Palmer v. Triple R Trucking, 2003-STA-28 (ALJ June 19, 2003)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Issue Date: 19 June 2003

CASE NO. 2003-STA-00028

In the Matter of:

ROBERT PALMER,
   Complainant,

   V.

TRIPLE R TRUCKING,
   Respondent

   This claim arises under Section 405 of the Surface Transportation Assistance Act ("Act"), 49 U.S.C. 31104. The Act protects employees from discharge, discipline or discrimination for filing a complaint about commercial motor vehicle safety and for refusing to operate a vehicle when such operation constitutes a violation of Federal vehicle safety regulations or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. Congress included Section 405 in the Act to insure that employees in the commercial motor transportation industry who make safety complaints, participate in STAA proceedings, or refuse to commit unsafe acts, do not suffer adverse employment consequences because of their actions. See Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987), citing 129 Cong. Rec. 29192, 32510 (1982). The Act prohibits discipline of trucking employees who raise questions about violations of commercial motor vehicle rules or other unsafe activities. See Brock v. Roadway Express, Inc. v. Martin, 954 F. 2d 353, 356 (6th Cir. 1992); Lewis Grocer Co. v. Holloway, 874 F. 2d 1009, 1011 (5th Cir. 1989).

   The Complainant filed a complaint with the Secretary of Labor alleging that he was discriminatorily terminated in violation of the Act. Following an investigation of this matter, the Secretary of Labor, acting through her agent, the Regional Administrator, issued findings on March 13, 2003, that the Complainant's termination was not in violation of the Act. (ALJ Exhibit 1). The Complainant requested a formal hearing ( ALJ Exhibit 2) and on May 21, 2003, a hearing was held in Long Beach, California, at which time all parties were given an opportunity to present evidence and arguments. Only the pro se Complainant attended the hearing, for neither the Respondent nor a representative on its behalf appeared. Administrative Law Judge Exhibits ("ALJ EX") 1 through 7 and Complainant's Exhibits ("CX") 1 through 3 were admitted without objection. This decision is based on the record of the hearing.

   1. Whether the Complainant engaged in activity which is protected within the meaning of the Act, and

   2. Whether any adverse action taken against Complainant was due to his engaging in protected activity.

   Respondent primarily engages in the delivery of goods and products throughout the eastern United States via trailers leased from Paschall Truck Services ("Paschall") located in Murray, Kentucky. Complainant was recruited by a representative of Paschall on or about January 19, 2002, to haul Paschall trailers as an employee of Respondent. Although Complainant had hoped to work directly for Paschall, he was directed instead to contact Respondent under whose Federal Highway Administration ("FHA") Certificate of Authority he would then operate. (See Certificate at CX 3). Complainant contacted Respondent's manager, Charles Richard, and was furnished copies of Respondent's FHA Certificate, as well as copies of Respondent's International Fuel Tax Agreement License, Certificate of Liability Insurance, Mississippi Public Service Commission Registration Receipt, Mississippi State Tax Commission Temporary Authority, and New Mexico Tax ID Permit. (CX 3). Complainant testified that he was to be paid a gross rate of $.90 per mile on his deliveries. While Complainant's truck was inspected by Paschall, he was told that Respondent would take care of giving Complainant the road driving test, drug screen, and physical exam that Complainant testified he knew were requirements of the U.S. Department of Transportation ("DOT") for all newly hired truck drivers. Complainant testified that he requested repeatedly of Respondent that he be administered the driving test, drug screen and physical examination to no avail. Complainant testified that he did make three trips with deliveries to Obetz, Ohio; Depew, New York; Davidson, North Carolina; and Martin, Tennessee. (CX 2). Complainant testified that he repeatedly told Respondent during the course of these three trips that he needed to have the tests and physical performed to comply with Federal safety requirements but Respondent kept ignoring these requests (Hearing Transcript ["Tr."] at pp. 16-20). Complainant testified that following the last delivery in Martin, Tennessee, he again requested of Mr. Richard that he be administered the tests and physical and indicated that if not set up, he would report the violation to the U.S. DOT. Mr. Richard immediately fired Complainant (Tr. at pp. 18, 39-40). Complainant stated that he has sought to be paid by Respondent for these three trips, but has only received $1,200.00 rather than the thousands he claims are due. Complainant further testified that Respondent sent him a Federal Income Tax Form 1099-MISC indicating payment of $7,418.10, despite the fact that Complainant was only paid $1,200.00. (See CX 1). Complainant also claims that due to his firing and nonpayment, he was forced to return to California and since he had no funds to repair the starter on his truck or to pay for parking of the truck, he was forced to sell the truck for $11,000.00 despite the fact that the truck was worth about $30,000.00 (Tr. at pp. 33-34). Complainant was out of work for about one year before he finally found a job as a maintenance man paying only $7.00 an hour based on a 40-hour work week (Tr. at pp. 35-36). Complainant testified that between 1997 and 2001, he normally averaged about $63,000.00 annually net of expenses driving his truck (Tr. at p. 36).

