ARB CASE NO. 06-149
ALJ CASE NO. 2005-STA-060
DATE: September 28, 2007
In the Matter of:
JOSEPH MUZYK,
COMPLAINANT,
v.
CARLSWARD TRANSPORTATION,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Joseph Muzyk, pro se, Orlando, Florida
For the Respondent:
Tim Carlsward, pro se, Orlando, Florida
FINAL DECISION AND ORDER
This
case arises under the employee protection provisions of the Surface
Transportation Assistance Act (STAA) of 1982, as amended and recodified, 49
U.S.C.A. § 31105 (West
1997), and its implementing regulations, 29 C.F.R. Part 1978 (2007).[1] Section 31105 provides protection from discrimination to
employees who report violations of commercial motor vehicle safety rules or who
refuse to operate a vehicle when such operation would violate those rules. The
Administrative Review Board (Board or ARB) automatically reviews an Administrative
Law Judge’s (ALJ) recommended STAA decision pursuant to 29 C.F.R. §
1978.109(c)(1). On
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September 13, 2006, after a hearing held on February 15,
2006, an ALJ recommended dismissing Muzyk’s complaint. We affirm.
Jurisdiction and Standard of Review
The Secretary of
Labor has delegated to the Board the authority to issue final agency decisions
under, inter alia, the STAA and the implementing regulations at 29 C.F.R. Part
§ 1978.[2]
We issued a Notice of Review and Briefing Schedule on September 20,
2006. Neither party elected to file a brief.
When reviewing
STAA cases, the Board is bound by the ALJ’s factual findings if they are
supported by substantial evidence on the record considered as a whole.[3]
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”[4]
We must uphold an ALJ’s finding of fact that is supported by substantial
evidence even if there is also substantial evidence for the other party, and
even if we “would justifiably have made a different choice” had the matter been
before us de novo.[5]
We review the ALJ’s conclusions of law de novo.[6]
Background
The
ALJ summarized the background in the Recommended Decision and Order (R. D.
& O.). We restate the relevant facts. Carlsward Transportation, the Respondent,
hired Joseph Muzyk as a minibus driver by on June 6, 2003. Carlsward operates
a shuttle service using minibuses carrying passengers around the Orlando area. During this period in 2004, the Complainant was in lay-off status, but
Carlsward intended to rehire him in October when the busy season started up.[7]
In the first week of August 2004, Carlsward temporarily took Muzyk out of
lay-off status to drive a bus (# 6) back to the yard, and on the way, to shuttle
passengers. Muzyk testified that,
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during the trip, he was “overcome” by
exhaust fumes. Muzyk testified that he informed Tim Carlsward who, according to
Muzyk, told him to continue operating the vehicle because the diesel fuel was
unlikely to catch fire.[8]
Carlsward testified that Muzyk did not contact him on the 7th and that the
first time he heard of the incident was on August 17th when Muzyk informed him about
it after inquiring about workers’ compensation.[9]
Muzyk testified that after discussing the matter with Carlsward, he saw
that the bus was still in operation on August 17th. Muzyk, concerned about the
well-being of other drivers, contacted Gary Bolton, another bus driver at
Carlsward, and advised him “not to operate bus # 6” because Carlsward was not
properly maintaining the vehicle, and “there is potential risk of accident or
death.”[10]
According to Muzyk, Bolton questioned his motives and suggested that he was on
a “vendetta” against Carlsward, which Muzyk denied.[11]
On August 18, 2004, according to Carlsward, Bolton told him that Muzyk had
threatened “to get [him].”[12]
Neither party called Bolton to testify in this proceeding.
