DATE: May 9, 1995
CASE NO: 94-STA-0016
IN THE MATTER OF
KENNETH C. CLIFTON,
COMPLAINANT,
v.
UNITED PARCEL SERVICE,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Complainant Kenneth Clifton alleges that Respondent United
Parcel Service (UPS) violated the employee protection provision
of the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994). Complainant alleges that UPS
fired him because he made safety related complaints to the
Tennessee Occupational Safety and Health Administration (TOSHA).
Respondent claims that Clifton was discharged for "acts of
dishonesty," to wit, taking an excessive break. The
Administrative Law Judge (ALJ) thoroughly summarized the
testimony of the witnesses in his Recommended Decision and Order
(R.D. and O.) at 2-14, but made few findings of fact. After a
review of the entire record I find that the decision of the ALJ
must be reversed and that Clifton should be reinstated, with back
pay and costs to be determined upon remand.
BACKGROUND
Findings of Fact
Kenneth Clifton worked at UPS from June, 1978, until
March 18, 1991. T. 21-22. In March of 1991, Clifton was working
two part-time jobs at UPS, as an air driver and as a shifter.
T. 22. An air driver delivers the overnight packages before
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10:30 a.m. A shifter drives the tractors away from the dock
after a trailer has been loaded. Though most of Clifton's work
was within Tennessee, he was sometimes responsible for interstate
deliveries to Alabama and Kentucky. T. 58. UPS is a commercial
motor carrier in the business of shipping packages throughout the
country and around the world.
In January, 1989, UPS changed the procedure by which
shifters checked and closed their trailers before pulling away
from the dock. T. 23-24. The new procedure was designed by
Brenda Kennedy, a manager in the industrial engineering
department. T. 354 et. seq. Clifton thought this new
procedure was unsafe, and told at least four different managers
that the procedure was dangerous. T. 27. At one point, Clifton
told management that he would complain to TOSHA if the procedure
was not changed. T. 27.
In January, 1990, after Clifton had been complaining about
the switching procedure for approximately one year, Clifton filed
a complaint with TOSHA. T. 28. On March 1, 1990, after
inspecting the switching procedure at UPS, TOSHA issued a
citation and a fine of $300.00 due to the dangerous switching
procedure. On or about March 16, 1990, UPS said that the
procedure would be fixed and all training completed by March 23,
1990. CX 7.[1]
When Clifton realized that the switching procedure was not
being changed, on April 2, 1990, he telephoned the Liberty Mutual
Insurance Company's (Liberty Mutual) loss prevention department.
Clifton told Liberty Mutual about the shifting procedure, the
TOSHA citation and the potential for injuries. T. 31-32. On
April 4, 1990, the new shifting procedure was abandoned and the
shifters returned to the old procedure for checking and closing
the trailers. T. 32.
Throughout Clifton's thirteen year tenure at UPS, he
received a variety of disciplinary actions including warnings,
suspensions and discharges.[2] RX 1-14. Through 1989, the
majority of the disciplinary actions filed against Clifton were
for his failure to double check packages, although some were for
tardiness and absenteeism, and one was for an avoidable accident.
One thing is clear from this record -- UPS used a gradual
disciplinary system.
The disciplinary process is most clearly illustrated in
exhibits RX 3-8. Those disciplinary letters from UPS to Clifton
are dated from April 29, 1982, until March 7, 1983.
Chronologically there are two warning letters, a one day
suspension, a three day suspension, a five day suspension, and
finally a notice of discharge. All of the letters relate to
Clifton's failure to properly sort packages, and with each added
mistake by Clifton, the discipline became more severe. RX 3-8.
[PAGE 3]
After Clifton made his complaints about the switching
procedures known to TOSHA and Liberty Mutual, the disciplinary
actions against Clifton got substantially less gradual and thus,
more severe. In one year Clifton was discharged three times,[3]
as I will discuss in detail below, and received three warning
letters. The warning letters were for absenteeism, handling of
air packages, and taking an excessive break. RX 21, 23 and 24.
The first discharge occurred less than one month after
Clifton called Liberty Mutual, and less than two months after
TOSHA issued a citation against UPS due to Clifton's complaint.
