Waters v. Exel North American Road Transport, 2002-STA-3 (ALJ June 4, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 04Jun2002

CASE NO.: 2002-STA-3

In the Matter of:

KEITH A. WATERS
    Complainant

    v.

EXEL NORTH AMERICAN
ROAD TRANSPORT
    Respondent

Keith A. Waters
    Pro Se

David L. Smith, Esq.
    For the Respondent

   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 United States Department of Labor which was investigated by the Occupational Safety and Health Administration and found to have no merit by the Regional Administrator on August 31, 2001. Complainant requested a hearing before an administrative law judge and a formal hearing was held before the undersigned in Atlanta, Georgia, on February 21, 2002. At the hearing, complainant's exhibits (CX) 1-6 and respondent's exhibits (RX) A-Q were admitted into evidence.

   Did respondent discharge complainant from his employment in retaliation for protected activity in violation of the STA?

   Complainant was born on June 2, 1959, and began working as an independent contractor for respondent on June 3, 2000. (TR 11-12) Respondent is in the business of freight hauling and is located in the same facility as its sister division, Exel North American Logistics, in Atlanta, Georgia. (TR 155) As an independent contractor, complainant delivered air freight via tractor-trailer from the airport and respondent's local facility, servicing a radius of one hundred miles and beyond. (TR 12) He was the only tractor-trailer driver for respondent. (TR 67) Complainant was under contract until May 2001, and was paid a seventy-five percent commission of the gross weight of his truck. (TR 12-13, 18) It is respondent's practice not to call independent contractors to be dispatched; instead, if an independent contractor came to work, that contractor would be dispatched. (TR 159)

   On February 9, 2001, claimant arrived at work at 8:00 a.m. and was dispatched sometime between 8:30 a.m. and 8:45 a.m. (TR 50) His shift ended at approximately 5:30 pm. (TR 52) That afternoon, Lee Phillips, operations manager for respondent, directed his dispatcher to ask complainant if he could replace the night driver. (TR 209) Complainant replied, "no problem." Id. Phillips glanced over complainant's driving logs for the day and determined that complainant had enough hours to work the night shift. (TR 209-10)

   Using respondent's house truck, complained performed night drops until 12:05 a.m., February 10, 2001. (TR 20-21) Although there was remaining freight to be delivered, complainant determined that he was out of hours and went off duty without notifying Kesha Gee, operations agent for Exel North American Logistics. Id. Complainant testified that he did not inform Gee that he was going off duty because she left work before he returned to the facility. (TR 21) Gee wrote a derogatory statement in the company's turnover log regarding complainant's failure to deliver the remaining freight. Id. (RX B)

   On the evening of February 13, 2001, complainant entered the operations office area and confronted Gee regarding her statement made in the February 9, 2001 turnover log.¹ (TR 23) This confrontation lasted approximately thirty seconds and afterwards complainant left the facilities. (TR 26) Brian Hipsky, domestic operations manager for Exel North American Logistics, telephoned Frank Butler, general manager for both respondent and Exel North American Logistics, and informed him of the confrontation. (TR 138-39) Hipsky and Gee both sent e-mails documenting the confrontation. (TR 139, RX D, RX E)

   Complainant did not return to the facilities until he met with Butler and Phillips on February 27, 2001.² (TR 27, 170) Complainant testified that at the meeting Butler and Phillips terminated his contract, even though Butler was not the person who hired him. (TR 27) Butler and Phillips both deny that complainant's contract was terminated. (TR 171, 208) Butler testified that complainant was a "hard working individual" and he did not want him to leave because he was the only contractor with a tractor-trailer. (TR 156, 175) Butler further testified that he did not have the authority to terminate complainant's contract.³ (TR 171) He explained that he was not going to dispatch complainant until complainant assured him that this incident was not going to happen again either with Gee or any other employee in the office; however, all complainant was interested in talking about was money and dispatching. (TR 170-75) Butler further testified that the February 27, 2001 meeting was the first time complainant raised Department of Transportation (DOT) safety concerns. (TR 184) Complainant walked out of the meeting and did not return to work. (TR 181)

