Date: May 12, 1995
Case No. 94-STA-53
In the Matter of:
VINCENT HATCHER
Complainant,
v.
COMPLETE AUTO TRANSIT
Respondent.
APPEARANCES:
Vincent Hatcher, Pro se
Dearborn, Michigan
For the Complainant.
John W. Ester, Esq.
Matheson, Parr, Schuler, Ewald, Ester & Jolly
Troy, Michigan
For the Respondent.
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Surface Transportation Assistance
Act of 1982 [hereinafter referred to as "the Act" or "STAA"], 49
U.S.C. § 2305, and the regulations promulgated thereunder at
29 C.F.R. Part 1978. Section 405 of the STAA provides protection
from discrimination to employees who report violations of commer-
cial motor vehicle safety rules or who refuse to operate a vehicle
when such operation would be in violation of those rules.
[PAGE 2]
STATEMENT OF THE CASE
The Complainant, Vincent Hatcher [hereinafter referred to as
"the Complainant"], filed a complaint with the Occupational Safety
and Health Administration, United States Department of Labor on
June 6, 1994, alleging that the Respondent, Complete Auto Transit
[hereinafter referred to as "the Respondent"], discriminated
against him in violation of section 405(b) of the Act. The
Complainant contends that he was discharged due, in part, to his
refusal to drive during unsafe weather conditions. The Secretary
of Labor, acting through a duly authorized agent, investigated the
complaint and on September 9, 1994, determined that the Complainant
failed either to meet the 180 day reporting period required under
STAA section 405(c)(1) or produce a justification to toll the
filing requirement, and accordingly dismissed the Complainant's
complaint. (AX 1)[1]
The Complainant filed objections to the Secretary's findings
by way of a letter of September 19, 1994 and requested a hearing
before an Administrative Law Judge. (AX 2) The undersigned
Administrative Law Judge issued an Order to Show Cause why the
complaint should not be dismissed as untimely. (AX 4) The
Complainant responded by way of letter of October 16, 1994 wherein
he alleged that he did not know that his refusal to drive during
unsafe weather conditions on February 16, 1993 would be used
against him regarding his discharge of July 7, 1993. Therefore, I
found that the Complainant raised a genuine issue of material fact
concerning whether the Respondent concealed or misled the Com-
plainant regarding the grounds for his discharge. 29 C.F.R.
§ 1978.102(d)(3). If fully credited, the grounds for
discharging the Complainant could justify the tolling of the
statutory filing period. Thus, by way of an Order of October 27,
1994, I ordered that this matter proceed to hearing.
A formal hearing was conducted on January 10, 1995 in Oak
Park, Michigan with both parties being afforded full opportunity to
present evidence and argument.
ISSUES
1. Whether the Complainant produced a justification to toll
the filing period for complaints under the STAA.
2. Whether the Complainant was discriminated against by the
Respondent as a result of having engaged in an activity protected
under the STAA.
[PAGE 3]
Based on my observation of the appearance and demeanor of the
witnesses who testified at the hearing and upon a thorough analysis
of the entire record in this case, with due consideration accorded
to the arguments of the parties, applicable statutory provisions,
regulations and relevant case law, I hereby make the following:
FINDINGS OF FACT
The Complainant commenced his employment with the Respondent
in May 1977 as an over-the-road commercial tractor/trailer
operator. (Tr. 43) The Respondent, as well as its corporate
ancestry, is a business engaged in interstate and intrastate
trucking operations and maintains a place of business in Pontiac,
Michigan. (AX 1) In the regular course of business, Respondent's
employees operate commercial motor vehicles principally to
transport consumer products. Id. Most recently, the
Complainant served as a local board driver who transported
automobiles on short runs of approximately 100 miles or less. (Tr.
48) Most drivers preferred local board positions because the
driver would always finish his day's work in Pontiac and not
somewhere on the road as would over-the-road drivers. (Tr. 49)
Consequently, such positions were assigned based on seniority.