On April 24, 1990, Clifton was discharged for sexual harassment.
RX 15. Clifton was charged with making extremely inappropriate
comments to Brenda Kennedy who recommended Clifton's immediate
discharge. Clifton filed a grievance, and through the grievance
procedures, Clifton was reinstated without back pay. T. 101.
Although I find Clifton's remarks objectionable, I also find that
other employees, specifically William Joshlin, were accused of
sexual harassment and received at least two warnings before any
more serious action was taken against them. T. 92, 437 et
seq., and 453. Therefore, I find, with regard to the sexual
harassment charge, that Clifton was treated differently than
similarly situated employees.
On August 27, 1990, Clifton was discharged again, this time
for "reckless endangerment." RX 19. The underlying incident
involved Michael Terrell, the On-Yard Supervisor. T. 377 et
seq. Terrell was conducting a routine on the job survey of
Clifton's work and sat on the hood of Clifton's truck on a
stadium seat because there was not room for more than one person
inside. As Clifton drove, Terrell was thrown about and claimed
that Clifton was driving recklessly in an attempt to injure him.
As a result Terrell requested that Clifton be discharged for his
"reckless driving." Terrell had not used a stadium seat when
riding on the hood of a truck prior to this incident and has not
used one since the incident. There was credible testimony by
Michael Bochette, Sr., that Terrell talked about his job as
"babysitting" Clifton. Bochette noted that Terrell seemed to be
keeping an especially close watch on Clifton since 1989, which
was shortly after Clifton began making safety related complaints
to management. T. 208 et seq. Upon being discharged,
Clifton filed a grievance through the Union. After a hearing on
the matter, the charge was reduced to a warning letter and
Clifton was reinstated with back pay.
On March 18, 1991, Clifton was discharged for the final time
for "acts of dishonesty." RX 25. The allegation means that
Clifton was discharged for "stealing time" or taking an excessive
break. On March 18, Clifton was working as an air driver on the
morning shift. Clifton arrived at work at approximately 8:00
[PAGE 4]
a.m. and had twenty four deliveries to make in downtown Nashville
before the 10:30 deadline. Clifton completed all of his
deliveries by 10:30 a.m. CX 1.
Between Clifton's last delivery and his return to UPS,
Clifton took a break at a restaurant called the Pie Wagon where
he claims he planned to be for only ten minutes. T. 41 et
seq. Clifton was eating his lunch when Steve Burtnett, a
manager from UPS, confronted him about the break. Burtnett
accused Clifton of stealing time by taking an unauthorized break,
and a heated discussion ensued. T. 56, 172. This discussion
lasted 5-15 minutes before Burtnett left the Pie Wagon and
returned to his truck, where Tom Hill was waiting. T. 56, 290,
323. Hill was a driver being trained by Burtnett that day. T.
274.
Burtnett and Hill both testified that they first saw
Clifton's van at the Pie Wagon at approximately 10:15 a.m.
T. 276, 316. Clifton testified that he made his last delivery at
10:30 a.m. T. 45-50. Burtnett estimated that Clifton was at the
Pie Wagon 25 minutes. T. 282. Hill estimated that Clifton was
there for 30-35 minutes. T. 326. Clifton himself testified that
he was at the Pie Wagon for 15-20 minutes, but would have only
been there 10 minutes if Burtnett had not confronted him. T. 56.
Based upon the entire record, I find that Clifton's break would
have been longer than ten minutes, even if Burtnett had not come
into the Pie Wagon.
With regard to breaks authorized for air drivers working at
UPS, there are conflicting provisions in the contract between UPS
and the Teamsters Union. See RX 28, 31, and T. 423 et
seq. Clifton believed that under the union contract he was
entitled to a break after the first hour and before the third
hour of his shift. T. 42. Under the contract in effect from
August 1, 1990, through July 31, 1993, part-time employees are
covered under Article 46. Section three of that Article reads as
follows:
Part-time employees will be guaranteed ten (10) minutes
relief period during each work shift. The relief period may
not start before the end of the first hour and must be
completed by the end of the third hour.
