ARB CASE NO. 99-107
ALJ CASE NO. 99-STA-21
DATE: November 30, 1999
In the Matter of:
RONALD C. STAUFFER,
COMPLAINANT,
v.
WAL-MART STORES, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan,
Minnesota
For the Respondent: Bryan W. Riley, Esq., Wal-Mart Stores, Inc., Bentonville,
Arkansas
DECISION AND ORDER OF REMAND
This case arises under the employee protection provisions of §405
of the Surface Transportation Assistance Act (STAA) of 1982, as amended and recodified, 49
U.S.C. §31105 (1994). Complainant Ronald C. Stauffer (Stauffer) claimed that his
employer, Respondent Wal-Mart Stores, Inc. (Wal-Mart), violated §405 when it
discharged him on August 8, 1998, for insubordination due to refusal of a dispatch work
assignment. Before the Administrative Law Judge (ALJ), Wal-Mart moved for summary
decision, which the ALJ recommended granting in a Recommended Decision and Order (R.
D. & O.). For the reasons discussed below, we conclude that the ALJ did not apply the correct
standard for summary decision in this case, and we find that summary decision is not
appropriate on the record before us. Accordingly, we vacate the ALJ's R. D.& O. and remand
the case for hearing.
[Page 2]
PROCEDURAL HISTORY
On September 23, 1998, Stauffer filed a timely complaint with the
Department of Labor's Occupational Safety and Health Administration (OSHA) pursuant to 29
C.F.R. §1978.102 (1999). He claimed that Wal-Mart had violated STAA §405
by discharging him in reprisal for his refusal, on the basis of fatigue, to wait until an empty
trailer was available for him to exchange with his full trailer.
In accordance with 29 C.F.R. §1978.104, OSHA's Assistant
Secretary issued written findings on January 27, 1999, concluding that Wal-Mart's discharge
of Stauffer did not violate STAA §405. Stauffer filed timely objections to the Assistant
Secretary's written findings and requested a hearing under 49 U.S.C. §31105(b)(2)(B)
and 29 C.F.R. §1978.105. The case was assigned for hearing before an ALJ pursuant to
29 C.F.R. §1978.106(b).
Before the ALJ, Respondent Wal-Mart moved for summary decision
under 29 C.F.R. §18.40 (1999). On July 6, 1999, the ALJ issued a R. D. & O. which
recommended granting Wal-Mart's motion for summary decision. Pursuant to 29 C.F.R.
§1978.109(a), the ALJ forwarded his R. D. & O. to the Administrative Review Board
(Board) for final consideration.
We have jurisdiction under 49 U.S.C. §31105(b)(2)(C) and 29
C.F.R. §1978.109(c).
STANDARD OF REVIEW
A grant of summary decision is reviewed de novo, that is, our
review is governed by the same standard used by the ALJ. See Han v. Mobil Oil Corp.,
73 F.3d 872, 874-75 (9th Cir. 1995). The standard for summary decision before a Labor
Department ALJ is set forth at 29 C.F.R. §18.40(d). This section, which is modeled on
Rule 56 of the Federal Rules of Civil Procedure, permits an ALJ to enter a summary decision
for either party where "there is no genuine issue as to any material fact and . . . a party
is entitled to summary decision." Id. Accordingly, viewing the evidence in the
light most favorable to the non-moving party, we must determine whether there are any genuine
issues of material fact and whether the ALJ correctly applied the relevant law. Mongeluzo
v. Baxter Travenol Long Term Disability Benefit Plan, 46 F.3d 938, 942 (9th Cir.1995).
[Page 3]
BACKGROUND
Wal-Mart employed Stauffer as a commercial motor vehicle operator
from July 1987 until he was discharged on August 8, 1998.
The events leading up to Stauffer's termination occurred on August 7 and
8, 1998. On the morning of August 7, Wal-Mart's dispatch personnel assigned Stauffer to a
delivery route which was scheduled to terminate at the Wal-Mart store in Denham Springs,
Louisiana, at 4:00 a.m. on August 8. Deposition of Ronald Stauffer (Dep.) 30. Although
Stauffer's assigned delivery time was 4:00 a.m., he informed the dispatcher when he received
his assignment that he projected that he would arrive at the Denham Springs store earlier, at
midnight. He also informed the dispatcher that he was concerned that an empty trailer would
not be ready for him to pick up at midnight, and that he would be forced to wait for an empty
trailer to become free. This concern was based upon the fact that the Denham Springs store
had only two loading docks both of which, Stauffer believed, would be occupied at midnight
by trailers delivered earlier that day. At least one of the trailers would have to be emptied prior
to his arrival so that Stauffer could swap the empty trailer with the loaded trailer that he would
be hauling to the store. Dep. 30-31.
The dispatcher assured Stauffer that an empty trailer would be ready for
him on his arrival at Denham Springs. Dep. 32. Stauffer explained that he sought this
reassurance because his practice was to decline assignments which required him to be
wakened. Dep. 16, 32, 72. He knew that if an empty trailer was not ready at midnight he would
go to sleep and have to be wakened from that sleep to change trailers. Dep. 32. Stauffer knew
from past experience that Wal-Mart store personnel would waken sleeping drivers for any
reason. Dep. 16. He believed that being wakened after sleeping for a couple of hours after
working a long day would cause him to be too fatigued to drive the truck safely. Dep. 37.
At midnight, when Stauffer arrived at the Denham Springs store, the two
loading docks were occupied by loaded trailers. Dep. 31, 35. Store personnel informed
Stauffer that the trailers would be emptied in approximately one and one-half to two hours.
