DATE ISSUED: December 30, 1994
CASE NO: 94-STA-24
In the Matter of
MICHAEL BRYANT,
Complainant,
v.
HELENA TRUCK LINES, INC.,
Respondent.
APPEARANCES:
Michael Bryant, Pro se
3819 St. Route 588
Gallipolis, Ohio 45631
For the complainant
Chris J. North, Esquire
Vorys, Sater, Seymour & Pease
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
For the respondent
BEFORE: DONALD W. MOSSER
Administrative Law Judge
DECISION AND ORDER
This proceeding arises under the employee protection provi-
sion of the Surface Transportation Assistance Act of 1982, 49
U.S.C. § 2305 (the Act) and the regulations promulgated
thereunder, 29 C.F.R. Part 1978.
[PAGE 2]
Complainant, Michael Bryant, filed a complaint with the
Secretary of Labor on April 5, 1993 alleging that Bob Evans
Transportation (Bob Evans) discriminated against him in violation
of Section 405 of the Act. The Secretary, acting through his
duly authorized agents, investigated the complaint and determined
that there was no reasonable cause to believe that Bob Evans
violated Section 405. The Secretary's findings were issued on
December 13, 1993. (ALJX 1).
On March 4, 1994, Mr. Bryant mailed his appeal opposing the
findings of the Secretary. On April 26, 1994, respondent filed a
motion to dismiss on the grounds Mr. Bryant failed to timely file
his objections and a request for a hearing. I conducted a formal
hearing on May 26, 1994 at Gallipolis, Ohio, at which time the
parties were afforded the opportunity to present both documentary
and testimonial evidence on all of the issues. Since the parties
formally waived the procedural time constraints, the record was
left open until July 25, 1994 for the filing of simultaneous
original briefs. By an order dated July 11, 1994, the evidentia-
ry record in this case was closed and I extended the date for
filing the briefs to August 8, 1994. The findings of fact and
conclusions of law as set forth in this decision are based on a
thorough review of the evidentiary record and consideration of
the written arguments of the parties.[1]
ISSUES
1. whether the appeal filed in this case is timely;
2. whether the complainant was discharged in violation of
Section 405 of the Act; and,
3. whether the complainant's termination was due to his
involvement in an activity protected by the Act.
FINDINGS OF FACT
Bob Evans Transportation (Bob Evans), engages in interstate
trucking operations on a commercial basis. It maintains an
office and terminal in Bidwell, Ohio. Seventeen truckdrivers and
two mechanics are employed at Bidwell to cover the routes run by
nine trucks and ten trailers in Ohio, Texas, Virginia, Maryland,
Pennsylvania and West Virginia. (Tr. 98). Respondent's trans-
portation manager at this location is James Denney. His respon-
sibilities include completing personnel records relating to such
matters as taxes, drug testing and previous experience of the
[PAGE 3]
truckdrivers. Denney also must verify the drivers' commercial
licenses, check for previous traffic violations and insure that
all necessary examinations are conducted, such as a physical
exam, road test and written driver's test. It also is his
responsibility to explain the safety policies to the drivers and
distribute the company's safety manual and the Federal Motor
Carrier Safety Regulations Pocketbook. (Tr. 99-101).
Mr. Bryant began his employment as a full-time truckdriver
with Bob Evans in August of 1988. Complainant's regular route
was the east coast run, a two-day round trip from Bidwell to
Laurel, Maryland. His regular driving partner was Charles
Camden. (Tr. 105-106).
Denney scheduled Sherman "Mike" Kirby to work with complain-
ant during the first week of April, 1993 while Camden was on
vacation. (Tr. 105-106). Complainant called the dispatcher's
office on Monday morning, April 5, 1993, to ask with whom he was
going to work on the east coast run later that day. Denney
informed the complainant that Kirby would accompany him. Com-
plainant told Denney that he refused to drive with Kirby. (Tr.
45-46, 106). Bryant previously had complained about Kirby's
driving ability after working with him. (Tr. 102-103). Denney
therefore sent Kirby on the east coast run with Michael Saxon,
who had been scheduled to work in maintenance. (Tr. 106).
Later in the morning on that same date, Bryant came to
Denney's office. Denney told the complainant that Bryant would
still have a job with Bob Evans if he would work the east coast
run with Kirby on Wednesday. Bryant also was told that he could
drive the mountainous portion of the route if he was concerned
about Kirby's driving ability. Complainant replied that driving
under such an arrangement would "break up" his Department of
Transportation driving logs. Denney did not understand this
concern since neither Bryant nor Kirby would have to drive over
ten hours on the run. Bryant then requested the week off, which
Denney refused. (Tr. 106-108).