   While Respondent did not appear at the hearing, Mr. Richard did submit a Response to Complaint (ALJ EX 7). In addition to generally denying Complainant's claims, the Response alleges that Respondent has not been paid by Paschall for these three trips due to untimely delivery and/or damage to the goods, among other reasons. Respondent thereby claims an offset based on Paschall's nonpayment. Complainant testified that there was no damage noted on the deliveries as indicated by the clean bills of lading at CX 2 (Tr. at pp. 23-25). Complainant did state that there were some discussions regarding alleged delay in delivery which Complainant claims were due to unrealistic delivery schedules. Complainant claims that Mr. Richard even asked him to falsify the delivery logs which Complainant refused to do (ALJ EX 1).

   The Surface Transportation Assistance Act provides:

(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 regulation, 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 order 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.

   The employee protection provisions of the Act prohibit the discriminatory treatment of employees who have engaged in certain activity related to commercial motor vehicle safety. First, under 49 U.S.C. Sec. 31105(a)(1)(A), an employee is protected if he or she has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order. The U.S. Department of Labor ("DOL") interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints "is eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman, 146 F. 3d 12 (1st Cir. 1998). The Court of Appeal also stated that internal communications, particularly if oral, must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. There is a point at which an employee's concerns and comments are too generalized and informal to constitute ‘complaints" that are "filed" with the employer within the meaning of the STAA. Id.

   There are two additional types of employee activity that are also protected under the STAA. An employee who refuses to operate a vehicle in violation of any Federal rules, standards, or orders applicable to commercial vehicle safety or health is protected under 49 U.S.C. Sec. 31105(a)91)(B)(i). And, 49 U.S.C. Sec. 31105(a)(1)(B)(ii) protects an employee who refuses to operate a commercial motor vehicle when he or she reasonably believes such operation would cause serious injury to the employee or the public due to its unsafe condition. The Secretary, through the Administrative Review Board ("ARB") has determined that if an employee makes an objection regarding an unsafe condition and then actually drives the vehicle, the complaint should be more properly analyzed under the "complaint" provision of 31105(a)(1)(A). Zurenda v. J & K Plumbing & Heating Co., Inc., 97-STA-16 (ARB, June 12, 1998).In addition, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94-STA-55 (Sec'y Aug. 4, 1995).

   In order to bring a claim under the STAA, a complainant must first make out a prima facie case showing discriminatory treatment. To make such a case, a complainant must prove: (1) that he was engaged in an activity that is protected by the Act; (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). By establishing a prima facie case, the complainant 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).

   Once a prima facie case has been established, the Respondent then has the opportunity to rebut an inference of discrimination by presenting evidence of a nondiscriminatory justification for the adverse employment action. Carroll v. J. B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992). The Respondent does not need to prove a nondiscriminatory justification; they must merely articulate one by presenting evidence of the legitimate reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

   If the Respondent employer does present evidence of a nondiscriminatory motive for the adverse employment action, the complainant must then prove, by a preponderance of the evidence, that the legitimate reason articulated by the employer was merely a pretext for discrimination. Moon, supra. See also Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To show that the justification was merely pretextual, the complainant must do more than simply show that the reason articulated by the respondent was not the true reason for termination. The complainant must prove both that the asserted reason is false and that

discrimination was the true reason for the adverse action. Hicks, supra at 2752-56. The complainant:

... may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence. In order to determine that [the complainant] has established discriminatory intent in regard to this adverse action by the [respondent], however, "[i]t is not enough ... to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination." St. Mary's Honor Center, 113 S. Ct. at 2749, 2754, 125 L. Ed. 2d at 424.

