while the Respondent was represented by Thomas Benjamin Huggett, Esquire, of Morgan, Lewis & Bockius. Testimony was elicited from the Complainant and his wife. Documentary evidence was admitted as ALJ 1 – 3 (Tr. 9); CX 1 – 2 (Tr. 11); and RX 1 – 7 (Tr. 22), RX 12, 14 and 15 (Tr. 31), and RX 19 (Tr. 38). After the Complainant finished presenting his case, Counsel for the Respondent made a motion for non-suit based on the argument that the Complainant failed to establish a prima facie case under U.S.C § 31105 (Tr. 47). Prior to ruling on the motion, I explained the ramifications of the motion to the Complainant and gave him another opportunity to seek representation in order to have an attorney submit a brief on his behalf (Tr. 48). After I was advised that the Complainant wished to proceed, I found that Mr. Smith failed to prove that there was some safety violation and as a result, concluded that he did not make a prima facie case. Therefore, Respondent's Motion to Dismiss was granted (Tr. 49). I advised the Claimant that I would not issue a written decision until one week after I received the transcript, and that I would continue to leave the record open until that time.
Upon careful consideration of the entire record, I conclude that the Complainant has not established that he engaged in activity protected by the STAA. Accordingly, I recommend that the complaint be dismissed. My findings of fact and conclusions of law are set forth below.
SUMMARY OF THE EVIDENCE
1. The Complainant's Testimony and Supporting Documentary Evidence
At the hearing, Complainant testified that his occupation is that of a truck driver (Tr. 13). Thereafter, Mr. Smith describing the basis for his complaint as follows:
I went in on the 11th (April 11, 2002) to have a tooth pulled out, but it was so hard for the doctor to get the tooth out it took a lot longer so I was in surgery for like five (5) hours, you know, trying to get a tooth out so she put me through a lot of pain so then she gave me three (3) different types of medications. So this one medication she told me I could not -- if I take it, it will make me real sleepy, you know, put me all the way out so I couldn't drive or nothing like that on it.
So I had been taking, you know, the other little, less strong pills and I ran out of them and I kept going to work because I was in so much pain but she had told me I needed to take a couple of weeks off of work. But by the point system at Sysco, I told them I cannot take off of work, you know, or I'll wind up losing my job. So I went onto work under the pain.
So finally I ran out of medicine and I take all the medicine at night for the pain and all of sudden -- that morning. So when I came in I told my supervisor what happened and I asked him, you know, I was real sick, could someone drive for me. So he sent some -- you know -- so they were like, when I came back in that evening, that when I spoke to Dave Hawkins about, you know, me coming in late that morning and he had told me about this -- that they have medical leave and stuff like that and he told me to go up and talk to the lady, an attorney. So I went up and talked to her. She kept giving me the run around, telling me, you know, I couldn't use it, this and that.
So the whole time I had been with Sysco I had been, you know, trying to get my points taken away and they kept giving me the run around. So I kept on working there for like a couple more months or so. And so I worked late, over my hours one night, and when I came in the next day, for that night, the supervisor had told me to come in at a different start time and I misunderstood him or something. I came in at a later time. That's when I got terminated about -- but I had been -- I knew I had -- I didn't have many points so I had been going onto work all along. I had been like this all along ever since I've been there but my points was getting ready to come off when this incident happened. I just trying to get that one (1) point off. I would have been, you know, safe until my other points started coming off.
(Tr. 14–16). Complainant lastly testified on direct that he was terminated by the Respondent on August 16, 2002 (Tr. 16).
On cross-examination, Complainant testified that he was employed as a truck driver by Sysco pursuant to a union collective bargaining agreement (Tr. 16). Complainant was then showed a copy of RX 1 to which he assented to it being a copy of the collective bargaining agreement which covered his employment at Sysco (Tr. 16–17). When asked about the attendance policy contained in the collective bargaining agreement (hereinafter "CBA"), Complainant testified that he is familiar with it and that it was explained to him when he first started with Sysco (Tr. 17). Still testifying about the CBA, Complainant affirmed that it requires every employee to punch in and out on a time clock when starting work and in fact he did so when he went to work at Sysco (Tr. 17–18). Complainant further testified that he understood that if he did not punch in, he'd be given a point and it would be counted as a lateness. Complainant was aware that, under the attendance policy, points remain on his record for twelve (12) months before they roll off and that 25 points would result in termination (Tr. 18).
