Office of Administrative Law Judges 2600 Mt. Ephraim Avenue
Camden, NJ 08104
(856) 757-5312 856-757-5403 (FAX)
Issue date: 23Oct2000
CASE NO.: 2000-STA-00052
In the Matter of
DAVID L. BUSHWAY Complainant
v.
YELLOW FREIGHT, INC. Respondent
RECOMMENDED DECISION AND ORDER GRANTING
RESPONDENT'S MOTION FOR SUMMARY DECISION
This proceeding arises under the employee protection provisions of section
405 of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C.
§31105, and the implementing regulations at 29 C.F.R. Part 1978. Section 405 of the
STAA protects a covered employee from discharge, discipline or discrimination because the
employee has engaged in protected activity pertaining to commercial motor vehicle safety and
health matters. The matter is before me on a motion for summary decision filed by the
Respondent Yellow Freight, Inc. ("Yellow Freight"). The Complainant, David L.
Bushway ("Bushway") has not filed any answer in opposition to Yellow Freight's
motion, and I have concluded for the reasons set forth below that there is no genuine issue as to
any material fact and that Yellow Freight is entitled to summary decision.
I. Background
On January 20, 2000, Bushway filed a complaint with the Regional
Administrator of the Department of Labor's Occupational Safety and Health Administration
alleging that Yellow Freight had discriminatorily discharged him in violation of the STAA for
complaining about the configuration (i.e., a low profile fifth wheel, undersized tires and
trailer landing gear without adequate groung clearance) of a tractor/trailer unit he was required to
operate. The Regional Administrator, acting as the agent of the Secretary of Labor, investigated
Bushway's complaint. On June 26, 2000, the Regional Administrator issued Secretary's Findings
which dismissed the complaint for lack of merit. By letter dated July 21, 2000, Bushway
appealed the Secretary's Findings and requested a hearing on his complaint before an
administrative law judge. After the matter was assigned to me, Yellow Freight moved for
summary decision on September 29, 2000. Bushway, who was served with Yellow Freight's
motion via Federal Express on September 29, 2000, has not filed any answer to the motion or
requested an enlargement of the time frame for filing an answer.1[Page 2]
1 By letter dated October 4, 2000,
Yellow Freight's attorney informed Bushway, who is not represented by counsel, that his answer
to the motion would be due October 9, 2000 pursuant to 29 C.F.R. §18.40(a).
2 The transcript of Bushway's
depostion is appended to the motion for summary decision as Exhibit 1. References to the
transcript will be designated as "Deposition at __."
3 Bushway stated at his deposition
that he was not at fault in this accident because the state should have cut the tree limb.
4 Yellow Fright notes that
Bushway was arrested and tried for this incident, but he was found not guilty because the
construction workers could not positively identify him or the truck he was driving. However,
Yellow Freight further notes that its manifests and other evidence show that Bushway was the
only Yellow Freight driver in the vicinity when this incident occurred.
5 Bushway returned to work at
Yellow Freight in December 1995 after this termination attempt was overturned. At his
deposition, he initially denied that he had threatened to kill his supervisors. Deposition at 136.
However, when confronted with affidavits of two medical clinic nurses who stated that he had
made the threats, he at first testified that he did not remember what he had said at the clinic but
later claimed that the nurses had lied. Id. at 137, 140. However, he did admit that the
Sheriff's Department required him to turn in his firearms following this incident. Id. at
82.
6 Bushway asserted at his
deposition that the other driver had fabricated the allegations against him arising out of the
August 24, 1997 accident.
7 Bushway denied both incidents
and asserted at his deposition that Yellow Freight management had coerced the two drivers into
making false allegations against him.