Contrary to Respondent's argument in brief that Roberts was "not required to operate the truck or threatened in any way," I find Respondent sent Roberts home when he refused to drive Truck No. 2 to Penske, thus affecting his terms and conditions of employment for that work day.
Based on the above, I also find that Roberts engaged in protected activity under 49 U.S.C. § 31105(a)(1)(B)(i) of the STAA, of which Respondent through Jamison had knowledge, by refusing to drive Truck No. 2 because of (1) an inaccurate and "falsified" post-trip inspection report on September 17, 2001, which failed to conform and thus violated a DOT regulation or standard, specifically FMCSRs §§ 396.11 and 396.13; and (2) because of defective windshield wipers which he, as the assigned driver of the vehicle, determined was not in good working order and constituted an unsafe condition.
Moreover, I find and conclude that Complainant established a reasonable apprehension of serious injury to himself or the public because of the unsafe condition of Truck No. 2. Unlike Truck No. 1, Roberts requested that Penske be summoned to correct the defective windshield wipers, but Jamison refused the request. Instead, Jamison directed Roberts to drive the unsafe vehicle to Penske for repairs, in contravention of Section 392.7 of the FMCSRs. Roberts was unable to obtain correction of the safety condition and was sent home. Accordingly, I find that Complainant engaged in protected activity by fulfilling the requirements of 49 U.S.C. § 31105(a)(1)(B)(ii) of refusing to drive Truck No. 2 under the extant circumstances.
[Page 23]
2. The External Complaints
Complainant credibly testified that on September 17, 2001, he contacted State and Federal agencies about Respondent's actions and his safety concerns and issues and asked to file a complaint. On September 18, 2001, he again contacted the Federal Motor Carrier Safety Administration and requested an official investigation be commenced against Respondent. I find these contacts and complaints about Respondent's actions and concerns/issues of safety related to Respondent's trucks to be protected activity.
Roberts also credibly testified that at about 1:00 p.m. on September 18, 2001, he informed Ramia that he had contacted the Federal Motor Carrier Safety Administration and started a complaint process regarding safety violations of September 17, 2001. Ramia was aware of the preceding day's events through Jamison. Ramia observed that such events had upset Jamison. Ramia did not deny that he had such a conversation with Roberts. He testified he could not recall Roberts informing him that he had filed outside complaints. Ramia confirmed that if Complainant informed him of his complaint filing, he would have told his "boss."
I find it more than a coincidence that one hour later Jamison telephoned Roberts at home, which he had never done before, and requested his presence at a meeting to discuss the preceding day's events. I further find that in view of the temporal relationship between Roberts's contact with Ramia and Jamison summoning him for a meeting, the meeting was motivated by Complainant's telephone contact with Ramia and his outside filings of safety complaints.
3. Respondent's Adverse Action
It is undisputed that on September 17, 2001, Roberts was sent home after he refused to drive Truck No. 2. The following day, Roberts was terminated from his employment with Respondent. Jamison's ire about Roberts's complaints is demonstrated by his reference to the FMCSRs as "bullshit," and directing Roberts to "drive . . . or go the hell home," which patently establishes Respondent's animus towards Roberts's protected activity. The pivotal issue is whether Respondent's actions in sending Roberts home and thereafter terminating him was motivated, even in part, by his protected activity. I find that Respondent's actions were so motivated for the reasons discussed below.
E. The Alleged Legitimate, Nondiscriminatory Reason for Termination
Respondent contends that Complainant was terminated for repeated refusals during the September 18, 2001 meeting to follow its policy concerning the inspection of trucks which had either incomplete or missing post-trip inspection reports. A preliminary discussion of the policy before September 18, 2001, is warranted.
1. The Pre-September 18, 2001 Policy
The record in this matter establishes that confusion existed as to the applicable company policy regarding the inspection of trucks with inadequate or missing post-trip inspection reports.
Complainant was of the opinion that a post-trip inspection report was required pursuant to the FMCSR § 396.11, except in unusual circumstances , and, when a report was inadequate or missing, Respondent's policy was to call the driver who failed to properly complete the report to "come in" and correct the report. To his knowledge, the foregoing was the policy under Mr. Stone and there was no change after Jamison became his supervisor.
