September 20, 2008 DOL Home > OALJ Home > Whistleblower Collection |
USDOL/OALJ Reporter
Administrative Review Board 200 Constitution Ave, NW Washington, DC 20210
ARB CASE NO. 98-118
In The Matter of
DEBORAH GREENHORN,
v.
ARROW STAGE LINES,
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
This case arises under the "whistleblower" provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. §31105 (West 1996), and applicable regulations at 29 C.F.R. Part 1978 (1997). Complainant, Deborah Greenhorn, alleged that on December 31, 1996, Respondent, Arrow Stage Lines (Arrow), terminated her employment as a part-time motor coach operator because she had filed a formal complaint with the Occupational Safety and Health Administration (OSHA) on December 30, 1998, about an uncovered oil pit in the bus maintenance area, and had raised complaints earlier with her supervisors about a leaking windshield and excessive driving hours. Arrow responded that it terminated Greenhorn because she had two preventable accidents during her six-month probationary period. On April 23, 1998, the Administrative Law Judge (ALJ) issued a Recommended Decision and Order (R. D. and O.) dismissing the complaint. The ALJ found that while Greenhorn engaged in protected activity under the STAA in raising internal safety complaints, her filing the formal complaint with OSHA did not constitute protected activity under the STAA. He concluded that Greenhorn failed to meet her burden of proving that she was terminated for engaging in protected activity. R. D. and O. at 8.
The ALJ's factual findings, including his credibility determinations, are
supported by substantial evidence on the record considered as a whole, and therefore are
conclusive.1 29 C.F.R.
§1978.109(c)(3). His legal conclusions are consistent with applicable law and also are
accepted.
We disagree with Greenhorn's argument that the ALJ erred in not accepting
the Secretary's preliminary finding of jurisdiction over Greenhorn's oil pit OSHA complaint, even
if the OSHA complaint was referenced in OSHA's investigation of Greenhorn's STAA complaint.
It is well established that once a hearing is requested, the ALJ conducts a de novo
hearing and the preliminary findings are not accorded any weight. Asst. Sec. and Moravec
v. HC & M Transportation, Case No. 90-STA-44, Sec. Dec., Jan. 6, 1992, slip op. at 5 and
cases cited therein. We agree with the ALJ that the report of an uncovered oil pit is not a STAA
violation, even if it may be actionable under other statutes.
Accordingly, the appended ALJ's recommended decision is adopted, and
the complaint IS DISMISSED.
SO ORDERED.
PAUL
GREENBERG
CYNTHIA
L. ATTWOOD
1 The findings are well
documented with one minor exception. At page 5 of the R.D. and O., the ALJ incorrectly
referred to Arrow's termination letter as "CX 3." The termination letter was admitted
into the record as Complainant's Exhibit 4. Transcript at 14.
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