Complainant was showed a copy of RX 2 in which he testified that it was his signature on a document acknowledging his receipt of the attendance policy on the date of his hiring (Tr. 18, RX 2). Complainant next affirmed that it was signature on RX 3 – a document acknowledging assignments within the Transportation Department of Sysco (Tr. 18–19, RX 3). Complainant further testified that he understood that such document provided that, if he did not drive on a particular day that he was working at Sysco, he would be assigned to other duties (Tr. 19, RX 3). Complainant next acknowledged that it was his signature on RX 4 – a Verbal Counseling Letter notifying Mr. Smith that he accumulated nine (9) points as of September 26, 2000 – and that he received such points for being late (Tr. 19, RX 4). Complainant assented to signing a similar document which provided that he had accumulated twelve (12) points for being late (Tr. 19–20, RX 5). Complainant testified that he received RX 6 – a suspension of letter as a result of accumulating 18 points for being late (Tr. 20, RX 6).
Complainant testified that, by May 30, 2001, he accumulated 24 points and was one (1) point away from being terminated (Tr. 20). When showed RX 7, Complainant acknowledged that this document is another suspension letter he received as a result of accumulating twenty (20) points for being late (Tr. 21, RX 7). Complainant next testified that he received RX 12 – termination letter dated August 16, 2002 – but refused to sign the document. Mr. Smith testified that he refused to sign the termination letter "[b]ecause I shouldn't have -- because I was told to come in at one time and then it came up that it was a different time. It wasn't like written down, you know, because when the guy told me I had the one, at the time he told me, you know, it wasn't like I saw -- what time he wanted me to come in -- like I was trying to tell him, he had told me to come in at a certain time. That was the night [August 14, 2002] I had worked over 15 hours" (Tr. 23, DX 12). Complainant elaborated on his work schedule by offering the following testimony:
Q. What time did you believe that you were supposed to report?
A. He had told me 6:30.
Q. What time did you actually report?
A. 6:05.
Q. You reported at -- look at the tab -- document behind Tab 14. Have you ever seen this document?
A. Yes.
Q. Okay. The first full entry on this page reflects your time worked for the week of August 11, 2002, correct?
A. Yes.
Q. And it reflects for Wednesday, August 14th, that you were there at 6:05 a.m., correct?
A. Yes.
Q. So it would be your testimony that that's when you arrived on August 14th?
A. Yes, sir.
Q. Okay. But it was your testimony that you believed you were to report at 6:30?
A. Yes.
Q. So you reported to work 25 minutes early?
A. Yeah, I told him I came on early because I had went -- I had went on and woke up and I know I didn't have no points -- left, so I just came on and worked when I woke up and got -- just came on in. I wasn't in a rush -- I just said I would come on in and I was there so I wouldn't want to.
Q. Isn't it correct that in fact you were five minutes late and that you knew that you were supposed to report at 6:00?
A. No, I was not.
Q. How often did you arrive at work early?
A. Every now and then, you know -- I would come on in early every now and then.
Q. You would come in early more often than you came in late?
A. No, I didn't say that.
(Tr. 23 – 25, RX 14).
Again referring to Complainant's termination letter, Mr. Smith testified that he refused to sign it because of the August 14th point and his disagreement with having received it (Tr. 25). However, when asked if the August 14th point had anything to do with safety, Complainant replied "[n]o, I was told -- to come in" and that "[m]y refusal to sign this is because I was told a certain time to come in" (Tr. 25 – 26). Complainant further testified that his being late to work on April 17, 2002 was as a result of the medication he took for the pain caused by his tooth removal (Tr. 26 – 27). Complainant further testified that he wasn't aware of any safety rules or regulations that had to do with his being late (Tr. 27).