[Page 24]
Complainant testified that if the trucks to which he was assigned did not require repairs, he would have performed short driving trips and prepared a pre-trip inspection report. He had done so at the request of Jamison on one occasion before September 17, 2001, but disputed that, based on this one incident, Respondent's policy had changed. No written policy was ever published or distributed before September 19, 2001 concerning the procedure made the subject of the latter memorandum.
On the other hand, Ms. Jeffcoat had performed "in house" inspections for two years before September 17, 2001. The record reveals that the "in house" inspection apparently involved only a post-trip inspection and no short driving trip since Ms. Jeffcoat did not perform a short trip on September 17, 2001. The driver then performed a pre-trip inspection. It is unclear from Ms. Jeffcoat's testimony whether a short driving trip was involved in an "in house" inspection procedure. However, she confirmed the "in house" inspection was the same procedure as described in Respondent's September 19, 2001 memorandum. An inadequate or missing post-trip inspection report occurred once a week out of 15 trucks according to Ms. Jeffcoat.
In the absence of a post-trip inspection report, Jamison's position was that a "short trip" followed by a pre-trip inspection report would suffice for a post-trip inspection report. He claimed it was the same procedure used by Mr. Stone and was approved by Respondent's Safety Representative, Mr. Potter. Miller Carrier Consultants, Inc. also suggested the same procedure. Although Jamison stated the process was commonly used in the past, he consulted Miller because of a similar situation which occurred with Complainant, because Jamison had never encountered the specific situation and was not sure what "we should do." Jamison disputed that missing or inadequate post-trip inspection reports occur once a week. He claimed it was only a coincidence that both trucks assigned to Roberts on September 17, 2001, had inadequate post-trip inspection reports.
At some point, Mr. Potter urged Jamison to publish guidelines "concerning the identical situation as embodied" in the DOT Interpretations of FMCSR § 396.11, Question 14. No publication was announced regarding Respondent's policy until after Roberts was terminated. I find Jamison's testimony incredulous that the reason the memorandum was not distributed before September 19, 2001, was "everyone knew what to do" and the procedure was "widely understood." Although the procedure was to be used "in the rare circumstance" where a post-trip inspection report was not totally completed or 100% correct, Jamison did not promulgate the policy earlier because he did not want to validate "or have anybody think that I was validating not doing" the post-trip inspection report. Yet, the memorandum does not conform to Jamison's intent.
2. The September 18, 2001 Meeting
Jamison voiced his position as set forth above at the September 18, 2001 meeting to which Roberts disagreed. Contrary to Respondent's contention that its decision maker, Mr. Hildegardner, had no knowledge of Roberts's protected activity, Complainant announced at the commencement of the meeting that he "had already contacted the Department of Transportation."
[Page 25]
Even before the intended purpose of the meeting arose, Mr. Hildegardner remarked, as a precursor to the conclusion of the meeting, that if Roberts would not turn his tape recorder off "I don't see how this employee/employer relationship can continue."
Roberts informed the attendees that unavailable post-trip inspection reports "happen every day," not once a month or every two months. When Roberts indicated he would wait for a post-trip inspection report to be filled out by the previous driver, in the absence of a post-trip report, Mr. Hildegardner again remarked "sounds like this gentleman's not happy working with this company . . . I don't know if ya'll can continue that relationship or not." Jamison described Roberts's suggestion as "asinine." However, Mr. Montgomery acknowledged that Respondent should be dealing with drivers who are not doing post-trip inspection reports, to which Roberts commented "why haven't we?"
Although Jamison mentioned "Motor Carrier's" opinion that a pre-trip overrides the previous day's post-trip inspection report, the DOT Interpretations , upon which Respondent relies to justify its adverse action, was never mentioned during the meeting.
In response to Roberts's statement that he had "no problem working with management, Mr. Hildegardner, for unknown reasons, raised Roberts's "attitude," and stated he did not know why Roberts wanted to work for Respondent. Mr. Montgomery stated Roberts did not have to work for Respondent. Mr. Hildegardner informed Complainant if he could not abide by Respondent's position he needed to seek other employment. Roberts responded he would continue to do DOT inspections as DOT regulations mandate. Roberts then clearly posited that he would not go out [drive] without a correct post-trip inspection report and without reviewing it to determine if there were any defects on it.
