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| October 4, 2008 DOL Home > OALJ Home > USDOL/OALJ Reporter |
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USDOL/OALJ Reporter Forrest v. Nationwide Boat Transport, 2002-STA-39 (ALJ Sept. 27, 2002)
Issue Date: 27 September 2002
In the Matter of
RICKY DON FORREST v.
NATIONWIDE BOAT TRANSPORT
This claim arises under Section 405 of the surface Transportation Act (the Act), 49 U.S.C. 31104. The Act protects employees from discharge, discipline or discrimination for filing a complaint about commercial motor vehicle safety and for refusing to operate a vehicle when such operation constitutes a violation of Federal motor vehicle safety regulations 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 Complainant filed a complaint with the Secretary of Labor alleging that he was discriminatorily terminated and placed in harms way in violation of the Act. Following an investigation of this matter, the Secretary of Labor, acting through his agent the Regional Administrator, issued findings on April 11, 2002, that the Complainant's suspension was not in violation of the Act. (ALJ 2). The Complainant requested a formal hearing, and on July 31, 2002, a hearing was held in Houston, Texas, at which time all parties were given an opportunity to present evidence and arguments. Only the pro se Complainant attended the hearing, for neither Respondent nor a representative on their behalf appeared. This decision is based on the record made that day at the de novo hearing. [Page 2]
1. Whether the Complainant engaged in activity which is protected within the meaning of the Act; and 2. Whether any adverse action taken against Complainant was due to his engaging in protected activity.
At the outset of the hearing, Complainant moved for a default judgment and a summary decision in his favor. 29 C.F.R. §18.5(b) provides for a default where a complaint has been filed and no answer has been filed within the time provided. There was no complaint as such in this case that required an answer, so I find a default judgment would be improper. As to dismissal for abandonment, §18.39(b) deals with the party requesting the hearing abandoning the case and not appearing. In this instance the Respondent had not requested a hearing, for they prevailed at the lower level. As to summary decision, §§18.40 and 41 set out the requirements that a summary decision be filed 20 days in advance of the hearing and that the court find there is no genuine of material fact. Such a motion was not timely filed. Consequently, as to these motions none are well taken, and I must make a decision based on the facts of the record to determine whether or not a violation occurred that affords Complainant protection under the Act. Complainant testified that he learned of this job opportunity on the internet and, though provided a bus ticket, drove his vehicle from his home in Alvin, Texas, to Palmetto, Florida to seek employment with Respondent, a commercial trucking company that delivered boats in and around the United States. Complainant himself had a commercial license and, as demonstrated by his employment application (CX 2), enjoyed a history of driving commercial vehicles. When Complainant arrived at Respondent's place of business on or about May 14, 2001, he met with Brad Scruggs, the driver manager, and spent that day visiting Respondent's facility in Palmetto, Florida. Kenneth Breeden ran the business, but Complainant primarily dealt with Mr. Scruggs. Complainant was provided with a motel room for the night, and mid-day during his second day at Respondent's facilities Complainant was asked if he wanted to go to Connecticut to retrieve a tractor trailer that was in storage there. Complainant testified he accepted the offer and personally talked to someone in Connecticut who assured him the truck was ready to be driven back and had been started on numerous occasions. Complainant said he was provided an airplane ticket, and he flew to Providence, Rhode Island the same day. The plane trip necessitated a ticket change in Atlanta which Claimant felt was "deliberate harassment." Complainant understood the salary to be $30.00 a day and $.30 cents a mile. He said he was given $100.00 as a cash advance. When Complainant got to Rhode Island it was 11:30 p.m., and he spent $95.00 on a taxi ride to where the truck was stored in Connecticut. Complainant testified he spent that night in the truck, but before he went to sleep he apparently tried to start the truck and it would not crank. [Page 3] The next morning, Complainant testified that the truck again would not start because the batteries were dead. He called the Respondent to report the problem, and talked to the dispatcher, Lisa, and then to Brad Scruggs. Complainant said he was told to call road service and use some type of fuel card he had in his possession. This was not a satisfactory form of payment with whomever was going to perform service on the truck, and they requested the Respondent call. Complainant made several calls to Respondent's office, and after an admitted heated discussion, Complainant apparently simultaneously quit and was terminated. Specifically, Complainant said upon his return he was quitting and Brad Scruggs said "you're fired." The local police became involved amidst Claimant's accusations that because he was left without transportation in Connecticut he had been in essence kidnaped. His specific theory was as follows:
Apparently, the police concluded that kidnaping was not the situation, but attempted to intervene by talking to Respondent. However, no resolution was reached. Complainant testified he never started the truck, drove the truck nor did he complain at the hearing about any other defects other than the fact that it would not start.