RX 28, at 102. At the hearing Charles Coleman, the Labor
Relations Manager, testified that air drivers were not covered by
Article 46 of the contract. Coleman claimed that air drivers are
intended to be covered only under Article 40, though the contract
does not state that explicitly. Furthermore, Article 40 does not
address breaks in any fashion. See T. 423 et seq.
Additionally, it was not only Clifton who believed that he
was entitled to a break, all of the air drivers testified that
they thought they were entitled to a ten minute break until after
[PAGE 5]
Clifton's discharge. T. 188-90, 203. It was only after
Clifton's discharge then that the air drivers were told that they
were not entitled to the ten minute break. T. 189. Furthermore,
Coleman testified that no action would have been taken against
Clifton if he had only taken a ten minute break. T. 432-33.
Therefore, I find that Clifton was permitted a ten minute break,
either explicitly or implicitly.
After Clifton was discharged, he filed a grievance with the
Union. RX 27. The grievance culminated in a panel hearing on
May 8, 1991. RX 29. At the panel hearing, written statements of
Hill and Burtnett were submitted, but neither witness was present
to testify. T. 435. Clifton was represented by an agent from
the Union, not an attorney. Clifton made a brief statement to
the panel. Clifton did not call any witnesses on his own behalf
due to the instructions by the Union representative. The panel
upheld Clifton's discharge by UPS. T. 168-171, 435 et
seq. Clifton asked TOSHA to investigate whether his
discharge was based upon whistleblowing activities. TOSHA
concluded that Clifton was not discharged in violation of
Tennessee law, though it did find that UPS' discharge for
"stealing time" seemed excessive. TOSHA did not have a hearing
on this matter, or speak with any of Clifton's witnesses. T.
241-42. Furthermore, TOSHA witness Robert Cooper, testified that
the decision was based in part upon the documentation provided by
UPS regarding Clifton's training and UPS' claim that Clifton knew
from the training that he was not entitled to a break. CX 8, T.
243-45. I find this reasoning faulty since Clifton was trained
in 1978, well before UPS began making air deliveries.
On or about August 30, 1991, Clifton filed this complaint
with the Occupational Safety and Health Administration (OSHA) of
the Department of Labor (Department) alleging violations under
the STAA.
DISCUSSION
Timeliness
Clifton was discharged by UPS on March 18, 1991. Clifton
filed a complaint with the Department on August 30, 1991. Under
the STAA, an employee has one hundred and eighty days to file a
complaint with the Secretary of Labor. 49 U.S.C.A. § 31105.
I find that Clifton timely filed his complaint with the Department.
Burdens of Proof
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, nondiscriminatory reason. Complainant
must then establish that the reason proffered by Respondent was
pretextual.
[PAGE 6]
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); West v.
Systems Applications International, Case No. 94-CAA-15, Sec.
Dec., April 19, 1995, slip op. at 5; 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 (both
under analogous provisions of the Energy Reorganization Act).
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 also Mackowiak 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.
Clifton objected to the change in switching procedures which
occurred in January, 1989. Clifton believed the new procedures
were dangerous and expressed his concerns to at least four
different managers. Clifton told at least one of those managers
that he would complain to TOSHA if UPS did not change the
dangerous switching procedure. After approximately one year of
making internal complaints, Clifton filed a Complaint with TOSHA.
Based upon Clifton's complaint, TOSHA conducted an investigation
of the switching procedure at UPS and issued a citation and fine.
Clifton engaged in protected activity when he made safety related
complaints to management, and when he made those same complaints
to TOSHA.
The more difficult question to determine is whether or not
Clifton raised the inference that he was discharged as a result
of his protected activity, the final element of a prima
facie case. The ALJ concluded that there was no causal link
between Clifton's discharge and his protected activity. I
disagree. Often, as in this case, the causal element of a
prima facie case is established by virtue of the temporal
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.
Clifton was discharged three times within one year,
beginning almost immediately after TOSHA inspected and fined UPS
due to Clifton's protected activity. Only Clifton's final
discharge occurred within the STAA's limitation period. However,
[PAGE 7]
Clifton's prior discharges are relevant to show UPS' pattern and
practice of continuing violations. "An employee may challenge a
series of events, all of which are alleged to have been
discriminatory, but only one of which occurred within the
relevant time period." Elliott v. Sperry Rand Corp., 79
F.R.D. 580, 585 (D.Minn. 1978); see also Flor v. U.S. Dep't of
Energy, Kirtland AFB, New Mexico, Case No. 93-TSC-0001, Sec.