At the meeting, Respondent never explained that its position was to be used only in "unusual circumstances." When Roberts informed the attendees he would not take civil liability for Respondent, Mr. Hildegardner terminated Complainant.
I find the meeting of September 18, 2001, was merely a formality and a means used by Respondent to justify its termination of Complainant. On six different occasions during the meeting, Mr. Hildegardner observed that termination was the likely result of the meeting. Despite Roberts confirming he would follow DOT regulations, Respondent terminated him for failing to agree to follow its policy. Respondent never informed Roberts that its policy was in conformity with DOT Interpretations and never limited its usage to "unusual circumstances." Roberts had previously conceded to the "in house" inspection procedure used by Ms. Jeffcoat and followed Jamison's procedure the day before, yet Respondent terminated him. I find Respondent's purported reason for discharging Roberts was neither legitimate nor nondiscriminatory. Since Respondent's reason does not have credence nor conform to permissible interpretative guidance, I find Complainant carried his ultimate burden of substantiating he was retaliated against by Respondent because of his protected activities.
3. The September 19, 2001 Memorandum
The September 19, 2001 memorandum provides:
In instances where the DVIR (post-trip) has not been prepared or cannot be located it is permissible under 396.11 of the FMCSR for a driver to prepare a DVIR based on a pre-trip inspection and a short drive of a motor vehicle.
(CX-14; RX-2, p. 2).
[Page 26]
Respondent's memorandum does not conform to the DOT Interpretation of FMCSR § 396.11. The Interpretation is considered an alternative to the requirements of the FMCSR § 396.11, to be used in "unusual circumstances," however Respondent used the alternative in every record instance where an inadequate or missing post-trip inspection report existed. Thus, Respondent always substituted the Interpretation for the regulatory requirements.
Moreover, in announcing its written policy to all drivers, Respondent did not restrict the alternative procedure to "unusual circumstances" as set forth in the Interpretation . Respondent's inadequate or missing post-trip inspection reports occurred too frequently to be considered an "unusual" event. Respondent applied a hybrid of the alternative rather than the regulation which had no limitations as to usage. I find Respondent's promulgated policy was non-conforming and exceeded even the DOT's Interpretative guidance. The lack of written guidance or for that matter any uniform guidance at the time of Complainant's termination, and the subsequent non-conforming procedure, buttresses my conclusion that Respondent's reasons for terminating Roberts were a mere pretext and therefore unlawful.
I further find Respondent has failed to establish that it had a legitimate, nondiscriminatory business reason for its actions. A policy which permits a company to take adverse action against an employee for obeying the law, e.g., adhering to DOT Regulations, is not "legitimate." See Ciotti v. Sysco Foods of Philadelphia , supra @ 7.
F. CONCLUSION
I find and conclude Roberts's operation of Truck Nos. 1 and 2, in the circumstances presented, would have resulted in the violation of DOT regulations. Such regulations require that the previous driver prepare and sign a post-trip inspection report at the completion of his/her trip and that the motor carrier repair any defects or deficiencies listed. 49 U.S.C. § 396.11. The next driver then must "be satisfied that the motor vehicle is in safe operating condition . . . ." 49 U.S.C. § 396.13. To do so, the next driver must "review the last vehicle inspection [post-trip] report" and must sign the report to certify that required repairs have been performed." Thus, Roberts, in the circumstances of this case, would have operated the vehicles in violation of FMCSR §§ 396.11 and 396.13 had he driven either Truck Nos. 1 or 2 on September 17, 2001, since both vehicles were the subject of incomplete or inadequate post-trip inspection reports.
I further find and conclude that the preponderance of the record evidence establishes that Complainant's safety complaints, related to inadequate post-trip inspection reports and defective windshield wipers, motivated, in part, Respondent's decision to terminate Roberts. Temporal proximity between Roberts's protected activity and his termination by Respondent is also persuasive in establishing a causal connection for Respondent's adverse actions and justifying an inference of retaliatory motive. See Skinner v. Yellow Freight System, Inc. , Case No. 90-STA-17 @ 7 (Sec'y May 6, 1992).
[Page 27]
G. Relief
A successful complainant under the STAA is entitled to affirmative action to abate the violation, reinstatement to his former position with the same pay, terms and privileges of employment, attorney fees and costs reasonably incurred, and may also be awarded compensatory damages.
