty. Finally, a driver may not drive for any period after the driver has been on
duty for more than 70 hours in any period of eight consecutive days. See 49 C.F.R.
§ 395.3(a) and (b), (RX-1 at 30).
[PAGE 5]
Complainant testified that she complained to her supervisor, Hugh Brown, about being
required to run beyond the ten-hour and fifteen-hour rules. (TR-28). Hugh Brown was a
terminal manager, also known as a dispatcher, at the time Complainant was employed by
Maverick. (TR-29). Complainant said that she complained to him twice in person and he just
ignored her or walked away. (TR-29). The first time Ms. White spoke to Hugh Brown about
her concerns was at least two or three months after she began working at Maverick. (TR-29).
She told him that she did not like being handed two or three log books, that she did not know
how to run them, and that she did not know anything about them. (TR-29).
Complainant explained at the hearing that a driver should only be issued one log book
for a 31 day period, because drivers are only allowed to run 70 hours in eight days. (TR-30).
Running multiple log books is against Federal regulations. (TR-65). Some drivers run
multiple log books illegally in order to work more than the allowable hours in a given period
without being detected. A driver who was running out of hours in a period would run two
log books by taking days off, then starting another log book. (TR-66). Complainant said that
other drivers at Maverick ran multiple log books, including one man Complainant identified
only by his "handle" as "Lickum Stickum." (TR-66).
According to Complainant, when she went to the main office to pick up her log book,
she was handed two or three books and told by whomever was in charge, "just take these and
run like hell." (TR-30). When Complainant reported to Hugh Brown that she did not know
how to run more than one log book, she said he gave her a "just forget it" type attitude and
walked away. (TR-31). Complainant admitted that she was never specifically instructed by
anyone at Maverick to falsify her log books. (TR-67).
Complainant approached Hugh Brown on another occasion about her concerns that she
was driving more hours than permissible under the regulations. (TR-34-35). At the hearing
Complainant said that sometimes she drove more hours than she was supposed to be driving
because she was required by the company dispatcher to get the load there on time, regardless.
She testified that she was not able to call the dispatcher and tell them she had to pull over and
rest for eight hours. Complainant felt that if she had done that, she would have violated the
company policy to get the load in on time. According to Complainant, if she was unable to
make her load on time, the company would "have a rejective attitude" and "give you a really
bad time." (TR-35).
Complainant explained at the hearing that loads were assigned by dispatchers directly
to the drivers via satellite messages to a small screen in the cab of the tractor-trailer. (TR-
163). The initial message instructed the driver where to deliver the load and detailed the
estimated date and time of arrival. (TR-164). According to Complainant, when she received a
message to pick up a load, she felt that she could not decline the load even if she had too
many hours and needed to take eight hours off. (TR-165).
Complainant testified that there was an unwritten policy at Maverick that drivers were
allowed to run loads with no logs. In order to keep on schedule, many drivers made complete
runs without a log. (TR-168). Complainant said that unlogged trips can be detected by
looking at the bills of lading signed by recipients of various loads, and noting that there are
[PAGE 6]
no logs for those runs. (TR-169). The purpose of running without a log was to enable the
driver to drive hours in excess of the legal limit without a rest. (TR-168). Complainant
observed that everyone in the office knew about this procedure, and that other drivers, in
addition to Complainant, were doing it, though Complainant did not recall who these drivers
were. (TR-170).
When Complainant talked to Hugh Brown regarding the hour problem, he walked
away and left Complainant without giving her any ideas or suggestions as to what she could
do. (TR-35). Although Complainant had meetings with several individuals in management at
various times during her employment, Hugh Brown was the only person with whom
Complainant claims she discussed her concerns about running over on time. (TR-37).
Complainant's personnel file contains warnings to Complainant from the Log
Department notifying Complainant that she was in violation of the 10-hour and 15-hour rules
on several occasions between May 1992 and September 1992. (RX-1 at 58, 61-63, 66-72, 75-
76, 80). The notifications sent to Complainant in July 1992 state, "Remember, it is this
company's policy that if you are issued future notifications of log violations, you may receive
an out of service notice for up to 14 days or possibly termination of your services." (RX-1 at
80). Complainant stated at the hearing that she never received any of these notices, in spite
of the company's policy to place the warnings in the envelope with the paycheck. (TR-102-
03). A notation from Diane Caine, the head of the Log Department, on one of Complainant's
warnings indicates, "Talked with Loraine on 7/6/92 about the 10 & 15 hour vio[lations] in
2nd quarter - She now understands the rules." (RX-1 at 69). Complainant testified, however,
that although Ms. Caine did stop and talk with her, Ms. Caine did not say that she wanted to
talk to Complainant about log violations. Complainant said they just had a conversation one
day when Complainant wandered into the office, and the subject of the 10 and 15-hour rules
came up. (TR-103-05).
B. Overweight assessment
Complainant received a notice of 90-day probation dated October 12, 1992. (RX-1 at
96). The notice indicated that Complainant was being placed on probation as a result of an
overweight assessment received on a load she picked up in Indiana on October 5, 1992, and
because of her performance and attitude towards customers and other Maverick employees.
