(Tr. 274; Resp. Ex. S)
[Page 5]
The Complainant, while waiting for her truck to be readied for departure,
did
not record her time as relieved of duty. (Tr. 275) Instead, she recorded this forty-five minute
time
period as on-duty. Consequently, according to her logs, she was now out of DOT hours and
could
no longer drive under the standards espoused in the regulations. (Resp. Ex. S) Prior to her
departure
from the terminal in Sidney, the Complainant again telephoned Ms. White for further instruction.
According to the Complainant, Ms. White instructed her to drive until her DOT hours were
exhausted at which time she was to call the terminal again. (Tr. 281)
The Complainant drove from 1:45 p.m. until 2:15 p.m., when she checked
into
a hotel in Troy, Ohio. (Tr. 276) After checking-in, she called the terminal in Columbus, but was
put
on hold by a dispatcher. (Tr. 277) After waiting on hold for five minutes, the Complainant
hung-up
and went to get something to eat. (Id. ) The Complainant ate from 2:30 p.m. to 3:15
p.m.
and then contacted Ms. White at the Columbus terminal. (Tr. 278) Ms. White instructed her that
she
was being "cushioned in," that is, she had two Transport Operators on-the-clock
waiting
to come pick up her and her truck. (Id. ) However, Ms. White did not know the
whereabouts of the Complainant and she requested that the Complainant get the exit number of
her
hotel so that she could be picked-up. (Id. ) The Complainant contacted Mr. Bowen and
was
instructed to get the information that Ms. White had requested. (Tr. 279) The Complainant then
called Ms. White with the exit number. (Tr. 280) The Complainant was picked-up at 2:30 a.m.
of
August 26, 1994, and returned to Columbus around 4:30 a.m. (Tr. 280)
Upon her return to the terminal, the Complainant received three warning
letters
that had been posted awaiting her arrival. The Complainant was reprimanded for her failure to
promptly file her logs, failure to follow instructions in neglecting to fill-out her T-card and
failure
to follow instructions and causing a delay in freight for her delay in notifying Ms. White of her
whereabouts in Troy, Ohio. (Res. Ex. Q, R, U) The Complainant was not reprimanded for
driving
in excess of the 70 DOT hours. (Tr. 94)
On August 30, 1994, the hearing originally scheduled for August 2, 1994,
was
held. The Complainant was represented by her union. The hearing focused on five major
infractions: excessive absenteeism; insubordination and physically threatening the well being of
a
fellow CF MotorFreight employee; falsifying paysheets/timecards; and failure to comply with
Federal Motor Carrier Safety Regulations 395; failure to comply with Company Policy as
outlined
in the safety manual, by not submitting monthly log recaps. (Resp. Ex. Z) The Respondent
concluded that discharge was appropriate and notified the Complainant of this decision at the
hearing
and in a letter dated August 31, 1994. (Id. ) Pursuant to the NMFA, a member of the
collective bargaining unit cannot be discharged until their appeal has been addressed through the
grievance process. (Resp. Ex. E, p.207) Consequently, the Complainant remained on the job
pending this review.
The Complainant appealed the Respondent's decision of discharge to the
Ohio
Joint State Grievance Committee. The OJSGC denied her claim and upheld her discharge in a
unanimous decision. (Resp. Ex. GG) The Complainant, through her union representative, also
filed
an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the
[Page 6]
Respondent failed and/or refused to submit documents they requested for the hearing before the
OJSGC. (Resp. Ex. NN) This charge was found to be unfounded and, thus, the NLRB declined
to
issue a complaint. (Resp. Ex. OO) Based on the decision of the OJSGC, the Complainant was
formally discharged.
Deferral:
The Complainant, when initially informed of the Respondent's decision to
discharge her, contested this determination. The Ohio Joint State Grievance Commission heard
this
dispute and unanimously found that the Respondent's decision to discharge the Complainant was
proper. The Respondent asserts that deferral to the decision of the OJSGC is appropriate and
should
end this analysis.