Specifically, the STAA provides that:
If the Secretary decides, on the basis of a complaint, a person violated subsection (a) of this section, the Secretary shall order the person to
(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to the former position with the same pay and terms and privileges of employment; and
(iii) pay compensatory damages, including back pay.
49 U.S.C. § 31105(b)(3)(A). Considering the foregoing findings and conclusions, reinstatement, back pay, restoration of benefits including vacation pay, interest and attorney fees and costs are hereby ordered.
1. Reinstatement
Reinstatement provides an important protection for employees who report safety violations. "[T]he employee's protection against having to choose between operating an unsafe vehicle and losing his job would lack practical effectiveness if the employee could not be reinstated pending complete review." Brock v. Roadway Express, Inc. , 481 U.S. 252, 258-259 (1987). These protections also extend to employees who refuse to drive vehicles because of safety concerns. 49 C.F.R. § 392.7. Reinstatement is an appropriate, statutory remedy under the circumstances of this case. See Clifton v. United Parcel Service , Case No. 94-STA-16 @ 1-2 (ARB May 14, 1997)(no front pay where reinstatement is an appropriate remedy).
In the absence of a valid reason for not returning to his former position, immediate reinstatement should be ordered. Dutile v. Tighe Trucking, Inc. , Case No. 93-STA-31 (Sec'y Oct. 31, 1994). Accordingly, David O. Roberts is entitled to immediate reinstatement to his former position with the same pay and terms and privileges of employment, or if his former job no longer exists, Respondent shall unconditionally offer him reinstatement to a substantially equivalent position in terms of duties, functions, responsibilities, working conditions and benefits. Respondent's back pay liability terminates upon the tendering of a bona fide offer of reinstatement even if Complainant rejects it. Id .
2. Back Pay
The purpose of a back pay award is to make the employee whole, that is, to restore the employee to the same position he would have been in if not discriminated against. Dutkiewicz v. Clean Harbors Environmental Services, Inc. , Case No. 95-STA-34 (ARB Aug. 8, 1997). Back pay calculations must be reasonable and supported by evidence; they need not be rendered with "unrealistic exactitude." Cook v. Guardian Lubricants, Inc. , Case No. 95-STA-43 @ 11 (ARB May 30, 1997). Back pay is typically awarded from the date of a complainant's termination until reinstated to his former employment. Any uncertainties in calculating back pay are resolved against the discriminating party. Kovas v. Morin Transport, Inc. , Case No. 92-STA-41 (Sec'y Oct. 1, 1993).
[Page 28]
Once a complainant establishes that he or she was terminated as a result of unlawful discrimination on the part of the employer, the allocation of the burden of proof is reversed, i.e., it is the employer's burden to prove by a preponderance of the evidence that the back pay award should be reduced because the employee did not exercise reasonable diligence in finding other suitable employment. Polwesky v. B & L Lines, Inc. , Case No. 90-STA-21 (Sec'y May 29, 1991); See also Johnson v. Roadway Express, Inc. , Case No. 99-STA-5 @ 16 (ARB Mar. 29, 2000)(it is employer's burden to prove, as an affirmative defense, that the employee failed to mitigate damages).
The employer may prove that the complainant did not mitigate damages by establishing that comparable jobs were available, and that the complainant failed to make reasonable efforts to find substantially equivalent and otherwise suitable employment. Johnson v. Roadway Express, Inc. , Case No. 99-STA-5 @ 4 (ARB Dec. 30, 2002); See also Weaver v. Casa Gallardo, Inc. , 922 F. 2d 1515, 1527 (11th Cir. 1991). Unlike Johnson , I find that Roberts did not make any effort or seek to secure suitable equivalent employment from the date of his termination on September 18, 2001 until June 3, 2002. Although he performed contractual work from late October 2001 through late May 2002 earning $1,175.00 instead of working full-time, he chose to make himself available to the OSHA investigator and work on and research his complaint. (CX-16). Therefore, I find Respondent was relieved of its burden of providing availability of substantially equivalent jobs as required by the mitigation of damages doctrine during the period from September 19, 2001 to June 3, 2002. As a consequence of his failure to mitigate his damages during that period, I further find and conclude Complainant is not entitled to any back pay from September 19, 2001 to June 3, 2002.