Id. The Complainant served as a local board driver from
1989 until his discharge on July 7, 1993. Id.
The Complainant testified that over the course of his 17 years
working for the Respondent he received various letters of warning
from the Respondent concerning such items as: loose chains on his
truck, parking his truck in an improper spot, having an accident
and failing to keep his driver's log up-to-date. (Tr. 45) The
Complainant explained that such warnings are common occurrences
with all drivers and that none of the above instances ever resulted
in a threat of discharge. Id.
The gist of the Complainant's case revolves around the events
of February 16, 1993 and July 1, 1993. On February 16, 1993, upon
waking, the Complainant observed falling snow and heard weather
reports of additional snow. He telephoned the Respondent's place
of business and informed them that he would not report to work that
day. The Complainant talked with Russell Pett, Supervisor of
Operations for the Respondent. (Tr. 163) Pett questioned the
Complainant's decision and informed him that the weather was not
bad in Pontiac and that other drivers had reported to work.
Id. Thereafter, the call was somehow disconnected and the
Complainant had no further contact with the Respondent that day.
Id. After the call, Pett shipped the load scheduled for
the Complainant and
[PAGE 4]
also put a disciplinary notice in the Complainant's personnel file
regarding his refusal to report to work. The disciplinary notice
placed in the Complainant's file referenced Article 40 of the union
agreement which deals with refusals to work. (Tr. 164) No evidence
was presented of any other relevant incidents concerning any
employment related problems between February 16, 1993 and July 1,
1993.
On July 1, 1993, the Complainant reported to work at ap-
proximately 6:30 A.M. and delivered a load to New Boston, Michigan
approximately 38 miles from Pontiac. (Tr. 59-60) The Complainant
returned to the terminal in Pontiac at approximately 11:00 A.M. and
had his truck reloaded. (Tr. 60) The Complainant then spoke to
William Smith, the dispatcher, and requested more loads as the
Complainant was paid by the load. (Tr. 62) Mr. Smith informed the
Complainant that he needed to complete his paper work, i.e.,
drivers' logs, for June before he could get any more loads.
Id. During his conversation with Mr. Smith, the Complainant
also informed him that he had to attend to some personal busi-
ness[2] that afternoon and therefore could not deliver another
load to New Boston until later that evening or perhaps the next
work day. (Tr. 63)
Soon thereafter, as the Complainant sat in the drivers' lounge
completing his paper work, he was observed by Denny Dale, Terminal
Manager for the Respondent. (Tr. 51; 143) Mr. Dale had seen that
the Complainant's truck was loaded in the yard and asked the Com-
plainant why he was not in the process of delivering it. (Tr. 143)
The Complainant informed Dale that he had personal business to
complete. (Tr. 66) The Complainant did not inform Mr. Dale that he
was working on paper work pursuant to Mr. Smith's instructions.
(Tr. 66-67; 143) Approximately one hour later, at about 1:00 P.M.,
Mr. Dale returned to the drivers' room and again saw the Com-
plainant. (Tr. 143) Mr. Dale then requested that the Complainant
come into the dispatch area to talk with Dale and Bob Skinner, the
Operations Manager for the Respondent. (Tr. 50; 144) The Com-
plainant testified that he requested that a union representative be
present to witness the meeting, but was refused. (Tr. 51) At the
meeting, Dale ordered the Complainant to take the load to New
Boston as required by the work rules which specified that two loads
be completed each day. (Tr. 144; RX 2) The Complainant told Mr.
Dale that he had personal business and that he could not deliver
the load that day. Id. Mr. Dale allegedly told the
Complainant that "I don't care what you have" and declared that the
load would be delivered by another driver if the Complainant
continued to refuse. (Tr. 52; 144) The Complainant responded that
if Mr. Dale had another driver complete his load then the Complain-
ant would "have his ass." (Tr. 53; 144) Mr. Dale later saw the
Complainant
[PAGE 5]
in the drivers' room discussing the personal business he had that
afternoon in the Flint area. (Tr. 145) Mr. Dale had no further
contact with the Complainant on July 1, 1993.
