|
|
|
 |
 |
|||||||||||||||||
 |
| September 24, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter |
|
USDOL/OALJ Reporter Prior v. Hughes Transport, Inc., 2004-STA-1 (ALJ Jan. 13, 2004)
Issue Date: 13 January 2004 Case No.: 2004-STA-1 In the Matter of
MARK PRIOR
v.
HUGHES TRANSPORT, INC.
This claim arises under Section 405 of the surface Transportation Act (the 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 motor 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.
Procedural History 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 October 2, 2003, that the Complainant's suspension was not in violation of the Act. (ALJ 1). The Complainant requested a formal hearing, and on November 19, 2003, a hearing was held in Wausau, Wisconsin, at which time all parties were given an opportunity to present evidence and arguments. This decision is based on the record made that day at the de novo hearing which included testimony of witnesses, Administrative Law Judge Exhibit 1, Complainant's Exhibits 1-4 and Respondent's Exhibits 1-3.
The parties agreed they are subject to the Act and the issues for me to determine are: 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.
Complainant testified that he worked for Respondent for over a year. He first did "local" work involving warehouse work and local route driving, after which he became an over-the-road truck driver for Respondent. In 2002 Complainant said he earned over $40,000.00; however, in the spring of 2003 his children were living with him so he testified he decided that he needed to get off of the road so he could be home at nights. [Page 2] In May 2003 Complainant advised Respondent of this fact, and it was ultimately agreed that Complainant would return to local work at a pay rate of $10.00 per hour. This was an increase from $9.50 an hour which he had previously earned performing local work, but less than what he was earning as an over-the-road driver. Complainant said he took the last week of May 2003 as his vacation and returned to work on June 2. On June 2 Complainant drove truck number 103 on a local run. He had used this truck over the previous nine months. On the morning of June 3 Complainant testified he decided to do a proper DOT inspection of truck 103,and he came up with a list of concerns which are enumerated in Complainant's exhibit 1. This write up occurred very early in the morning of June 3 at which time Complainant refused to drive the truck, gave the list to the office and went home. Complainant testified that after going home he drove to his parents and in driving back from his parents received a cell phone call from Dan Hughes, the president of the Respondent corporation, which he documents with Complainant's exhibit 4. During that conversation, Complainant said Mr. Hughes inquired why he had left work. Complainant said he explained that he left because he would not drive truck 103 in the condition it was in. Mr. Hughes told him to come back to work. Complainant said he then drove home to change clothes, and while there Mr. Hughes drove in his driveway and came up to his front porch. After a verbal exchange, Complainant maintains Mr. Hughes suggested they go their separate ways. From that point forward, Complainant testified that he never sought reinstatement nor was he invited back to work. He did say he returned the next day to get his check, but because of a dispute over cash advances he had previously received he said he was several weeks in getting his last check. On cross examination, Complainant agreed he had driven truck 103 for nine months; that he never sought reinstatement following the June 3, incident; that he had been declined unemployment compensation because it was determined he had voluntarily quit his employment with Respondent and that he is presently incarcerated for probation revocation regarding his conviction for transferring property of another.
Jack Bernardi is a mechanic for Respondent. He works on all 13 trucks owned by Respondent, and he is familiar with truck no. 103. Mr. Bernardi testified he knew that Complainant did not like that truck, and that Complainant had told him in the past he was not going to continue to drive it, even if he had to punch out and leave. On June 3, 2003, Mr. Bernardi said Complainant gave him a list of complaints about truck 103. (CX 1). Mr. Bernardi said he received the list about 6:00 a.m. and he made all the repairs to truck 103, except as to a turn signal for which he had to order a part. However, regarding that problem, Mr. Bernardi said once a trailer was hooked to the truck the turn signal worked so it did not present a safety hazard. Specifically, Mr. Bernardi testified he replaced the fire extinguisher, found no unacceptable leaks in the air line, tightened the air bag and agreed that the clutch may have been in need of an adjustment but said the clutch pressure was really a driver's preference. Mr. Bernardi presented his work order (RX 2) showing that the repairs were completed and truck 103 was ready to be placed in service by 9:30 a.m. on the 3rd of June. He also testified that truck 103 is still in service and being used for deliveries. [Page 3]
Daniel Hughes is president of Hughes Transport, Inc. He maintains that Complainant's brother, Dean, works for Respondent and is an excellent worker. Mr. Hughes said that Dean and Dean's father had asked him to hire Complainant because Complainant was having trouble getting work. Mr. Hughes did so and things went well for a while; however, problems began to arise. Complainant had a scale violation, he had a parole violation and then Complainant ran out of his cash advance in Tennessee and offered to resign in February of 2003. (RX 3). Despite these occurrences, Mr. Hughes said he kept Complainant in his employment, gave him furniture and tried to help him every way he could. When Complainant asked to get off the road and work in the shop to be with his children, Mr. Hughes testified that he agreed that after Complainant came back from his vacation on June 2 he could start working in the shop and make local deliveries. On June 3, when Complainant refused to drive truck 103, there was another truck available or Complainant could have stayed and worked in the warehouse, but he did neither. Mr. Hughes said he called Complainant on his cell phone and told him to return to work, and then he went to Complainant's house and told him to come in the next day. He said Complainant did come in the next day, but was very hostile and has never worked for Respondent again. As far as Mr. Hughes is concerned, Complainant was given three choices: (1) drive over the road, (2) work in the warehouse as a local and drive local routes or (3) leave his employment. Mr. Hughes said it was Complainant's election to do the latter. He also pointed out that state troopers had inspected truck 103 and found it to be safe.
