DATE: January 17, 1995
CASE NO. 92-STA-37
IN THE MATTER OF
EMMETT D. NOLAN,
COMPLAINANT,
v.
AC EXPRESS,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND REMAND ORDER
Complainant Emmett Nolan alleges that Respondent AC Express
(ACX) violated the employee protection provision of the Surface
Transportation Act of 1982, 49 U.S.C.A. § 31105 (West 1994)
(STAA), when it gave him disciplinary warning letters, laid him
off, and failed to recall him to work. The findings of fact in
the Administrative Law Judge's (ALJ's) Recommended Decision and
Order (R.D. and O.), at 1-10, are supported by the substantial
evidence on the record as a whole and therefore are conclusive.
29 C.F.R. § 1978.109(c)(3). I also adopt the ALJ's
assessments of witness credibility. The finding in the R.D. and
O. that Respondent violated the STAA is affirmed and the case is
remanded for further evidence concerning the proper remedy.
BACKGROUND
A. Factual
ACX serves the air freight industry, moving goods to and
from airline terminals to meet aircraft departure times. Nolan
began working as a driver at ACX's Buffalo sub-terminal in
December 1990. T. 222. His dispatcher and other managers worked
at the Cleveland terminal. T. 57, 59.
In the summer of 1991, ACX issued a memorandum requiring
drivers on the Cleveland run to leave Buffalo no later than 10:30
p.m. and to arrive at the Cleveland terminal by 2:30 a.m. CX 1.
Disciplinary action could be taken for late arrivals. Id.[PAGE 2]
Cleveland shift supervisor Leo Leonard complained that Nolan was
taking more than four hours to do the run and was late arriving
in Cleveland. T. 260, 773, 805. Nolan objected to Leonard that
he could not make the run in four hours without speeding, T. 262,
780, and Leonard berated Nolan for being old, slow, and late.
T. 226-227, 260, 314. Leonard denied engaging in such
harassment. T. 746-748.
Nolan complained to managers Harrington and Starkey that in
view of the construction areas on the highway, he was being
forced to speed to arrive in Cleveland in four hours. T. 235,
805. Harrington replied that Nolan must get to Cleveland in four
hours or less. T. 235. To avoid the four hour requirement,
Nolan switched runs with another driver, T. 227, 314, even though
he earned less money on the new run. T. 549-550. Nolan
continued to do the Cleveland run on Sundays, when he could leave
earlier and not have to meet the four hour requirement.
In November 1991 Nolan received two employee discipline
warning letters. RX 1, RX 2. On November 21, ACX Vice President
Erickson informed Nolan that he would be laid off because of a
lack of work for Buffalo drivers. T. 232, 459. The company sent
Nolan a letter advising him that he was subject to recall for one
year after layoff, CX 8, and a letter recommending him to other
employers. CX 9.
B. Motion to Supplement Record Granted
At the time it filed its brief before the Secretary, ACX
submitted a motion to reopen the hearing and supplement the
record with new and material evidence with respect to damages.
Nolan opposed the motion without argument.
Counsel for ACX avers that the tendered evidence concerns
the closing of ACX's Buffalo operation in April 1993, about four
months after the end of the hearing in this case. I find that
the evidence of the closing is new and material evidence that was
not available prior to the end of the hearing and I grant the
motion. Accordingly, the affidavit of Ginger Schroder (Schroder
Aff.) is made part of the record and will be considered in
reaching this decision. [1] See 29 C.F.R. §
18.54(c).
DISCUSSION
Under STAA Section 405(a), it is unlawful to discharge an
employee because he has "filed a complaint or begun a proceeding
related to a violation of a commercial motor vehicle safety
regulation, standard, or order, or has testified or will testify
in such a proceeding." 49 U.S.C.A. § 31105(a)(1)(A). The
relevant portion of section 405(b) prohibits the discharge of
employees for refusing to operate a vehicle because "the
operation violates a regulation, standard, or order of the United
States related to commercial motor vehicle safety or health. .
[PAGE 3]
. ." 49 U.S.C.A. § 31105(a)(1)(B)(i).