Complainant returned to Denney's office later that afternoon
nsisting that he had been fired. Denney again explained that
Bryant could back to work if he would take the scheduled run on
Wednesday. Bryant threatened to "mop the floor" with Denney,
then apparently left. (Tr. 108-109).
Denney scheduled Kirby and Saxon to take the east coast run
on April 7, but would not allow them to leave until after it was
time for Bryant to report to work. Complainant did not report to
[PAGE 4]
work on that date but he did come in later to get some of his
personal belongings. Bryant told Denney that he had been fired
and that he wanted his paycheck, profit sharing and anything else
to which he was entitled because of the termination. Denney told
the complainant that he had not been fired yet and that he could
still work if he took the east coast run on Friday with either
Kirby or another part-time driver named Jenkins. Bryant replied
that he would not work with either Kirby or Jenkins. (Tr. 109-
111).
Bryant neither reported for work nor telephoned Denney on
Friday, April 9. Saxon and Kirby again took the east coast run
after waiting for the complainant. Bryant was terminated on
Saturday, April 10, 1993, for refusing available work. (Tr. 111;
CX 2).
Kirby was hired by Bob Evans in March of 1992. Previously,
he had been a truckdriver for Swift Transport. He has experience
driving in the mountains. No driver, other than Bryant, has ever
refused to drive or run with Kirby. (Tr. 63, 65, 66-67).
Denney personally administered the road test for Kirby,
driving from Bidwell to Xenia, Ohio and back. (Tr. 99-100; RX
5). His assessment was that Kirby did exceptionally well for a
young driver. (Tr. 101). Kirby had never received a traffic
citation at the time he was hired by Bob Evans and had never been
involved in an accident. (RX 3).
Bryant first worked and rode with Kirby in May of 1992. He
thought Kirby was not a good or safe driver apparently because
Kirby experienced some trouble shifting gears and driving the
truck through the mountains. However, the complainant worked
with Kirby on six consecutive days in that month and they drove a
total of 3,300 miles. Kirby neither was involved in an accident
nor received any traffic citations while driving with Bryant.
(Tr. 30, 44).
Saxon has been a truck driver for 22 years. It is his
opinion that Kirby is a safe driver. He experienced no problems
with Kirby's driving while working with him in April of 1993.
(Tr. 91).
Ron Burnett, another truckdriver for Bob Evans with consid-
erable experience, has worked with Kirby. He believes Kirby to
be an unsafe driver during icy conditions. He also experienced
one incident in which he believed Kirby was driving too fast
while approaching an accident scene. (Tr. 18-28).
[PAGE 5]
Larry Kingery, a mechanic for Bob Evans, was present on
April 7, 1993 when Denney assured the complainant that he was not
fired. Kingery has heard Bryant and Burnett complain about
Kirby's driving ability. However, he has not heard any other
drivers complain about Kirby. Kingery believes Kirby to be an
excellent driver although his riding with Kirby has only been on
short runs of a few miles between the shop and Bob Evans plant.
(Tr. 80-84).
Bryant filed a complaint with the U.S. Department of Labor
on April 5, 1993 regarding his termination by Bob Evans. The
complaint was investigated and the Department of Labor determined
in the Secretary's findings dated December 13, 1993 that there
was no reasonable cause to believe that Bob Evans violated the
Act in terminating the complainant. (ALJX 1). Mrs. Bryant
telephoned personnel of the Department of Labor to inquire about
the findings. She was told the findings were sent by certified
mail and were not "picked up" by Bryant. Mrs. Bryant requested
another copy of the findings which were received on February 5,
1994. (Tr. 55-56). Mrs. Bryant again telephoned personnel of
the Department of Labor regarding the appeal period and she was
told that the 30-day time limit for the appealing of the findings
would start from the time Bryant actually received the findings.
(Tr. 56; ALJX 7). Bryant filed his appeal of those findings on
March 4, 1994. (Tr. 55, 56; ALJX 1, 7).
CONCLUSIONS OF LAWTimeliness of Appeal
Section 405 of the Act allows any aggrieved party to file
objections to the findings with the Department of Labor within 30
days. The respondent argues that on January 12, 1994, 30 days
after the Secretary issued his findings, complainant had filed no
objection and therefore the findings became final. Counsel notes
that complainant's appeal was mailed on March 4, 1994, which is
81 days after the Secretary issued his findings and 51 days after
the dismissal of the complaint was final.