(RX-1 at 96). With regard to the referenced overweight assessment, Complainant was
dispatched to pick up a load of lumber from Indiana on October 5, 1992, destined for Texas,
with an estimated time of arrival at 7:00 a.m. on October 7, 1992. (RX-1 at 90). When she
arrived at the shipper's address on October 5, 1992, she was told that she was a day early.
(TR-43). Complainant contacted Maverick and tried to explain the problem to someone, but,
she testified, the person she spoke with was very rude. As she was talking with this person,
Complainant thought at one point that the conversation had ended, so she hung up the phone.
(TR-43). A notation in Complainant's personnel file from Lori Shirkey in Maverick's main
office, regarding a call from Complainant on October 5, 1992, states, "Loraine checked in by
phone, I was still talking, and she hung up on me." (RX-1 at 91).
Complainant did manage to get her truck loaded later that day, just before closing
time, but she noticed while the company was loading her trailer that it seemed to be
[PAGE 7]
overloaded. (TR-45-46). Complainant's impression was based on the type of lumber and the
height to which it was stacked. However, when she complained to the persons loading the
truck that they might be overloading, they responded, "No we're not." (TR-46). When
Complainant went inside to call Maverick, she testified that the attitude of the person on the
other end of the phone was , "Get the truck loaded and get out of there and don't say
anything." (TR-47). Complainant said that no one at Maverick ever told her what to do if a
customer insisted on overloading her trailer. (TR-47).
When Complainant left the company the truck was pulling heavy so she circled around
and came back to the company. When she got back, however, the gates had already been
locked. (TR-48). Complainant said that there was no way to check the weight of the trailer
because there were no private weigh scales until Seymore, Indiana, after the state scales. (TR-
44). When Complainant went past the state scales, she was not stopped by the officials. The
state scales were axle scales, meaning that the trailer was weighed one axle at a time.
Complainant did not realize that a trailer could be legal on each axle, but overweight as to the
entire load. (TR-45).
After she was on the highway, Complainant said she contacted Hugh Brown at home
with a question about the bill of lading and the destination of the load. (TR-49). Hugh Brown
assured her that the load was going to Texas and that she should just take the load and go on.
Complainant told him that she thought the truck was overloaded, but he responded, "I don't
think so." Complainant said he did not want to talk to her and he brushed her off. (TR-49).
Complainant was ticketed for the overweight load in Tennessee on October 6, 1992,
after passing through state scales in Indiana and Kentucky. She was not ticked in either
Indiana or Kentucky because those states only have axle scales, and Complainant was over-
grossed not over-axled. (TR-50). Complainant testified that she pulled off at the next exit and
weighed the truck privately, which revealed that the truck was overweight by about 4000
pounds.[4] (TR-51-52). When Complainant called Hugh Brown, he responded by sending
another driver to meet Complainant at mile marker 126 on Interstate 40 in Tennessee, and
take off part of the load if possible. (TR-52).
Complainant testified that the other driver did not take off part of the load. Instead,
Hugh Brown told Complainant that the other driver would accompany her in going around
scales, which meant driving back roads and bypassing the Brownsville area scales. (TR-53-
54). However, the other driver did not go around scales with Complainant. (TR-54).
Complainant alleges that Hugh Brown routed her around weigh scales on her intended route
into Arkansas. (TR-54). According to Complainant, after Hugh Brown went off duty at 5:00
p.m., Darius Cooper, who had a position in management, finished routing her around three
other scales in Arkansas. (TR-55-56). Complainant said she was not routed around scales in
Texas because there were no weigh scales on the interstate in that area. (TR-57).
When Complainant arrived at the destination with her load, the company refused to
unload her because they did not have a description of the lumber. Nothing had been faxed to
them about the shipment. (TR-57). Complainant contacted Maverick regarding this problem,
though she did not recall which individual she spoke to on the phone. (TR-58). The person at
Maverick with whom Complainant spoke told her, at first, that she was being rude to the
[PAGE 8]
customer. Complainant did not understand at that time that the company should have had
papers showing the lumber. (TR-59). After the phone call, Complainant believed that
someone from Maverick faxed down a description so that her trailer could be unloaded. (TR-
59). Complainant testified that she was not rude to the customer either in Texas or Indiana.
(TR-59).
C. Complainant's Probation
After this incident, Complainant met with Connie Payne, Maverick's Operations
Manager. (TR-71). Ms. Payne told Complainant that they were placing her on probation
because she had a bad attitude. According to Complainant, Ms. Payne was concerned that
Complainant was being rude to customers. (TR-72). On that occasion, Complainant said that
Ms. Payne only reprimanded her for her attitude. She did not mention any problems with
overloading. (TR-72). As well, Ms. Payne did not show her any forms indicating that
Complainant had been working too many hours under the 10 and 15-hour rules, or that her
log books were not right. (TR-73). Complainant signed the portion of the notice of 90 day
probation, dated October 12, 1992, which stated: "I understand that my continued
employment will depend on my work performance and my attitude. The probationary period
will continue through January 12, 1993." (RX-1 at 96).