   Approximately a week after complainant walked out of the February 27, 2001 meeting, respondent received a fax from another company requesting complainant's drug testing results. (TR 206-07) Phillips testified that he contacted complainant and asked him if he was going to work for another company. (TR 206) After complainant acknowledged that he was going to work elsewhere, Phillips requested that complainant return respondent's equipment. (TR 207) Phillips further testified that prior to the February 13, 2001 confrontation, complainant did not complain to him regarding DOT safety violations. (TR 208) Complainant denies that Phillips contacted him regarding returning to work because he was already terminated. (TR 69) Complainant testified that Phillips may have called him regarding his last pay. Id.

   Jim Wicker is the DOT safety administrator for respondent and is based in Irving, Texas. (TR 222) He is responsible for keeping respondent's drivers legal in forty eight states. (TR 223) Safety concerns are reported to Wicker, who maintains a twenty-four hour telephone number and open-door policy for complainants. (TR 230) Wicker met complainant in October 2000 during a training tour at the Atlanta facility. (TR 226) Wicker testified that the only topic complainant discussed was his concern about another driver getting too much freight. (TR 228) Complainant never discussed safety concerns. Id. Wicker further testified that prior to the February 13, 2001 confrontation, complainant had never complained to him regarding DOT safety concerns. (TR 229)

    I conclude that complainant (1) walked away from the February 27, 2001 meeting, (2) failed to give Butler assurance that this incident would not happen again, and (3) failed to returned to work. Since it is respondent's policy not to contact contractors to be dispatched, complainant chose not to be dispatched by not reporting to work. Only after complainant notified respondent that he secured work elsewhere was complainant directed to return company equipment. I find the testimony of both Butler and Phillips to be credible. Therefore, I find that complainant abandoned his contract by not returning to work after February 27, 2001. I conclude that a preponderance of the evidence fails to prove that complainant was terminated. The complaint will be dismissed.⁴

¹ Both parties offered several witness accounts of the February 13, 2001 confrontation. Martin Lindsey, witness for complainant, testified that complainant is "loud" and that the confrontation was not threatening, but merely complainant's loud disposition. (TR 78) Brian Hipsky, witness for respondent, testified that complainant's behavior towards Gee was "abusive" and he was concerned that physical violence might occur. (TR 137) Chastity Edwards, testifying through deposition, corroborated Hipsky's account. (RX C) It is not relevant to this decision and order whether complainant was merely "talking loud" or was abusive. It is relevant that a confrontation occurred on the evening of February 13, 2001, between complainant and an employee of Exel North American Logistics.

² As operations manager for respondent, Phillips reports to the general manager, Butler. (TR 203)

³ Butler testified that the regional vice-president for Road Transport, Larry Robinson, handles drivers' contracts. (TR 171) He further testified that if he wanted to formally terminate a contract he would have to have Robinson do it. (TR 200) Also, a contract can be terminated over a safety violation through Jim Wicker, DOT safety administrator for respondent. Id.

⁴Butler testified that he would not dispatch respondent until the matter with Gee was resolved. Even if I were to find that complainant engaged in protected activity by complaining that he had exceeded DOT limits of hours of service while driving on February 9, 2001, and that respondent subjected complainant to adverse employment action by failing to dispatch him from February 15, 2001 through February 27, 2001, the protected activity did not cause respondent's adverse action. The evidence of record clearly demonstrates that complainant's behavior during the confrontation with Gee, and not his remarks regarding DOT safety concerns, caused respondent to refrain from dispatching him. Complainant's behavior during the confrontation with Gee is not protected activity. Since complainant failed to establish that the protected activity likely caused respondent's adverse action, he is unable to establish a prima facie case.