On July 2, 1992, the Complainant reported to work and found
that his truck was unloaded. (Tr. 73) Because it was too early to
have another load dispatched, the Complainant returned home and
later telephoned the Respondent's office to inform them that he
would not report to work that day. (Tr. 73-74) The Complainant
testified that he did not return to work on July 2, 1993 because he
was too emotionally upset to have another confrontation with Mr.
Dale. (Tr. 74-75) The Complainant was not scheduled to work on
Saturday July 3, Sunday July 4, or Monday July 5, which was a legal
holiday. (Tr. 79) The Complainant reported to work at approximate-
ly 6:30 A.M. on Tuesday, July 6 and worked nine and one-half hours,
completing his required runs. (Tr. 81-82) On July 7, the Complain-
ant reported to work at approximately 7:30 A.M. and
completed one run that morning. (Tr. 83) At approximately 11:30
A.M., Mr. Pett called the Complainant into the back office and
notified him that he was discharged, effective immediately.
Id. The determination to discharge the Complainant was
made solely by Mr. Dale, who prepared the letter of discharge on
the morning of July 7, 1993 and told Mr. Pett to inform the
Complainant of his decision. (Tr. 146) Mr. Dale testified that his
decision to discharge the Complainant was based on the July 1
incident which he considered to be an authorized work stoppage
which is punishable by discharge under Article 40 of the union
agreement. (Tr. 146; 157)
Subsequent to his discharge, the Complainant filed a union
grievance causing a local level meeting to be held on July 8, 1993
between agents of the Respondent and the Complainant's union. (Tr.
147) The meeting was held with the intent of allowing the
Respondent to present evidence and recount the incident so to serve
as a fact finding for the union. (Tr. 148) The February 16, 1993
incident was mentioned when discussing the Complainant's work
history. Id. Thereafter, on July 27, 1993, the
Complainant's grievance was heard before the union's grievance
panel which upheld the discharge of the Complainant based on his
refusal to work as ordered on July 1, 1993.[3] (Tr. 86; RX 6)
On February 15, 1994, the Complainant filed a complaint with
the Michigan Department of Civil Rights alleging that he was
discharged because of his race. (CX 6) The Civil Rights Department
found no evidence of unlawful discrimination and dismissed the
complaint on August 30, 1994. (CX 2) On June 6, 1994, the
Complainant filed his complaint with the Department of Labor
seeking protection under the whistleblower provisions of the STAA.
[PAGE 6]
CONCLUSIONS OF LAWTimeliness of the Complaint
Section 405(c)(1) the STAA requires that complaints of
discrimination be filed within 180 days of the discriminatory
conduct. 49 U.S.C. § 2305(c)(1). The Complainant was
discharged on July 7, 1993, allegedly due, at least in part, to the
Complainant's refusal to operate his commercial motor vehicle
during inclement weather on February 16, 1993. The Complainant
filed his complaint on June 6, 1994, 341 days after the termination
of his employment and substantially beyond the statutory filing
period.
The Complainant testified that he did not know that the
February 16, 1993 incident was used as a basis for his July 7, 1993
discharge until he talked with Bob Secrest of the Black Rider
Network sometime much later. (AX 5) Among the reasons cited in the
STAA's implementing regulations as grounds for tolling the 180 day
statute is "where the employer has concealed or misled the employee
regarding the grounds for discharge." 29 C.F.R. §
1978.102(d)(3). Although the February 16, 1993 incident was
discussed in union grievance hearings immediately following the
July 7, 1993 discharge, I find that the Respondent did not give
notice that the February 16, 1993 incident might be used against
the Complainant to justify the July 7, 1993 discharge. Therefore,
I find that the Complainant has produced evidence which requires
both a tolling of the statutory filing period and a determination
of whether the Complainant was discharged because of activities
protected under the STAA.
