Furthermore, Article 16, Section 1 of the NFMA states in relevant part:

It shall also not be a violation of this Agreement or considered an unjustified refusal where employees refuse 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/herself or the public due to the unsafe condition of the such equipment.

The complainant concludes that the respondent's alleged denial of the opportunity to make his assigned runs and its failure to pay the "call-in pay" constitutes adverse action, as contemplated by the STAA.

   Despite the complainant's assertions, the respondent argues that, beginning in September of 2001, it has made minor changes to the original seat cushion design to improve its effectiveness. Roadway further asserts that the changes were made as the request of Roadway drivers. The seats are re-manufactured for Roadway by Ultra Seating Inc. Roadway maintains that the re-manufactured seats feature an added strap, new foam and new stitching, which result in an increased thickness to the cushion of only three-quarters of an inch. Roadway adds that the seats meet the design criteria set forth by the Society of Automotive Engineers (hereinafter "SAE"), and therefore, accommodate 95 percent of the stomach contours for the a male/female population of ration of 95/5. Furthermore, Article 16, Section 6 of the NMFA requires that interior cab dimensions comply with the SAE recommended practices.

   Additionally, Roadway states that the White Pine Relay Facility principally serves only as a switching point for truck drivers, since freight dispatched from White Pine is generally transported using the same tractors and trailers that were used to bring the freight to the facility. Roadway argues that it does not assign particular tractors and trailers to any one terminal or relay. Roadway states that changing equipment already scheduled and reconfigured for transportation of freight is time consuming, in that it takes on average 30 minutes to change tractors. Accordingly, Roadway asserts that equipment is generally changed only if there is a mechanical problem with the equipment.

   Roadway further asserts that when the complainant began employment with Roadway in 1991, he weighed 265 pounds. As of April 10, 2002, Roadway states that the complainant weighed 350 pounds. With respect to the November 29, 2001 incident, Roadway maintains that the dispatcher informed the complainant that if he could not drive his assigned route because the steering wheel was making contact with his stomach, he would have to wait to be dispatched for the next available route. Roadway adds that thereafter the complainant decided to leave the White Pine facility. Roadway argues that it neither compelled the complainant to drive the tractor, nor did it take any disciplinary action against the complainant for his refusal to drive the tractor. Roadway denies that the complainant was faced with a similar situation on three other occasions.

   Roadway concludes that the complainant has not suffered an adverse action, as contemplated by the STAA. First, Roadway argues that the STAA places no affirmative legal obligation on Roadway to accommodate the complainant, because he feels he cannot safely operate a Roadway tractor due to his protruding stomach, which makes contact with the steering wheel. Second, Roadway maintains that the STAA does not require Roadway to pay an employee who withholds his services regardless of whether the employee rightfully or wrongly withholds his services under the STAA. Moreover, Roadway argues that the complainant is not entitled to "call-in pay" under the NMFA, because the circumstances of his refusal were not attributable to Roadway. Furthermore, Roadway avers that it neither sought to compel the complainant to drive the tractor, nor did it take any action against the complainant for refusing to drive.

   On February 27, 2003, the respondent filed a Motion for Summary Decision, asserting that the complainant did not face an adverse action, as contemplated by the STAA. On March 13, 2003, the complainant filed a Cross-Motion for Summary Decision. The complainant argues that he has established a prima facie case of retaliation under the STAA.

   On March 14, 2002, a conference call was held with the Court and the parties. The parties agreed that this case should be decided as a matter of law, and therefore, the hearing the was cancelled. The parties were given an additional week to submit briefs on the legal issues.

Whether the complainant, as a matter of law, has established a prima facie case for relief under Section 31105(b) of the STAA to warrant relief ?