ACX contends that Nolan's complaint concerned only a section
405(b) refusal to drive, since the Regional Administrator of the
Occupational Safety and Health Administration investigated only
violations of section (b). See CX 20. In the complaint,
however, Nolan alleged that he complained to supervisor Leonard
that the arrival time for the Cleveland run would require him to
exceed the speed limit. April 21, 1992 Complaint. Scheduling a
run in a manner that requires the driver to exceed applicable
local speed limits is a violation of a Federal motor carrier
safety regulation. 49 C.F.R. § 392.6 (1993);
McGavock v. Elbar, Case No. 86-STA-5, Sec. Dec.,
July 9, 1986, slip op. at 7. I therefore find that the complaint
stated a cause of action under section 405(a) and that the ALJ's
consideration of that section was proper. SeeYellow Freight System, Inc. v. Reich, 27 F.3d 1133,
1140 (6th Cir. 1994) (finding that the complaint gave adequate
notice of claim of violation of STAA section 405(a) even though
OSHA determination letter referred only to section 405(b)).
A. Prima facie case
To make a prima facie case, the STAA 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 must also
raise the inference that the protected activity was the likely
reason for the adverse action. Auman v. Inter Coastal
Trucking, Inc., Case No. 91-STA-00032, Final Dec. and Ord.,
July 24, 1992, slip op. at 2.
As the ALJ found, R.D. and O. at 16-17, Nolan testified
credibly that he made safety complaints to ACX managers and
supervisors. [2] Although ACX contends (Resp. Br. at 14) that
only complaints to government agencies are protected under STAA
section 405(a), it is well established that internal safety
complaints to managers also constitute protected activities. [3]
Smith v. Yellow Freight System, Inc., Case No. 91-STA-45,
Dec. and Ord., Mar. 10, 1993, slip op. at 12, aff'd sub
nom.Yellow Freight System, Inc. v. Reich, 27 F.3d
1133 (6th Cir. 1994); Ass't Sec. and Killcrease v. S &
S Sand and Gravel, Inc., Case No. 92-STA-30, Fin. Dec. and
Ord., Feb. 5, 1993, slip op. at 8. I find that Nolan established
that he engaged in protected activities under section 405(a).
Refusing to drive when the contemplated run would cause a
violation of a Federal motor carrier safety regulation is a
protected activity under subsection (a)(1)(B)(i) if the driver
informed his employer of the safety basis for the refusal.
Paquin v. J.B. Hunt Transport, Inc., Case
No. 93-STA-00044, Sec. Dec. and Ord., July 19, 1994, slip op. at
5; Ass't Sec. and
[PAGE 4]
Waldrep v. Performance Transport, Inc., Case No. 93-STA-23,
Dec. and Ord., Apr. 6, 1994, slip op. at 8 (complainant's remark
to employer about no longer driving "illegally" sufficient to
establish protected refusal to drive). To come within the
protection of this provision, the complainant must also show that
an actual violation of a regulation would have occurred; it is
not sufficient that the driver had a reasonable belief about a
violation. Yellow Freight System, Inc. v. Reich,
38 F.3d 76 (2d Cir. 1994); Robinson v. Duff Truck Line,
Inc., Case No. 86-STA-3, Final Dec. and Ord., Mar. 6, 1987,
slip op. at 12-13, aff'd, Duff Truck Line, Inc. v. Brock,
No. 87-3324 (6th Cir. June 24, 1988); Brame v. Consolidated
Freightways, Case No. 90-STA-20, Final Dec. and Ord., June
17, 1992, slip op. at 3.
Nolan told his shift supervisor that he would not continue
to take the Cleveland run because ACX required that it be done in
four hours or less, which Nolan could not do without exceeding
the speed limit. T. 226, 234-235. Although ACX's vice president
wrote that it usually took drivers four and a half hours to drive
the 220 miles from Buffalo to Cleveland, CX 35, ACX issued a
memorandum that required Buffalo drivers to arrive in Cleveland
by 2:30 a.m. CX 1. The testimony indicated that the truck
routinely could not depart earlier than 10:30 p.m. because of
late deliveries of freight from the airport, T. 354, which left
at most four hours to get to Cleveland. Other drivers who
accomplished the run in four hours or less had to speed, T. 533-
536, or skip the DOT required inspection. T. 72-74. [4]
See 49 C.F.R. § 392.7 (1988) (requiring driver to
perform safety inspection before driving) and § 392.9(b)
(requiring drivers to examine cargo and load-securing devices according
to a schedule). I find that Nolan established that requiring
drivers to arrive in Cleveland by 2:30 a.m. caused drivers to
exceed the speed limit, which was a violation of a Federal motor
carrier safety regulation, 49 C.F.R. § 392.6. Therefore, I find
that Nolan also established that he engaged in activity protected
under subsection (a)(1)(B)(i). SeeMcGavock, slip
op. at 7.