The regulations establish the framework for determining when deferral to
the
outcome of another proceeding is appropriate. Specifically, the regulations state, in relevant part,
that:
[b]efore the Assistant Secretary or the Secretary defers to the results of other
proceedings, it must be clear that those proceedings dealt adequately with all the
factual issues, that the proceedings were fair, regular and free from procedural
infirmities, and that the outcome of the proceedings was not repugnant to the purpose
and policy of the Act.
29 CFR §1978.112(c).
In the instant case, I find that deferral is not appropriate. I base this finding
on the fact that this proceeding did not adequately deal with the Complainant's alleged protected
activity. The majority of the hearing before this panel was spent debating the admissibility of
issues
and evidence not addressed at the local hearing level. (Resp. Ex. DD) Additionally, this hearing
dealt extensively with the alleged non-production of requested documents by the Respondent as
well
as specific work absences by the Complainant and whether or not these were excused. There was
little or no meaningful discussion regarding the core of this claim, the events of July 20, 1994
and
August 25, 1994. In addition, the decision of the panel was a one sentence disposition upholding
the discharge. (Comp. Ex. 17; Resp. Ex. DD) It is unclear, from this brief statement, what
factors
the committee actually considered and decided. As such, I cannot find that this proceeding dealt
adequately with all of the factual issues involved in the pending claim. Consequently, I find that
deferral to the decision of the OJSGC is not warranted.
[Page 7]
Applicable Law:
Section 405 of the STAA, provides:
(a) No person shall discharge, discipline, or in any manner discriminate against
any employee with respect to the employee's compensation, terms, conditions or
privileges of employment because such employee (or any person acting pursuant to
the request of the employee has filed any complaint or instituted any proceeding
relating to a violation of a commercial motor vehicle safety rule, regulation, standard,
or order, or has testified or is about to testify in any such proceeding.
(b) No person shall discharge, discipline, or in any manner discriminate against
any employee with respect to the employee's compensation, terms, conditions or
privileges of employment for refusing to operate a vehicle when such operation
constitutes a violation of any federal rules, regulations, standards, or orders
applicable to commercial motor vehicle safety or health, or because of the employee's
reasonable apprehension of serious injury to himself or the public due to the unsafe
condition of such equipment. The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a reasonable person, under the
circumstances then confronting the employee, would conclude that there is a bona
fide danger of an accident, injury, or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection under this subsection, the
employee must have sought from his employer, and have been unable to obtain,
correction of the unsafe condition.
49 U.S.C. § 2305.
To establish a prima facie case of discriminatory treatment under
the
STAA, the Complainant must prove: (1) that she was engaged in an activity protected under the
STAA; and (2) that she was the subject of adverse employment action; and (3) that a causal link
exists between her protected activity and the adverse action of her 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.
McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). At a minimum, the
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).
Once the prima facie case is established, the burden of production
shifts to the Respondent to present evidence sufficient to rebut the inference of discrimination.
To
rebut this inference, the employer mut articulate a legitimate, nondiscriminatory reason for its
employment decision. Id. , supra. A credibility assessment of the non-
discriminatory reason espoused by the employer is not appropriate; rather, the Respondent must
simply present evidence of any legitimate reason for the adverse employment action taken
against
the Complainant. St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).
If the Employer successfully presents evidence of a non-discriminatory
reason
for the adverse employment action, the Complainant must then prove, by a preponderance of the
evidence, that the legitimate reason proffered by the employer is a mere pretext for
discrimination.
Moon , supra ; See also Texas Dep't of Community Affairs v.
Burdine , 450 U.S. 248, 253 (1981). In proving that the asserted reason is pretextual, the
[Page 8]
employee must do more than simply show that the proffered reason was not the true reason for
the
adverse employment action. The employee must prove both that the asserted reason is false and
that
discrimination was the true reason for the adverse action. Hicks , supra , at 2752-
56.