   I. Summary Judgment

   An administrative law judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or other materials show that there is no genuine issue as to any material fact. 29 C.F.R. § 18.40, see also Federal Rule of Civil Procedure 56(c). Summary judgment is appropriate when the record "show [s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the burden of establishing the "absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). No genuine issue of material fact exists when the "record taken as a whole could not lead a rational trier of fact to find for the non- moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In reviewing a grant of summary judgment, all the evidence must be viewed in the light most favorable to the nonmoving party. Darrah v. City of Oak Park, 255 F.3d 301, 305 (6th Cir.2001). Here, the parties have agreed that no factual issues remain.

   II. Prima facie case under the Section 31105 of the STAA

   In order to establish a prima facie case under the STAA the complainant must show that he engaged in protected activity, that he was subjected to adverse action, and that Respondent was aware of the protected activity when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Specifically, Section 31105 states that "[a] person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment" under two "work refusal" circumstances. First, an employee may not be disciplined 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 . . . ." ("When" clause.) See 49 U.S.C. § 31105(a)(1)(B)(i). Second, discipline is prohibited for refusing to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." ("Because" clause.) See § 31105(a)(1)(B)(ii). This second ground for refusal carries the further requirement that the unsafe condition causing the employee's apprehension of injury must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Finally, section 31105(a)(2) stipulates that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."

   After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. " The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255. The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

   I. As a matter of law, the complainant has failed to establish a prima facie case for relief under Section 31105 of the Act.

   The complainant has asserted a claim for relief under the "because" clause of Section 31105. As stated earlier, the complainant asserts that he could not safely operate the tractor assigned to him because of modifications to certain tractors. The complainant adds that these modifications, reduced the amount of room available for the driver, thereby causing the steering wheel to protrude into his stomach. Accordingly, the complainant argues that he refused to operate the truck "because of [his] reasonable apprehension of serious injury to himself due to the unsafe condition of the equipment." However, the employer asserts that the equipment was, at all times, in a safe condition, but rather it was the size of the complainant's stomach that impaired his ability to navigate the steering wheel.

   Courts have held that a proper interpretation of the "because clause" requires that the complainant need not prove the existence of an actual safety defect in order for his or her refusal to receive protection. Yellow Freight Systems v. Reich, 38 F.3d 76, 82 (2nd Cir. C.A., 1994). Significantly, Congress added that "[t]he unsafe conditions causing 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." Id. Thus, under the "because" clause, Congress mandated that the objective reasonableness of the employee's perception that an unsafe condition existed be evaluated in light of the situation that confronted the employee at the time. Id.

   Accordingly, I find little merit in the employer's argument that the complainant did not engage in a protected activity, since the complainant need not establish an actual safety defect, but is only required to establish a "reasonable apprehension of injury" under the "because clause". Further, I find that the complainant has established that his refusal to drive the tractor, on November 29, 2001, was based on his perception of an unsafe condition, i.e. the steering wheel's unsafe contact with his stomach. (See also Employer Exhibit 1, Affidavit of Mike Woody, Terminal Manager). Moreover, the affidavit submitted by Mike Woody, Terminal Manager for Roadway on November 29, 2001, and the complainant's testimony establishes that Roadway was aware of his refusal to drive the tractor.

   Despite my finding that the complainant engaged in a protected activity, I do not find that the complainant was subjected to adverse action, as a result of his justified refusal to drive. The record unequivocally establishes that the complainant was neither discharged nor disciplined for his justified refusal to operate the tractor. While the complainant maintains that the respondent's denial of assigned route pay or "call-in pay" constitutes adverse action under the STAA, I find this argument is less than compelling.

   There is a dispute among the circuit courts regarding the relevant standard of proof to establish "adverse action" under the employee protection provisions. In DeFord v. Secretary of Labor, 700 F.2d 281 (6th Cir., 1983), the Sixth Circuit Court of Appeals rejected the argument that the complainant must establish that he was treated differently than other similarly situated participants, in order to demonstrate adverse action under the whistleblower provision of the Energy Reorganization Act of 1974, 42 US.C. § 5851(b). The Court reasoned that an employer should not escape liability upon an otherwise valid claim, solely because it chose to discriminate against three similarly situated employees rather than one. DeFord, 700 F.2d at 286.