I agree with the ALJ that the issuance of employee
discipline reports, such as the warning notices Nolan received,
constituted adverse action. R.D. and O. at 15; Daniel Nolan
v. AC Express, Case No. 93-STA-38, Sec. Dec. and Ord., May
13, 1994, slip op. at 3, aff'd without opinion, No. 94-
4089 (2d Cir. Oct. 5, 1994). Nolan's layoff also was an adverse
action. SeeNichols v. Bechtel Construction, Inc.,
Case No. 87-ERA-0044, Dec. and Ord. of Rem., Oct. 26, 1992, slip
op. at 11, petition for review docketed, No. 94-4067 (11th
Cir. Jan. 11, 1994); Pillow v. Bechtel Construction, Inc.,
Case No. 87-ERA-35, Dec. and Ord. of Rem., July 19, 1993, slip
op. at 11, petition for review docketed, No. 94-5061 (11th
Cir. Oct. 13, 1994) (both cases under
[PAGE 5]
the analogous employee protection provision of the Energy
Reorganization Act of 1974 (ERA)).
Shortly after Nolan was laid off, ACX informed him that he
was eligible for recall for one year. CX 8,41; seealso CX 36 p. 5 (ACX employee handbook). ACX hired
several Buffalo drivers during that year, CX 34, but did not recall Nolan.
I agree with the ALJ, R.D. and O. at 16, that the failure to recall Nolan
was an adverse action.
The next element of a prima facie case is establishing that
the respondent was aware of the complainant's protected
activities when it took the adverse actions against him. Since
Nolan told supervisor Leonard that he would not drive the
Cleveland run because it required him to violate the law and also
complained about safety issues to several other managers, ACX
clearly was aware of his protected activities.
Temporal proximity between the protected activities and the
adverse action may be sufficient to raise the inference of
causation to establish a prima facie case. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989); Daniel Nolan,
slip op. at 4. In the late summer of 1991, Nolan made safety
complaints to his superiors and refused to take the Cleveland run
except on Sundays, when there was more time to do the run. T.
226, 235. That September he wrote a letter concerning safety to
ACX's headquarters. CX 7. Two months later, he received two
disciplinary warning notices and was laid off. I find that the
proximity between his protected activities and the adverse
actions was such that Nolan raised the inference of causation.
SeeToland v. Werner Enterprises, Case No.
93-STA-22, Sec. Dec. and Ord., Nov. 16, 1993, slip op. at 3 and
cases there cited; Goldstein v. Ebasco Constructors, Inc.,
Case No. 86-ERA-37, Sec. Dec., Apr. 7, 1992, slip op. at 11-12,
rev'd on other grounds sub nom.Ebasco
Constructors, Inc. v. Martin, No. 92-4576 (5th Cir. 1993)
(causation established where 7-8 months elapsed between protected
activities and adverse action).
I, therefore, find that Complainant established a prima
facie case.
B. Respondent's Burden of Production and
Complainant's Burden of Persuasion
Once the complainant establishes a prima facie case, the
respondent has the burden of articulating legitimate, non-
discriminatory reasons for the adverse actions. ACX alleged that
it issued the disciplinary warning letters because of a
chargeable accident that Nolan did not report, RX 1, and his
failure on one occasion to pick up a truck before arriving at a
terminal. RX 2.
[PAGE 6]
ACX's vice president explained that it chose Nolan for
layoff because of a reduced need for drivers, the belief that
Nolan intended to retire soon, the fact that Nolan qualified for
social security in view of his age, and disappointment with
Nolan's work performance. [5] T. 510; Resp. Br. at 29-30.
Concerning the failure to recall Nolan when ACX hired other
Buffalo based drivers in the year following Nolan's layoff, ACX
explained that the letter outlining Nolan's recall rights was an
error in view of Nolan's planned retirement. T. 454-455. I find
that ACX met its burden of production.
Complainant then had the burden of establishing that the
reasons ACX stated for the discipline and layoff were pretextual
and that the real reason for the adverse actions was retaliation
for his protected activities. [6] Paquin, slip op. at 8;
Stiles v. J.B. Hunt Transportation, Inc., Case No. 92-STA-
34, Sec. Dec. and Ord., Sept. 24, 1993, slip op. at 7.