Applicable Law
Section 405 of the STAA, provides, in pertinent part:
(b) 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 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 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 cir-
cumstances then confronting the employee, would conclude
[PAGE 7]
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 the employer, and have been unable to obtain,
correction of the unsafe condition.
49 U.S.C. § 2305 (Supp. 1994)
To establish a prima facie case of discriminatory
treatment under the STAA, the Complainant must prove: (1) that he
was engaged in an activity protected under the STAA; and (2) that
he was the subject of adverse employment action; and (3) that a
causal link exists between his protected activity and the adverse
action of his employer. Moon v. Transport Drivers, Inc.,
836 F.2d 226, 229 (6th Cir. 1987). The establishment of the
prima facie case creates an inference that the protected
activity was the likely reason for the adverse action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
(1) Protected Activity
Under Section 405 of the STAA, a driver's refusal to drive
during conditions which the driver considers to present a bona fide
danger of injury constitutes a protected activity. 49 U.S.C.
§ 2305(b). However, the Act offers protection only if 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. Yellow Freight Systems, Inc. v. Reich, 38
F.3d 76 (2nd Cir. 1994). The Complainant testified that he refused
to report to work on February 16, 1993 because of heavy snowfall
and weather reports of additional snow. The Respondent offered
evidence which indicated that other drivers reported to work on
February 16, 1993 and delivered their loads. The mere fact that
other drivers worked during the inclement weather of February 16,
1993 does not establish that the Complainant's apprehension of
driving in such weather was unreasonable. Therefore, because the
record indicates that the weather was such that a reasonable person
could consider the operation of tractor/trailer to be dangerous, I
find that the Complainant's refusal to drive on February 16, 1993
is protected under the STAA. Consequently, the Complainant has
established the first element of his prima facie case.
(2) Adverse Employment Action
The Complainant was discharged from his employment on July 7,
1993. No dispute exists that the discharge of the Complainant
[PAGE 8]
constitutes an adverse employment action under the section 405(b)
of the STAA. Therefore, the second element of the Complainant's
prima facie case is established.
(3) Causation
In order to prevail in his claim, the Complainant must prove,
by a preponderance of the evidence, that the above-mentioned
protected activity and resulting adverse employment action are
connected by a causal link. At a minimum, the Complainant must
present evidence sufficient to raise an inference of causation.
Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June
23, 1992). The Secretary of Labor has declared that, in establish-
ing the causal link between the protected activity and the adverse
action, proof of the employer's knowledge of the employee's
protected activity is sufficient. See Osborn v.
Cavalier Homes, 89-STA-10 (Sec'y July 17, 1991); Zessin
v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993).
The record is clear that the Respondent's Terminal Manager,
who ultimately decided to discharge the Complainant, had knowledge
of the Complainant's work refusal of February 16, 1993. While the
Respondent's knowledge of the Complainant's protected conduct prior
to taking adverse action against the Complainant may be sufficient
to raise an inference of causation for purposes of the prima
facie case, I find no such inference is warranted here.
SeeEtchason v. Carry Companies of Illinois, Inc.,
92-STA-12 (Sec'y Mar. 20, 1995)(Respondent's knowledge of protected
activity alone does not establish causation element). The lack of
proximity between the Complainant's protected activity and the
adverse employment action taken against him makes the causal link
too tenuous. The Complainant's protected activity occurred in
February, almost six months prior his discharge. The record
contains no evidence of any other protected activities between
February, 1993 and July, 1993, or any other adverse employment
actions. Therefore, I find that this lack of proximity breaks the
causal chain and as a result, the Complainant cannot rely on the
Respondent's knowledge of his past protected conduct to satisfy the
causation element of a prima facie case of discrimination
under the STAA. Consequently, I find that the Complainant has
failed to prove, by a preponderance of the evidence, a prima
facie case of discrimination under the STAA.
Rebuttal of the Prima Facie Case
Assuming arguendo that the Complainant satisfied his
prima facie case, I nonetheless find that the evidence
presented by the Respondent successfully rebuts the inference of
discrimination. To
[PAGE 9]
rebut this inference, the employer must articulate a legitimate,
nondiscriminatory reason for its employment decision.
