DATE ISSUED: November 14, 1994
Case No.: 94-STA-17
IN THE MATTER OF:
ASSISTANT SECRETARY OF LABOR
PROSECUTING PARTY,
AND
SARA K. O'DOUGHERTY AND THOMAS P. PEER
COMPLAINANTS
v.
BJARNE SKJETNE, JR. d/b/a BUD'S BUS SERVICE
RESPONDENTS
KEVIN E. SULLIVAN, ESQ.
FOR COMPLAINANTS
JESS SCHWIDDE, ESQ.
FOR RESPONDENTS
BEFORE: VICTOR J. CHAO, ADMINISTRATIVE LAW JUDGE
RECOMMENDED DECISION & ORDER
This case arises under Section 405(a) of the Surface
Transportation Assistance Act of 1982, 49 U.S.C. section 2305(a)
(hereinafter STAA). The STAA prohibits covered employers from
discharging or discriminating against employees who have engaged
in certain protected activities.[1] Complainants O'Dougherty
and Peer, school bus drivers, filed complaints with OSHA alleging
that O'Dougherty was discharged on April 3, 1993 by Respondent
Skjetne in retaliation for her repeated complaints about bus
equipment defects and that Peer was laid off on April 5, 1993 for
vocally expressing support for O'Dougherty's claim of wrongful
discharge to personnel of Respondent. The complaints were
investigated by an OSHA investigator, and on December 1, 1993 the
Regional Administrator found that Respondent's discharge of
O'Dougherty and layoff of Peer for engaging in activities
protected by the STAA constitutes a violation of Section 405 of
the STAA. Respondent disputed the findings and requested a
[PAGE 2]
hearing before an Administrative Law Judge.[2] On May 3, 1994,
I held a hearing in Rutland, Vermont.[3] At the hearing,
Respondent, through counsel, argues that O'Dougherty was
discharged on April 3, 1993 because sometime in January 1993 he
learned from the school superintendent that someone in the
community had alleged that O'Dougherty had used a bus in January
1993 for personal use to move furniture. (Tr. 4, 74, 287).
Respondent argues that Peer, angered by his hours being cut back
when his mechanic's duties were eliminated, "schemed" with
O'Dougherty to create a false wrongful discharge claim against
Respondent. (Tr.5). Respondent argues that Peer was in fact laid
off because of a consolidation of bus runs to save money.
(Tr.6).
FINDING OF FACT
1. Respondent Skjetne has operated Bud's Bus Service as an
unincorporated business since 1978. As a company owner, Skjetne
was directly responsible for bidding the contracts and overseeing
the company's operations. (Tr.111-112). In addition to his bus
company, which contracted with the Vermont town school districts
of Wells, Poultney and Timouth to transport children to
schools, Respondent operated a fleet inspection station for his
own buses. (Tr. 8, 39). As part of his transportation contracts
with the school districts, Respondent was contractually obligated
to maintain his buses in proper operating condition and to fully
meet safety and licensing requirements of Vermont state law. (Tr.
64, 70, CX5).
2. In August 1992, Mary Pond, Respondent's bus coordinator,
hired complainant O'Dougherty as a bus driver for five days per
week, three hours per day, at $10 per hour. (Tr. 111, 235-36).
As coordinator, Pond acted as both the bus dispatcher and safety
defect liaison to Respondent Skjetne. If the coordinator had any
problem, she would bring it to Skjetne's attention who would act
on it. (Tr. 112). The company policy was for the driver to
report bus safety defects or problems to the coordinator, who
would then contact Joe Bizon, Respondent's mechanic in Proctor,
who would take care of any repairs that were needed. (Tr. 285).
If mechanic Bizon did not repair the problem, coordinator Pond
would report the problem to Skjetne, who would take action to
ensure that the problem was rectified. (Tr. 285-86).
3. Coordinator Pond acknowledged during her testimony that
O'Dougherty complied with the company policy by making regular
reports to her over the radio of problems with the buses and
submitting log books on a regular basis beginning in January 1993
when Respondent first obtained these books for use by drivers.
(Tr. 284-85). In addition to reporting problems over the radio
to Pond, O'Dougherty understood that she was supposed to verbally
report mechanical problems to Tom Peer. (Tr. 238-39).