2. Complainant's Termination
Subsequently, Complainant overloaded the spread axle of her trailer on October 22,
1992. On that date at Weirton Steel Complainant set up to load steel coils, but she did not
order the steel down onto her trailer. An employee of Weirton Steel jumped onto her trailer
and directed the steel to be lowered down. (TR-41). When Complainant weighed the load at
a private scale several miles away in Ohio, she found that she was 1200 pounds overweight
on the rear axle. (TR-41). Maverick paid to have the load moved within the trailer, but
Complainant called in the next day to report that she was still overweight on the spread axle.
(RX-1 at 104).
Philip Nibeck, a Maverick employee who has held positions as a truck driver, a
trainer, a driver/trainer on the road, and an officer in charge of orientation as well as training,
testified with regard to Maverick's expectations of a driver when an overload situation occurs.
(TR-375). Mr. Nibeck explained that when a driver is on site where his truck is being loaded,
he has control over the loading. If the driver feels that the load is improperly loaded, the
driver should refuse to sign for the load. If the driver refuses to sign for the bills and notifies
the shipper that the load is not correct, then the loader has to correct the situation. (TR-375).
Mr. Nibeck stated that on occasions when he has picked up a shipment that was improperly
loaded, he returned to the shipper to have the problem corrected. (TR-378).
As a result of Complainant's repeat loading violations during her probationary period,
Maverick terminated Complainant's employment on October 29, 1992. (RX-1 at 104, TR-82).
A letter from Connie Payne, Operations Manager, dated October 29, 1992, provides:
Loraine White was terminated 10/29/92 for the following reason:
90 day probation began 10/12/92. The condition of the
[PAGE 9]
probation was that we seen [sic] noticeable improvement on performance. On 10/22/92
Loraine overloaded the spread axle and we paid to have the coils moved. Once the coils were
moved, Loraine called in the next day and admitted that she was still over on the spread axle
after paying to have the coils moved.
(RX-1 at 104).
When the Complainant filed for unemployment compensation after her discharge, she
indicated on the form that the reason for her discharge was, "got hurt on job." (RX-1 at 108).
Connie Payne, the Operations Manager, denied that this was the reason for discharging
Complainant when she responded to the Arkansas Security Department investigation. (TR-1 at
109). Ms. Payne, instead, explained that Complainant was fired for her work performance
and negative attitude and her repeated policy violations while on probation. (RX-1 at 110).
III. Lynn Johnson, Operations Manager
Lynn Johnson, Operations Manager for Maverick, testified that he has never heard a
dispatcher or Fleet Manager distribute multiple log books and tell drivers to "run like hell." If
he had heard such statements, he said he would immediately take corrective measures. (TR-
242). Johnson said that Maverick has no written or unwritten policy regarding allowing
multiple log books to be distributed to the drivers. According to Johnson, "You can have as
many log books as you choose. You can have 300 if you have the space to carry them." (TR-
243).
Mr. Johnson testified with regard to overweight loads, that it is the driver's
responsibility to go to the closest public scale and get the product weighed on that tractor and
trailer. (TR-220). If the load is overweight on the spread axle and not on the gross, Maverick
will try to get the shop to help locate a crane or forklift to move or shift the product so that
the truck can be made legal. (TR-220). However, if the truck is overloaded on gross weight,
the options are more limited. The first option is to send the driver back to the customer to
remove part of the load and put it back into storage. (TR-221). The second alternative, if the
driver has gone too far down the road, is to transfer part of that product to another tractor-
trailer rig. (TR-221). Occasionally, the amount of fuel may help the driver. If the driver can
burn off 100 gallons of fuel, she can reduce the gross weight by 800 pounds. Generally,
however, an overgross problem should be taken care of immediately. (TR-221).
Mr. Johnson said he has never instructed a driver with an overweight load to run
around scales by back roads. (TR-222). He explained that the moment you go behind those
scales, you are dropping down to a road that has a much lower weight allowance. If the
driver was caught, the fines would multiply very quickly. (TR-222). According to Mr.
Johnson, the company is much better off if the driver crosses the state scales and pays the
fine. (TR-222). He testified that he would never allow a fleet manager to tell a driver to
drive around a scale; if he learned of such behavior, he would place the fleet manager on
probation. (TR-250-51).
In May 1993, officers from the United States Department of Transportation, Federal
Highway Administration, notified Mr. Johnson that they would be conducting an audit of
[PAGE 10]
Maverick Transportation. (TR-278). Following the four day audit, the auditors requested an
exit interview with Mr. Johnson and Larry Leahy, Maverick's Vice President of Operations.
(TR-279). The auditors explained that they found some violations among the almost 700
documents they checked. They told Johnson and Leahy that Maverick might be fined for
these violations and they gave recommendations and guidelines to bring Maverick into
compliance. (TR-279).
The audit report dated May 14, 1993, reveals that the auditors found, among other
violations, 170 false reports of record of duty status, out of 505 checked. (RX-3). Of the 25
drivers or vehicles checked by the auditors, 20 were found to be in violation of log
requirements. (RX-3). The report states: "Driver logs, when compared to independent
documents, i.e. fuel receipts, are inconsistent on times and dates. Example: driver Josh A.
Taylor's log on 01/06/93, 10:48 AM shows Anniston, AL, fuel receipt shows Peru, IN."
As a result of the audit and the recommended guidelines, Larry Leahy distributed a
memorandum informing Maverick employees of the nature and outcome of the audit. (RX-3).