On August 19, 2004, Muzyk drove to Carlsward’s bus depot where Carlsward
parked his vehicles. Muzyk intended to take pictures of the minibus for a
meeting with an attorney. Carlsward, at the time, was also driving to his
office. While driving to the depot, Muzyk spotted Carlsward in his van at a
traffic light. Muzyk slowed up in the hope that the light would turn green and
Carlsward would proceed without noticing him. When the light turned green, Carlsward
turned toward a complex of hotels and Muzyk followed him to see whether he was
making a pick-up. Muzyk lost sight of Carlsward, however, and assumed he
turned into one of the hotels. Muzyk then proceeded to the depot. Muzyk
testified that Carlsward may have thought he was acting suspicious, and decided
to follow him. Muzyk conceded that he was playing: “a little cat and mouse
game, because [he] didn’t want to disclose that [he] was taking a picture of
his bus.”[13]
As Carlsward drove by the parking lot where his busses were parked, he spotted
Muzyk. Carlsward, drove up, and, according to Muzyk, he was upset about Muzyk’s
presence on his lot with a camera, and he asked what Muzyk was doing.[14]
Muzyk admitted that he lied to Carlsward when he told Carlsward that he was
just taking pictures of the trees knocked down a few days
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before by Hurricane
Charlie.[15]
Carlsward testified that: “when he lied to me . . . it just clicked that I can’t
trust him to be around the vehicles because I’m fearful that he may try to sabotage
something.”[16]
Carlsward testified that Muzyk was not an employee at that time, but in a
lay-off status, and he asked him to return the keys to the vehicles and his
office and not to return to the lot unescorted.[17]
According to Muzyk, Carlsward asked for the keys and stated that “he didn’t
like liars.”[18]
Carlsward testified that, as a result of Muzyk’s pattern of behavior, he lost
confidence in Muzyk’s ability to safely and responsibly operate as a bus driver
for his company. Consequently, he decided not to rehire him.[19]
Discussion
Legal Standard
To prevail on
his STAA complaint, Muzyk must prove by a preponderance of the evidence that he
engaged in protected activity, that Carlsward was aware of the protected
activity, that he suffered an adverse action, and that Carlsward took the
adverse action because of his protected activity.[20]
To show that the adverse action was taken “because of” protected activity, Muzyk
must show that his protected activity was a “motivating” factor in Carlsward’s
decision to dismiss him.[21]
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At the hearing stage, to prevail in an adjudication, a complainant must prove unlawful
discrimination.[22] The trier of fact may
conclude that the employer was not motivated, in whole or in part, by the
protected conduct, and thus that the employee has failed to prove retaliation.
If, however the trier of fact concludes that the employer was motivated by both
a prohibited and a non-retaliatory reason (dual or mixed-motives), the employer
can avoid an order of relief by proving, by a preponderance of evidence in STAA
cases, that it would have reached the same decision even in the absence of
protected activity.[23]
Discrimination
Muzyk contends that Carlsward Transportation violated the STAA
when it refused to rehire him after he raised concerns about the safety of Carlsward’s
vehicles.
Adverse Action & Employment Relationship
Under other statutes, we have held that the crucial factor
in finding an employer-employee relationship is whether the respondent acted in
the capacity of an employer, that is, exercised control over, or interfered
with, the terms, conditions, or privileges of the complainant’s employment.[24]
Such control, which includes the ability to hire, transfer, promote, reprimand,
or discharge the complainant, or to influence another employer to take such
actions
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against a complainant, is essential for a whistleblower respondent to
be considered an employer under the whistleblower statutes.[25]
The ALJ found that an employment relationship existed between Muzyk and
Carlsward. Muzyk was in lay-off status prior to the temporary
August 7th assignment, the same trip in which the exhaust incident occurred. At
the latest, Muzyk’s complaint to Carlsward took place on August 17th and the decision
not to rehire him took place on August 19th, both of which occurred when Muzyk
was back in lay-off status. Because Muzyk was working for Carlsward at
the time of the exhaust incident and Carlsward conceded that before August
19th, he intended to rehire Muzyk when business picked up, we affirm the ALJ’s
finding of an employment relationship between Muzyk and Carlsward. Thus, we
proceed to discuss adverse action.
The STAA provides that a person may not “discharge an
employee, or discipline or discriminate against an employee regarding pay,
terms, or privileges of employment” because the employee engaged in
STAA-protected activity.[26] The
ALJ found that Carlsward’s decision not to rehire Muzyk, though initially
intending to do so, was an adverse action. We agree that refusing to rehire an
employee affects “pay, terms, or privileges of employment.”[27]
Protected Activity and Knowledge
The ALJ found that the safety concerns Muzyk raised were
motivated by a reasonable apprehension of injury and thus protected by STAA.[28] Carlsward concedes that Muzyk informed him of his safety
concerns over bus # 6 on August 17. The adverse action took place on August
19th. Therefore substantial evidence supports the ALJ’s finding of protected
activity and knowledge of that protected activity.
