DATE: November 14, 1994
CASE NO.: 94-STA-25
In the Matter of
JOHNNY E. GENTRY,
Complainants
v.
ROCKET EXPRESS, INC.,
Respondent
Appearances:
Johnny E. Gentry, Pro Se
Lee H. Mize, Jr., Esquire
For the Respondent
BEFORE: David A. Clarke, Jr.
Administrative law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection
(whistleblower) provision (Section 405) of the Surface
Transportation Assistance Act of 1982, 49 U.S.C. app. § 2305
(1982) (the "Act"), which prohibits covered employers from
discharging or otherwise discriminating against employees who
have engaged in certain protected activities.
Johnny E. Gentry, Complainant, filed a complaint with the
Secretary of Labor, on or about April 13, 1993, alleging that
Respondent, Rocket Express, Inc., discriminatorily terminated
Complainant's employment for refusing to drive in violation of
Department of Transportation (DOT) regulations. Respondent
denied the allegations. Following an investigation of this
matter by a duly authorized investigator, the Secretary of Labor,
acting through his agent, the Regional Administrator, for the
Occupational Safety and Health Administration, Region IV,
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pursuant to Section 405 of STAA and Secretary's Order 9-83, 48
F.R. 35736 (August 5, 1983), and further delegation of authority
in Chapter X of the Field Operation Manual, OSHA Instruction CPL
2.45B, determined that Complainant's employment termination was
not in violation of Section 405 of the Act.
On March 9, 1994, Complainant filed an objection to the
Secretary's findings and requested a hearing before an
Administrative Law Judge. A hearing was held on May 10, 1994 in
Atlanta, Georgia. The parties were present and participated in
the presentation of testimony and documentary evidence.
Complainant appeared without counsel and stated that he wished to
represent himself.
Statement of the Case
Respondent, Rocket Express, Inc., is engaged in interstate
trucking operations and maintains a place of business in Atlanta,
Georgia. In the regular course of business, Respondent's
employees operate commercial motor vehicles in interstate
commerce principally to transport cargo. Consequently,
Respondent is a commercial motor carrier and subject to the Act.
Complainant was hired by Respondent in 1990 to drive
commercial trucks and load and unload cargo (dockwork) to and
from trucks. Complainant's employment was terminated on April 1,
1993.
Complainant alleges that he was terminated because on
February 9 and 10, 1993, he notified Respondent that he would not
drive assigned trucks that lacked reflectors on rear doors.
Respondent contends that Complainant was terminated on grounds of
insubordination because of his refusal to do dockwork at the
direction of his supervisor on March 20, 1993, and because his
attitude toward his job and Respondent had deteriorated to the
point of effecting the moral of other employees. (R. Exh. 12)
The evidence indicates that Complainant's usual work
schedule was to report to Respondent's plant at 5:00 p.m., be
assigned a truck by the dispatcher, perform a pre-trip safety
inspection of the truck, make his deliveries and pick-ups, return
to the plant at 1:15 a.m. to 2:00 a.m. (T. 45, 120), complete
post-trip paperwork and participate in dockwork, go to lunch from
3:00 a.m. to 3:30 a.m. and then clock-out and go home.
Complainant's work was satisfactory up until the late summer or
early fall of 1992, when he was passed over for a promotion to
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third shift supervisor. (T. 123, 185) The night operations
manager testified that Complainant started taking longer to do
assigned tasks and often had to be looked-for in order to be
assigned work. (T. 123)
On January 21 and 22, 1993, Complainant received a verbal
warning and a written warning, respectively, for failure to sign
his daily vehicle paperwork. He subsequently began making more
thorough pre-trip inspections of assigned trucks and wrote-up any
items that he believed violated Department of Transportation
(DOT) regulations. On February 9, 1993, Complainant was assigned
and rejected three different Hino Trucks because they lacked
reflectors on their rear doors. There were no other trucks
available and no dockwork was available. As a result,
Complainant was sent home without pay. 1/
(28,29,117,151) The same scenario occurred the next day,
February 10, 1993. D.O.T. was contacted and it was determined
that the missing door reflectors were not necessary because the
tail light lenses contained reflectors. (T. 34) Complainant
resumed driving the trucks and the reflector issue was dropped.
Complainant, however, was upset that he had lost two days pay.
He discussed the matter with his supervisor and wrote a letter to
Respondent's president requesting a meeting to further discuss
the matter. (T. 35) Resolution of the pay issue was referred to
Lee Mize, Vice President, with whom Complainant met. (T. 38)
Mr. Mize would not authorize payment of the lost wages, so
Complainant filed an action in Clayton County small claims court.
2/ (T.39) During the course of this litigation, Mr. Mize
filed a letter with the court describing Complainant's job as
that of a Driver rather than a Driver/Warehouseman. (Resp. Exh.
27) While Respondent had never prepared written job descriptions
for its drivers, the drivers understood that they would do
dockwork or any other work directed by a supervisor. (T. 119,
120, 44) Nevertheless, Complainant interpreted Mr. Mize's letter
to mean that he did not have to do dockwork. (T. 106-109)
Complainant began discussing his job duties with supervisors and
other employees and wanted a written job description. During
this period, Complainant made himself less available for dockwork
and supervisors had to look for him to assign work. (T. 120-121)
On March 20, 1993, Complainant returned from his run at
about 2:00 a.m. He unloaded his truck and went to the break room
to complete his paperwork. At about 3:00 a.m. Walter McElwaney,
the third shift supervisor, having been advised that the trailer
was still attached to Complainant's truck, asked Complainant to
drop the trailer from his truck. (T. 45,47) Complainant refused
stating that he was on his lunch break. (T. 163-164) Walt asked
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Complainant to help with dockwork and asked why he had not
reported for dockwork upon returning from his run. Complainant
said he was no longer a dockworker; whereupon Walt told
Complainant to clock-out and go home if he was not going to work
after returning from a run. (T. 165-180) Other employees who
were present came out of the dispatch office and helped on the
dock. Complainant
_______________________________
1/ Other drivers have been sent home for lack of
dockwork. (Resp. Exh. 14) Respondent does not replace
dockworkers with drivers who have greater seniority.