However, I find that commencing on June 3, 2002, Roberts began exercising reasonable diligence in mitigating his damages by seeking suitable equivalent employment. He applied at four trucking companies, but succeeded only in obtaining a part-time, on-call position with Phoenix Metals Support Dedicated Services earning $12.50 per hour for a total of $704.15 for five days work in June and July 2002. (Tr. 93; CX-16). I find this employment is not comparable to his former employment with Respondent because of its reduced terms and conditions of employment.
I find that on June 3, 2002, the burden shifted to Respondent to prove Complainant did not thereafter mitigate his damages by establishing that comparable jobs were available in the job market and that Complainant failed to make reasonable efforts to find substantially equivalent employment. Respondent has not shown any substantially equivalent positions were available for Complainant after June 3, 2002. Thus, Complainant is entitled to back pay from June 3, 2002 to present (40 weeks) and continuing until offered reinstatement by Respondent.
Complainant earned $11.00 per hour at 40 hours per week straight time (40 hours x $11.00 = $440.00 per week) plus 12.5 additional hours per week as overtime computed at time and one-half or $16.50 per hour (12.5 hours x $16.50 = $206.25) for a total weekly wage of $646.25. Complainant's back pay entitlement is $25,850.00 (40 weeks x $646.25 per week) commencing on June 3, 2002 through the date of this Recommended Decision and Order, offset by his interim earnings of $2,560.15 or a revised total of $23,289.85. His entitlement continues hereafter at $646.25 per week until he receives an offer of reinstatement.
[Page 29]
3. Restoration of Other Benefits
Because I find Respondent violated the STAA when it discharged Roberts, he "is entitled to any damages that flow from the unlawful discharge." Hufstetler v. Roadway Express, Inc. , Case No. 85-STA-8 @ 52 (Sec'y Final Dec. and Ord., Aug 21, 1986), aff'd on other grounds sub nom. , Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1997). Once a complainant establishes that he or she was terminated as a result of unlawful discrimination on the part of the employer, a presumption in favor of full relief arises. Gabby v. Abex Corp. , 884 F.2d 312, 318 (7th Cir. 1989).
Complainant seeks and is entitled to two weeks of accrued vacation pay at $440.00 per week or $880.00. Moyer v. Yellow Freight System, Inc., [Moyer II] , Case No. 89-STA-7 @ 36 (Sec'y Aug. 21, 1995), rev'd on other grounds sub nom. Yellow Freight System, Inc. v. Reich , 103 F.3d 132 (6th Cir. 1996). His uncontradicted testimony establishes he is also entitled to a safety bonus in the amount $1,200.00.
Complainant is entitled to expungement from his employment records of any adverse or derogatory reference to his protected activities of September 17 and 18, 2001, and his discriminatory termination on September 18, 2001. See Michaud v. BSP Transport, Inc. , Case No. 95-STA-29 (ARB Oct. 9, 1997).
A notice to all employees should be posted by Respondent in places where employee notices are customarily posted to advise of the findings in this matter as an abatement of the violations. Scott v. Roadway Express, Inc. , Case No. 98-STA-8 (ARB July 28, 1999).
4. Compensatory Damages
Complainant may be entitled to compensatory damages under the STAA. To recover compensatory damages, Complainant must show that he experienced mental and emotional distress caused by Respondent's adverse employment action. See Dutkiewicz v. Clean Harbors Environmental Services, Inc. , supra . An award may be supported by the circumstances of the case and testimony about physical or mental consequences of the retaliatory action and include emotional pain and suffering and humiliation. Id . @ 9.
Complainant testified that he was embarrassed and humiliated by his termination by Respondent for raising safety issues and concerns. He had never been terminated from employment before this action. He further testified that his termination caused a strain on his marriage and affected his financial capability to provide for his wife in the manner he had customarily done before his termination. The foregoing evidence is unrefuted, credible and persuasively supports the award of compensatory damages.
However, considering the entire record and Complainant's failure to seek equivalent alternative employment from September 19, 2001 to June 3, 2002, I do not find such emotional distress to be "severe" as urged by Complainant. In light of the emotional embarrassment and humiliation to which Complainant testified, I find and conclude that he is not entitled to an award of "double damages," but to $10,000.00 as compensatory damages.
