BACKGROUND

   On October 11, 1998, complainant went off duty at 9:30 a.m. and returned to his home to rest. Complainant was eligible to receive a work call 10 hours after the time that he went off duty. Complainant estimates that he slept approximately 5 hours that day. At midnight on October 12, 1998, complainant received a work call, and as per company policy, was required to report to work within 2 hours. At 2:00 a.m., complainant reported to work and was again on duty. At approximately 2:30 a.m, complainant left respondent's terminal in Copley, Ohio with his destination being West Seneca, New York.

   Complainant became fatigued at approximately 5:15 a.m. and stopped to rest. Complainant resumed his trip at approximately 6:30 a.m. Complainant arrived in West Seneca, New York at approximately 8:00 a.m. It appears from the pleadings, that although this trip took 5.50 hours, respondent is not alleging that this trip is the basis of the warning letter. From 8:00 a.m. to 8:20 a.m., complainant was on duty but not driving. Complainant was then dispatched from West Seneca, New York to Rochester, New York. At approximately 9:30 a.m., complainant arrived in Rochester. Complainant was considered off duty at 9:45 a.m. and was transported to a local hotel to rest. Complainant arrived at the hotel at approximately 10:45 a.m.

   Complainant states that he slept from approximately noon or 12:30 p.m. until he received a telephone call at somewhere between 2:30 and 3:00 p.m. Complainant states that the telephone call was from his now former attorney, John Tucker. While the details of that conversation are protected by the attorney-client privilege, complainant was willing to divulge that the conversation left him very upset and unable to sleep. Complainant received a work call at 8:00 p.m. Complainant reported to work at 10:00 p.m. and was dispatched back to West Seneca. Complainant arrived in West Seneca at midnight on October 13, 1998. Complainant was on duty for approximately 45 minutes before he was dispatched from West Seneca to Copley at 1:00 a.m.

   At approximately 2:30 a.m., complainant became drowsy and stopped traveling in order to rest. Complainant resumed driving at approximately 4:00 a.m. and drove continuously until 5:45 a.m. when he stopped to rest again. Complainant resumed his trip at 6:30 a.m. and drove until he arrived in Copley at 7:30 a.m.

January 19, 1999 Warning Letter

   On January 19, 1999, respondent issued a warning letter to complainant for failure to report to work after accepting a work call. (RX H). This letter was issued for complainant's failure to report to work on January 14, 1999. Complainant again responded with a "protest letter" dated January 22, 1999. (RX M). In that letter, complainant alleges that he had received no work call from respondent on the date mentioned in the warning letter. Complainant states further that he did not report to work on that date because of the weather conditions. Complainant stated that he based his decision to return home instead of reporting to work, on "17 years of driving commercial motor vehicles, 1.5 million miles of safe driving, and no moving violations in commercial vehicles for over 12 consecutive years." (emphasis in original).

   The facts surrounding this warning letter are not disputed. On January 13, 1999, complainant was dispatched from Copley to Pittsburgh, Pennsylvania. At that time, complainant's "bid" called for complainant to travel from Copley to Pittsburgh, then from Pittsburgh back to Copley, and then return to Pittsburgh where complainant would be given the opportunity to rest. When complainant returned to Copley after the initial turn around, he was informed that he would not be dispatched back to Pittsburgh because of inclement weather. Complainant returned to his home.

June 15, 1998 Warning Letter

   On June 15, 1998, respondent issued a warning letter to complainant stating that complainant had reported to work 20 minutes late on June 12, 1998. (RX N). Complainant responded with a "protest letter" dated June 22, 1998. (RX P). In that letter, complainant challenged the accuracy of the time card that was the basis of the warning letter. The card is dated May, 12, 1998, not June 12, 1998. Complainant later explained in his deposition that it was explained to him by his union business agent that the time clock sometimes fails to advance the month automatically and that the advancing must be done manually. See RX CC. Complainant does not accept that the card being dated incorrectly is a typographical error. Complainant stated in his deposition that he was not late on the date in question, but that he has no evidence to establish that he was not late on June 12, 1998.

September 14, 1998 Warning Letter

   Complainant was issued another warning letter on September 14, 1998. (RX P). This letter was issued by respondent for complainant failing to follow instructions. Complainant responded to respondent's warning letter with a "protest letter" dated September 16, 1998, which was subsequently revised by complainant on January 28, 1999. (RX R & S). The parties are not in agreement with regard to the facts surrounding this letter.