In that memorandum, Mr. Leahy stated:
[T]he auditors did discover that 34% of the logs they reviewed
contained inaccurate entries. They compared fuel purchases,
weight tickets, shipping orders and various other dated and time
stamped documents to the driver's logs to find the inaccuracies.
The result of their audit is that Maverick will be fined and that
they will return for a follow up audit after six months.
* * *
We have not placed sufficient emphasis in the past on the
importance of logs matching all documentation but we are
committed to correcting that error and so we ask every driver to
make the extra effort to insure that their logs are accurate and
that, beginning immediately, they log each fuel stop.
(RX-3).
IV. Darius Cooper, Director of Driver Services
Darius Cooper, the Director of Driver Services for Maverick, testified that on October
5, 1992 he was working the night dispatch because the regular dispatch was on vacation. (TR-
354). He received a message from Loraine White at 6:00 p.m. that evening indicating that
she was leaving the shipper with a load which she planned to deliver by 7:00 a.m. on October
7, 1992. (TR-355). Mr. Cooper testified that he was familiar with this route, from Illinois to
Texas, and that it definitely could be run within a driver's legal time restrictions. (TR-355).
Complainant received an overweight ticket on that trip in Tennessee indicating that she
was exceeding the legal gross weight on her trailer by 1260 pounds. (TR-359). With regard
to Complainant's testimony that Hugh Brown routed her around scales in Tennessee and
Arkansas, Mr. Cooper stated that it would not make any sense to route a driver around scales
[PAGE 11]
after they have a ticket. (TR-359). Once a truck has been issued a citation in Tennessee, as
long as that vehicle is not over 85,000 pounds of gross, or over 40,000 pounds on any
tandem, then it will be allowed to proceed through the state, within a 24 hour period, without
further penalty. (TR-360). Even if Complainant had come to another scale farther down the
road, all she had to do was show her ticket and she would have been allowed to move on.
(TR-360).
Mr. Cooper also explained that between Tennessee, where Complainant was ticketed,
and Arkansas, Complainant had to travel approximately 240 miles, which would have burned
off about 40 gallons of fuel weighing 320 pounds. (TR-360). That would have put her at a
gross weight of less than 1000 pounds over the legal limit. (TR-360). Mr. Cooper opined that
Complainant's testimony that he helped route her around scales in Arkansas made no sense.
The State of Arkansas, as a rule, will allow one percent tolerance on overweight before a
citation is issued or any conflict is made with the driver. (TR-361). Based on the fact that
Complainant would have burned off 320 pounds of fuel before reaching Arkansas, Mr.
Cooper said that Complainant would have had clear passage through Arkansas. (TR-362).
The evening that Complainant got her overweight ticket, Mr. Cooper had no verbal
conversations with Loraine White; all of their communication was by satellite transmission.
(TR-362).
Several days after Complainant received the overweight citation, Mr. Cooper became
aware that Connie Payne wanted to put Complainant on probation. (TR-362). He said the
reason Connie Payne wanted to put Complainant on probation was because Complainant was
a relatively new employee who failed to follow company policy. Mr. Cooper concurred in
the determination to put Complainant on probation. (TR-362).
Not long after Complainant was placed on probation, Complainant overloaded a trailer
on a load originating in Weirton, West Virginia. Complainant made it into Ohio before she
realized it was overloaded. (TR-363). After this incident, Mr. Cooper reviewed
Complainant's personnel record with Connie Payne. He consented in Connie Payne's ultimate
decision to discharge Complainant from employment. (TR-363). He explained that
Complainant was an employee who continued to have problems following company policy
after being placed on probation. (TR-364).
Mr. Cooper stated that Loraine White never complained to him about being required to
run illegal hours, or being required to run overweight. Mr. Cooper added that the policy at
Maverick is that the drivers run legal hours, and until the hearing, he had never heard of any
unwritten policy to the contrary. (TR-366). No one, including Hugh Brown, ever told Mr.
Cooper that Complainant was concerned about being required to run illegal hours, or being
required to run illegal weights. (TR-364). Hugh Brown had absolutely no input into the
decision to put Complainant on probation or to fire her. (TR-365).
V. Connie Payne
At the time Complainant was hired, Connie Payne was the Driver Relations
Coordinator for Maverick, later taking over as Operations Manager in September of 1992.
(TR-294). As the Driver Relations Coordinator, Ms. Payne basically served as a buffer
[PAGE 12]
between the drivers and management. If Operations was having a problem with a driver,
whether the problem was late deliveries or attitude, Ms. Payne would work with the driver
before disciplinary action was taken. She would try to help the driver come back to an
acceptable standard. (TR-298).
Ms. Payne testified at the hearing regarding Maverick's dispatch procedure. She
explained that the dispatch is over the computer; it is normally not a verbal dispatch. (TR-
295). The appropriate procedure for a driver who receives a dispatch on the computer and
sees that there is a problem with hours would be either to send a message or call their Fleet
Manager on the phone. (TR-296). The Fleet Manager would look at the order and determine
whether the load could be delivered later or would contact the load coordinator and explain
that the driver could not make the next day delivery. (TR-297-98). Ms. Payne said that this
was how it worked when she worked as a Fleet Manager and that was how it worked during
the time that Complainant was a driver for Maverick. (TR-296).