[Page 30]
H. Interest
Interest is due on back pay awards from the date of termination to the date of reinstatement. Prejudgment interest is to be paid for the period following Robert's termination on September 18, 2001, until the instant order of reinstatement. Post-judgment interest is to be paid thereafter, until the date of payment of back pay is made. Moyer v. Yellow Freight System, Inc., [Moyer I] , Case No. 89-STA-7 @ 9-10 (Sec'y Sept. 27, 1990), rev'd on other grounds sub nom. Yellow Freight System, Inc. v. Martin , 954 F.2d 353 (6th Cir. 1992). The rate of interest to be applied is that required by 29 C.F.R. § 20.58(a)(1999) which is the IRS rate for the underpayment of taxes set out in 26 U.S.C. § 6621 (1999). Moyer II , @ 40. The interest is to be compounded quarterly. Ass't Sec'y of Labor for Occupational Safety and Health and Harry D. Cote v. Double R Trucking, Inc. , Case No. 98-STA-34 @ 3 (ARB Jan. 12, 2000).
I. Attorney's Fees and Costs
Lastly, Complainant is entitled to reasonable costs, expenses and attorney fees incurred in connection with the prosecution of his complaint. 49 U.S.C. § 31105(b)(3)(B); Murray v. Air Ride, Inc. , Case No. 99-STA-34 (ARB Dec. 29, 2000). Counsel for Complainant has not submitted a fee petition detailing the work performed, the time spent on such work or his hourly rate for performing such work. Therefore, Counsel for Complainant is granted thirty (30) days from the date of this Recommended Decision and Order within which to file and serve a fully supported application for fees, costs and expenses. Thereafter, Respondent shall have twenty (20) days from receipt of the application within which to file any opposition thereto.
V. RECOMMENDED ORDER
IT IS HEREBY ORDERED that:
(1) Respondent offer Complainant, David O. Roberts, reinstatement to his former position with the same pay, terms and privileges of employment that he would have received had he continued working from September 18, 2001 through the date of the offer of reinstatement;
(2) Respondent pay Complainant, David O. Roberts, back pay at the weekly wage of $646.25 for the period from June 3, 2002 through the present or $23,289.85 and continuing thereafter until unconditional reinstatement is offered, less authorized payroll deductions, with interest thereon calculated pursuant to 26 U.S.C. § 6621;
(3) Respondent pay Complainant, David O. Roberts, accrued vacation pay in the amount of $880.00 and accrued safety bonuses amounting to $1,200.00, with interest thereon calculated pursuant to 26 U.S.C. § 6621;
(4) Respondent pay Complainant. David O. Roberts, compensatory damages in the amount of $10,000.00;
(5) Respondent shall expunge from the employment records of Complainant, David O. Roberts, any adverse or derogatory reference to his protected activities of September 17 and 18, 2001 and his discriminatory termination on September 18, 2001;
(6) Respondent shall post copies of the Notice of Findings (Appendix A), attached to this Recommended Decision and Order, for 60 consecutive days in conspicuous places where employee notices are customarily posted in and about its Tarrant Distribution, Birmingham, Alabama facility, assuring that it is not altered, defaced or covered by other material; and
[Page 31]
(7) Counsel for Complainant shall have thirty (30) days from the date of this Recommended Decision and Order within which to file a fully supported application for fees, costs and expenses. Thereafter, Respondent shall have twenty (20) days from receipt of the fee application within which to file any opposition thereto.
ORDERED this 6th day of March, 2003, at Metairie, Louisiana.
LEE J. ROMERO, JR.
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, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N. W., Washington, D. C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).
[Appendix A]
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
Administrative Review Board,
U.S. DEPARTMENT OF LABOR
In the Matter of
David O. Roberts
Complainant
v.
Marshall Durbin Company
Respondent
OALJ CASE NO. 2002-STA-35
Notice of Findings regarding Termination of
David O. Roberts's Employment on September 18, 2001
After a formal hearing in which all participants had the opportunity to present evidence, the Administrative Review Board, U.S. Department of Labor, has found that Marshall Durbin Company (Respondent) violated the law, and has ordered the posting of this Notice.
The Surface Transportation Assistance Act ("STAA"), 49 U.S.C. § 31105(a)(1), provides that a person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because
(A) the employee . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor carrier vehicle safety regulation, standard, or order . . ., or
(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition. [To qualify for protection under this provision a complainant must also have sought from the employer, and been unable to obtain, correction of the unsafe condition.]
