DATE: September 11, 1995
CASE NO: 94-STA-44
IN THE MATTER OF
JERRY J. WILLIAMS,
COMPLAINANT,
v.
SOUTHERN COACHES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant Jerry Williams alleges that Respondent Southern
Coaches violated the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. §
31105 (West 1994). The findings of fact in the Administrative
Law Judge's (ALJ's) Recommended Decision and Order (R. D. and
O.), at 1-7, are supported by substantial evidence on the record
as a whole and therefore are conclusive. 29 C.F.R. §
1978.109(c)(3) (1993). I agree with the ALJ's ultimate
conclusion that the complaint should be dismissed, with the
following modification to the ALJ's analysis of temporal
proximity.
BACKGROUND
Complainant Williams worked for Greyhound as a bus driver
for 28 years, beginning in 1963. In 1991 Greyhound employees
went on strike, and Williams began working for Southern Coaches.
Southern Coaches is a bus company that charters buses and drivers
for excursions around the country. Southern Coaches is owned by
the Adams family, and John Adams was the individual in charge of
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the drivers' itineraries. Williams was a good worker and had
seniority as a driver for Southern Coaches at the time of his
discharge on or about October 28, 1993.
Williams contends that the problems began in August, 1993,
when he and several other drivers were dispatched on a charter
tour to Denver, Colorado. After Williams left the Southern
Coaches terminal, he realized that the itinerary, if followed,
would cause a violation of the Department of Transportation (DOT)
hours of driving regulations. Because the itinerary was prepared
by the client, Williams brought the potential hours violation to
the client's attention. That exchange caused both Williams and
the client to contact John Adams. Adams testified that he knew
about the potential violation and had discussed the possibility
of having to modify the itinerary with the client. Adams and the
client had previously decided to see how the trip proceeded and
then determine if the itinerary needed to be modified.
Therefore, Adams was angry with Williams for confronting the
client before the certainty of a violation was even determined.
Then, approximately six weeks later, on October 19, 1993,
Williams was having car trouble (with his personal vehicle) and
called Adams to see if another driver was available to take his
assignment for the next day. Williams first contacted Adams at
8:30 p.m. on October 19, and brought the travel documents to
Adams approximately two hours later. Adams found a replacement
driver after making one phone call, but nevertheless claimed that
he was greatly inconvenienced by Williams late request for a
replacement driver. Adams waited approximately one week and then
sent Williams a termination letter dated October 28, 1993.
Williams contends that he was discharged in violation of the
STAA because of his refusal to exceed DOT hour regulations on the
Denver trip in August, 1993. Williams also claims that he should
be protected under the STAA for his refusal to drive on
October 20, 1993, because he was too fatigued to drive safely.
DISCUSSION
The ALJ correctly noted that 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 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
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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 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. This inference of causation can be raised
by 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.
This last element, that Complainant must show a causal link
between his protected activity and his discharge, is the area in
which the ALJ's analysis must be corrected. In this case,
Williams' primary claim is that his protected activity in
August 1993 led to his discharge in October 1993. Though the ALJ
found that Williams presented a prima facie case generally,
the ALJ specifically found that Williams' termination was not temporally
proximate to his protected activity. In support thereof the ALJ
cited a case where temporal proximity was proven because the
employee was discharged the same day that the employee had
engaged in protected activity. R. D. and O. at 5; Toland v.
Werner, Case No. 93-STA-22, Sec. Dec., Nov. 16, 1993. An
employee's protected activity and the subsequent adverse action
need not occur on the same day in order for a claimant to make a
prima facie case.
In the past I have found that even a ten-month lapse
between the protected activity and the adverse action may be
sufficient to raise an inference of causation. SeeGoldstein v. Ebasco, Case No. 86-ERA-36, Sec. Dec., Apr.
7, 1992, slip op. at 11-12, rev'd on other grounds sub nom.,
Ebasco Constructors, Inc. v. Martin, No. 92-4567 (5th Cir.
Feb. 19, 1993) (causation established where eight to ten months
elapsed between protected activity and adverse action); see
also Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989)
(temporal proximity sufficient as a matter of law to establish
final element in a prima facie case). The lapse between
Williams' protected activity, August 1993, and the adverse
action, October 1993, is approximately six weeks. A lapse of six
weeks is not so distant as to negate the inference that Williams'
protected activity led to his discharge.
However, as previously stated, the ALJ found that Williams
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presented a prima facie case, and I agree with that
conclusion. The ALJ then looked at Respondent's reason for
Williams' discharge. Respondent discharged Williams because
Williams asked to attend to his personal car problems rather than
work as scheduled. Therefore, the ALJ found that Respondent
produced evidence showing that Williams was discharged for a
legitimate, non-discriminatory reason. Although Williams'
transgression appears mild and hardly deserving of discharge, I
cannot disagree with the ALJ's conclusion, on this record, that
Williams has failed to show by a preponderance of the evidence
that Respondent's stated reason for discharging him was
pretextual.[1] Other than the temporal inference discussed
above, Williams has not produced credible evidence to show that
John Adams discriminated against him because of his protected
activity.
Williams also claimed that he was too tired to drive safely,
but the ALJ did not find that testimony credible. R. D. and O.
at 6. I agree. Williams was primarily concerned about his car
on the evening of October 19, 1993, not about fatigue.
The ALJ based the above conclusions in large part upon the
credibility of the witnesses as set out in the R. D. and O. at 6-
7. The ALJ is in the best position to evaluate the demeanor of
the witnesses, because he sees them in person and hears them
testify. Pogue v. U.S. Dept. of Labor, 940 F.2d 1287,
1289, (9th Cir. 1991). I find that the ALJ's conclusions are
based upon a fair reading of the record and are supported by an
"articulate, cogent, and reliable analysis." Nichols v.
Bechtel Construction, Inc., Case No. 87-ERA-0044, Sec. Dec.,
November 18, 1993; aff'd, Bechtel Construction Co. v. Sec. of
Labor, Case No. 94-4067 (11th Cir. Apr. 20, 1995), citing
Northport Health Serv., Inc. v. NLRB, 961 F.2d 1547, 1553-54
(11th Cir. 1992).
Accordingly, I adopt the ALJ's recommendation that the
complaint be DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Although John Adams was not terribly inconvenienced by
finding a replacement for Williams, and the entire incident seems
minor, John Adams previously reprimanded and threatened to
discharge another employee for tardiness. That employee chose to
quit rather than be discharged. T. 280-81.
