U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-051
ALJ CASE NO. 96-STA-15
DATE: April 15, 1998
In the Matter of:
CYNTHIA SHANNON,
COMPLAINANT,
v.
CONSOLIDATED FREIGHTWAYS,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection (whistleblower) provision
of the Surface Transportation Assistance Act (STAA), 49 U.S.C. §31105 (1994), and
implementing regulations. 29 C.F.R. Part 1978 (1997). The complaint alleges that Respondent
discharged Complainant in violation of STAA section 31105(a)(1)(A) (protected safety complaint)
and section 31105(a)(1)(B) (protected work refusal). The safety standard underlying
Complainant's charge is a Department of Transportation (DOT) regulation that limits a driver's
"maximum driving time" in order to avoid driver fatigue: "No motor carrier
shall permit or require a driver of a commercial motor vehicle to drive, nor shall any driver drive
... for any period after [h]aving been on-duty 70 hours in any period of 8 consecutive days
...." 49 C.F.R. §395.3(b)(2) (1996).
1 Complainant was represented
by Teamsters Local 413 under the National collective bargaining agreement, which was
supplemented by regional and State riders.
2 The Ohio Joint State Grievance
Commission ultimately determined that Respondent's discharge decision, reached after the local
hearing, was proper. The ALJ found that deferral was not appropriate because the commission
hearing did not deal adequately with the Complainant's alleged protected activity, the hearing dealt
almost exclusively with issues and evidence not addressed at the local hearing, and the decision
consisted of a single sentence upholding the discharge. The ALJ found it "unclear, from this
brief statement, what factors the committee actually considered and decided." R.D. at 7.
Deferral is appropriate only if "it [is] clear that [the] proceedings dealt adequately with all
the factual issues, that the proceedings were fair, regular and free from procedural infirmities, and
that the outcome of the proceedings was not repugnant to the purpose and policy of the
[STAA]." 29 C.F.R. §1978.112(c).
3 Shannon was an experienced
driver. She had been employed as a driver by Roadway Express, Incorporated, between 1979 and
1990. Hearing Transcript (T.) 376.
4 This expeditious filing of the
logs is an internal CF policy. The DOT regulations require that "[t]he driver shall submit
or forward by mail the original driver's record of duty status to the regular employing motor
carrier within 13 days of the completion of the form." 49 C.F.R. §395.8(i).
5 CF dispatched Shannon from
Peru with a set of trailers. One of the trailers contained the hot shipment bound for Sidney. The
second trailer contained a "prime time" shipment with an expedited delivery date
bound for Pocono, Pennsylvania, via Sidney and Columbus. A hot load is "an expedited
shipment requiring expedited service." T. 109 (Koble). "Prime time is a service that
[CF] offers to be competitive with air freight companies. [CF] charges a premium rate to perform
an expedited service." In either circumstance, "time is of the essence." T. 331-332 (Koble).
6 Shannon was "out of
hours," under her construction, when she departed Sidney. She ceased driving, however,
near Troy, Ohio, when her hours were exhausted under White's direction to log the wait time in
Sidney as off duty. T. 477-480, 487-488. The record evinces confusion as to whether Shannon
was directed to "go to bed," i.e., rest at a motel for a required eight hours,
when her 70 on-duty hours expired, or whether CF communicated an intent to "cushion her
in," i.e., send another driver to complete the trip to Columbus with Shannon
as a passenger in the "buddy seat."
7McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-803 (1973); Kahn v. United States Sec'y of Labor,
64 F.3d 271, 277 (7th Cir. 1995) (court saw "no reason" not to extend
McDonnell Douglas inferential method of proving discrimination employed in civil
rights area to other discrimination cases arising under other congressional statutes, including
Federal whistleblower statutes). See Roadway Express, Inc. v. Brock, 830 F.2d 179,
181 n.6 (11th Cir. 1987) (endorsing Secretary's allocation of proof in whistleblower cases).
8 Although the
"pretext" analysis permits a shifting of the burden of production, the ultimate burden
of persuasion remains with the complainant throughout the proceeding. Once a respondent
produces evidence sufficient to rebut the "presumed" retaliation raised by a
prima facie case, the inference "simply drops out of the picture," and
"the trier of fact proceeds to decide the ultimate question." St. Mary's Honor
Center v. Hicks, 509 U.S. at 510-511. See Carroll v. United States Dep't of
Labor, 78 F.3d 352, 356 (8th Cir. 1996) (whether the complainant previously established
a prima facie case becomes irrelevant once the respondent has produced evidence of
a legitimate nondiscriminatory reason for the adverse action); Roadway Express, Inc. v.
Dole, 929 F.2d 1060, 1063 (5th Cir. 1991) (court declined to revisit sufficiency of
prima facie case; "[b]ecause the case has been fully tried and we thus have a
fully developed record before us, the focus of our inquiry is on the ultimate question of
discrimination").