Without any evidence other than his vague speculation, Complainant offered as a theory for his "kidnaping" a conspiracy on the part of Kenneth Breeden to retaliate against him for a Section 405 action he had pending at the time against a former employer.1 Complainant said he told Brad Scruggs about that action on the day he was dispatched to Rhode Island, and in pages 40-45 and 48-52 of the transcript Complainant provides a theory that Mr. Breeden more or less had laid in wait for him to retaliate for that and other protected political activity. Complainant also suggested the FBI influenced OSHA's denial of this claim, and he equated himself with the principles and ideals of the "Lone Ranger."
Complainant eventually caught a bus back to Florida, but not before stopping at the Governor of Rhode Island's office, Traveler's Aid and a friend's house where he spent the night and borrowed bus fare to Florida, his return airplane ticket having been "seized by parties unknown." On the bus ride to Florida, Complainant stopped at the Senate ". . . shook hands with some Senators, told them my plight and got back." Once in Florida, he retrieved his automobile and two weeks later returned to Texas. He had no further dealings with Respondent.
Complainant seeks loss of wages for the Connecticut trip of $30.00 per day and .30 per mile, actual expenses of $500.00 and future wages of $50,000.00 to $60.000.00 per year for 5 years. Complainant, however, concedes that by June or July he had gone to work with another company. Too, the application for employment, which is Complainant's Exhibit 2, contains an agreement that there was a probationary period of 90 days, and by his own admission Complainant testified "I'm not sure I ever worked for them."
In 1982, Congress enacted §405 of the Surface Transportation Assistance Act, 49 U.S.C. §31104. This legislation was designed to promote safety on the highways by protecting employees from discriminatory action due to an employee's engagement in protected activity. Section 405 of the Act provides:
No person shall discharge, discipline, or in any manner discriminate against an 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 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.
The first clause of this Section is known as the "when clause" and the second as the "because clause," and in this instance I do not find Complainant has established a violation under either.
Under the "when clause" Complainant must prove that the operation of the vehicle would have constituted a violation of a Federal commercial motor vehicle safety regulation, standard, or order. No such violation was demonstrated in this case. The motor vehicle Complainant had been sent to retrieve, and in which he spent the night, was never started.
In order to satisfy the requirements of the "because clause" Complainant must establish "a reasonable apprehension of serious injury to the employee or the public because of the vehicles' unsafe condition." While perhaps "condition" is a broad term and not confined to merely safety equipment aboard the vehicle, still Complainant must show his apprehension or concern was "of such a nature that a reasonable person, under these circumstances, then confronting the employee, would have concluded that there is a bona fide danger of an accident, injury or serious impairment of health, resulting from the unsafe condition." Again, in this instance, by his own admission, Complainant never took the commercial vehicle form the place it was stored.
In addition to failing to make out a prima facie case that he engaged in protected conduct, Complainant has also failed to show any intent on part of the Respondent that caused them to take adverse action in retaliation for such activity. The failure of the vehicle to start, in my opinion, was not a safety violation protected under the Act, and Complainant has provided no evidence that Respondent was motivated by another STAA case Complainant had pending against another employer or that Respondent was aware of any "political" efforts on Complainant's part concerning the trucking industry. By Complainant's own testimony, the facts simply reveal a job opportunity that did not materialize. Perhaps Complainant has a claim in a different venue for his inconvenience, but I do not find his dilemma of being left without
transportation in Connecticut because the vehicle would not start a consequence for which the STAA was designed to provide relief and/or protection.
Because Complainant has not demonstrated a link between any protected activity and any adverse action the Respondent might have taken, I find Complainant is not entitled to the relief he seeks under the Act.
It is ordered that the Complainant of Ricky D. Forrest be DISMISSED.
C. RICHARD AVERY
CRA:kw
NOTICE: This recommended Decision and Order and the administrative file in this matter will be forwarded for review of the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Ave., N. W., Washington, D.C. 20210. See C.F.R. §1978.109(a); 61 Fed. Reg. 19978 (1996).
1 Ricky D. Forrest v. Transwood, Inc., 2001-STA-042. Relief sought was denied by Decision and Order dated August 7, 2001.
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