4.(a) O'Dougherty was assigned primarily bus 71 which was
[PAGE 3]
plagued with mechanical problems from the start of her
employment. (Tr. 237). One problem was that its front end
seriously rattled. She verbally reported the front end problem
to both Peer and Pond. She also expressed her concern about the
front end to Respondent's mechanic Joe Bizon, who told her it was
the kingpin. She drove the bus at least a week before it was
repaired. (Tr. 239).
(b) Beginning in August 1992, bus 71 had an alternator
overcharging problem that lasted until October 21, 1992. On
numerous occasions O'Dougherty was left stranded with a bus full
of children because the alternator had malfunctioned and the bus
would not run. Even after Respondent had changed alternators,
problems persisted which resulted in O'Dougherty having to shut
down all electrical apparatus in order to talk on the radio. (Tr.
241-42). In September, O'Dougherty was stranded again while
transporting children because the bus' throttle line broke. (Tr.
239). From October 1992 through March 1993, the bus brake
pressure light kept coming on - problems she expressed to both
Peer and coordinator Pond. (Tr. 243-44). In early February 1993
bus 71 had absolutely no heat. She reported this to coordinator
Pond who had her switch buses. (Tr. 244-45).
(c) In March 1993, O'Dougherty brought bus 71 to the
mechanic in Proctor because it needed its inspection sticker
renewed. She told the mechanic about the problem with the vacuum
gauge and brake pressure light coming on. During the
inspection, he found a crack in the manifold so he could not at
the time issue a new inspection sticker. He placed a donut over
the crack to repair the problem. (Tr. 245-46). However, because
the donut invariably loosened periodically, O'Dougherty had to
drive bus 71 with a loud exhaust leak in the manifold for a
period from several days to a week or more. (Tr. 246). She
brought the bus in for repairs three or four times but the
problem still persisted. On March 23, 1993, she told coordinator
Pond that she was not driving bus 71. (Tr. 246). In response,
Pond suggested to O'Dougherty that she drive bus 71 to Poultney,
where O'Dougherty was given bus 41. (Tr. 246-47).
5. During her March 23rd pre-trip inspection of bus 41,
O'Dougherty noticed that bus 41, like all the spare buses, was in
very poor shape physically. The bus was incredibly filthy and
the seat belts, which were jammed into the seats, were "corroded
with crud".[4] (Tr. 247). She noticed that the bus had no horn,
just a wire dangling from the steering wheel. The defroster on
the driver's side did not work, the windshield wipers did not
touch the window, and there was an exhaust leak that she could
smell. (Tr. 248). When she drove bus 41 to her home, she did a
thorough inspection of the bus and note that it had a brand new
inspection sticker dated March 22. (Tr. 249). In addition to the
[PAGE 4]
defects previously noted, O'Dougherty determined that the engine
oil was one quarter short, the engine had a rattling and knocking
sound, the direction signal did not click off when she completed
a turn and the driver's side front wheel rattled. (Tr. 251,
CX8). She returned bus 41 to Poultney and handed coordinator
Pond her inspection book of that bus. She told Pond that there
were 10 things wrong with bus 41 and that the bus had been given
an inspection sticker by Respondent on March 22. (Tr. 256-57).
Pond conceded that were she the driver faced with the problems
that existed on bus 41 and had found that the vehicle had an
inspection sticker, she would have been frustrated. (Tr. 300-
301).
6. Having overheard past conversations between coordinator
Pond and other bus drivers relating concerns about their buses
and numerous instances of drivers in distress, coupled with the
problems she had endured with bus 71 throughout the year and her
experience with the multitude of problems of bus 41, O'Dougherty
became convinced that the status quo needed to be changed. (Tr.
263-64). The fact that Respondent had given bus 41 an inspection
sticker the day before O'Dougherty found multiple safety defects
signaled to her an attitude that the safety of the buses did not
matter - an attitude that would allow unsafe buses on the road.
O'Dougherty concluded that the problems had gotten out of hand,
were very serious and that something needed to be done to stop
unsafe buses from being on the road for the sake of the children.
(Tr. 263).
7. On March 23rd, after handing Pond the log book listing
bus 41's defects, O'Dougherty anonymously notified Jeffrey
Whitesell, District Inspector for the Vermont Department of Motor
Vehicles, expressing her concern about the problems with bus 41
and its passage of Respondent's inspection station test and her
belief that Respondent's buses needed to be inspected because
they carry children.[5] That same day, O'Dougherty contacted
Jean Oakman, principal of the Wells Schools and gave her a
report which chronologically documented mechanical problems with
buses 71 and 41 from August 31, 1992 through March 23, 1993. (Tr.