Ms. Payne met with Complainant on July 6, 1992 for a 60-day review. (RX-2 at 73).
Ms. Payne testified that the meeting was not actually a performance review, but was mainly
an opportunity to get feedback from new employees about how they liked the job. (TR-300).
Ms. Payne noted that Complainant was having a problem with her logs. She discussed the
problem with Complainant and instructed her to talk to the log department. (TR-301). At no
time during that meeting did Complainant tell Ms. Payne that Fleet Managers were pressing
her to run illegal hours or to run overweight loads. (TR-302).
Ms. Payne testified that after she was promoted to Operations Manager in September
1992, she did not have discussions with Complainant on a regular basis. (TR-305). When
Complainant had problems with overloading her truck on October 5, 1992, Ms. Payne became
aware of the situation. (TR-308-09). Ms. Payne also received a call from the General Sales
Manager in Chicago reporting that Complainant was very rude to the shipper on that load.
(TR-309). Ms. Payne determined that, additionally, Complainant had not followed company
policy in getting her truck weighed on that load. (TR-310). As a result of this information,
Ms. Payne consulted with her supervisor, Darius Cooper, Director of Driver Services
regarding how to handle Complainant. (TR-310). They determined that Complainant should
be placed on probation. (TR-310).
The notice of 90-day probation was explained to Complainant by Ms. Payne in a
meeting. (TR-311). Ms. Payne testified that she told Complainant that the purpose of the
meeting was to discuss the incidents on the October 5 load. Specifically, Ms. Payne was
concerned about: reports from the shipper and the consignee that Complainant was rude to
the customers, the fact that Complainant had hung up on Lori Shirkey while Lori was trying
to help her through a problem, the fact that Complainant did not weigh the load as instructed,
and that Complainant had previous problems with her logs and with her supervisor, Hugh
Brown. (TR-312). Complainant acknowledged that she needed to improve both her attitude
and her performance, and she signed the notice of probation. (TR-313).
After Complainant was placed on probation, Complainant was again involved in an
overweight problem with a load from Weirton Steel. (TR-313). Ms. Payne investigated and
determined that Complainant had loaded her truck in such a way that she was overweight on
[PAGE 13]
the spread axle rather than on the entire load. (TR-314). Complainant was overloaded only as
a result of her loading procedures, over which Complainant had direct control. (TR-314).
Ms. Payne recommended Complainant's termination on October 26, 1992. (TR-316).
Ms. Payne drafted a memorandum to Letha Bryant, the Safety and Personnel Director, and
Darius Cooper on that date detailing the basis for her recommendation. (TR-316, RX-1 at
101). The memorandum set forth four incidents involving Complainant, which Ms. Payne
explained served as the basis for her recommendation. (RX-1 at 101).[5] Ms. Payne testified
that whenever termination is recommended, management officials must agree that the decision
is in the best interests of the company. (TR-316).
Ms. Payne testified that at the time she recommended termination, and up to that point,
Complainant had never talked to her about being forced to run illegal hours or to run illegal
weight. (TR-319). As well, no else reported to Ms. Payne that Complainant had concerns in
this area. (TR-319). Hugh Brown did not recommend that Complainant be discharged, and
Hugh Brown had no authority to discharge Complainant. Ms. Payne explained that Hugh
Brown had no input into the decision to discharge Complainant or to put her on probation,
and Hugh Brown never suggested that Complainant should be disciplined in any way. (TR-
320).
On October 29, 1992, Ms. Payne held a meeting with Complainant to inform her of
her discharge. (TR-321). Ms. Payne said she told Complainant that she was being terminated
because she was unable to meet the requirements of the job or to handle the job functions.
(TR-322). Complainant was angry and upset, but at no time during that meeting did
Complainant express that she felt she was being fired because she was refusing or
complaining about illegal hours or being forced to run overweight loads. (TR-322). At
Complainant's request, Ms. Payne drafted a letter explaining that the reason for Complainant's
termination was the violation of the terms of her 90 day probation by overloading her truck a
second time. (TR-322, RX-1 at 104).
In an Application Cover Sheet Termination Form sent to Maverick's Personnel
Department, Ms. Payne indicated the reason for Complainant's termination was "Loading
violation during 90 day probation." (RX-1 at 105). Comments from Letha Bryant, the Safety
Department officer, Darius Cooper and Connie Payne indicate that Complainant was very
moody and did not handle criticism well, that she had too many problems, and that she was
too emotional and could not handle pressures in a professional manner. (RX-1 at 105).
Ms. Payne testified that during the period of time that she has been employed at
Maverick she never became aware of any unwritten policy or practice whereby Fleet
Managers required drivers to run overweight or illegal hours. (TR-330). Ms. Payne, as well,
has never told a driver to continue running overweight. If a driver called in with a 500 pound
overgross, Ms. Payne said they would consider their options, either to remove some product,
burn off fuel, remove some equipment, or send another driver and move product onto another
unit. (TR-330-31).
DISCUSSION
Complainant, Loraine White, alleges that Respondent, Maverick Transportation, Inc.
