The Secretary of Labor, the ARB, and federal courts have agreed that an "internal complaint to superiors conveying [an employee's] reasonable belief that the company was engaging in a violation of a motor vehicle safety regulation is a protected activity under the STAA." Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 99-STA-37, slip op. at 6 (ARB Dec. 31, 2002), aff'd Harrison v. Admin. Review Bd., 390 F.3d 752, 759 (2d Cir. 2004) (citing Dutkiewicz v. Clean Harbors Envtl. Servs., Inc., ARB No. 97-090, ALJ No. 95-STA-34, slip op. at 3-4 (ARB Aug. 8, 1997), cited with approval in Clean Harbors Envtl. Servs., Inc., 146 F.3d at 19). Thus, the ALJ properly determined that
[Page 7]
Ridgley's statements to Dannemiller were sufficient to infer a safety concern and constituted protected activity under the STAA. Furthermore, the ALJ found that Ridgley thereby brought safety matters to Dannemiller's attention and, therefore, Dannemiller had knowledge of Ridgley's protected activity. R. D. & O. at 19-20. We affirm the ALJ's findings that Ridgley engaged in protected activity under 49 U.S.C.A. § 31105(1)(B)(i)-(ii), (2), and that his supervisor, Dannemiller, was aware of his protected activity, as supported by substantial evidence. See Harrison, supra; Dutkiewicz, supra; see also Clean Harbors, supra.
Ridgley was not subjected to discrimination under the STAA.
Although Ridgley established protected activity, the ALJ found that he did not further prove by a preponderance of the evidence that the reason for his termination was a pretext to discriminate against him. R. D. & O. at 23-24. The ALJ accurately noted that the parties stipulated that the Respondent terminated Ridgley's employment or took adverse action against him. R. D. & O. at 19; see HT at 14-15. We affirm the ALJ's finding that the Respondent took adverse action against Ridgley as supported by substantial evidence. While Ridgley was subjected to an adverse action, however, the ALJ's finding that the Respondent had a legitimate, nondiscriminatory reason for terminating Ridgley is supported by substantial evidence and we, therefore, are bound by that finding.
The ALJ found that a review of the evidence established that the reason the Respondent terminated Ridgley's employment was not a pretext to discriminate against him, but that Ridgley was fired solely for insubordination when he called Dannemiller a liar. R. D. & O. at 13, 21. Specifically, the ALJ found "[t]he evidence is clear that Mr. Dannemiller had no intention to terminate Ridgley until his credibility and integrity were questioned." R. D. & O. at 21.
After reviewing the evidence, the ALJ found that it was not in the Respondent's interest to terminate Ridgley during the December holiday season, the company's busiest period of the year, due to the added burden it would face in discharging a needed driver at a company with so few drivers that even Dannemiller had to fill-in as a driver. R. D. & O. at 6, 13, 21. In addition, the ALJ found that while Ridgley had previously refused to perform route assignments, he had never been disciplined for doing so. R. D. & O. at 6; see HT at 510-513. Similarly, the ALJ found that the Respondent did not discipline or terminate Ridgley on the morning of December 1, 2003, for complaining about or not performing his route assignment, but accommodated his concern by allowing him to not drive and to go home. R. D. & O. at 21.
Furthermore, the ALJ found that when Dannemiller telephoned Ridgley later on the evening of Monday, December 1, 2003, he clearly expected and hoped that Ridgley would work on Tuesday and, therefore, was not intending to fire Ridgley. R. D. & O. at 21-23. As to the discussion regarding the actual length of the Monday delivery route
[Page 8]
performed by another driver on the message Dannemiller left on Ridgley's answering machine and during their subsequent telephone conversation, the ALJ found that Mr. Dannemiller was merely informing Ridgley of the actual duration of the trip that day. R. D. & O. at 21. The ALJ found no evidence that the purpose of the message and conversation was so that Dannemiller could inform Ridgley that he should have driven the route, or was going to receive any type of disciplinary action for the events of Monday morning, or that his employment was terminated because another driver was able to make the route within the regulatory time constraints. Id. Consequently, the ALJ found that the evidence established that Ridgley was fired solely for a legitimate, nondiscriminatory reason, namely insubordination. R. D. & O. at 23.
Ridgely contends that the ALJ erred in finding that the Respondent fired him for a legitimate, nondiscriminatory reason. The ALJ found that Ridgley engaged in protected activity because he complained about the length of his Monday route assignment. Thus, Ridgley argues, the ALJ's finding that he was fired for calling Dannemiller a liar during a conversation regarding the actual length of his Monday route assignment establishes that the Respondent fired him in retaliation for his protected activity. In addition, Ridgley contends that well-established case-law holds that when an employee engages in impulsive behavior, such impulsive conduct does not remove the employee's rights to engage in protected activity or provide the employer with a legitimate, nondiscriminatory reason for adverse action.