Dec., December 9, 1994, slip op. at 7 (filed under the STAA as
well as Toxic Substances Control Act). Therefore, based upon the
continuous nature of Respondent's actions against Clifton that
began within one month of the TOSHA citation, I find that Clifton
has established an inference that his protected activity caused
the adverse action.
Since, Clifton has established a prima facie case,
the burden switches to Respondent to articulate legitimate, non-
discriminatory reasons for Clifton's discharge. UPS has met this
burden, in that UPS has consistently stated that Clifton was
discharged for "acts of dishonesty" or "stealing time." UPS
denies that these reasons are related in anyway to Clifton's
protected activity. I find that Respondent articulated a
legitimate, non-discriminatory reason to discipline Clifton.
The burden then switches to Complainant to show that
Respondent's articulated reason is pretextual. Evidence was
presented at the hearing demonstrating that Clifton may have been
treated differently than other employees charged with similar
offenses. For instance, Burtnett testified that he had been
accused of taking an excessive break but did not receive even a
warning, let alone a discharge. Clifton himself had previously
received a mere warning letter the first time he was alleged to
have taken an excessive break. The evidence of UPS' gradual
disciplinary process shows that the steps taken against employees
are warning letters, suspensions, and then discharge. There was
also testimony from Clifton, Bochette and Coleman that other
employees charged with sexual harassment received at least two
warnings prior to discharge. All of this testimony leads me to
find that Complainant carried his burden to show that
Respondent's articulated reason for discharging him was, at least
in part, pretextual and due to his protected activity.
Therefore, I find that UPS had dual or mixed motives in
discharging Clifton on March 18, 1991.
Dual Motive Analysis
Dual or mixed motive discharges are analyzed under a two-
part test developed by various courts including the Supreme Court
in Mt. Healthy City School District v. Doyle, 429 U.S. 274
(1977). See also Passaic Valley Sewerage Comm'rs v. Dept. of
Labor, 992 F.2d 474 (3d Cir. 1993); Consolidated Edison,
673 F.2d 61; Mackowiak, 735 F.2d 1159; and Lockert
v. U.S. Department of
[PAGE 8]
Labor, 867 F.2d 513 (9th Cir. 1989). This test first
requires the employee to show that the protected activity "played
a role" in the employer's decision. The burden then shifts to
the employer to show by a preponderance of the evidence that it
would have taken the action against the employee even if the
protected activity had not occurred. Mt. Healthy at 287.
Since I found that Clifton's protected activity played a
role in his discharge, the burden is upon UPS to prove that
Clifton would have been discharged even if he had not engaged in
protected activity. Based upon the evidence as a whole, UPS has
not met this burden. The evidence is clear that other employees,
similarly situated, were not discharged for similar behavior.
Burtnett was not discharged, or even formally warned, for taking
an excessive break. Joshlin was not discharged for sexual
harassment until after he received at least two warnings.
Clifton did have a prior warning for taking an excessive break,
but under UPS' gradual disciplinary system a suspension was
warranted for a second offense, not discharge.
I therefore find that UPS has not sustained its burden of
proof to show that Clifton would have been discharged even if he
had not engaged in protected activity.
CONCLUSION
Clifton has established that UPS engaged in unlawful
discrimination in violation of the employee protection provision
of the STAA. Accordingly, UPS is ordered to reinstate Clifton to
his former position and the matter is remanded to the ALJ for a
Recommended Decision on the amount of appropriate damages,
including back pay, attorney's fees and costs.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
References in this decision to CX, RX and JX, pertain to the
exhibits of the Complainant, Respondent, and those jointly
submitted, respectively.
[2]
At UPS union members are entitled to file grievances through the
union when they object to UPS's actions. The grievance process
is governed by a contract between UPS and the Teamster's Union.
Therefore, a discharge decision by UPS may be reversed and the
discharged employee reinstated through this grievance process.
[3]
See RX 15, 19 and 25.