("Maverick"), discriminated against her in violation of Section 405 of the Surface
[PAGE 14]
Transportation Act of 1982 (49 U.S.C. §305(a)). The Act provides in pertinent part:
No person shall discharge, discipline, or in any manner
discriminate against any employee with respect to the employee's
compensation, terms, conditions, or privileges of employment
because such employee . . . has filed any 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.[6]
In order for a complainant to set forth a prima facie case of discrimination
under the Act, she must show by a preponderance of the evidence that she engaged in
protected conduct, that she was subjected to adverse action, and that the respondent was aware
of the protected conduct when it took the adverse action. Zessin v. ASAP Express,
Inc., Case No. 92-STA-0033, (Final Dec. and Order of the Secretary, January 19, 1993).
The complainant must also present evidence to raise the inference that the protected activity
was the likely reason for the adverse action. Dartey v. Zack Co. of Chicago, 80-
ERA-2 (Decision and Final Order of the Secretary, April 25, 1983).
Once a prima facie case is established, the burden of production shifts to the
respondent to articulate a legitimate nondiscriminatory reason for its employment decision.
The ultimate burden of demonstrating intentional discrimination rests with the employee. If
the employer rebuts the prima facie case, then the complainant may demonstrate that
the proffered reason was a pretext for discrimination. Id; seealsoWrenn v. Gould, 808 F.2d 493, 500-01 (6th Cir. 1987); and Jackson v. Pepsi-
Cola, Dr. Pepper Bottling Co., 783 F2d 50, 54 (6th Cir.), cert.
denied, 478 U.S. 1006 (1986).
I. Complainant's Prima FacieCase
The parties agree that Complainant suffered an adverse employment action on October
29, 1992, when Maverick fired Complainant. (Stipulation 8). The controversy in this matter
centers, instead, on whether the Complainant ever engaged in protected conduct, and, if so,
whether the Respondent was aware of the protected conduct at the time the Complainant was
fired. Complainant contends that the record shows a pattern of discrimination against her for
her complaints regarding the company's demands for long hours and overloaded deliveries.
First, by resisting and complaining about Maverick's illegal log practices, Complainant posits
that she was tagged and marked as a troublemaker or whistleblower. She claims, as well, that
she was discharged for complaining when Maverick caused her truck to be overloaded, and
because she resisted Maverick's instructions, on one occasion, to drive around weigh scales
with her overloaded truck in violation of state law.
B. Excessive hours
To prove that she engaged in protected conduct by resisting Maverick's unwritten
illegal log practices, the Complainant relies on her communications with her Fleet Manager,
Hugh Brown. (TR-28-31). Though Complainant testified that Hugh Brown was the only
[PAGE 15]
person with whom she discussed her concerns about being required to commit log and hour
violations, she claims that whenever she complained to him he ignored her. (TR-28-29, 39).
Complainant said that she talked to Hugh Brown twice in person and he just ignored her and
walked away. (TR-29).
According to Complainant, when she went to the main office to pick up her log book,
she was handed two or three books and told by whomever was in charge, "just take these and
run like hell." (TR-30). When Complainant reported to Hugh Brown that she did not know
how to run more than one log book, she said he ignored her. (TR-31). Complainant admitted
that she was never specifically instructed by anyone at Maverick to falsify her log books.
(TR-67).
When Complainant spoke to Hugh Brown on another occasion, she was concerned
about driving more hours than permissible under the regulations. (TR-34-35). At the hearing
Complainant said that sometimes she drove more hours than she was supposed to be driving
because she was required by the company dispatcher to get the load there on time regardless.
She testified that she was not able to call the dispatcher and tell them she had to pull over and
rest for eight hours. Complainant felt that if she had done that, she would have violated the
company policy to get the load in on time. According to Complainant, if she was unable to
make her load on time, the company would "have a rejective attitude and give you a really
bad time." (TR-35). When Complainant approached Hugh Brown regarding the hour problem,
he walked away and left Complainant without giving her any ideas or suggestions as to what
she should do. (TR-35). She said he mostly gave her a "just forget it" type attitude. (TR-31).
Complainant asserts that Maverick had unwritten policies and practices in violation of
Department of Transportation rules and regulations, which were evident in the attitude of her
supervisors when she refused to keep illegal log books and resisted their demands to drive
around weigh scales. (TR-168-70). Complainant suggests that the Department of
Transportation finding in the May 1993 audit, that some Maverick drivers were operating in
violation of log requirements, proves that Maverick had an established practice of requiring
drivers to keep illegal logs. According to Complainant, her termination was a direct result of
her resistance to and complaints about these, and other illegal practices.
As the Respondent points out, the Complainant's evidence is insufficient to show that
the Complainant raised a safety issue regarding illegal hours, or that Maverick had knowledge
that Complainant was making any such Complaints. Complainant testified that she never
discussed or complained about being required to run illegal hours except to her Fleet
Manager, Hugh Brown. (TR-37-38). The only significant complaint Complainant made was
that she had been given more than one log book. Complainant asks this court to infer that by
distributing multiple log books, Maverick was requiring employees to run an illegal second
log. However, the record does not support this assumption. Complainant herself admitted
that there was nothing illegal about having more than one log book. (TR-153-54). Thus,
Complainant's statement to Hugh Brown that she was concerned about receiving more than
one log book because she did not know what to do with the log books, does not constitute a
complaint that she was being forced to run illegal hours. Moreover, Complainant admitted
that her later comments to Hugh Brown regarding possible hour violations were never
acknowledged by him because he simply walked away.