Referring to RX 12, a document titled as Record of Grievance and dated August 19, 2002, Complainant testified that it was his signature on the document which provides that the union denied his grievance with the reason being that the points issued were in accordance with (Employer's) the attendance policy (Tr. 28 – 29, RX 15). According to Complainant, the union did not pursue the grievance any further after it was denied – did not go to arbitration over the grievance (Tr. 32). In fact, Complainant affirmed that, in a statement he gave to the an OSHA investigator, that he "filed a grievance with my union on this matter (termination) and was turned down as the issue did not fall under FMLA" (Tr. 33, RX 19). Instead, Complainant testified that his grievance was turned down because it was untimely filed (Tr. 27, 33 – 34).
After Mr. Huggett finished questioning the Complainant, I questioned Mr. Smith in an effort to give him the opportunity to offer redirect testimony. The questioning went as follows:
Q. How long did you work at Sysco?
A. Two, two and a half years.
Q. In the two and a half years that you worked at Sysco, did you ever file a complaint for safety violations?
A. No, sir.
Q. Did they ever make you drive in a situation where it was unsafe to drive?
A. Well sir, like the last -- on that last day, I had been working -- and it was like 100 degrees. I kept asking, you know, could I come on in because, you know, real tired and stuff and my supervisor, he told me no, I had to stay out. He had sent someone to help me. That guy had been out all day, too, and we were asking could we come in, just come on in, you know, bring the truck on in because we were real tired and fatigued but he had -- he told us no, we had to stay out.
Q. Who is we when you refer to we?
A. Well, me and a guy named Robert Hamilton.
Q. And is he going to testify in this case?
A. I don't have no kind of way to get in touch with him.
Q. And who is the person that you told that it was too hot to drive?
A. It was a supervisor named Clyde.
Q. What's his last name?
A. Oh, I don't know.
Q. Well, when did you tell him this?
A. We had called him like -- like 6:30, 7:00 that evening.
Q. And that's the evening of August 13, 2002?
A. Yes.
Q. Okay. And what was your route on August 13th?
A. I had a route downtown DC. I had like 15 stops. There were like seven -- something like that.
Q. And did you have to load and unload or did somebody else do that?
A. Someone else loaded, but what had happened, the thing stayed in front of the front door so all day long I had been climbing over stuff trying to get stuff out of the freezer and I had -- putting it way behind and it made me real tired because I kept having to pick up all that meat and stuff to get it out.
Q. So that's what you were hauling was meat?
A. Yes, I was hauling meat?
Q. Okay. And this was a refrigerator truck?
A. Yes, sir.
Q. And how big is the truck?
A. It was six wheel.
Q. Okay. Now this is your opportunity to tell me, is there anything else that you want to say about your case?
A. No, sir.
(Tr. 38 – 41).
Thereafter, Counsel for the Employer questioned Complainant on re-cross examination. Therein, Complainant testified that his supervisor, Clyde, was the only person who he mentioned the issue of heat to and after mentioning it, his supervisor sent out Mr. Hamilton to help him which was around 3:00 (Tr. 41 – 42). Complainant further testified that he didn't raise the heat issue in his grievance, nor did he report it in the statement he gave to the OSHA investigator (Tr. 42).
Lastly, Complainant was questioned after testimony was elicited from his wife. Complainant was questioned about the drug OxyContin which he took following his surgery. Specifically, Mr. Smith testified that, when he arrived at work on the morning of April 17, 2002, he told his Supervisor Milton Wright that he took some very strong medication. According to the Complainant, his supervisor sent someone with him that day as a result of his taking the medication. As a result, Mr. Smith was accompanied by a driver on April 17, 2002 while he did the loading and unloading (Tr. 46 – 47).
2. Testimony of Mrs. Smith
The witness testified that she is married to Complainant, but wasn't at the time. She works as a dental assistant and was with Complainant on the day he had his tooth pulled. Mrs. Smith testified that the procedure took probably five (5) hours because it (tooth) was impacted (Tr. 43). The witness further testified that Dr. Kimble told the Complainant to take some time off and gave him two prescriptions and "actually took Motrin 800 until it was all finished because he did have a lot of swelling and a lot of bleeding" (Tr. 43 – 44). Mrs. Smith went on to state that "because of the (Employer's) point system, that's why he (Complainant) went ahead to work because he knew he would get terminated so he tried to work as much as he could and then the last resort, he took -- I don't know the brand name of it but the generic name is Percocet, he did take that as a last resort and he wound up being late for that day" (Tr. 44).
