DATE: November 6, 1995
CASE NO: 94-STA-52
Michael K. Cleary,
Complainant
v.
Flint Ink, Corp.,
Respondent
Appearances:
Michael K. Fielo, Esquire
For Complainant
Kevin B. Walker, Esquire
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Surface Transportation Assistance Act,
hereinafter the "Act", 49 U.S.C. §31105 (1982); which
prohibits covered employers from discharging or otherwise
discriminating against employees who have engaged in certain
protected activities.
Complainant filed his complaint on April 20, 1994, and on
August 25, 1994, the Occupational Safety and Health
Administration of the U. S. Department of Labor issued its
investigative findings to the effect that the complaint had no
merit (ALJ 1).[1]
Complainant requested a hearing on September 22, 1994 (ALJ
2, 3) and an initial notice of hearing was issued on October 3,
1994 (ALJ 4) upon the September 29, 1994 assignment of this case
to the undersigned. After three continuances (ALJ 6, 7, 11)[2] ,
[PAGE 2]
the matter was tried on May 8, 9, 1995 in New York, New York.
Briefs were filed by July 21, 1995.
THE LAW
49 U.S.C. §31105. Employee protections
(a) Prohibitions. (1) A person may not
discharge an employee, or discipline or
discriminate against an employee regarding
pay, terms, or privileges of employment,
because -
(A) the employee, or another person at the
employee's request has filed a complaint or begun a
proceeding related to a violation of a commercial motor
vehicle safety regulations, standard, or order, or has
testified or will testify in such a proceeding; or
(B) the employee refuses to operate a
vehicle because -
(i) the operation violates a regulation,
standard, or other of the United States related
to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable
apprehension of serious injury to the employee
or the public because of the vehicle's unsafe
condition.
(2) Under paragraph (1)(B)(ii) of this
subsection, an employee's apprehension of
serious injury is reasonable only if a
reasonable individual in the circumstances
then confronting the employee would conclude
that the unsafe condition establishes a real
danger of accident, injury, or serious
impairment to health. To qualify for
protection, the employee must have sought
from the employer, and been unable to obtain,
correction of the unsafe condition.
Complainant argues that Respondent violated
section(a)(1)(B)(ii) of the Act in discharging him from its
employ on February 8, 1994. He seeks an award for reinstatement,
back wages, and attorney's fees (Tr. 8, 9; Compl' Br. at 1, 3).
Respondent avers that Complainant was discharged for
legitimate, non-discriminatory reasons (Tr. 9-12).
[PAGE 3]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
"Under the burdens of proof and production in
'whistleblower' proceedings, Complainant must first make a
prima facie showing that protected activity motivated
Respondent's decision to take an adverse employment action.
Respondent may rebut this showing by producing evidence that the
adverse action was motivated by a legitimate, non-discriminatory
reason. Complainant must then establish that the reason
proffered by Respondent is pretextual. At all times, Complainant
has the burden of establishing that the real reason for his
discharge was discriminatory. St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993); Thomas v. Arizona Public
Service Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993,
slip op. at 20.
In order to establish a prima facie case, a
Complainant must show that: (1) he engaged in protected conduct;
(2) the employer was aware of that conduct; and (3) the employer
took some adverse action against him. Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 14, 1995,
slip op. at 9, citing Dartey v. Zack Co. of Chicago, Case
No. 82-ERA-2, Sec.Dec., Apr. 25, 1983, slip op. at 7-8.
Additionally, the Complainant must present evidence sufficient to
raise the inference that the protected activity was the likely
reason for the adverse action. Id.See alsoMackowiak v. University Nuclear Systems, Inc., 735 F.2d
1159, 1162 (9th Cir. 1984); McCuistion v. TVA, Case No.
89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6. This
inference of causation can be raised by the temporary proximity
between the protected activity and the adverse action. Zessin
v. ASAP Express, Inc., Case No. 92-STA-33, Sec. Dec., January
19, 1993, slip op. at 13; Bergeron v. Aulenback Transp.,
Inc., 91-STA-38, Sec. Dec., June 4, 1992, slip op. at 3."
Williams v. Southern Coaches, Case. No. 94-STA-44 Secty
Dec. 9/11/95.
As a preliminary matter, I would note that while Complainant
alleges a violation of only section (a)(1)(B)(ii) of the Act, it
is unclear whether section (a)(1)(B)(i) of the Act may be
involved here. The gravamen of Complainant's case is that he was
discharged wrongfully because he refused to drive a vehicle in
unsafe weather conditions where, additionally, the vehicle
involved was loaded unsuitably for those conditions. Such an
allegation may relate to both section (a)(1)(B)(i) - relative to
the weather conditions and section (a)(1)(B)(ii) - relative to
the vehicle's unsafe condition. While weather conditions
certainly find no home in Section (a)(1)(B)(ii) which speaks only
of a "...vehicle's unsafe condition...", refusal to operate a
[PAGE 4]
vehicle in adverse whether conditions may conceivably fall within
the purview of (a)(1)(B)(i).[3] In any event, giving
Complainant every benefit of doubt, I accept Complainant's
factual allegations, as to his refusal to operate due to weather
conditions, as falling somewhere within the parameters of Section
(a)(1)(B), and refuse to sanction him for an inartfully conceived
and/or articulated theory of recovery in this regard.
I find that Complainant has established a primafacie of violation of the Act.