   Respondent alleges that complainant was told to telephone respondent's terminal "time critical" when complainant completed his delivery. See Respondent's Motion to Dismiss, p. 8-9. Complainant replied with a "protest letter." This letter alleges that complainant was never instructed to call respondent's terminal when he left the client's location on September 11, 1998. Complainant stated that he was given a cellular telephone and instructed on how to use the telephone but that he was not told when he was to use the telephone. See RX CC. Additionally, complainant states in his "protest letter" that if he was given the instruction to call "time critical" on September 11, 1998, that doing so would be impossible considering the fact that complainant left the customer's location on September 10, 1998. Again, complainant is unwilling to accept that the date discrepancy is a typographical error.

September 22, 1998

   A warning letter was issued to complainant on September 22, 1998 for requesting payment for 12 hours of birthday leave after complainant had already received payment for working on his birthday. (RX T). This letter was subsequently rescinded by respondent on September 28, 1998. A conversation concerning this situation was held between complainant and respondent's assistant relay manager. A compromise was reached and the letter was rescinded.

   Complainant filed a "protest letter" on September 30, 1998. (RX U). Complainant continues to believe that the letter was retaliatory. Complainant is not clear in his explanation of how this letter is retaliatory considering that the letter was rescinded by respondent.

October 6, 1998

   On October 6, 1998, respondent issued a warning letter to complainant for a violation of the "doctor/lawyer will call" policy. (RX V). Complainant responded with a "protest letter" dated October 13, 1998 which was subsequently revised. (RX W & X). Complainant, at the time of his deposition, agreed that this letter was not a part of respondent's discriminatory activities. As such, this letter will be considered no further.

January 26, 1999

   On January 26, 1999, complainant was issued a warning letter for destroying company property. (RX Z). The facts with regard to the issuance of this letter are not in dispute. Complainant was given a notice of hearing from one of respondent's employees. Complainant signed the form and returned it to the employee. Complainant asked that the form be returned to him, at which time he ripped the form into pieces. Complainant states in his "protest letter," dated January 27, 1999, that he destroyed the form because he was not aware of the legitimacy of the form and he wished to "void" his signature. (RX AA).

Ohio Joint State Committee Proceedings

   A hearing was held before the Ohio Joint State Committee ("OJSC") with regard to complainant's work record on April 14, 1999. (RX BB). The hearing covered the previous nine months of complainant's work record. The OJSC considered complainant's warning letters of: June 15, 1998; October 6, 1998; October 16, 1998; January 19, 1999; and January 26, 1999. Respondent requested a five day suspension at that time. The OJSC ordered a five day disciplinary suspension to be served by complainant April 19, 1999 through April 23, 1999.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

   Respondent, Roadway Express, Inc. engages in interstate trucking operations and its employees operate commercial motor vehicles over interstate highways, principally to transport cargo. See Secretary's Findings, dated June 22, 2000. The Secretary has consistently stated that the STAA should be interpreted liberally in order to promote an interpretation of the Act which is consistent with its Congressional intent, namely, the promotion of commercial motor vehicle safety on the nations highways. See generally, Boone v. TFE, Inc., 90-STA-7 (Sec'y. July 17, 1991) DOL Decs. Vol. 5, No. 4, p. 160, 161, Aff'd sub nom., Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d 1000 (4th Cir. 1992); Somerson v. Yellow Freight Systems, Inc, 1998-STA-9 & 11 (ARB Feb. 18, 1999).

49 U.S.C. § 31105 (a).

   For the sake of making this recommended decision and order more coherent, each of complainant's allegations will be addressed as they have been addressed in the pleadings in this claim.

October 13, 1998 failure to meet running time

   With regard to this incident, respondent alleges that it is entitled to summary decision because complainant's rest breaks on this run from New Seneca to Copley are not protected activity under the STAA. Respondent bases this belief on the fact that complainant was provided more than ample time to rest before being dispatched by respondent. Additionally, respondent alleges that it did nothing to prevent complainant from driving safely on October 13, 1998. Thus, respondent is alleging that through no fault of respondent, complainant was fatigued on October 13, 1998.

   In response, complainant states that on October 13, 1998, he was too fatigued to drive safely and as such his rest breaks were protected activity under the STAA. In support of this proposition, complainant states that he rarely rests as well during the daylight hours as he does during the nighttime hours. Complainant also alleges that on October 12 and 13, his sleep was sporadic and he was driving at time when he was prone to fatigue. Additionally, complainant submitted the findings of the Federal Motor Carrier Safety Administration in a Notice of Proposed Rule Making dated May, 2000. These findings deal with fatigue in commercial motor carriers and sleep cycles. Complainant states that he is prone to fatigue if he has not slept well in the previous 24 hours. Complainant states that if he had continued to drive on October 13, 1998 without the rest stop, he would have violated a federal safety regulation.