42-47, 50, CX2). O'Dougherty also indicated to Ms. Oakman that
she was thinking of quitting her job as a bus driver. (Tr. 41).
In late March 1993, Oakman informed the superintendent of
schools, Elizabeth Jamieson, about this report and O'Dougherty's
concerns. Jamieson then referred the matter to Respondent's
coordinator, Pond.[6] (Tr. 40-41).
8. On March 24th, bus 71 was returned to O'Dougherty, but
because the donut on the manifold became loose again on March
25th, Pond gave O'Dougherty bus 70. (Tr. 256). O'Dougherty drove
bus 70, which was dirty but mechanically fine, for one day, then
got bus 71 back on March 26th. Thereafter, the problems with bus
[PAGE 5]
71 did not recur. (Tr. 258-60).
9. Coordinator Pond testified that she confronted
O'Dougherty about a complaint by Kim Hunter about O'Dougherty's
handling of a child. (Tr. 303). On March 30th, O'Dougherty met
with coordinator Pond, the Poutney school principal and Kim
Hunter, the aunt of a young man who had caused a problem on
O'Dougherty's bus. At the meeting, they resolved the issue
involving the young man. O'Dougherty felt that Pond was
supportive of her during the meeting because Pond had commended
her on being a good bus driver and had asserted that a bus driver
has the right to maintain order on a bus if a child acts up. (Tr.
261, 270).
10. On the afternoon of March 30th, O'Dougherty received a
call from inspector Whitesell informing her that Respondent's
buses were going to be inspected the next day on March 31st.
(Tr. 262, 265). After Whitesell's call, O'Dougherty informed
Pond that she had called "DOT" and that an inspection would take
place the next day. O'Dougherty also told Pond the concerns that
prompted her action because she sympathized with Pond's position
and wanted to take responsibility for her action. (Tr. 264-65).
Pond responded to this information by telling O'Dougherty that
"Bud wasn't going to be happy about this". (T266). Respondent
Skjetne acknowledged that O'Dougherty had informed Pond about her
DOT complaint and the related scheduled DOT inspection. (Tr. 112-
14). He testified that he learned about O'Dougherty's complaint
to DOT around March 29th or March 30th.
11. On March 30, 1993, inspector Whitesell and his
supervisor, inspector Kostelnik, inspected three of Respondent's
buses, bus 41, bus 48 and bus 58. (Tr. 10). The inspectors noted
that bus 41 had been inspected only eight days prior to their
arrival, on March 22, and that only about 350 miles had been put
on this bus in the eight days. The inspectors concluded that
little time had elapsed and minimal mileage had been put on the
bus between Respondent's own inspection and their inspection
audit. (Tr. 12-13). The inspectors determined that bus 41 had a
number of defects including a defroster, directionals and a horn
that were defective. (Tr. 13). Bus 58, which had been inspected
by Respondent on March 29th, just one day before the inspectors'
arrival, had only 74 miles recorded since Respondent's
inspection. Bus 58 had an inoperable heater switch and an
unstable rear end, conditions which had existed at least since
March 5th, as reflected in the bus's daily inspection reports.
(Tr. 13). Bus 48, the newest of the buses, had no defects. (Tr.
13, CX1 ). As a result of the violations found by inspectors
Whitesell and Kostelnik relative to Respondent's state fleet
inspection, the inspectors requested suspension of Respondent's
inspection license. Respondent's license was in fact suspended,
[PAGE 6]
which suspension was upheld by a Department of Motor Vehicles'
hearing officer at an administrative hearing.[7] (Tr. 16, 10).
12. On April lst, a man named Hugh was assigned to ride
along with O'Dougherty, ostensibly because he had to learn her
bus route in case she needed a day off. (Tr. 266). On April
3rd, Respondent Skjetne fired O'Dougherty and she was replaced by
this man Hugh Rounds. (Tr. 267, 289). At no time did Pond or
Skjetne inform O'Dougherty that she was going to be replaced.
(Tr. 267). Skjetne told her that he was no longer in need of her
services. O'Dougherty asked why and Skjetne said "[b]ecause you
used my bus to transport furniture." O'Dougherty told Skjetne, "I
did not." (Tr. 268).