On cross-examination, Mrs. Smith recanted her statement that Percocet was the drug that made her husband late for work. Specifically, Mrs. Smith testified that it was Oxycodone, also known as acetametaphine which is Tylenol. Mrs. Smith further testified that the instructions on taking Oxycodone provide that an individual should "not drive or operate machinery or do anything else. It could be dangerous until you know how you react to this medication." When asked, the witness affirmed that these instructions are not an absolute prohibition on driving or operating machinery (Tr. 44 – 45).
FINDINGS OF FACT AND CONCLUSIONS OF LAW The employee protection provisions of the Surface Transportation Assistance Act provide in relevant part:
(a) Prohibitions: (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 vehicle safety regulation,
standard, or order, or has testified or will testify in such a proceeding; ...
(i) the operation violates a regulation, standard, or order of the United States
related to commercial motor vehicle safety or health; or
49 U.S.C. § 31105(a).
Claims under the STAA are adjudicated pursuant to the standard articulated in McDonnell Douglas Corp. v. Green, prima facie case of retaliatory discharge, which raises an inference that the protected activity was likely the reason for the adverse action. Once a prima facie case is established, the burden of production then shifts to the respondent to articulate, through the introduction of admissible evidence, a legitimate, nondiscriminatory reason for its employment decision. If the respondent is successful, the prima facie case is rebutted, and the complainant must then prove, by a preponderance of the evidence, that the legitimate reason proffered by the respondent were but a pretext for discrimination. Moon v. Transport Drivers, Inc., Texas Dep't of Community Affairs v. Burdine,
I note that the Claimant is pro se, but he still must make a prima facie case. While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp, Inc
To establish a prima facie case of retaliatory discharge, the complainant must prove: (1) that he engaged in protected activity under the STAA; (2) that he was subject of adverse employment action; and (3) that there was a causal link between his protected activity and the adverse action of the employer. Moon, See Osborn v. Cavalier Homes, Zessing v. ASAP Express, Inc.,
Herein, there is no dispute that Complainant was terminated (an adverse action); however, after a review of the entire record, Complainant Smith failed to prove that he was engaged in protected activity under the Surface Transportation Assistance Act.
Although the testimony regarding the prescription for OxyContin may insinuate that there may have been a safety problem involved in the Complainant's job termination, this is unproved. He failed to provide evidence that he has either filed a complaint related to a violation of a commercial vehicle safety regulation or that he refused to operate a vehicle because the operation would violate a regulation related to commercial vehicle safety or health. 49 U.S.C. § 31105(a). An employee's refusal to drive based on illness or physical condition may constitute protected conduct under both the "when" clause and the "because" clause of section 2305(b). Self v. Carolina Freight Carriers Corp Mace v. NA Delivery Systems, Inc 3 His termination was due to tardiness and whether this tardiness is due to the medication is not relevant inquiry in this matter as it does not relate to driver safety.
In the only instance where safety and/or health could possibly be related to Complainant earning a point for tardiness, the Employer refused to allow Mr. Smith to drive truck while he was still under the effects of OxyContin when reported to work on April 17, 2002. Instead, a Supervisor for the Employer provided a driver to accompany Mr. Smith on his deliveries for that day (Tr. 46 – 47). I find that the Claimant is not credible on this issue.
Moreover, I find that the Respondent's tardiness policy and the CBA are reasonable and do not give rise to a "constructive" refusal to drive theory4 under these facts. The Claimant did not prove that his tardiness was due to safety concerns.
For the reasons set forth above, I find that Complainant has failed to prove that he was the victim of intentional discrimination under the Surface Transportation Assistance Act and recommend that the Secretary enter the following order pursuant to 29 C.F.R. § 1978.109(c)(4).
RECOMMENDED ORDER
It is hereby Recommended that the complaint by Michael L. Smith against Sysco Foods of Baltimore under Section 405 of the Surface Transportation Assistance Act be dismissed.
SO ORDERED.
DANIEL F. SOLOMON
NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W., Washington, D.C. 20210. See 29 C.F.R. §§§§ 1978.109(a); 61 Fed. Reg. 19978 and 19982 (1996).
[ENDNOTES]
1
2
3
4