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Causation & Dual-Motives
The ALJ found that although discrimination “played a role”[29] in the decision not to rehire Muzyk, Carlsward would have
refused to rehire Muzyk absent any of Muzyk’s safety-related complaints where
Muzyk’s suspicious and dishonest activity raised legitimate security and loss
of confidence concerns for Carlsward. In so concluding, the ALJ noted that Muzyk’s
attempt to deceive his employer while hanging around the busses during a time
when he had no business at the depot “cast a cloud of mistrust over his relationship
with Carlsward.”[30]
The ALJ reasoned that in light of Bolton’s August 18th report that Muzyk
wanted to “get him,” and Muzyk’s deception during the August 19th encounter,
Carlsward’s concern for the security of his vehicles resulted in a loss of confidence
in Muzyk.[31]
Moreover, Muzyk conceded that he was playing: “a little cat and mouse game,”
because he did not want to disclose that he was taking pictures for the
upcoming meeting with an attorney.[32]
At the hearing, Muzyk also admitted that he lied to Carlsward about his reason
for visiting the depot. Therefore, we find that substantial evidence supports
the ALJ’s finding that Carlsward would have terminated its employment
relationship with Muzyk absent protected activity.
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Conclusion
Accordingly, we affirm the ALJ’s finding that Carlsward would have
ended its employment relationship with Muzyk absent any protected activity and DENY Muzyk’s complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] The STAA has been amended since Muzyk filed his complaint. See
Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53,
121 Stat. 266 (Aug. 3, 2007). Even if the amendments were applicable to this
complaint, they would not affect our decision.
[2] Secretary’s Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
[3] 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co.,
ARB No. 02-113, ALJ No. 01-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
[4] Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[5] See Universal Camera Corp., 340 U.S. at 488; McDede
v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 03-STA-012, slip op. at 3 (ARB Feb. 27, 2004).
[6] See Olson v. Hi-Valley Construction Co., ARB No. 03-049, ALJ No. 02-STA-012, slip op. at 2 (ARB May 28,
2004).
[7] Tr. at 59.
[8] Tr. at 52, 96-97.
[9] Tr. at 63-64.
[10] Tr. at 47.
[11] Tr. at 47-48.
[12] Tr. at 66.
[13] Tr. at 52.
[14] Tr. at 49, 67.
[15] Tr. at 49-50, 67-68, 99.
[16] Tr. at 68, 102.
[17] Tr. at 68.
[18] Tr. at 98.
[19] Tr. at 77-78, 101; RX2.
[20] Ridgley
v. C. J. Dannemiller Co., ARB No. 05-063, ALJ No. 04-STA-053, slip op. at 5
(ARB May 24, 2007).
[21] Lopez v. Serbaco, Inc.,
ARB No. 04-158, ALJ No. 04-CAA-005, slip op. at 4-5 & n.6
(ARB Nov. 29, 2006) (analogous Clean Air Act case); Price Waterhouse v.
Hopkins, 490 U.S. 228, 240-44 (1989) (“To construe the words ‘because of’
as colloquial shorthand for ‘but-for’ causation . . . is to misunderstand them.
. . . [T]he words ‘because of’ do not mean ‘solely because of’ . . . . [A
Title VII plaintiff must show only that an impermissible reason] played a motivating
part in [the] employment decision.”) (emphasis added); Mt. Healthy City Sch.
Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977) (employment
discrimination plaintiff has “the burden . . . to show that his conduct was . .
. a ‘substantial factor’ or to put it in other words, that it was a ‘motivating
factor’ in the [adverse action]”) (citation omitted) (emphasis added). A
complainant must prove more when showing that protected activity was a
“motivating” factor than when showing that such activity was a “contributing”
factor. See Lopez, ARB No. 04-158, slip op. at 5 n.6; Kester
v. Carolina Power & Light Co., ARB No. 02-007, ALJ No. 2000-ERA-031,
slip op. at 5-7 & n.15 (ARB Sept. 30, 2003).