13. Sometime in January 1993, Respondent Skjetne was
apprised by the school superintendent, Elizabeth Jamieson, that
"someone in the community" had alleged that O'Dougherty had used
a bus in January to move furniture. (Tr.4, 74, 287). O'Dougherty
testified that during the Christmas vacation in January 1993 her
family did in fact move from Wells to Granville. She denied,
however, using the bus to move furniture and asserted that her
furniture and household belonging were transported in her
father's truck, her brother's car and her family car. The only
things that she put on the bus, which was garaged at her home
with Respondent's consent, were a box of stuffed animals, a bag
of blankets and a hamper. (Tr.268) Respondent never once asked
her what she had transported in the bus and had never mentioned
this issue during her entire employment until the very day of her
firing on April 3rd. (Tr. 268). She received neither an oral nor
a written warning at any time. Respondent had never criticized
her for her performance as a bus driver during her employment.
(Tr. 269).
14. After her firing, O'Dougherty applied for a bus driver
position in Granville but nothing was open since it was at the
end of the school year. (Tr. 272). Because she is a mother of
two, she could only accept jobs that accommodated her family
schedule, such as a school bus driver. (Tr. 272-73). Since
September 1993 she has worked as substitute bus driver for
Granville public schools and, since January 1994 she has worked
at a McDonald's. As a substitute driver, she earns $10.69 per
hour and her hours vary from week to week. (Tr. 232-33). At
McDonald's, she earns $4.25 per hour and works an average of 15
hours per week. (Tr. 234). She worked at Ames Department store
from September 1993 until December 1993 earning $4.35 per hour
and working twenty hours per week. (Tr. 234-35).
15. Complainant Peer, hired by Respondent as a bus driver
in August 1992, was given additional responsibility to do minor
vehicle repairs in September or October 1992 by coordinator Pond,
who needed help because the mechanics were busy. (Tr. 156, 160
[PAGE 7]
161). Initially, Peer earned $5.00 per hour for thirty hours per
week. When he assumed mechanic's duties during the last part of
September or early October through the middle or late January
1993, his hourly wage was increased to $7.50. (Tr. 197,198,165).
Sometime in December 1992 or January 1993, Respondent's mechanic
Joe Bizon, pointed out to Peer that bus 41's horn did not work.
Bizon told Peer that he didn't repair the horn because Skjetne
was not going to pay for it. (Tr. 228). In March 1993, the same
horn had not been repaired despite the bus having passed
Respondent's inspection and being issued an inspection
sticker.[8] (Tr. 170). It is noteworthy that this horn was one
of the defects that O'Dougherty reported to DOT in March 1993.
(Tr. 166)
16. In the middle or late January 1993, Peer stopped doing
minor repairs on buses because Pond told him that Skjetne didn't
want him to. Skjetne testified that Peer never exceeded his
responsibilities in responding to bus drivers, request to do
repairs. Skjetne testified that he ended Peer's repair work
responsibilities, not because Peer was not doing a good job, but
because it exceeded his budget. (Tr. 150, 151, 153). Skjetne
personally called Peer to tell him that he didn't want Peer to do
repair work unless Skjetne approved it because Peer was getting
too many hours and other mechanics were upset about it.
(Tr.165). Peer informed Skjetne that he'd never work on another
bus and, from that point on, Peer never did. (Tr. 166). When
Peer was relieved of his mechanic duties, he decided that he was
going to log any defects he noted so that the mechanics rather
than himself would be responsible for the repairs. (Tr. 172).
Pond acknowledged that Peer's logging of vehicle defects, after
his mechanic's duties were withdrawn, was a source of irritation
to her notwithstanding Pond's admission that logging these
defects was in conformity with Respondent's procedure and a
driver's responsibility. (Tr. 301).
17. Prior to April 5th, O'Dougherty told Peer that she was
fired because she had called DOT. she told Peer that she had not
moved her furniture on the school bus. (Tr. 174). On April 5th,
Peer told other drivers that O'Dougherty was fired because she
called DOT. (Tr. 174). That evening Skjetne called Peer to tell
him that he was laying Peer off because he was consolidating his
bus run with a more senior driver. (Tr. 176). Peer challenged
Skjetne's proffered reason for laying him off, and asserted that
he was laid off because he was standing up for O'Dougherty's
right to call DOT. Skjetne denied the assertion. Peer then
asked Skjetne why he didn't give him O'Dougherty's job that he
had filled earlier on Friday. Skjetne responded that the new
driver was driving up to Granville, which presumably would make
it more convenient for him, which assertion Peer testified he
knew was false. Significantly, Pond conceded during her
[PAGE 8]
testimony that Peer's complaints about mechanical defects played
a part in the decision not to give Peer O'Dougherty's job after
she was terminated. (Tr. 298-99). Peer also testified that he
was senior to three or four other drivers and, accordingly,
should have been given their jobs based on Skjetne's preferred
seniority rationale. (Tr. 176-77). Peer's employment was
terminated on April 5, 1993. (Tr. 179).