   Complainant alleges that respondent disciplined him for refusing to drive due to fatigue which complainant contends is protected activity under 49 U.S.C. § 31105(a)(1)(B)(i). In order to establish protected activity, complainant must show that the operation of a motor vehicle would have been a genuine violation of a federal safety regulation at the time he refused to drive. Yellow Freight Systems v. Martin, 983 F.2d 1195, 1199 (2nd Cir. 1993). Complainant alleges that had he driven, he would have violated the safety regulation located at 49 C.F.R. § 392.3, which reads as follows:

[n]o driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the commercial motor vehicle.

   The first issue that must be decided in determining whether complainant has established a prima facie case of discrimination, is whether complainant was engaging in protected activity when he failed to meet his running time from New Seneca, New York to Copley, Ohio. The Administrative Review Board ("Board") has consistently held that the STAA does not protect an employee who, through no fault of the employer, has made himself unavailable for work. A'sst Sec'y & Porter v. Greyhound Bus Lines, 1996-STA-23 (ARB June 12, 1998). What appears to be the dominant theme underlying all of the cases where rest periods were considered protected activity is that the fatigue was in some way precipitated by the actions of the employer. See Stauffer v. Wal-Mart Stores, Inc., 1999-STA-21 (ARB Nov. 30, 1999); Brandt v. United Parcel Service, 1995-STA-26 (Sec'y Oct. 26, 1995); Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980 (4th Cir. 1993).

   Illustrative of this point is the Board's finding in Stauffer. In that claim, the Board noted that a person who had been awake for 17.25 hours "would be impaired due to fatigue." Stauffer, 1999-STA-21, fn. 2. In support of this proposition, the Board continues that remaining awake awaiting dispatch and operating vehicle over a period of 15 to 21 hours established that operating the vehicle would be unsafe. Supra. The Board's finding in Stauffer establishes that a driver may decline a work assignment based on the anticipation of future fatigue. However, inherent in this finding is the premise that the fatigue must have, in some way, been caused by the employer's actions.

   In the above-captioned claim there is no dispute as to the facts surrounding complainant's fatigue. While it may be more difficult to sleep during the day, it is not within the province of this court to question the dispatch system of respondent. When there is no evidence that respondent's implementation of its dispatch system violated any specific Department of Transportation regulation, it is improper under the STAA to address a wholesale challenge to a facially lawful dispatch system. Somerson v. Yellow Freight System, Inc., 1998-STA-9 & 11 (AJL Feb. 18, 1999). Because complainant had adequate time to be rested and available for work, and was fatigued through no fault of respondent, I find as a matter of law that complainant did not engage in protected activity under § 31105(a)(1)(B)(ii) on October 13, 1998.

   Additionally, complainant alleges that a material fact exists as to whether if he had continued to drive on October 13, 1998, he would have violated the provisions of § 31105(a)(1)(A)(ii). Complainant alleges that the rest stops he took in excess of the allotted rest periods are protected because he had a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition. I am assuming that complainant is alleging that the unsafe condition of the vehicle is the fact that its driver was fatigued.

   Complainant alleges that the facts of this claim are distinguishable form the facts of Porter, supra. I disagree with complainant's contention. Again, it is important that respondent had noting to do with complainant not being rested for his run from New Seneca to Copley. Complainant admits that it was through no fault of respondent that he was fatigued on October 13, 1998. Whether or not he believed it to be reasonable to make the rest stops is not relevant, considering that complainant made himself unavailable for work. Complainant's activities of October 13, 1998 are not protected activity under the provisions of § 31105(a)(1)(B)(ii).

January 14, 1999 refusal to report to work

   Complainant alleges that he engaged in protected activity on January 14, 1999 when he refused to report to work because of inclement weather. Complainant alleges that had be reported to work on that date and driven his commercial motor vehicle, he would have violated 49 C.F.R. § 392.14.

Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke , adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to the passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.

49 C.F.R. § 392.14.

   Both complainant and respondent have cited to Robinson v. Duff Truck Line, Inc., 1986-STA-3 (Sec'y March 6, 1987), aff'd Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (table)(6th Cir. 1988), in support of its proposition. I find the position of complainant more persuasive. The facts in Robinson are very similar to the facts surrounding complainant's activities on January 14, 1999. Robinson observed inclement weather in the area surrounding his home. Robinson called Duff's dispatcher to inform the dispatcher that he was not going to "make his run and that he was reporting off." Id. at p. 2. Robinson also informed the dispatcher that he was unable to get out of his driveway because of the weather. Id. In Robinson, the Secretary found that "a reasonable interpretation of section 392.14 is that it applies whenever a driver encounters hazardous weather conditions whether before his dispatch from the terminal or when he is on the road." Robinson at p. 4-5.