The Federal Motor Carrier Safety Regulations ("FMCSRs") found at 49 C.F.R. § 392.7 contains the following proviso:
No commercial motor vehicle shall be driven unless the driver is satisfied that [certain listed parts and accessories] are in good working order . . .
The FMCSRs found at 49 C.F.R. Part 396 contain the following requirements:
(1) every driver of a commercial motor vehicle must prepare a written report (the Driver's Vehicle Inspection Report or DVIR) at the completion of each day's work on each vehicle operated. The DVIR must identify the vehicle and list any defect or deficiency discovered by or reported to the driver which would affect the safety of operation of the vehicle or result in its mechanical breakdown. If no defect or deficiency is discovered by or reported to the driver, the DVIR shall so indicate. In all instances, the driver must sign the DVIR. 49 C.F.R. § 396.11(a)-(b).
(2) Prior to requiring or permitting a driver to operate a vehicle, every motor carrier or its agent shall repair any defect or deficiency listed on the DVIR which would be likely to affect the safety of operation of the vehicle. Every motor carrier or its agent must certify on the original DVIR which lists any defect or deficiency that the defect or deficiency has been repaired or that repair is unnecessary before the vehicle is operated again. 49 C.F.R. § 396.11(c).
Marshall Durbin Company WILL NOT discharge or otherwise discriminate against employees because they engage in protected activities.
Marshall Durbin Company WILL unconditionally offer David O. Roberts immediate and full reinstatement to his former job, or if the position no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges.
Marshall Durbin Company WILL make David O. Roberts whole for any loss of earnings, benefits and other forms of compensation he may have lost, plus interest thereon, because Marshall Durbin Company discriminated against him.
Marshall Durbin Company WILL pay David O. Roberts $10,000.00 in compensatory damages because of embarrassment and humiliation imposed upon him as a result of Marshall Durbin Company's discriminatory, adverse employment action.
Marshall Durbin Company WILL expunge from the employment records of David O. Roberts all adverse or derogatory references to his protected activities and his discriminatory termination on September 18, 2001.
Marshall Durbin Company WILL reimburse David O. Roberts for costs and expenses, including attorney's fees, incurred in the prosecution of his complaint against Marshall Durbin Company.
MARSHALL DURBIN COMPANY
(Respondent)
Dated:___________________ By:__________________________
(Representative) (Title)
THIS NOTICE IS POSTED BY ORDER OF THE ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR. IT SHALL BE POSTED FOR A PERIOD OF NOT LESS THAN 60 CONSECUTIVE DAYS IN CONSPICUOUS PLACES AT THE MARSHALL DURBIN COMPANY, TARRANT DISTRIBUTION FACILITY, INCLUDING ALL PLACES WHERE EMPLOYEE NOTICES ARE CUSTOMARILY POSTED.
[ENDNOTES]
1 References to the record are as follows: Transcript: Tr.___; Complainant's Exhibits: CX-___; Respondent's Exhibits: RX-___; and Administrative Law Judge Exhibits: ALJX-___.
2 In further response, Respondent's attached to its post-hearing brief is a summary of interpretive guidance reported at 62 FR 16370 which is intended to "provide the motor carrier industry with a clearer understanding of the applicability of many of the requirements contained in the FMCSRs in particular situations.
3 Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by a prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary's Honor Center , 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor , 78 F.3d 352, 356 (8th Cir. 1996)(whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate, nondiscriminatory reason for the adverse action.)
4 The respondent must clearly set forth, through the introduction of admissible evidence, the reasons for the adverse employment action . The explanation provided must be legally sufficient to justify a judgment for the respondent. Upon articulating some legitimate, nondiscriminatory reason for the adverse employment action or "explaining what it has done," Respondent satisfies its burden, which, as noted above, is only a burden of production, not persuasion. Texas Department of Community Affairs v. Burdine , 450 U.S. 248, 253, 256-257; 101 S.Ct. 1089, 1093, 1095-1096 (1981). Respondent does not carry the burden of persuading the court that it had convincing, objective reasons for the adverse employment action. Id .
5 Respondent's argument is further weakened by the subsequent repairs made on Truck No. 2 which included, in addition to the replaced wipers, greasing the fifth wheel and repairs to defective and inoperable tail and brake lights.