18. On April 5th, after learning from O'Dougherty that she
had been fired, inspector Whitesell asked Skjetne about the
safety defects found on his buses during the department's
inspection. Skjetne claimed that the information never got back
to him about the defects and that he was unaware of the majority
of the defects on the buses. Yet, when Skjetne was specifically
asked about a bus' rear end problem, he stated that it wasn't a
rear end defect but a clutch problem that needed replacing.
Inspector Whitesell testified that "later on in the
conversation, [Skjetne] contradicted himself, saying, well, he
thought that if the bus needed a new clutch it probably shouldn't
have been inspected." (Tr.13-15) Although Skjetne admitted that
the horn on bus 41 was defective, he reiterated his claim that he
had never been informed of the defect. (Tr. 15).
19. As a result of a meeting held in early May with
Complainants Peer and O'Dougherty during which they expressed
their concerns with the mechanic problems affecting Respondent's
buses, Ms. Jamieson, the school superintendent requested that the
U.S. Department of Transportation conduct an inspection of
Respondent's buses. On May 14, 1993, Sergeant John Zotti
conducted a surprise inspection which uncovered twenty-six
violations. (Tr. 40, 51, 55, CX4). As result of these findings,
the school superintendent notified Skjetne in writing on May 17,
1993 that the school system expected that the violations would be
corrected. (Tr. 53, 54, CX2).
20. In order for me to compute their respective average
weekly wages, O'Dougherty and Peer agreed to submit their W-2
statements given to them by Respondent. (T215). Peer has not
submitted his W-2 statement. O'Dougherty's W-2 statement for
1993 indicated a total wage of ,991.00. Since there were 13
weeks from the beginning of 1993 to April 3, 1993 (the date of
her firing); O'Dougherty's average weekly wage was $153.00
($1991/13 weeks). O'Dougherty testified that she was employed by
Respondent for the school year ending June 1993 and that she had
"a couple of months left" when she was fired. (Tr. 282).
DISCUSSION AND CONCLUSION
Section 405(a) of the STAA was enacted to promote the safe
operation of commercial motor vehicles and to encourage employees
to report violations of federal regulations without fear of
retaliatory discharge, inter alia. Brock v. Road
Express Inc.,[PAGE 9]
481 U.S. 252, 107 S.Ct. 1740 (1987); Lewis Grocer Co. v.
Holloway, 874 F.2d. 1008 (5th Cir. 1989). Congress
recognized that "employees in the transportation industry are
often best able to detect safety violations and yet, because they
may be threatened with discharge for cooperating with enforcement
agencies, they need express protection against retaliation for
reporting these violations." Roadway Express, 197 S.Ct. at
1745. Interpreting the language of Section 405, the Secretary
and the courts have ruled that in order to establish a violation
of retaliatory discharge under the STAA, the complainant must
establish a prima facie case: (1) that he engaged in the
protected activity under the STAA; (2) that he was the subject of
an adverse employment action; (3) that the employer was aware of
the protected activity; and (4) that there was a causal
connection between the protected activity and the adverse action.
MacGavock v. Elbar, No. 86-STA-5 (Secretary's Decision,
July 9, 1986), pp.10-11; Kenneway v. Matlck, Inc., No.
88-STA-20 (Secretary's Decision, June 15, 1989), P.4; Moon v.
Transport Drivers, Inc., 836 F.2d 226 (6th Cir.1987);
Roadway Express v. Brock, 830 F.2d 179, 181, n.6 (11th
Cir. 1987). However, if the complainant establishes a prima
facie case, the employer has the "burden of producing evidence to
rebut the presumption of disparate treatment by presenting
evidence that the alleged disparate treatment was motivated by
legitimate, nondiscriminatory reasons." MacGavock v.
Elbar, No. 86-STA-5, PP.10-11.
In this case, Complainant O'Dougherty has established a
prima facie case. First, she was engaged in protected
activity within the meaning of the STAA. She consistently and
repeatedly voiced and recorded a myriad of bus safety defects,
which Respondent rarely rectified in a satisfactory manner.