[22] Brune v. Horizon Air Industries, Inc., ARB No. 04-037, ALJ No. 2002-AIR-008, slip op. at 14 (ARB Jan. 31, 2006).
To secure an investigation, a complainant merely must raise an
inference of unlawful discrimination, i.e., establish a prima
facie case. To prevail in an adjudication, a complainant must
prove unlawful discrimination. This is not to say, however, that the ALJ (or the ARB) should not
employ, if appropriate, the established and familiar Title VII burden shifting
pretext framework. Id. at 14.
[23] See Korolev v. Rocor Int’l, ARB No.
00-06, ALJ No. 98-STA-027, slip op. at 5 (ARB Nov. 26, 2002); Somerson v.
Yellow Freight Sys., Inc., ARB Nos. 99-005, ALJ No. 98-STA-009, slip op. at
20 (ARB Feb. 18, 1999). In STAA cases, as in cases arising under environmental
whistleblower provisions, the employer needs to prove only by a preponderance
of the evidence, that it would have taken the action in the absence of
protected activity. See Dartey v. Zack Co., 82-ERA-002, slip op.
at 6 (Sec’y Apr. 25, 1983) (The ERA was amended in 1992 to require employer to
prove by clear and convincing evidence it would take same action absent
protected activity); Desert Palace, Inc. v. Costa, 539 U.S. 90, 99,
100-01 (2003).
[24] Fullington v. AVSEC Servs., LLC, ARB No. 04-019, ALJ No.
2003-AIR-030, slip op. at 6-7 (ARB Oct. 26, 2005).
[25] Fullington, slip op. at 7; Lewis v. Synagro Techs., Inc.,
ARB No. 02-072, ALJ Nos. 02-CAA-012, 14, slip op. at 7 (ARB Feb. 27, 2004).
[26] 49 U.S.C.A. § 31105(a).
[27] See Galvin v. Munson Transp., No. 91-STA-041 (Sec’y Aug. 31,
1992).
[28] 49 U.S.C.A. § 31105(a).
[29] R. D. & O. at 14. The ALJ erred when he wrote, “Furthermore,
behavior problems . . . do[] not axiomatically sever the causal link since
legitimate reasons, alone, are not sufficient to end the inquiry if, despite
the reasons alleged, the whistleblower would not have been terminated ‘but
for’ the protected activity.” Id. at 11 (emphasis added)
(citing Consolidated Edison Co. of N.Y. v. Donovan, 673 F.2d 61 (2d Cir.
1982)). The ARB has held, however, that “[t]o construe the words ‘because of’
as colloquial shorthand for ‘but-for’ causation . . . is to misunderstand them.
. . . [T]he words ‘because of’ do not mean ‘solely because of’ . . . . [A
Title VII plaintiff must show only that an impermissible reason] played a motivating
part in [the] employment decision.” Lopez, slip op. at 4-5 & n.6; Hopkins,
490 U.S. at 240-44. Since the ALJ ultimately found that Carlsward
discriminated against Muzyk, we find this error harmless.
[30] R. D. & O. at 14.
[31] R. D. & O. at 14-15. We note that the
ALJ, in holding that Carlsward would have fired Muzyk absent protected
activity, observed that Carlsward’s action was “reasonable” and “justifiable”
in addition to being legitimate and non-discriminatory. As we have noted
before, the purpose of the STAA employee protection provision is specific to
retaliation because of protected activity. See Bettner v. Crete Carrier Corp.,
ARB No. 06-013, ALJ No. 2004-STA-018, slip op. 14-15 & n.83 (ARB May 24,
2007), citing Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471
(7th Cir. 2000) (“[this] court does not sit as a super-personnel
department” and will not
second-guess an employer’s decisions); Bienkowski v. American Airlines,
Inc., 851 F.2d 1503, 1507-1508 (5th Cir. 1988) (discrimination statute “was
not intended to be a vehicle for judicial second-guessing of employment
decisions, nor was it intended to transform the courts into personnel
managers;” statute cannot protect employees “from erroneous or even arbitrary
personnel decisions, but only from decisions which are unlawfully motivated”).
[32] Tr. at 52.