Nolan's first disciplinary letter was for an accident at the
Ryder truck yard in November 1991, RX 1, which admittedly caused
only very minor damage. T. 709. Supervisor Terri Jarecki
testified that upon learning of the accident from Ryder, she
routinely issued Nolan a letter about the accident charged to
him, and the letter included a warning about the consequences of
future accidents. T. 692, 724. In view of the ACX's policy
requiring drivers to report all accidents that cause any damage
to a vehicle, CX 40 p. 48, I find that Nolan did not persuade
that the real reason for issuing the first disciplinary letter
was retaliation for his safety complaints.
The second letter cited Nolan for arriving at a freight pick
up point without a straight truck, which caused a delay in moving
freight. RX 2. Nolan did not deny the incident, but deemed it
minor since it did not make him late for work that day. T. 239.
Nolan has not persuaded me that the motivation for the letter was
discriminatory.
The ALJ found that there was no genuine lack of work that
would justify laying off a driver. R.D. and O. at 19. I
disagree because ACX witnesses testified without contradiction
that in November 1991 the company lost a customer and no longer
had to make a regular Toronto run. T. 382-383. Prior to Nolan's
layoff, ACX employed a total of five Buffalo-based drivers,
including Nolan, and afterward it employed four. CX 34; ALJX 1.
Even though the need to lay off a driver was genuine, I find
that selecting Nolan for layoff was suspect. The employee
handbook indicated that the company would observe reverse
seniority in making layoffs. CX 36 p. 5. ACX maintained that
the seniority provisions of the employee handbook did not apply
to Buffalo based drivers, T. 786-787, but there was no
documentary evidence that a different policy applied to the
[PAGE 7]
Buffalo sub-terminal. It is undisputed that Nolan had more
seniority than two other Buffalo drivers who retained their jobs,
Carpenter and Cavanaugh. T. 524. ACX justified selecting Nolan
because several employees believed that Nolan was planning to
retire early in 1992. T. 104 (Carpenter); 346-348 (Cavanaugh),
611-614 (Wilbert), 696 (Jarecki). Nolan admitted that he told
manager Dave Wilbert he was thinking about retiring because he
did not like Leonard's harassment about being late and slow. T.
272. Daniel Nolan confirmed that Complainant said he was
thinking about retiring. T. 143.
Buffalo driver Richard Rogalski testified that in August or
September 1991, ACX Vice President Erickson telephoned and asked
if Rogalski knew whether Nolan was going to retire. T. 533. I
find the timing of the inquiry about Nolan's retirement plans to
be suspect since Nolan was making internal safety complaints at
the same time. Moreover, when Erickson made the inquiry the
company did not know that it would lose the Toronto run since
Erickson testified that he learned of the loss of that customer
in November 1991. T. 383.
Another driver, Richard Rogalski, informed Erickson that he
absolutely was going to retire, T. 533, and did retire
effective February 7, 1992. CX 30; T. 532. At the time it laid
off Nolan, ACX knew about Rogalski's definite plan to retire, T.
531, and could have selected Rogalski for layoff. Instead, it
chose Nolan, who merely was thinking about retiring.
ACX argues that if Nolan did not intend to retire, it is odd
that he did not object when Erickson informed him he was being
laid off. Resp. Br. at 28. Nolan testified, however, that when
informing him of the layoff, Erickson did not mention retirement
but rather stated that Nolan was eligible to receive social
security. T. 843. Nolan objected to being laid off ahead of
less senior drivers. T. 843. Since his age made him eligible to
receive social security benefits, T. 844, it is understandable
that Nolan did not object to the statement about his eligibility.
Upon review of the entire record, I find that Nolan showed
that the reasons ACX gave for selecting him for layoff were not
credible and that ACX chose him over other drivers because he had
engaged in protected activities.
Despite the letter setting forth Nolan's recall rights, the
company did not notify Nolan about a position opening when
Rogalski retired three months after Nolan's layoff. [7] ACX
hired a new driver on the date that Rogalski retired. CX 34
(Gary Archie hired Feb. 7, 1992). When Daniel Nolan asked
Buffalo driver-supervisor Ricky Lee Carpenter whether Emmett
Nolan would be recalled to work, Carpenter admittedly said that
Emmett was "history." T. 87, 165-166. Nor did the company
notify Nolan when it had additional openings for Buffalo based
drivers during
[PAGE 8]
Nolan's year of recall eligibility.