While the complainant asserts that this clause guarantees him six hours of call in pay, based upon his justified refusal not to work, the respondent asserts that the provision is only applicable to situations where the employee is not put to work as a result of circumstances attributable to Roadway. Since the NMFA does not provide a further explanation of the scope and purpose of Article 50, Section 2, I find that this issue must be resolved by general principles of contract law.

   If the terms of a contract are plain, simple, clear and unambiguous, then the question of the parties' intention is one for the court to decide as a matter of law. Bonastia v. Berman Bros., Inc., 914 F. Supp. 1533 (W.D. Tenn, 1995). If, however, the language is ambiguous, then the fact finder must ascertain the intended meaning of the terms used. Bonastia, supra, citing Tennessee Consol. Coal Co. v. United Mine Workers of Am., 416 F.2d 1192, 1198 (6th Cir.1969), cert. denied, 397 U.S. 964, 90 S.Ct. 999, 25 L.Ed.2d 256 (1970); Shelby, 842 F.Supp. at 1007. The language of a contract is ambiguous when its meaning is uncertain and is susceptible to more than one reasonable interpretation. Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn.1975). Whether the contract's terms are ambiguous is for the court to determine as a matter of law. Tennessee Consol. Coal Co., 416 F.2d at 1198.

   With respect to Article 50, Section 2, I find that the clause "if not put to work" is ambiguous, since it is susceptible to more than one interpretation, as illustrated by the present dispute. The respondent argues that the purpose and intent of Article 50, Section 2, is to provide drivers who are ready, willing and able to drive their scheduled route a guarantee of pay in the event they are not put to work, due to circumstances attributable to Roadway (i.e., mechanical failure or scheduling error), or circumstances outside of the driver's control, such as weather. The complainant has not offered an alternative argument. More significantly, during the conference call with this Court on March 14, 2002, the parties agreed that they were unaware of any circumstances where the call-in pay provision of Article 50, Section 2 had been interpreted or administered to provide pay to drivers who did not drive their assigned route due to circumstances attributable to the driver.

   Accordingly, I find that the intended meaning of Article 50, Section 2 is to guarantee call-in pay to drivers not put to work, based upon circumstances attributable to Roadway or circumstances outside of the driver's control. I find that this interpretation is reasonable and comports with the intention of the parties. There is no evidence of record demonstrating that the complainant's justified refusal to drive was based upon circumstances attributable to Roadway. To the contrary, the evidence unequivocally establishes that the tractors assigned to the complainant by Roadway were, at all times, mechanically safe. Therefore, the complainant's refusal to drive was based upon his own physical condition, namely the size of his stomach, not the condition of the tractor. To extend a broader interpretation to Article 50, Section 2, as requested by the complainant in this matter, would only "open the door" to flagrant abuse, by allowing drivers to collect "call-in pay" when not put to work for reasons attributable to their own conduct or behavior. Such an interpretation is wholly inconsistent with the purpose and scope of Article 50, Section 2, and the reasonable expectations of the parties.

   While I find that the complainant engaged in a protected activity under Section 31105 of the STAA by justifiably refusing to drive his assigned tractor for safety reasons, I find that the complainant failed to establish that he suffered adverse action, as a result of his protected activity. The record unequivocally establishes that the complainant was, at no time, discharged or disciplined for his refusal to drive. Although the respondent did not extend the complainant six hours of "call-in pay" after his refusal to drive, I find that Article 50, Section 2, of the NMFA does not require employers pay to drivers who are not put to work, based upon circumstances attributable to the driver. Accordingly, I find that the respondent's failure to pay the complainant "call-in pay" does not constitute adverse action, and therefore, the complainant has failed to establish a prima facie case for relief under Section 31105 of the STAA.

   It is hereby ORDERED that Respondent's Motion for Summary Decision is GRANTED. Complainant's Cross Motion for Summary Decision is DENIED and this matter is DISMISSED with prejudice.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:ALS

NOTICE: This Recommended Decision and Order and administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed Reg. 19978 (1996).