Under subsection (a) of Section 2305, protected activity may be the result
of
complaints or actions with agencies of federal or state governments, or it may be the result of
purely
internal activities, such as internal complaints to management. Reed v. National Minerals
Corp. , 91-STA-34 (Sec'y Decision, July 24, 1992). The Complainant asserts that her
protected
activity consisted of her complaints to Jody White that she could not be relieved of duty at the
terminal in Sidney, Ohio, as well as her notation of this safety regulation violation in her logs.
Additionally, the Complainant alleges that her refusal to log her time in Sidney as off-duty
constituted a refusal to operate a motor vehicle in a manner contrary to federal law pursuant to
subsection (b) of Section 2305.
The Secretary has ruled that once a case has been tried on the merits, the
question of whether a prima facie case has been presented is not particularly useful in the
analysis. White v. Maverick Transportation, Inc. , 94-STA-11 (Sec'y Feb. 21, 1996);
See also Carroll v. U.S. Dept. of Labor , 78 F.3d 352 (8th Cir.
1996)(circuit court approved Secretary's analysis). Thus, the key issue to be resolved is whether
the
adverse employment action taken against the Complainant was based upon legitimate,
nondiscriminatory reasons, or rather founded in discrimination. If the Complainant cannot
prevail
on this ultimate question of liability, it does not matter whether a prima facie case is
presented. White , supra .
The Respondent contends that the decision to terminate the Complainant
was
made on July 21, 1994, by Stuart Koble, over a month prior to the Complainant's alleged
protected
activity. This decision to discharge the Complainant was based on the Complainant's
confrontation
with Ms. Dowler. As previously discussed, the Complainant does not deny that this
confrontation
occurred. Although unable to recall the specifics, the Complainant further acknowledged that
she
had no reason to doubt Ms. Dowler's depiction of this confrontation. (Tr. 396) Following this
incident, the Complainant was told to be present at a meeting with Mr. Koble scheduled for the
next
day. At this meeting, the Complainant was told she was going to be discharged. According to
the
testimony of Mr. Koble, he explicitly stated that it was his intent to take the steps necessary to
discharge her based on that incident. (Tr. 125) According to the Complainant, Mr. Koble told
her
that "he was very unhappy with the incident that happened, and that if there was any way
possible, he would see me fired somehow." (Tr. 286)
Under the terms of the collective bargaining agreement, a formal hearing
had
to be conducted prior to the company taking any disciplinary action against an employee. These
hearings addressed the particular incident(s) that led to the hearing as well as the Complainant's
work
record for the prior nine months. As noted above, the hearing was initially scheduled for August
3,
l994. However, as also noted, the hearing was postponed on several occasions. When the
meeting
finally took place on August 30, l994, it was after the Complainant's trip to Peru, Illinois. At the
hearing, Mr. Koble outlined the Respondent's decision to discharge the Complainant and the
reasons
[Page 9]
for this action. Specifically, the Complainant was discharged for excessive absenteeism;
insubordination and physically threatening the well being of a fellow CF MotorFreight
employee;
falsifying paysheets/timecards; failure to comply with Federal Motor Carrier Safety Regulations
395;
and, failure to comply with Company Policy as outlined in the safety manual, by not submitting
monthly log recaps. (Resp. Ex. Z)
Based on the Complainant's undisputed confrontation with Ms. Dowler, I
find
that the Respondent has articulated a legitimate, nondiscriminatory reason for discharging the
Complainant. Therefore, the Complainant must prove, by a preponderance of the evidence, that
the
legitimate reason proffered by the Respondent is a pretext for discrimination.
In an attempt to satisfy this burden, the Complainant has pointed to several
similarly-situated employees of the Respondent who have allegedly been treated differently than
herself. Specifically, the Complainant points to several employees who have had numerous and
repeated violations of company policies and have not been terminated. (Tr. 130-35; Comp. Exs.
32,
33, 41) However, none of the employees alluded to by the Complainant were involved in a
confrontation with a co-worker. Two employees, who did threaten and/or have a confrontation
with
a co-worker, were terminated by the Respondent. (Tr. 137, 180-82; Comp. Ex. 42; Resp. Exs.