[PAGE 16]
Furthermore, the evidence reveals that Complainant did not make any complaints about
being forced to run illegal hours to management when she had the opportunity. Despite a
meeting with Diane Caine of the Log Department concerning how to accurately complete her
logs, Complainant did not make any complaints to Ms. Caine or to the Log Department.
Instead, Complainant's personnel file contains several warnings from the Log Department that
Complainant was repeatedly in violation of the 10 and 15-hour rules and that she was
counseled on Maverick's policies by a representative from the Log Department. (RX-1 at 58-
80, 69). Complainant also had a number of meetings with upper levels of management, yet
Complainant never mentioned to Connie Payne or other officers with the authority to
discipline her, that she believed she was being forced to run illegal hours. (TR-35, 36, 219,
302-05, 320, 364). Even when Complainant was placed on probation, she did not complain
that she believed she was being placed on probation because she was complaining about being
required to run illegal hours. Neither did she make such an allegation at the time of her
discharge. (TR-35, 310-12, 320).
The record does not support the Complainant's claim that her vague expressions of
concern to Hugh Brown regarding multiple log books or pressure from the dispatchers to
deliver on time constituted a report or complaint of safety violations.
B. Overweight Loads
In addition to her claim that she was discharged for complaining about
Maverick's unwritten policy of requiring drivers to run in violation of Federal hour
requirements, Complainant claims she was also fired for resisting Maverick's efforts to
overload her truck and to route her around weigh scales in violation of state laws.
When Complainant picked up a load of hardwood lumber from a shipper in Indiana on
October 5, 1992, she testified that she complained to the loaders that the truck might be
overloaded, but they responded, "No we're not." (TR-46). On that occasion, Complainant
claimed that the attitude of her contact at Maverick when she called for guidance was "get the
truck loaded and get out of there and don't say anything." (TR-47).
Complainant admitted that she did not weigh the load immediately upon leaving
shipper, per Maverick's company policy, because she did not know where the nearest scales
were. (TR-44). When she was ticketed for the overweight load in Tennessee on October 6,
1992, she contacted Hugh Brown. Complainant said that Hugh Brown responded by sending
another driver to meet Complainant at mile marker 126 on I40 in Tennessee to take off part
of the load if possible. (TR-52). Complainant claims that she was later told by Hugh Brown
that the other driver would not be taking off part of the load, but would accompany her in
going around scales, which meant driving back roads and bypassing state scales on the
interstate. (TR-53-54). The Complainant stated, however, in contradiction to this testimony,
that the other driver did not go around scales with her. (TR-54). She said that Hugh Brown
routed her around scales on her intended route into Arkansas, and when he went off duty,
Darius Cooper finished routing her around three other scales in Arkansas. (TR-55-56).
The Respondent counters that Complainant was terminated, not because she
complained about being required to run overweight, but rather, because she was running
[PAGE 17]
overweight loads in violation of Maverick's policies and the terms of her probation. I find
that the Complainant has failed to show that she made any complaints about the alleged
requirement that she run overweight loads. Instead, Complainant claims that she resisted
Maverick's efforts to route her around state weigh scales and to cause her truck to be
overloaded. As a result of this resistance, Complainant contends that she was tagged as a
trouble-maker, and consequently fired.
There is no evidence that Maverick caused the Complainant's truck to be overloaded
or that Complainant resisted any efforts by Maverick to do so. Complainant said that she
expressed to the loaders on the Indiana shipment of hardwood, her suspicions that the truck
could be overloaded. Nevertheless, she signed off on the load upon the assurance from the
loaders that the truck was properly loaded. (TR-46). Although Complainant testified that she
was told by a Maverick dispatcher to get loaded and get out of there, the evidence does not
support her claim that Maverick caused the truck to be overloaded or had knowledge that
Complainant was resisting them in this matter.
Maverick's orientation officer, Phil Nibeck, explained that Maverick's policy is for the
driver to take complete responsibility for ensuring that her shipment is properly loaded. (TR-
375). If the driver suspects otherwise, the driver can control the load by refusing to sign off
on the load and forcing the shipper to correct the situation. Through her orientation and
company handbook, Complainant had knowledge that it is the driver's sole responsibility to
make sure that the truck is properly loaded. (TR-91).
With regard to Maverick's alleged efforts to route the Complainant around weigh
scales with an overloaded truck in violation of state laws, I find that Complainant's testimony
is not credible. First, she claimed that she was overloaded by 4000 pounds (TR-51). Yet,
the Overweight Assessment issued against Complainant in Tennessee, reveals that her vehicle
exceeded the authorized weight by only 1260 pounds. (RX-1 at 92-93). Darius Cooper,
Maverick's Director of Driver Services, explained that there is simply no advantage to
running around scales. All of the states have significantly lowered the weight limits on all
roads around where scales are located. Getting caught on one of these roads is much more
expensive than getting caught overloaded at a regular scale. Therefore, there is no advantage
to the Company to have Complainant run around a weigh scale. (Tr-359-60).