Carroll, supra. A credibility assessment of the
nondiscriminatory reason espoused by the employer is not ap-
propriate; rather, the Respondent must simply present evidence of
any legitimate reason for the adverse employment action taken
against the Complainant. St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993).
The Complainant was discharged on July 7, 1993 after refusing
a direct order from his superior, Denny Dale, on at least two
occasions on July 1, 1993. The Respondent classified the Com-
plainant work refusal as an "unauthorized work stoppage" and
discharged the Complainant in accordance with the Respondent's
union agreement. (RX 3) Thus, the Complainant articulated a
legitimate, non-discriminatory reason for the Complainant's
discharge and thereby has successfully rebutted the Complainant's
prima facie case of discrimination under the STAA.
Pretext
If the employer successfully presents evidence of a nondis-
criminatory reason for the adverse employment action, the Com-
plainant must then prove, by a preponderance of the evidence, that
the legitimate reason proffered by the employer is a mere pretext
for discrimination. Moon, supra; See alsoTexas Dep't of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). In proving that the asserted reason is pretextual, the
employee must do more than simply show that the proffered reason
was not the true reason for the adverse employment action. The
employee must prove both that the asserted reason is false and that
discrimination was the true reason for the adverse action. St.
Mary's, supra, at 2752-56.
The Complainant failed to prove, by a preponderance of the
evidence, that the Respondent's discharge of him on July 7, 1993
was in any way connected to his work refusal on February 16, 1993.
The Complainant's primary evidence supporting his allegation that
he was discharged, at least in part, due to his February 16, 1993
protected activity is the fact that the Respondent discussed the
February 16, 1993 incident at the union grievance proceedings
following the July 7, 1993 discharge. The Respondent contended
that the February 16, 1993 discharge was discussed only to the
extent that panel requested information on the Complainant's work
history. (Tr. 148) The Respondent stated that the February 16,
1993 work refusal was never considered a basis for the July 7, 1993
discharge because the July 1, 1993 incident was grounds for
[PAGE 10]
dismissal in itself. (Tr. 147) The Respondent's letter of
discharge to the Complainant stated simply that the reasons for
discharge were the events of July 1, 1993. (Tr. 146-47; RX 6)
Similarly, the union grievance panel found that the Complainant's
July 7, 1993 discharge was based solely on his July 1, 1993
actions. (RX 7)
Consequently, I find that the Complainant has failed to offer
conclusive evidence that his protected activity of February 16,
1993 was the true reason for his discharge on July 7, 1993, or that
the reasons offered by the Respondent were false.
Conclusion
Based on the foregoing, I find that the Complainant has failed
to prove, by a preponderance of the evidence, a causal link between
his protected activities and any adverse employment action taken
against him by the Respondent. Therefore,
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint of Vincent Hatcher
be DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
NOTICE
This Recommended Decision and Order and the administrative file in
this matter will be forwarded for review by the Secretary of Labor
to the Office of Administrative Appeals, U.S. Department of Labor,
Room S-4309, Frances Perkins Building, 200 Constitution Ave., NW,
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]
In this Recommended Decision and Order, "AX" refers to Administra-
tive exhibits, "CX" refers to Complainant's exhibits, "RX" refers
to Respondent's exhibits, and "Tr." refers to the Transcript of the
hearing.
[2]
Complainant's personal business consisted of depositing funds in
his credit union in Flint, Michigan so that his daughter could
purchase an airline ticket to fly to Flint that evening. (Tr. 64)
[3]
At the hearing, the Complainant made allegations of insufficient
union representation at the grievance proceedings and also that he
believed that the Respondent and his union acted in concert to have
him discharged. As these matters constitute alleged violations of
the National Labor Relations Act, and because the National Labor
Relations Board serves as the proper forum for investigation into
such matters, I will not discuss them further.