When an employer offers a nondiscriminatory justification for an adverse employment action, the next step is to decide whether the employer's reason is pretextual. Instead of deciding whether a prima facie case has been made out, "the relevant inquiry is whether [the complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." Pike v. Public Storage Companies, Inc. ARB No. 99-072, ALJ No. 1998-STA-35 9 (ARB Aug. 10, 1999), citing Frechin v. Yellow Freight Systems, Inc., ARB No. 97-147, ALJ No. 96-STA-34, Final Dec. and Ord. Jan. 13, 1998, slip op. at 1.

Prima Facie Case

   There seems to be no real dispute that Complainant was terminated by Respondent (an adverse employment action). Complainant testified that his termination followed his complaint to Respondent about not having been given a road test, drug screen and physical exam and his communication to Respondent that he intended to report these failures to the U.S. DOT (Tr. at pp. 18, 39-40). Indeed, the regulations of the Federal Motor Carrier Safety Administration, DOT, do require that new employees be administered a drug test (49 C.F.R. 382.301), and have a valid certification of road test (49 C.F.R. 391.31), as well as a valid certificate of physical examination (49 C.F.R. 391.43). While each of these requirements may be fulfilled by evidence of successful completion within a set period of months prior to employment, the employer must maintain a file containing evidence of such satisfactory completion with regard to each employee hired as a driver. See 49 C.F.R. 382.303; 49 C.F.R. 382.401; and 49 C.F.R.391.51. Complainant testified that he repeatedly asked Respondent to comply with these regulations by scheduling him for a physical, drug test and road test, but that these requests were dismissed by Respondent. When Complainant persisted and suggested that he would report the failure to comply with these requirements to U.S. DOT, he was summarily terminated. The continued operation of the motor vehicle in disregard of these testing requirements would clearly have been a violation of federal safety regulations and Complainant's threatened reporting of same to U.S. DOT constitutes a protected activity. Thus, Complainant has shown that he was engaged in a protected activity; that he was the subject of an adverse employment action; and that there was a causal link between his protected activity and the adverse action since the termination immediately followed his communication to the Respondent of his intent to report these regulatory violations to U.S. DOT.

Nondiscriminatory Justification by the Respondent for Termination

   In its Response to the Complaint, Respondent contends that its defense to Complainant's claim herein is late delivery and/or damage to the goods which has allegedly resulted in Respondent not being paid by Paschall. See ALJ EX 7. While this may be a potential defense to a suit brought against Respondent for collection of amounts due Complainant as a result of the three trips which Complainant performed prior to his termination, this proceeding is not a collection suit for earned monies, but rather an action for wrongful discharge of the Complainant by Respondent pursuant to the "Whistleblower" provisions of the STAA. Thus, there is no evidence presented by Respondent to rebut Complainant's testimony that he was summarily discharged from his employment with Respondent as a result of his complaints regarding Respondent's failure to properly test him and his expressed intention to notify U.S. DOT of the Respondent's violation of the Motor Carrier Safety Administration regulations. Accordingly, Complainant is entitled to judgment under Section 405 of the Act.

Damages

   Complainant was discharged on or about February 17, 2002. He was unable to locate any employment until approximately April 1, 2003. Since he was forced to sell his truck due to a lack of funds to repair it, he was only able to find employment in April of 2003, as a maintenance man, earning approximately $1213 per month rather than the $5250 per month which he averaged driving his truck the preceding five years. Accordingly, Complainant is entitled to receive as damages the sum of $70,875 as lost wages for the thirteen and one-half months he was unemployed following his termination by Respondent as well as the amount of $4,037 per month as wage loss differential from April 1, 2003, until full payment for the total of these lost wages is made by Respondent.

Based on the above specific findings of fact and recommended conclusions of law the following RECOMMENDED ORDER is issued:

   IT IS ORDERED THAT Triple R Trucking shall pay to Robert Palmer the wages he would have received had he not been terminated calculated at $$70,875.00 for the period through April 1, 2003, and $4,037 per month for the period commencing April 1, 2003 through the date such payment is actually made by Triple R Trucking plus interest thereon at the rate specified in 28 U.S.C. 1961 from the date such wages would have been paid to complainant to the date such amount is actually paid by Triple R Trucking.

      Russell D. Pulver
      Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. §§ 1978.109(a); 61 Fed. Reg. 19978 (1996).