A few months after retiring, Rogalski inquired about working
part-time and ACX said they would consider him if it had any
part-time work. T. 534. ACX then called Rogalski to take a run,
but he declined it because of an eye problem. T. 535. The
willingness to rehire Rogalski contrasts starkly with ACX's view
that Nolan was history. I find that Nolan persuaded that ACX
failed to recall him because of his safety complaints. [8]
C. The Remedy
Nolan seeks back pay, front pay in lieu of reinstatement,
compensatory damages, punitive damages, and expenses. T. 243-
244. I agree with the ALJ that punitive damages are not
authorized under the STAA. R.D. and O. at 21; 49 U.S.C.
§ 31105(b)(3)(A) and (B). [9] Compare 15 U.S.C.
§ 2622(b)(2)(B)(iv) (1988) (provision in whistleblower
provision of Toxic Substances Control Act authorizing exemplary
(punitive) damages).
Upon proving a violation of the STAA, the complainant is
entitled to back pay. Moravec v. HC & M Transp.,
Inc., Case No. 90-STA-44, Fin. Dec. and Ord., Jan. 6, 1992,
slip op. at 18. The back pay award is offset by Nolan's
interim earnings in positions he could not have held had his
employment with Respondent continued.
Nolan looked for employment after his layoff and in January
1992 began working as a school bus driver, earning $140 per week.
For the period November 24, 1991 through December 31, 1991, Nolan
is entitled to back pay of $600 per week, representing his base
pay at ACX. For the period January l, 1992 through the end of
the back pay period, Nolan is entitled to back pay of $460 per
week ($600 less $140 earned as a school bus driver). ACX shall
pay pre-judgment interest on the back pay in accordance with the
rate set forth at 26 U.S.C. § 6621 (1988).
The STAA also provides reinstatement as an automatic remedy
for a violation. Nolan testified that he sought front pay in
lieu of reinstatement "because [he] would not . . . go back to
work in a hostile environment." T. 20. The ALJ found that
reinstatement was unwarranted because of "manifest and obvious
hostility exhibited between company officials and Nolan at the
hearing" and instead awarded front pay in the amount of $460 per
week until Nolan reaches the age of 70. R.D. and O. at 22. [10]
Reestablishment of the employment relationship is a usual
component of the remedy in discrimination cases. McCuistion
v. Tennessee Valley Authority, Case No. 89-ERA-6, Sec. Dec.
and Ord., Nov. 13, 1991, slip op. at 23. Front pay is a
judicially created equitable remedy used as a substitute for
reinstatement where there exists "irreparable animosity between
the parties," Blum v. Witco Chem. Corp., 829 F.2d 367, 374
(3d Cir. 1987), and "a productive and amicable working
relationship would be
[PAGE 9]
impossible." EEOC v. Prudential Federal Sav. and Loan
Ass'n, 763 F.2d 1166, 1172 (10th Cir.), cert. denied,
474 U.S. 946 (1985). SeeUnited States v. Burke,
119 L.Ed. 2d 34, 45 n.9 (1992) (acknowledging that some courts
have ordered front pay for Title VII plaintiffs who were
wrongfully discharged and for whom reinstatement was not
feasible). Reinstatement is "the preferred remedy to cover the
loss of future earnings." Feldman v. Philadelphia Housing
Authority, No. 93-1977, et al. (3d Cir.
Dec. 22, 1994), 1994 U.S. App. LEXIS 36082.
Nolan's mere statement that the work atmosphere was hostile
does not convince me that front pay is appropriate in this case.
The record reveals that many of the managers under which Nolan
worked no longer are employed by ACX. On review of the
transcript of the hearing, I do not find a basis for the ALJ's
observation that there was manifest hostility between company
managers and Nolan. Accordingly, I disagree that reinstatement
pursuant to the record as it now exists "would produce a
dysfunctional working environment." R. D. and O. at 22.
On remand, the ALJ shall take additional evidence, if any, as to
the manifest hostility between company managers and Nolan to
determine if reinstatement would cause a dysfunctional work
environment.
ACX has averred that it closed its Buffalo sub-terminal on
April 1, 1993. Schroder Aff. at par. 13. [11] The company
continues to operate other terminals, but the record does not
reveal whether the employees of its discontinued Buffalo
operation enjoyed the right to transfer to a different ACX
location. On remand, the ALJ shall take evidence on the
transfers rights, if any, of the Buffalo employees and the actual
fate of those employees after that sub-terminal closed.
If Buffalo employees had a right to transfer to other
terminals, it would be appropriate to order ACX to offer Nolan
reinstatement to a substantially similar position at another ACX
location. See, e.g., Coleman v.