Respondent, in its memorandum in support of its motion to
dismiss, stresses that the Act's stated time restrictions provide
adequate opportunity to request a hearing following notification
of the findings of the Secretary. Counsel points out the Fifth
Circuit's view on these time limitations by quoting:
We are not unmindful of the need for the expeditious
[PAGE 6]
consideration and disposition of complaints filed under STAA and
the hardship the employer or employee may suffer when the pro-
ceedings are unnecessarily delayed. We are also aware that the
Supreme Court has expressed concern about the inordinate amount
of time involved in STAA actions. Roadway Express, Inc. v. Dole,
929 F.2d 1060, 1067 (5th Cir. 1991)(citing Brock v. Roadway
Express, Inc., 481 U.S. 252, 270-71 (1987)(Brennan, J., dissenting)
(describing time restrictions as "overly generous")).
Complainant did not receive the Secretary's findings until
February 5, 1994. Mrs. Bryant credibly testified at the hearing
that she contacted the Department of Labor regarding this matter
and was assured that the time period for the filing of an appeal
did not commence until the Secretary's findings were received.
Bryant filed his appeal on March 4, 1994, which was within 30
days of the receipt of the findings.
The regulations pertaining to the filing of an appeal of the
Secretary's findings under the Act provide that the appeal is to
be filed "[w]ithin thirty days of the receipt of the findings."
29 C.F.R. § 1978.105. Since Bryant received the findings of
the Secretary on February 5, 1994 and filed his appeal within
thirty days of that date, I find that his appeal should be
considered timely. Assuming arguendo that Bryant's appeal
did not meet the strict time requirements of the Act, I believe
the facts of this case justify a finding of equitable modifica-
tion because Bryant diligently pursued his appeal rights and the
respondent has suffered no prejudice from the delay. See
Spearman v. Rodeway Express, Inc., Case No. 92-STA-1 (Sec'y
Dec. August 5, 1992). Therefore, I shall consider the merits of
the complainant's appeal.
Section 405
This case arises under the Service Transportation Assistance
Act as Michael Bryant was employed as an over-the-road truck-
driver from 1988 to 1993 by Bob Evans which was engaged in the
operation of the commercial motor vehicles in interstate commerce
to transport cargo. 49 U.S.C. § 2301(2)(A). Mr. Bryant
alleges in his complaint that he was fired by Bob Evans for
refusing to team with an inexperienced driver. Therefore, the
complaint falls within Section 405(b) of the Act which provides:
No person shall discharge, discipline, or in any manner
discriminate against an employee with respect to an
[PAGE 7]
employee's compensation, terms, conditions, or privileges of
employment for refusing to operate a motor vehicle when such
operation constitutes a violation of any Federal rules, regula-
tions, standards or orders applicable to commercial motor vehicle
safety or health, or because of the employee's reasonable appre-
hension of serious injury to himself or to 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 unsafe condition. In order to qualify
for the protection under this subsection, the employee must have
sought from his employer, and have been unable to obtain, correc-
tion of the unsafe condition.
49 U.S.C. § 2305(b).
Section 405 was enacted in 1983 to encourage employee
reporting of noncompliance with safety regulations governing
commercial motor vehicles. 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.
Section 405 protects employee "whistle-blowers" by forbidding
discharge, discipline, or other forms of discrimination by the
employer in response to an employee's complaining about or
refusing to operate motor vehicles that do not meet the applica-
ble safety standards. 49 U.S.C. App. §§ 2305(a)(b).
Yellow Freight System, Inc. v. Reich, 27 F.3d 1133 (6th
Cir. 1994).
An employee establishes a prima facie case of a
Section 405 violation by proving three elements: (1) that his
employment engages him in protected activity; (2) that his
employer took adverse employment action against him; and (3) that
a "causal link" exists between his protected activity and the
employer's adverse action. Yellow Freight System, Inc. v.
Reich, 27 F.3d. 1133; Moon v. Transport Drivers, Inc.,
836 F.2d 226 (6th Cir. 1987); McGavock v. Elbar, Inc., 86-
STA-5 (Sec'y July 9, 1986); Moyer v. Yellow Freight
Systems, Inc., 89-STA-7 (Sec'y November 21, 1989), aff'd
in part and rev'd on other grounds, sub. nom., Yellow Freight
Systems, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992),
citing Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981) and Mt. Healthy City School District Board of
Education v. Doyle, 429 U.S. 274 (1977). If the complainant
satisfies this requirement, then the evidentiary burden shifts to
the employer to prove that the employee was discharged for a
[PAGE 8]
legitimate non-discriminatory reason. The evidence produced by
the employer to rebut the presumption of discrimination only has
to raise a genuine issue of fact as to whether discrimination
actually occurred; it does not have to prove at this stage that
it was actually motivated to fire a complainant because of the
proffered reason. Burdine, 450 U.S. at 454, 455. The
complainant must then prove that the employer's explanation for
terminating his employment is not the "true reason."