Dep. 36. They suggested that Stauffer get some sleep in his truck, and that they would waken
him when he could exchange his loaded trailer with an empty one. Dep. 39. Stauffer declined
the suggestion and informed the store's personnel that he did not want to move the trailers
later, in a fatigued state, because it would be unsafe. Dep. 40, 133-37. He also informed his
dispatcher of the situation, explaining that if he stayed on the site to move the trailers, he
would be too fatigued to do so safely. Dep. 45-47, 137-38. He was concerned at the time he
spoke with the store personnel and his dispatcher that, based on his present condition, another
hour to two hours of waiting would place him in a position where he would be too fatigued to
make the trailer switch safely, particularly if he were to sleep during this waiting period. Dep.
47-48, 78-80, 133-34.
[Page 4]
Stauffer then disengaged his trailer and drove approximately five miles
to another store, where he spent the night. Dep. 64-65. His apparent reason for so doing was
that he did not want to have his sleep interrupted, which he believed would be the case if he
attempted to sleep at the Denham Springs store. When he awoke the next morning, he returned
to the Denham Springs store, picked up an empty trailer, and returned to Wal-Mart's
Brookhaven truck yard. When he arrived at Brookhaven he was informed that his employment
had been terminated for "Refusal of a Dispatch Work Assignment
(Insubordination)." Dep. 19-21.
THE ALJ'S RECOMMENDED DECISION AND ORDER
The ALJ concluded that there was no genuine issue of material fact and
that, based upon what the ALJ determined to be the undisputed facts, Stauffer had not engaged
in STAA-protected activities. The ALJ recommended granting summary judgment for Wal-
Mart, pursuant to 29 C.F.R. §18.40(d).
The ALJ began by analyzing whether Stauffer had established a prima
facie case for relief under the STAA. He noted that a complainant must show that he or
she engaged in protected conduct, that the complainant was subject to adverse employment
action, and that the employer was aware of the protected conduct when it took the adverse
action; in addition, the complainant must present evidence sufficient to raise an inference that
the protected conduct was the likely reason for the adverse action. R. D. & O. 2. Since there
was no dispute that Stauffer was terminated, and that the termination was related to his refusal
to complete his driving assignment, the ALJ focused on whether Stauffer's refusal was
protected activity. In recommending summary decision for Wal-Mart, the ALJ concluded that
Stauffer's refusal to finish his assignment was not protected under either STAA
§405(a)(1)(B)(i) or (1)(B)(ii).1
R. D. & O. 6.
1 The employee protection provisions of
STAA §405(a) provide, in relevant part:
(a) Prohibitions
(1) A person may not discharge an employee . . .
because
* * *
(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 the employee or the public
because of the vehicle's unsafe condition.
(2) Under paragraph (1)(B)(ii) of this subsection, an
employee's apprehension of serious injury is reasonable only if a
reasonable individual in the circumstances confronting the
employee would conclude that the unsafe condition establishes a
real danger of accident, injury, or serious impairment to
health.
2 Before the Board, Stauffer notes
that "common sense and life experiences would indicate that a person awake for 17.25 continuous hours
[from 8:45 a.m. on the previous day] would be impaired due to fatigue." Complainant's Brief in
Opposition to Administrative Law Judge's Recommended Decision and Order 5-6. See, e.g., Spearman
v. Roadway Express, Inc., Case No. 92-STA-1, Sec'y Final Dec. and Ord., slip op. 8-9, June 30, 1993,
aff'd sub nom. Roadway Express, Inc. v. Reich, 34 F.3d 1068 (Table) (6th Cir. 1994) (the 15 to
21 hours, during which Complainant remained awake awaiting dispatch and operating his vehicle, established
that continued operation would have been unsafe); Self v. Carolina Freight Carriers, Corp.,Case
No. 89-STA-9, Sec'y Final Dec. and Ord., slip op. 8, January 12, 1990, (complainant's uncontradicted
testimony as to the number of hours that he had been awake and on call awaiting assignment renders credible
his assertion that he was fatigued).
3 Respondent's Brief in Support of
Its Motion for Summary Decision Brief 6; Respondent's Brief in Support of The ALJ's Recommended
Decision and Order 11.
4 We ultimately dismissed Somerson's
complaint because he failed to sustain his burden of proof and not because it was based upon anticipatory
fatigue: "Although Complainants have raised interesting and novel theories with regard to the issue of
driver fatigue, it ultimately is their failure to introduce sufficient facts to prove their individual claims
that compels us to reject their complaints." Somerson, slip op. 3 (italics in original).
5E.g., Byrd v. Consolidated
Motor Freight, ARB Case No. 98-064, ALJ Case No. 97-STA-9, ARB Final Dec. and Ord., May 5,
1998 (no STAA protection because complainant failed to prove that he would have been fatigued at a future
time); Cortes v. Lucky Stores, Inc., ARB No. 98-019, 96-STA-30, ARB Final Dec. and Ord.,
February 27, 1998 (no safety violation because complaint of fatigue related to a driving assignment some 15
hours later); Brandt v. United Parcel Service, Case No. 95-STA-26, Sec'y Final Dec. and Ord.,
October 26, 1995 (complainant could not prove that fatigue, expected some 24 hours later, would be an actual
violation); Smith v. Specialized Transportation Services, Case No. 91-STA-22, Sec'y Final Dec.
& Ord., April 30, 1992 (fatigue rule requires proof that employee's ability or alertness was so impaired as to
make vehicle operation unsafe).
6See e.g., Robinson, 86-
STA-3, slip op. 12,"[A] determination as to whether [unsafe] conditions exist requires the exercise of
subjective judgment and is ordinarily made on the basis of information available at the time, but that
determination is not reserved to the driver alone."
7 Board Member Cynthia L. Atwood
did not participate in the consideration of this case.