Defects with bus 71 that she endured throughout her employment
included defective brake pressure lights, headlights, rear
lights, clutch, alternators, and heating system (inoperable in
February in Vermont), as well as an engine fire. These
defects were logged chronologically by O'Dougherty. (CX2).
O'Dougherty's logging and communication to Pond of defects
affecting bus 41, including, inter alia, an inoperable
horn, wipers, directionals, and defroster and her noting to Pond
that this bus had been improperly issued an inspection sticker
also constituted protected activity. Finally, O'Dougherty's
complaints to both the Vermont Department of Motor Vehicles and
the principal of Wells school concerning these problems
constituted protected activity. Her complaints not only directly
related to motor vehicle safety but implicated Respondent's
violation of federal and state motor vehicle safety regulations.
49 CFR sections 392.7, 392.1 and 393.3.
[PAGE 10]
Second, O'Dougherty was the subject of adverse action
since she was fired by Respondent on April 3, 1993.
Third, Respondent was aware of O'Dougherty's
protected activity. She communicated her concern about bus
safety defects to Pond in person, over the radio, and by logging
them. With regard to her complaint to the Vermont Motor Vehicle
Department, Respondent Skjetne admitted that he was aware of her
complaint around March 29th or 30th, including the related
department inspection audit scheduled on March 31st.
Finally, the causal connection between her complaint
and the adverse action taken against her is clear. When she
informed bus coordinator Pond on March 30 that she had complained
to "DOT" and that an inspection would occur on March 31st, Pond
responded that "Bud wasn't going to be happy about this." (Tr.
266). Only four days after she informed Respondent about her
"DOT" complaint and three days after the Vermont Motor Vehicles
Department inspection audit, Respondent Skjetne fired her. The
close proximity in time between the complaint-generated
inspection and adverse employment action suggests that
O'Dougherty was fired as a result of safety animus. See
Moon, 836 F.2d at 229; NLRB v. American Geri-Care,
Inc., 697 F.2d 56, 60 (2nd Cir. 1982); Jim Causely
Pontiac v. NLRB, 620 F.2d 122, 125 (6th Cir. 1980);
Newkirk v. Cypress Trucking Lines, No. 88-STA-17
(Secretary's Decision, February 13, 1989). Additional evidence
of Respondent's illegitimate motivation is revealed by his
callous indifference to O'Dougherty's safety concerns, which is
highlighted by the assignment to O'Dougherty of bus 41, a bus
laden with safety defects, immediately after she had refused to
drive bus 71 because of its numerous and outstanding equipment
defects. The fact that Respondent would issue bus 41 an
inspection sticker is direct evidence of Respondent's brazen
safety animus. The unrebutted testimony that Respondent's
mechanic did not fix bus 41's horn because Respondent was not
going to pay for it is further evidence of Respondent's
indifference toward safety and his elevation of budgetary
concerns over legitimate safety concerns. (Tr. 228) Respondent's
part-time mechanic's testimony that "25 problems with nine buses
is not bad" is symptomatic of a pervasive indifference to safety
matters. (Tr. 96).
Respondent produced no evidence to rebut O'Dougherty's prima
facie case. Respondent's contention that O'Dougherty was fired
because he learned from the school superintendent that someone in
the community had alleged that she transported furniture on a bus
sometime in January 1993 is pure pretext and not credible.
Respondent never informed O'Dougherty about this allegation until
the day of her firing on April 3, 1993, which suspiciously
occurred only days after her complaint to DOT. Moreover,
O'Dougherty denied this allegation and Respondent never made any
[PAGE 11]
effort to determine the truth of the allegation. Significantly,
bus coordinator Pond confronted O'Dougherty in March 1993
regarding complaints from Kim Hunter about 0'Dougherty's handling
of her nephew on a bus and her alleged speeding, but Pond never
confronted O'Dougherty about the allegation of transporting
furniture. When asked about this apparent discrepancy, Pond
readily admitted that it was inconsistent. (Tr. 303). Respondent
Skjetne's testimony that O'Dougherty never notified him of any
problems with the buses and, to his knowledge, never passed her
daily check-off (vehicle defect) sheet to Pond relative to bus
problems divulged to DOT (Tr. 126-27) is contradicted by Pond's
testimony that the company policy was for the bus driver to
report bus safety defects to her, not Skjetne. (Tr.285).