The Supreme Court has stated that Section 405 of the STAA
"protects employees in the commercial motor transportation
industry from being discharged in retaliation for refusing to
operate a motor vehicle that does not comply with applicable
state and federal safety regulations or for filing complaints
alleging such noncompliance." Brock v. Roadway Express,
Inc., 481 U.S. 252 (1987). However, the instant case does
not involve a question pertaining to the condition of a motor
vehicle. Indeed, it involves a claimant who refused to drive
with another driver whom he felt to be unsafe based on past
experience. That experience did not involve an accident, any
damage to the truck, or a traffic citation. Bryant merely
alleged that Kirby was an unsafe driver and refused to drive with
him. His refusal to drive with Kirby is not based on objective
evidence regarding Kirby's driving ability, as Kirby has passed
all the necessary tests for the operation of a truck, and has an
excellent driving record. I again stress that Bryant made no
allegation of safety problems with the truck.
Bryant's refusal to run with Kirby was not because it would
have violated an applicable Federal rule, regulation, standard or
order, or because he reasonably feared serious injury due to an
unsafe condition of the truck equipment. Furthermore, there was
no unsafe condition which Bryant asked Bob Evans to correct. I
find that asking to ride with a driver other than Kirby does not
qualify as a request for the remedying of an unsafe condition,
because Kirby is not an unsafe condition. Bryant's concerns in
his refusal to drive with Kirby therefore are not specifically
protected by regulation, rule, standard or order, and they are
unrelated to the safety of the equipment. Thus, his action of
refusing to drive with Kirby does not qualify as protected
activity.
The "because" clause of Section 405(b) involves a reason-
ableness standard. The Act offers protection only if a reason-
able person, under the circumstances then confronting the employ-
ee, would conclude that there is a bona fide danger of an acci-
dent, injury or serious impairment of health resulting from the
[PAGE 9]
unsafe condition. Yellow Freight Systems, Inc. v. Reich,
38 F.3d 76 (2nd Cir. 1994). In this case, a reasonable person
would not conclude that there is a bona fide danger of a harmful
result simply by teaming with another driver who has an excellent
driving record. Kirby met all federal safety requirements for
the operation of a truck, and he has sufficient training and
experience. I find that Bryant's refusal to ride with him was
not reasonable under the circumstances and therefore is not
protected.
I also find that Denney was not encouraging Bryant to
violate any rules or regulations regarding the operation of the
truck when he suggested Bryant drive the mountainous portion of
the trip. He was not asking Bryant to drive longer than allowed
or to drive while fatigued. It is true that Section 392.3 of the
Federal Motor Carrier Safety Regulations protects a driver who
may unexpectedly encounter fatigue on the course of a journey.
Yellow Freight System, Inc. v. Reich, 8 F.3d 980, 988 (4th
Cir. 1993). 49 C.F.R. § 392.3. However, the evidence in
this case does not show that Bryant was asked to drive under such
conditions or longer than allowed under the Department off
Transportation regulations. See49 C.F.R. § 395.3.
I finally note that I believe that Bob Evans should be
allowed deference in its internal scheduling decisions. It was
up to Bob Evans, through Denney, to decide whether or not to
accommodate Bryant's request to ride with a driver other than
Kirby. I cannot dictate respondent's internal procedures where
they do not conflict with Federal regulations. The Act reflects
the need for a balance between public safety and the needs of
transportation employers. Yellow Freight Systems, Inc. v.
Reich, 38 F.3d 76 (2nd Cir. 1994). In this case, Bob Evans'
need to run its business did not interfere with public safety.
Moreover, the respondent afforded Bryant several chances to
resume his work before terminating him, yet he chose to ignore
those opportunities.
I find that Bob Evans' decision to terminate Mr. Bryant's
employment was based on legitimate reasons unrelated to retalia-
tion for his exercise of a protected activity. Therefore, Bryant
has failed to establish a prima facie case under the Act.
ORDER
For the above-stated reasons, IT IS HEREBY ORDERED that the
complaint of Michael Bryant under the Surface Transportation
Assistance Act is dismissed.
[PAGE 10]
DONALD W. MOSSER
Administrative Law Judge
[ENDNOTES]
[1] References in this decision to ALJX, CX and RX pertain to the
exhibits of the administrative law judge, complainant and respon-
dent. The transcript of the hearing is cited as Tr. and by page
number. Surnames sometimes will be used for purposes of conve-
nience.