2/ This case was resolved in Respondent's favor on
April 15, 1993.
did not help. (T. 182) The conversation between Walt and
Complainant lasted 10 to 20 minutes. No safety issues or
protected activities were discussed during this conversation.
Walt reported the incident to management.
On March 31, 1993, Complainant and his supervisors met to
discuss Complainant's annual performance evaluation. 3/
Complainant was told that his job performance had regressed over
the last year and that he seemed to be having problems with
everything. (T./ 47,48,121) Complainant protested the poor
evaluation and expressed a hatred and lack of respect for the
company. (T. 110, 121) The following day, April 1, 1993,
Complainant was dismissed for insubordinate acts on March 20,
1993, and for exhibiting a poor attitude toward his job to the
point of adversely effecting the morale of other employees.
(Resp. Exh. 12)
Issue
Whether Respondent was retaliating or discriminating against
Complainant, in violation of Section 405 of the Act, when it
terminated Complainant's employment on April 1, 1993?
Law
The relevant portion of the Act provides:
§ 2305. PROTECTION OF EMPLOYEES
(a) . . .
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(a) PROHIBITION AGAINST DISCHARGE, DISCIPLINE, OR
DISCRIMINATION FOR REFUSAL TO OPERATE VEHICLE IN
VIOLATION OF FEDERAL RULE, REGULATION, ETC., OR BECAUSE
OF APPREHENSION OF SERIOUS INJURY DUE TO UNSAFE
CONDITION; REASONABLE PERSON STANDARD.
No person shall discharge, discipline, or in any
manner discriminate against an employee with respect to
the employee's compensation, terms, conditions, or
privileges of employment for refusing to operate a
vehicle when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or
health, or because of the employee's reasonable
apprehension of serious injury to himself or the public
_________________________________
3/ Complainant requested that the performance evaluation
meeting be videotaped; his supervisors refused. (T. 47)
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 protection under this subsection, the
employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe
condition.
Discussion
Respondent's pre-trip write-ups of missing reflectors from
assigned trucks on February 9 and 10, 1993, and reports of these
alleged defects to his supervisor constituted protected activity
under the Act, eventhough it was subsequently determined that the
reflectors were not required. However, it does not appear the
Complainant's protected activities were the reason for this
termination. In fact, other drivers have written-up truck
defects during pre-trip inspections and there is no evidence of
retaliation against these drivers. (Resp. Exhs. 20-24)
Complainant appears to have developed a less than positive
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attitude toward his job after being passed-over for the third
shift supervisor position. Complainant stated that he was
disappointed when he did not get the job. (T. 185-186) His
supervisor stated that Complainants work started going downhill.
(T. 123) Complainant's disappointment was acerbated by the two
reprimands he received in January, 1993. He previously had been
driving the Hino Trucks on a regular basis, but after being
reprimanded by his supervisor he started doing more thorough pre-
trip inspections in which he "crossed all my "t's" and dotted all
my "i's"." (T. 86, 90)
On February 9 and 10, 1993, he refused to drive the
available trucks because of missing door reflectors; he was sent
home without pay on both days. Complainant was upset about the
loss of pay and Respondent's refusal to pay him for these two
days. He talked to his supervisors about it, wrote to
Respondent's president, met with Respondent's vice president and
finally sued Respondent in small claims court. Complainant
testified that Respondent was being unfair by refusing to pay him
and that this event changed his attitude toward the company. (T.
113-114)
Thereafter, Complainant started talking to other drivers
about their job descriptions, Mr. Mize's letter and whether they
were required to do dockwork in addition to their driving duties.
(T. 105)
Complainant's refusal to cooperate with his supervisor on
March 20, 1993 was a further reflection of his displeasure with
Respondent and his job. He refused the supervisor's directive to
drop his trailer eventhough it was customary that the driver who
used the trailer drop it for use by the next driver and he
refused to assist with dockwork, questioning whether it was in
his job description. Whether these events occurred just prior to
or during his lunch break are not material. The evidence
indicates that Complainant had free time after returning from his
run and before his lunch break during which he did no work.
Moreover, he did not eat during the lunch break and refused the
supervisor's directives.
During Complainant's performance review a few days later, he
verbalized his hatred and disrespect for the company, and was
terminated the next day. Respondent presented evidence of other
employees who had been terminated for insubordination. (Resp.
Exhs. 25, 26) Moreover, Respondent has a written disciplinary
and dismissal policy which includes insubordination as a ground
for dismissal. (Resp. Exh. 13)
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The weight of the creditable evidence supports Respondent's
contention that Complainant was terminated for insubordination
and effecting co-worker morale, not for protected activities
under the Act.
I find, on the basis of this record, that Complainant's
deteriorating attitude toward Respondent and his job, his
questioning of driver's job descriptions and duties with
supervisors and co-workers and his refusal to follow a
supervisor's orders were just cause for his termination. I find
no creditable evidence to support a connection between
Complainants' reports of missing reflectors and his job
termination.
Recommended Order
Accordingly, it is ORDERED that the complaint of Johnny E.
Gentry be, and hereby is, DISMISSED.
David A. Clarke, Jr.
Administrative Law Judge