WW,
CCC) As the Respondent has asserted that the Complainant was discharged because of her
confrontation with Ms. Dowler, the only similarly-situated employees of the Respondent were
those
that were involved in such a confrontation. As both such employees were also terminated, I find
that
the Respondent has dealt consistently with the discipline of its employees, specifically the
Complainant. Although not conclusive in and of itself, I note that the Respondent followed the
proper procedural steps in disciplining this employee. There are no irregularities in this regard
which would indicate that the Respondent was utilizing the confrontation with Mrs. Dowler as
pretext for an unlawful motive.
The Complainant's pretext argument is further undermined by the
testimony
of Stuart Koble. As discussed above, Mr. Koble stated that he intended to discharge the
Complainant based on the episode of July 20, 1994. The testimony of the Complainant in
regards
to what she was told at the meeting of July 21, 1994, confirms Mr. Koble's statement. I find that
Mr.
Koble was a credible witness and I have no reason to dispute his assertion that he intended to
discharge the Complainant at the formal hearing. Based on the testimony of Mr. Koble, I further
find that the Complainant would have been discharged had this formal hearing taken place as
scheduled, which was well prior to the Complainant's run to Peru, Illinois.
The Complainant has argued that the letters sent to the Complainant in
regards
to the scheduling of these hearings indicates that the decision to discharge the Complainant had
not
been made at the time asserted by the Respondent. The letters of July 21 and August 9, 1994,
both
warn the Complainant not to have any further contact with Mrs. Dowler. (Resp. Exs. M, O) Each
letter then warns, "[i]f you violate this request, I'll [Stuart Koble] have no alternative but to
pursue discharge and legal action." (Id. ) Mr. Koble testified that the reference to
discharge referred to an immediate discharge as opposed to a discharge that allowed the
Complainant
to continue work pending review by the OJSGC as mandated by the NMFA. (Tr. 178-79) Again,
[Page 10]
I find that the testimony of Mr. Koble is credible and is a rational explanation for the language
contained in the letters. Consequently, I find that the language in the warning letters issued to
the
Complainant regarding the pursuit of discharge do not indicate that the decision to terminate the
Complainant had not already been made prior to her trip to Peru, Illinois.
Based on the foregoing, I find that the Complainant has failed to establish,
by
a preponderance of the evidence, that the reason articulated by the Respondent for the
Complainant's
discharge is a mere pretext for discrimination.
Conclusion
In summation, I find that the adverse action taken by the Respondent
against
the Complainant was motivated by her confrontation with a co-worker. I have found no evidence
to indicate that the adverse action taken by the Complainant was in any way motivated by the
Complainant's engagement in alleged protected activity. As the Complainant has failed to
establish
that her discharge was motivated by any prohibited reason, her claim must be dismissed.
RECOMMENDED ORDER
IT IS RECOMMENDED that the complaint of Cynthia Shannon for relief
under the Act be DENIED.
NOTICE
This Recommended Decision and Order and the administrative file
in this matter will be forwarded for final decision to the Administrative Review Board, U.S.
Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., N.W.,
Washington, D.C. 20210. See 61 Fed. Reg. 19978 and 19982
(1996).
[ENDNOTES]
1 In this Recommended
Decision and Order, "Ad. Ex." refers to Administrative exhibits, "Com.
Ex."
refers to Complainant's exhibits, "Res. Ex." refers to Respondent's exhibits, and
"Tr." refers to the transcript of the hearing.
2 2At the hearing,
the Complainant asserted that, as a bid driver, she was not required to complete these cards.
(Resp.
Ex. D) However, a memorandum issued subsequent to that relied upon by the Complainant
indicates
that as a bid driver, she was required to complete these at the completion of each tour of duty.
(Id. )
3 3The relevant
entry from August 25, 1994, states "Sidney, Ohio, violation Art 51.3, J. White ordered
relieved
of duty." (Resp. Ex. S) This notation is apparently in reference to a provision in the
NMFA.
Specifically, Article 51, section 3 deals with how and to what extent layovers will be considered
paid-for time. (Resp. Ex. E, pp.213-14).