Mr. Cooper continued, that once a driver gets her first ticket, under Tennessee law she
is entitled to continue on through the state. Should the driver be found to be overweight at
any subsequent weigh station, all she has to do is show the ticket and she would be allowed
to proceed on. (TR-359-60). According to Mr. Cooper, there was absolutely no need to route
Complainant around weigh scales in Tennessee.
As for the allegation that Complainant was routed around weigh scales in Arkansas,
Mr. Cooper said, again, there was no reason to do so. Given the amount of fuel that
Complainant would have burned off by the time she got to Arkansas, her total weight would
have allowed her to continue on through Arkansas. The state of Arkansas has a one percent
tolerance rule, under which Complainant would not have been ticketed. (TR-360-62).
The record shows that Complainant's contention that Maverick rerouted her around
[PAGE 18]
scales in either Tennessee or Arkansas was unreasonable. The Complainant has failed to
show that she ever complained about or resisted Maverick's alleged efforts to require her to
overload her truck or to run an overloaded truck around weigh scales in violation of state
laws.
II. CONCLUSION
There is no evidence that the Complainant reported log or hour violations to the Respondent.
The fact that Maverick was charged with several instances of log violations in 1993 by the
Federal Highway Administration is insufficient to support the Complainant's claim that she
was wrongfully discharged for resisting or reporting any illegal or unsafe activity. The
burden is on the Complainant to provide evidence that she made such reports. Her statements
to Hugh Brown that she did not like being handed more than one log book at a time are not
sufficient to show that she intended to report safety violations to her employer. As well, the
Complainant never mentioned the matter to anyone else in management when she had
opportunities to do so.
As well, the Complainant failed to show that she complained about being required to
run overweight loads, where she made no communication with any of her supervisors to that
effect, and Maverick's policy is clearly stated that the driver bears the sole responsibility for
loading her vehicle. In spite of Complainant's testimony that she was routed around weigh
scales with an overloaded truck, the Complainant provided no evidence that she made
complaints or reports of safety violations to the Employer. Even if the Complainant's alleged
resistance to driving around scales is presumed to constitute protected activity, the
Complainant's testimony that she was routed around scales is not credible. The Complainant
testified that she was overweight by 4000 pounds, although the Overweight Assessment
revealed the overweight amount was only 1260. As well, there was no incentive for Maverick
to route the Complainant around scales when she would have been immune from penalties
after her initial ticket.
Finally, Complainant's application for unemployment compensation contradicts
her claim that she was wrongfully terminated. After she was fired, Complainant stated on her
application for unemployment compensation that the reason for her discharge was "got hurt on
the job." (RX-1 at 108). Complainant made no mention of the possibility that she had been
fired in retaliation for reporting safety violations.
Accordingly, I find that the Complainant has failed to show that she engaged in
protected conduct or that the employer was aware of any protected conduct at the time the
Complainant was discharged. The Complainant has failed to set forth a prima facie
case of retaliatory discharge.
RECOMMENDED ORDER
On the basis of the foregoing, I recommend that the complaint filed by Loraine White
be DISMISSED.
________________________________
RICHARD K. MALAMPHY
Administrative Law Judge
Newport News, Virginia
RKM/lsb
[ENDNOTES]
[1] Because the Complainant's brief was filed subsequent to October 28, 1994, the
briefing date agreed upon at the hearing, the Administrative Law Judge granted permission to
the Respondent to file a responsive brief. However, the Respondent indicated on November
17, 1994, that it was willing to rely on its previously filed brief because Complainant's brief
did not address the arguments and issues raised in Respondent's brief.
[2] The Stipulations were set forth at the hearing. (Tr. 5).
[3] The following abbreviations will be used as citations to the record:
CX - Complainant's Exhibits
RX - Respondent's Exhibits
TR - Transcript
[4] In contradiction to Complainant's testimony that her truck was overweight by 4000
pounds, the Overweight Assessment issued against Claimant on October 6, 1992, reveals that
Complainant's vehicle exceeded the authorized weight by only 1260 pounds. (RX-1 at 92 and
93).
[5] The memorandum dated October 26, 1992, and addressed to "Letha, Darius" provides:
1. 10/10 Overweight in TN . . . . $170.80
2. 10/22 Overweight on spread axle - $150.00
Called in later and said was still over on spread but no other problems.
3. 10/23 Bent rim backing into consignee. $16.00 pd. out of pocket.
4. 10/12 90 Day Probation . . . . Attitude and performance.
5. History of emotional problems . . . . does not address situations in a
professional manner.
[6] Preliminarily, the Respondent suggests that it is doubtful that the Surface
Transportation Act applies to a claim based on complaints about state weight regulations
because these do not constitute a commercial motor vehicle safety rule under the meaning of
the statute. This defense is without merit. It is reasonable to assume that an overweight
vehicle presents a risk of serious injury to the driver or to the public due to the unsafe
condition of the equipment. The statute contemplates protection for complainants who report
violations of safety rules, regulations, standards or orders. SeeBoone v. TFE,
Inc., Case No. 90-STA-7, (Final Dec. and Order of the Secretary, July 17, 1991).
Because the Complainant's claim regards unsafe, overweight driving conditions, it should be
covered under the statute.
