Stopak v. River Valley Paper Company, 1999-STA-10 (ALJ Oct. 27, 1999)

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Stopak v. River Valley Paper Company, 1999-STA-10 (ALJ Oct. 27, 1999)

U.S. Department of Labor Office of Administrative Law Judges
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Pittsburgh, PA 15220
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DATE: OCTOBER 27, 1999
CASE NO. 1999-STA-10

In the Matter of

ROBERT STOPAK
Complainant

RIVER VALLEY PAPER COMPANY
Respondent

James E. Daly, Esq.
For the Complainant

Daniel L. Bell, Esq.
For the Respondent

BEFORE: DANIEL L. LELAND
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This case arises from a complaint filed under the employee protection provisions of the Surface Transportation Assistance Act (STA), 49 U.S.C. § 31105 and its implementing regulations at 29 C.F.R. § 1978. Complainant filed a complaint with the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) on July 7, 1998. See C 7. Following an investigation, the OSHA Area Director determined that no violation of the STA had occurred and dismissed the complaint on October 2, 1998. See C 8. Complainant then requested a hearing before an administrative law judge. A formal hearing was held before the undersigned in Akron, Ohio on June 3, 1999 at which both parties were afforded the opportunity to present evidence and argument as provided in the applicable regulations. At the hearing, complainant's exhibits (C) 1-11 were admitted into evidence. At the close of the hearing, the parties were given sixty days to submit briefs. Both parties submitted timely filed briefs.

[Page 2]

Issue

Was the complainant discharged in retaliation for his protected activity in violation of the STA?

Summary of the Evidence

Respondent is a buyer, packer, and grader of waste paper and has sixty-three permanent employees. (TR 188) John Sharp is the president of respondent. Id. Complainant was hired by respondent as a tractor-trailer operator in August 1996. On the morning of April 16, 1998, complainant reported to work at respondent's plant and was told by several employees which trailers to put in the dock. (TR 101) Complainant told them that he had been told to follow the directions of a supervisor named Frank Crawford as to which trailers to put in the dock. Id. Complainant's response apparently upset these employees. (TR 101-102) Later that morning at approximately 8 a. m., a number of employees met in the office of the plant and complained to Sharp about complainant not following orders. (TR 104) Complainant stated, "Who is my boss"? (TR 58) Everyone was talking at once and Sharp told them to "shut up" ¹ and go back to work. (TR 20-21, 58, 105-106, 199-200)

Shortly after noon on April 16, Stopak telephoned OSHA in Cleveland. (TR 107-108; See C 1) He stated that he informed OSHA that the aisles in the plant were not wide enough, the brakes on the trailers were unsafe, and the tow motors were being operated in an unsafe manner. (TR 109) ² Complainant then told Sandy Sayre, the plant manager, that he had called OSHA. (TR 80) That evening, Sayre called Stopak at home and told him that Sharp would fire him if he had called OSHA. (TR 114, 182) Sayre denies having told him that. (TR 89) Complainant then told Sayre that he had not called OSHA. (TR 88, 114) On April 17, Nancy Newman, OSHA's Compliance Program Manager in Cleveland, wrote a letter to respondent reporting that a complaint had been made on April 11 regarding the aisles in its plant being too narrow for lift truck operation and the lack of training for lift truck operators. (See C 3) ³ The letter does not refer to a complaint about unsafe brakes on the trailers. The OSHA letter was posted at respondent's plant on April 17. (See C 4) Respondent wrote a letter in response to OSHA on April 22 regarding the width of the aisles and its training of tow motor operators. (See C 6)

Sharp made the decision to fire Stopak. (TR 190) He testified that complainant did not have a problem with absenteeism and that he was a good worker, but that he had an attitude problem. (TR 39-40) Sharp cited two previous incident involving Stopak: one where he called in sick after an altercation although he knew that another driver had wanted to take the day off because his mother was having surgery, and complainant's refusal to deliver loads unless he had twenty-four hour notice despite company policy that it guaranteed pickup within twenty-four hours of being contacted by a customer. (TR 191-192, 196-198) Sharp considered terminating complainant on both occasions and had discussions with him about his attitude. (TR 193-194, 198) Sharp also received numerous complaints from employees at the plant that complainant was agitating them. (TR 195)

[Page 3]