On February 8, 1994, Complainant telephoned his supervisor,
Donald Witt, and refused to drive one of Respondent's vehicles
because of adverse weather conditions (Tr. 25, 27, 30). I find
such communication to be an activity protected under Section
(a)(1)(A) of the Act. See Yellow Freight Sys. Inc. v. Reich,
27 F.3rd 1333 (6th Cir. 1994), holding that the Act's
complaint section protects an employees' safety complaints to
managers.
Moreover, insofar as Complainant's communication relative to
weather conditions[4] , it is clear that Respondent was aware of
such protected activity via its supervisor, Donald Witt (Tr. 221,
etseq). Also, there is no question that
Respondent took some adverse employment action against
Complainant, i.e., Complainant was discharged (Tr. 31, 228).
Finally, I find that Complainant has established, by inference,
that his protected activity was the likely reason for the adverse
employment action because of the temporal proximity between the
protected activity (February 8, 1994) and the adverse action of
the same date, Zessin v. ASAP Express, Inc., Case No. 92-
STA-33, Sec. Dec. 1/19/93; Bergeron v. Aulenback Trans.,
Inc., 91-STA-38, Sec. Dec. 6/4/92.
As far as Complainant's concern about the instability (in
adverse weather) of the tanker truck carrying less than a full
load (Tr. 25, 26, 42, 56, 57), this record is abundantly clear[5]
that Respondent was never made aware of same (Tr. 139, 224, 226,
228). Thus, as Complainant has failed to establish Respondent's
awareness of this concern, such concern cannot be considered
protected conduct under the Act, and Complainant's complaint, in
this regard, is dismissible on this ground alone[6] .
Respondent's position is that Complainant was fired
not because of his refusal to take the subject work
assignment, i.e., his refusal to drive a vehicle in a snowstorm,
but because: (1) Complainant refused such assignment unreasonably
prematurely, and (2) Complainant refused to accept Respondent's
reasonable offer of an optional work assignment.
[PAGE 5]
The facts, in my view, bear out Respondent's contention.
The originally scheduled run was to begin from New Jersey at
midnight on February 8, 1994 for delivery to a new customer in
Pittsburgh, Pennsylvania between 10:00 a.m. and 1:00 p.m. on
February 9, 1994 (Tr. 20, 21, 23, 275, 276). On the morning of
February 8, 1994 at approximately 8:00 a.m., Complainant, having
observed the beginnings of a snowstorm, telephoned his
supervisor, and, after his request to postpone the run was
denied, after another driver (initially) refused to take
Complainant's run, and after Complainant refused Respondent's
optional offer to start the run earlier, Complainant ultimately
refused to take the job assignment (Tr. 23-30; 221-228).
Irrespective of the weather conditions in the a.m. of
February 8, 1994, in either New Jersey or Pittsburgh,
Pennsylvania, I find that Complainant unreasonably refused to
accept Respondent's option to leave earlier on February 8,
1994[7] , and proceed toward Pittsburgh as far as safety would
permit (Tr. 223).[8] That it was important, from a business
prospective, to demonstrate a good faith attempt to deliver to
the new customer, was an exclusive, valid, management decision
and Complainant had no right to question this decision (Tr. 223).
I find no justifiable basis for Complainant's refusal to accept
his supervisor's option.
Furthermore, I find it unreasonable for Complainant to have
(prematurely) flatly and finally decided to not take the run at
8:00 a.m. on February 8, 1994, some sixteen hours prior to the
scheduled run start. The more prudent thing to do would have
been to wait and observe the storm developments prior to making
such decision.
The foregoing unreasonable behavior of Complainant, in my
judgment, justified Respondent's discharge. Accordingly, I find
such discharge to have been made for valid, non-discriminatory
reasons, and that Complainant has failed to establish a violation
of the Act.
RECOMMENDED ORDER
On the basis of the foregoing, I recommend the complaint be
DISMISSED.[PAGE 6]
RALPH A. ROMANO
Administrative Law Judge
Dated: November 6, 1995
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the
administrative file in the matter will be forwarded for review by
the Secretary of Labor, Room S-4309, Frances Perkins Building,
200 Constitution Avenue, N.W., Washington, DC 20210. The Office
of Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] References to the record are: "ALJ" - Administrative Law
Judge exhibits; "CX" - Complainant's exhibits; "RX" -
Respondent's exhibits; "Tr" - transcript of trial. Noted, is
that RX 12 to 14 were not used for identification. Respondent's
exhibits thus run from RX 1-11 and RX 15 and RX 16.
[2] A fourth motion to continue the trial was denied (ALJ 15).
[3] I must assume that the operation of a vehicle in unsafe
weather conditions would somehow violate some "...regulation,
standard, or order of the United States related to commercial
motor vehicle safety or health..." Section (a)(1)(B)(ii).
Respondent itself presents a regulation closely mimicking such a
scenario (see Resp. Br. at 41).
[4] See infra re Complainant's communication relative to
the vehicle's safety condition.
[5] Despite Respondent's counsel's repeated incorrect references
in its brief to this record.
[6] Also, of course, under Section (a)(2), Complainant
would/could not have sought and have been unable to obtain,
correction of the alleged unsafe condition from Respondent,
without having ever notified Respondent of such condition.
[7] I.e., at any point after the approximately 8:00 a.m.
telephone conversation (Tr. 27).
[8] Complainant's implicit suggestion that the unsafe weather
conditions prevented his travel from his home to Respondent's
depot to begin the run, does not help his position here, as such
travel does not appear to be protected under the Act.