As Ridgley notes, the Secretary has held:
[T]he right to engage in statutorily-protected behavior permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and shop discipline.
Kenneway v. Matlack, Inc., 88-STA-20, slip op. at 6 (Sec'y June 15, 1989). The Board has recently held that this "leeway for impulsive behavior" standard applies to situations that "involve impulsive conduct incidental to the protected activity." See Harrison, ARB No. 00-048, slip op. at 15, aff'd on other grounds, Harrison, 390 F.3d at 759 (emphasis added). Even more relevant, Ridgley notes that the Secretary has held that "[i]t is well settled that ‘[a]n employer may not provoke an employee to the point of committing an indiscretion and then seize on the incident as a legitimate rationale for discharge.'" Assistant Sec'y & Moravec v. H C & M Transp., Inc., 90-STA-44, slip op. at 9 (Sec'y Jan. 6, 1992), citing Monteer v. Milkyway Transp. Co., Inc., 90-STA-9, slip op. at 3 (Sec'y Jan. 4, 1991) and cases cited therein. Specifically, the Secretary held that an employee's "spontaneous" behavior that is "provoked by [an employer's] unlawful interference in [the employee's] protected activity" does not justify the employee's discharge. Moravec, slip op. at 10.
[Page 9]
While the ALJ did not specifically address the Secretary's holding in Moravec, any error by the ALJ in this regard was harmless as the ALJ's findings of fact are supported by substantial evidence and establish that Dannemiller did not provoke Ridgley by unlawfully interfering in Ridgley's protected activity. As the ALJ found, when Ridgley originally complained about the length of his Monday route assignment, Dannemiller did not challenge Ridgley's concern or contention that the trip might be too long (and violate the federal hours of service regulations), or force him to nevertheless perform his assignment or discipline him for failing to perform his assignment, but accommodated his concern and allowed him to go home. Thus, the Respondent did not unlawfully interfere in Ridgley's protected activity when he originally complained.
Similarly, when. Dannemiller later, retrospectively raised the actual length of the Monday delivery route performed by another driver on the telephone, substantial evidence supports the ALJ's finding that it was not as a pretext to discriminate against or fire Ridgley. Clearly Dannemiller did so merely to explain to or inform Ridgley that his concern or perception about the length of Monday's trip was mistaken, but not to interfere in Ridgley's protected activity or to fire him. To the contrary, substantial evidence supports the ALJ's finding that the purpose of Dannemiller's phone call was to assure that Ridgley would work on the following Tuesday, as the company needed his services during the busy December holiday season. Thus, Ridgley's impulsive conduct was not incidental to his protected activity. See Harrison, ARB No. 00-048, slip op. at 15. Moreover, as the ALJ found, Dannemiller did not tell Ridgley that he should have driven the route, or was going to be disciplined or terminated for his failure to do so. Thus, the message Dannemiller left on Ridgley's answering machine during their subsequent telephone conversation did not unlawfully interfere in Ridgley's protected activity.
Consequently, the ALJ's finding that Ridgley was fired solely for a legitimate, nondiscriminatory reason, namely insubordination, is supported by substantial evidence. As insubordination is a legitimate, non-discriminatory reason for terminating Ridgley's employment, see Clement v. Milwaukee Transp. Servs., Inc., 2001-STA-6 (ARB Aug. 29, 2003); Schulman v. Clean Harbors Envtl. Servs., Inc., 1998-STA-24 (ARB Oct. 18, 1999); Auman v. Inter Coastal Trucking, 1991-STA-32 (Sec'y July 24, 1992), we affirm the ALJ's finding that Ridgley failed to establish that Dannemiller engaged in unlawful discrimination under the STAA.
Conclusion
The ALJ's findings of fact are supported by substantial evidence and his legal analysis correctly applied the STAA. Therefore, we AFFIRM the ALJ's determination
[Page 10]
that Ridgley was not subjected to discrimination in violation of the STAA. Accordingly, we DENY Ridgley's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 Dannemiller testified that company drivers were guaranteed a full-time paycheck for eight hours of work a day, minimum, for 52 weeks of the year, even when there were not eight hours of work available to be performed on a particular day. See HT at 688-689. We note that there is no other contention or indication in the record that, when Dannemiller told Ridgley he was free to go home on the morning of December 1, 2003, he was taking any adverse action against Ridgley, but did so merely in an attempt to accommodate Ridgley's concern and because no other work assignment was available that day.
2 This regulation provides, "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee."
3 Hours-of-service regulations limit the number of hours a commercial truck driver may operate his or her vehicle during any given day and seven-day period.