ARB CASE NO. 02-025
ALJ CASE NO. 01-STA-6
DATE: August 29, 2003
In the Matter of:
PATRICK CLEMENT,
COMPLAINANT,
v.
MILWAUKEE TRANSPORT
SERVICES, INC. ,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
ppearances:
For the Complainant:
Patrick Clement, pro se, Greenfield, Wisconsin
For the Respondent: Mary Pat Ninneman, Esq., Sean M. Scullen, Esq., Quarles & Brady LLP, Milwaukee, Wisconsin
FINAL DECISION AND ORDER
This case arises under the whistleblower protection provisions of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105 (2000), and the implementing regulations found at 29 C.F.R. Part 1978 (2002). On August 4, 1999, Patrick N. Clement filed a complaint alleging that Milwaukee Transport Services (MTS) terminated him for engaging in STAA-protected activities. After a thorough review of the record, we conclude that MTS terminated Clement's employment for insubordination and not because he engaged in protected activity. Accordingly, we deny his complaint.
BACKGROUND
Beginning in 1975, MTS managed and operated the Milwaukee County Transit System (MCTS) pursuant to a contract with Milwaukee County. Transcript (T.) at 118, 405. Clement began working for MTS on February 10, 1992. Clement held a commercial driver's license with a "P" (passenger) endorsement and worked at MTS as a full-time regular bus operator. Complainant's Exhibit (CX) 2; T. at 108. At times relevant to this action, he began his workday at MTS's Kinnickinnic Station, one of three operating stations where drivers retrieved buses that are used to provide transportation service to the public. T. at 233-234.
MCTS buses were equipped with vehicular hazard warning lights, also known as "four-way flashers." MTS's company rules required bus operators to activate the four-way flashers only to alert MTS supervisors, its security force, and local police in the event of an emergency. T. at 402-403; CX 6 (Operator's Manual, Section 3.16) ("Four way flashers are not to be used on a disabled bus except on the freeway or when police assistance is required."); CX 16 (MTS Special Bulletin, issued June 23, 1998) ("4-Way Flashers are to be used ONLY in emergency situations when assistance is needed. [sic] NOT during boarding or alighting situations.").
Whenever a commercial motor vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped commercial motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the warning devices required by paragraph (b) of this section. The flashing signals shall be used during the time the warning devices are picked up for storage before movement of the commercial motor vehicle. The flashing lights may be used at other times while a commercial motor vehicle is stopped in addition to, but not in lieu of, the warning devices required by paragraph (b) of this section.
49 C.F.R. § 392.22(a).
2 Clement alleges that he initiated three complaints against MTS. T. at 117. The record before us does not support this contention.
4 Clement also alleges that the ALJ did not conduct a fair hearing. Complainant's Brief at 27. The record does not support this contention.
5 On appeal to the Board, Clement alleges that MTS, in violation of the Fair Labor Standards Act (FLSA), engaged in a practice of not paying its employees for attending company meetings. Complainant's Brief at 11. First, we note again that Clement filed his complaint pursuant to the STAA. Any matters relating to FLSA claims are beyond the scope of this proceeding. Second, the record establishes that MTS employees were in fact paid for meetings. T. at 392, 496-497; RX S ("The company pays employees for attendance at mandatory meetings in accordance with the terms of the General Labor Agreement.").
6 The ALJ received evidence and testimony on the issue of whether Clement suffered a hearing impairment and therefore may not have heard the commands of Bowers and McGinty. Absent an allegation that Bowers and McGinty were aware of such impairment, Clement's argument that he did not hear them is irrelevant to his whistleblower claim because Bowers and McGinty reasonably believed Clement was being insubordinate. An employer's discharge decision is not unlawful if it is based on a mistaken conclusion about the facts; the decision must be motivated by retaliation. Dysert v. Westinghouse Electric Corp., 1986-ERA-39, slip op. at 3 (Sec'y Oct. 30, 1991) (under Energy Reorganization Act), citing Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 191 (1st Cir. 1990); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989), and Jeffries v. Harris County Cmty. Action Assoc., 615 F.2d 1025, 1036 (5th Cir. 1980).
7 Clement walked away despite being told by Mullihan that a Union representative would be present at the meeting. RX A.