In 1982, Congress enacted §405 of the Surface Transportation Assistance Act, 49 U.S.C. §31104. This legislation was designed to promote safety on the highways by protecting employees from discriminatory action due to an employee's engagement in protected activity. Section 405 of the Act provides:
To establish a prima facie case of discriminatory treatment under the STAA, Complainant must prove: (1) that he was engaged in an activity protected under the STA; (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). The establishment of the prima facie case creates an inference that the protected activity was the likely reason for the adverse action. McDonald Douglas Corp. V. Green, 411 U.S. 792 (1973). At a minimum, Complainant must present evidence sufficient to raise an inference of causation. Carroll v. J. B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992). To establish protected activity, the employee need demonstrate only a reasonably perceived violation of the underlying statute or its violations. This is to say, that although the employee need not prove an actual safety violation, the complaints must be made in good faith. See Ashcraft v. Univ. of Cincinnati, NO. 83-ERA-7, slip op. at 9 (July 1, 1983). [Page 4] In this instance, despite the fact Complainant had driven truck 103 for nine months, that the safety concerns about the truck were remedied within a matter of hours and that subsequently a state trooper inspection apparently passed the truck, I find that arguably Complainant expressed reasonable concerns that the truck, as he found it on the morning of June 3, was in an unsafe condition and potentially unsafe to himself and/or the public. Despite giving Complainant the benefit of the doubt that he was reasonable in his apprehension of truck 103 on the early morning of June 3, however, I do not find that any adverse action was taken against Complainant in retaliation for those concerns. To the contrary, the adverse results that befell Complainant were of his own doing, and any action taken by Respondent was a legitimate, non-discriminatory employment decision. At the conclusion of his testimony, I asked Complainant the following question and he provided the following answer:
Also, on cross examination Complainant agreed that he never sought reinstatement with Respondent. I am not totally certain what happened on Complainant's porch the afternoon of June 3 or at Respondent's office the next morning; however, I do not find that relevant to my inquiry. Both parties seem to agree (1) Complainant left Respondent's place of business after writing up the truck on the morning of June 3, when there was other work which could have been performed and (2) that subsequently Complainant was called by Mr. Hughes and asked to return to work. Whether Complainant was terminated on his front porch the afternoon of June 3 or the next day at Respondent's office on June 4, it is clear that Complainant's conduct in voluntarily leaving his job the morning of June 3 was the cause of his termination. At Complainant's request, he had been taken off the road and returned to local duties which included warehouse work and local route delivery. There were other tasks Complainant could have performed at work on the morning of June 3 or for that matter there were other trucks that could have been driven, and the truck he complained about, according to Mr. Bernardi, was ready for use by 9:30 a.m. In sum, I find that even assuming Complainant has made out a prima facie case that he expressed reasonable safety concerns and suffered an adverse action in the loss of his job, Respondent has demonstrated, without contradiction, that Complainant was terminated for a unrelated legitimate reason, and Complainant has provided no evidence that the reason offered by Respondent is mere pretext. Had Complainant stayed on the job site the morning of June 3 or even had he returned when called by Mr. Hughes to do so, I do not think this matter would now be before me.
Because Complainant has not demonstrated a link between any protected activity and any adverse action the Respondent might have taken, I find Complainant is not entitled to the relief he seeks under the Act.
It is ordered that the Complainant of Mark A. Prior be DISMISSED.
C. RICHARD AVERY CRA:kw
NOTICE: This recommended Decision and Order and the administrative file in this matter will be forwarded for review of the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Ave., N. W., Washington, D.C. 20210. See C.F.R. §1978.109(a); 61
|
||||||||
| ||||||||