   Therefore, respondent's contention that complainant had to arrive at the terminal in order to invoke the protections of the STAA is misplaced. Robinson did not arrive at the terminal before refusing to drive and the Secretary found that Robinson's activities were protected under the STAA. This does not mean that complainant has not established that his activities are protected under the STAA. However, there exists a material issue of fact as to whether the weather was of a type which would have made it unsafe for complainant to operate his vehicle.

   "In order to establish that [complainant's] refusal to drive is protected because he would have violated section 392.14, [complainant] must show that there existed, ... the type of weather conditions which would make it unsafe to operate the vehicle." Robinson, at 5. There exists a material issue of fact as to whether complainant can establish that these weather conditions did in fact exist on January 14, 1999. Therefore, summary decision at this point would be inappropriate on the issue of whether complainant engaged in protected activity under the STAA provisions of § 31105 (a)(1)(B)(i)&(ii) on January 14, 1999.

Whistleblower Complaint

   In a STAA whistleblower claim, such as this one, complainant bears the initial burden of establishing a prima facie case of discrimination. In order to meet that burden, the complainant must establish the following elements: (1) that the complainant engaged in protected activity; (2) the employer then subjected the complainant to an adverse employment action; and (3) a nexus between the protected activity and the adverse employment action. Stauffer v. Wal-Mart Stores, Inc., 1999-STA-21 (ARB, Nov. 30, 1999); Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989). See Passaic Valley Sewerage Commissioners v. United States Department of Labor, 992 F.2d 474 (3rd Cir. 1993); Deford v. Secretary of Labor, 700 F.2d 281 (6th Cir. 1983). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The standard to establish each element is by a preponderance of the evidence. If the complainant fails to meet this standard, the claim must be dismissed.

   It is uncontested that complainant engaged in protected activity by filing a complaint with the Secretary of Labor on March 23, 1998. Therefore, complainant engaged in protected activity. It is also uncontested that complainant suffered an adverse employment action. Complainant served a five day suspension on April 19-23, 1999. Therefore, the only issue presented in this claim is whether there is a causal nexus between the protected activity and the adverse employment action.

   The basis for the suspension, and complainant's allegation of retaliatory activity are four warning letters, dated June 15, 1998; September 14, 1998; September 22, 1998; and January 26, 1999. There are factual issues to be decided surrounding each of these warning letters.

   The June 15, 1998 warning letter states that complainant was 20 minutes late for work on June 12, 1998. However, the card indicating that complainant was 20 minutes late is dated May 12, 1998. As such, there exists some issues of fact surrounding this warning letter. Therefore, summary decision would be inappropriate at this time. Additionally, there are factual issues to be decided surrounding the warning letter dated September 14, 1998. This letter was issued for complainant failing to follow instructions. Complainant alleges that he was never given the instructions that respondent alleges complainant failed to follow. The determination of the truthfulness of these allegations is a credibility determination that must be made by the court. As such, summary decision with regard to the September 14, 1998 warning letter would be inappropriate.

Document: Initial Recommended D&O.wpd Created by: RLESNICK on 06/13/2001 10:34:34 AM   Summary decision is appropriate with regard to the January 26, 1999 warning letter for destruction of company property. The facts surrounding that incident are undisputed. As such, it is clear that complainant destroyed the hearing notice. Therefore, the warning letter presents no material issue of fact and complainant has failed to establish any causal nexus between the OSHA complaint and the adverse employment action.

   As for the September 22, 1998 warning letter, complainant has presented no material issue of fact and as such summary decision should be granted with regard to these two letters. The September 22, 1998 letter was rescinded after the matter was resolved by complainant and one of respondent's employees. The letter is clearly marked "rescinded." Therefore, complainant has failed to establish any causal nexus between this letter and the adverse employment action.

   Accordingly, with respect to complainant's allegation of whistleblower activity under the STAA, the June 15, 1998 and September 14, 1998 warning letters present material issues of fact that are inappropriate for summary decision, and the September 27, 1998 and January 26, 1999 letter present no issue of material fact and are appropriate for summary decision.

   IT IS HEREBY ORDERED THAT respondent's motion to dismiss with regard to the October 13, 1998, September 27, 1998 and January 26, 1999 warning letters is GRANTED.

   IT IS FURTHER ORDERED THAT respondent's motion to dismiss with regard to the January 14, 1999, June 15, 1998, and September 14, 1998 warning letters is DENIED.

       ROBERT J. LESNICK
       Administrative Law Judge

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