For these reasons, I find that O'Dougherty was discharged in
violation of section 2305(a) and therefore she is entitled to
back wages, at average weekly wage of $153.00, for the remaining
two months of her employment.
Complainant Peer was laid off on April 5, 1993, the day he
voiced support of and association with Complainant O'Dougherty's
safety defect complaints. The close proximity in time between
Peer's association with O'Dougherty's safety complaint and his
termination suggests a causal connection between his termination
and his support of O'Dougherty's causes. The termination of Peer
based on his association with another employee's complaint about
safety concerns constituted a wrongful termination under the
STAA. Reich v. Cambridgeport Air Systems, Inc., 26 F.3d.
1187, 1189 (lst Cir. 1994). Respondent nevertheless argues that
Peer's termination resulted solely from a consolidation of bus
routes to save money, a legitimate and nondiscriminatory reason.
However, even accepting Respondent's argument for a moment, there
is no adequate explanation of why Peer was not given the job
O'Dougherty vacated on April 3, 1993. Significantly, coordinator
Pond admitted that Peer's complaints about bus safety defects
played a part in the decision not to give him O'Dougherty's job.
(Tr. 298-99). Since such complaints constitute protected
activity, at least there was some causal connection
between Peer's protected activity and his termination. Since
Respondent has failed to show that he would have made the same
decision as to Peer's termination in the absence of Peer's
protected activity, I find that Peer was terminated in violation
of section 2305(a). Price Waterhouse v. Hopkins, 490
U.S. 228, 252 (1989).
Like O'Dougherty, I would assume Peer's employment was also
for the school year ending in June, 1993. However, no back wage
can be awarded since Peer has not provided his W-2 statement for
me to compute his average weekly wage. If such W-2 statement
should be submitted later, a supplemental order will be issued.
RECOMMENDED ORDER
As Complainant O'Dougherty has established a violation
against her by Respondent under the STAA, it is therefore
recommended that the Secretary of Labor ORDER that:
1. Respondent pay O'Dougherty for back wage commencing
April 3, 1993 for two months, at the weekly rate of $153.00.
2. Respondent shall pay O'Dougherty interest on all back
wages in accordance with 29 U.S.C. section 1961.
VICTOR J. CHAO
ADMINISTRATIVE LAW JUDGE
[ENDNOTES]
[1] Section 405(a) states, "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 any proceeding relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order, or has testified or it about to testify in
any such proceeding."
[2] The Regional Administrator's following findings are not in
dispute: 1.(a) Respondent, Bud's Bus Service, is a wholly owned
private company operated primarily by Bjarne Skjetne, Jr. and is
engaged in the business of transporting public school children on
a contract basis. The company maintains a place of business in
Proctor, Vermont. (b) In the regular course of this business,
respondent's employees operate commercial motor vehicles in
intrastate and occasionally interstate commerce in the
transportation of public school students. (c) Respondent is now
and, at all times material herein, has been a person as defined
in Section 401(4) of STAA (49 USC 2301(4)). 2.(a) At all times
material herein, Sara K. O'Dougherty and Thomas P. Peer were
employees in that they were required to drive commercial motor
vehicles, i.e. school busses, having gross vehicle weight ratings
of 10,000 or more pounds used on the highways in intrastate and
interstate commerce. (b) Complainants were employed by a
commercial motor carrier and in the regular course of their
employment directly affected motor vehicle safety (49 USC
2301(2)(A )).
[3] Hearing transcript will be denoted as "Tr" and complainants'
exhibits will be denoted as "CX".
[4] Wells School policy required that children wear seat belts.
(Tr. 247-48).
[5] It is common for the Vermont Department of Motor Vehicles to
receive anonymous complaints about unsafe motor vehicles because
complainants are fearful of losing their jobs if they reveal
their identity. (Tr. 33). The Vermont Department of Motor
Vehicles gives priority to inspection of school buses because
they transport children. (Tr. 36).
[6] Although Pond was Respondent's contact person with the school
superintendent and worked with her on problems of a disciplinary,
scheduling or mechanical nature, Pond never communicated to the
superintendent any problems regarding the buses during the
superintendent's involvement with Respondent. (Tr. 39040).
[7] Orrin Andrew Mitchell, Respondent's part-time driver and
mechanic testified that he did not agree with the State's
suspension of Respondent's inspection license because he believed
that "25 problems with nine buses in not bad." (Tr. 96)
[8] Mechanic Joe Bizon was the one who signed inspection
stickers.