Sharp wrote a warning letter to Stopak on April 16 following the incident in his office, stating that his negative attitude is causing problems with many employees, that he is constantly complaining and is difficult to work with, and that he needs to develop a better attitude. (See C 2; TR 200-201) Sharp was considering terminating Stopak at this time. (TR 201) Sayre presented the warning notice to Stopak on April 17. (TR 117-118) At four in the morning of the seventeenth, Sharp left for a golfing vacation, but he called his secretary, Pam Bailey, and his office manager, Mary Pamer, later that day, and told them that they should direct Sayre to fire Stopak. (TR 202-203) Sayre received the instructions to fire complainant on the afternoon of April 17, but waited until the morning of April 20, which was a Monday, to check with Sharp and confirm his decision to discharge Stopak. (TR 63-64) After Stopak returned from his morning run, Sayre informed him that he was being terminated and ordered him off the premises. (TR 123, 229) Sharp transmitted a termination letter to Stopak on the same day. (See C 5)

Sharp testified that the first time he had knowledge that Stopak had called OSHA was when the OSHA investigator came to the plant long after Stopak's discharge. (TR 47) Sharp stated that he had no knowledge that Stopak had called OSHA at the time he decided to terminate Stopak. (TR 209) Sayre testified that he did not contact Sharp and inform him of OSHA's call on April 17 prior to firing Stopak on April 20. (TR 232) Sayre asserted that he still is unaware that it was complainant who called OSHA on April 16. (TR 230) Stopak confirmed that he had not told Sharp or any of respondent's employees that he had called OSHA prior to his termination. (TR 155)

Findings of Fact and Conclusions of Law

Section 31105 of the STA states as pertinent:

(a)(1) A person may not discharge an employee, or discipline or discriminate against any 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 the violation of a commercial motor carrier safety regulation, standard, or order, or has testified or will testify in such a proceeding...

Complainant testified that he complained to OSHA about the width of the aisles in the plant, the lack of training for tow motor operators, and unsafe brakes on the trailers, but OSHA's letter of April 17, 1998 refers only to the first two safety concerns. (See C 3) On their face, the width of the plant aisles and the training of tow operators in the plant are not covered by regulations governing commercial motor vehicle safety, and complainant has not cited any commercial motor vehicles safety regulations that these possible hazards may violate. In light of OSHA's letter, I do not find complainant's testimony credible that his complaint to OSHA also dealt with unsafe brakes on the trailers. Therefore, it would appear that complainant's complaints do not constitute protected activity under the STA and jurisdiction is lacking in this case. See Roadway Express, Inc. v. Dole, 929 F. 2d 1060 (5th Cir. 1991), Nix v. Nehi-RC Bottling Co, Inc., 84-STA-1 (Sec'y July 13, 1984).

[Page 4]

Assuming arguendo that complainant engaged in protected activity under the STA, I find that he has failed to make out a prima facie case of employment discrimination under the Act. To prove a prima facie case, complainant must show by a preponderance of the evidence that he engaged in protected activity, that he was subject to adverse employment action, and that respondent was aware of the protected activity. He must also present evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action. See Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y, January 27, 1992).

The evidence in this case clearly demonstrates that respondent was unaware of complainant's presumed protected activity at the time the decision was made to discharge him. Sharp decided to terminate complainant on April 17 and conveyed his decision to Sayre on that day. At that time, he was not aware that complainant had made any complaints to OSHA and did not become aware of this until long after complainant's termination. Although Stopak told Sayre that he had called OSHA on April 16, Stopak later denied having done so. ⁴ Sayre did not tell Sharp that Stopak may have called OSHA before Sharp decided to fire him. Stopak admitted under cross examination that he did not inform Sharp or any of respondent's employees that he had called OSHA prior to his actual discharge on April 20. Therefore, respondent had no knowledge of any protected activity at the time it took the adverse employment action against complainant, and this element of a prima facie case has not been satisfied. See Roach v. Felts Enterprises, 93-STA-12 (ALJ March 31, 1993), aff'd (Sec'y June 17, 1993), Gay v. Burlington Motor Carriers, 92-STA-1 (Sec'y July 13, 1984). The complaint will therefore be dismissed.

Recommended Order

IT IS ORDERED that the complaint of Robert Stopak under the Surface Transportation Assistance Act is DISMISSED.

DANIEL L. LELAND
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, United States Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ Sandy Sayre, the plant manager, and complainant testified that Sharp only told complainant to "shut up".

² A tow motor is another name for a forklift. (See TR 111)

³ The April 11 date is clearly incorrect as there is no evidence of any complaint being made to OSHA regarding respondent's plant until April 16.

⁴ It is immaterial whether Sayre told complainant that Sharp would fire him if he knew that complainant had called OSHA since Sayre never told Sharp that complainant had made such a call.