Dep't of Veterans Affairs, No. 94-3018 (Fed. Cir. Feb. 15,
1994), 1994 U.S. App. LEXIS 2705 (court may order reinstatement
to another work area or location of the employing agency). In
such a case, back pay would continue to accrue until
reinstatement or declination of reinstatement. Asst. Sec. and
Phillips v. MJB Contractors, Case No. 92-STA-00022, Final
Dec. and Order, Oct. 6, 1992, slip op. at 4-5. [12]
The STAA also authorizes compensatory damages, which may be
awarded for emotional pain and suffering, mental anguish,
embarrassment, and humiliation. DeFord v. Secretary of
Labor, 700 F.2d 281, 283 (6th Cir. 1983) (under analogous
provision of ERA); Webb v. City of Chester, Ill.,
813 F.2d 824, 836-837 and nn. 3,4 (7th Cir. 1987). Nolan did not
testify concerning any
[PAGE 10]
anguish or psychological harm due to his layoff, and the ALJ did
not rule on his entitlement to compensatory damages. On remand,
the ALJ shall afford the parties the opportunity to present
evidence concerning entitlement to compensatory damages, if any.
Finally, Nolan, who appeared prose, seeks
repayment of his costs in bringing this case, such as witness
fees and registered mail fees. T. 244; see 49 U.S.C.A.
§ 31105(b)(3)(B). I shall order ACX to pay reasonable fees
that Nolan documents before the ALJ on remand.
CONCLUSION
ACX violated STAA section 405(a) and (b) when it laid off
Nolan and did not recall him to work during the year following
his layoff. It is therefore ORDERED that:
1. Respondent shall pay Complainant back pay for the period
November 24, 1991 through December 31, 1991, at the rate of $600
per week and for the period January 1, 1992 through the end of
the back pay period at the rate of $460 per week. Respondent
shall pay pre-judgment interest on the back pay at the rate
specified in 26 U.S.C. § 6621. Respondent shall also pay
Complainant's costs in bringing this case.
2. This case is remanded to the ALJ for further proceedings
consistent with this decision, including taking evidence on the
transfer rights issue, the hostile work environment issue, and
the compensatory damages issue. Nolan shall also have the
opportunity to document his costs in bringing this complaint.
ACX shall have the opportunity to respond to any new evidence
presented by Nolan. In view of the length of time that this case
has been pending, I order the ALJ to hold any necessary further
proceedings and issue a supplement recommended decision within
180 days.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1]
ACX also attached to its motion decisions of the Secretary and
of an ALJ in the STAA case of Complainant's brother, Daniel
Nolan. Since these are publicly available Department of Labor
decisions, there is no need to admit them into the record.
[2]
ACX is unconvincing in its assertion that Nolan objected to the
Cleveland run solely because there were construction zones on the
highway. ACX Br. at 20. Rather, Nolan told his managers that it
was impossible for him to do the Cleveland run in four hours or
less without speeding or foregoing inspections (a safety issue).
T. 262, 780.
[3]
I agree with the ALJ's finding that Nolan's contacts with
the New York State Labor Board and the Federal Bureau of
Investigation were not protected activities under the STAA
because they did not concern motor carrier safety. R.D. and O.
at 16. Contrary to ACX's assertion (Resp. Br. at 16-17),
I do not agree that Nolan argued that the sole reason for ACX's
retaliation was his reporting some missing freight to the FBI.
Rather, Nolan also testified that adverse actions occurred after
he made safety complaints to his supervisors and managers.
See, e.g., T. 826-827.
[4]
Throughout this decision, I have relied on evidence concerning
events that occurred while Nolan was employed by
ACX. I have not relied on evidence of any safety violations
that occurred after Nolan's layoff.
[5]
I find only that ACX articulated reasons for the layoff that do
not violate the STAA. I make no finding whether it would violate
other anti-discrimination statutes to select an employee for
layoff because he is old enough to receive social security
benefits or is planning to retire.
[6]
Thus, I agree with ACX (ACX Br. at 8-9) that the complainant
has the burden of persuading that the real reason for the adverse
action was discriminatory. Unlike the ALJ, I do not view this as
a dual motive case. See R.D. and O. at 15.
[7]
The explanation that the recall rights letter was a mistake is
not convincing since ACX never issued a retraction or correction.
T. 458.
[8]
In reaching this decision, I have not drawn any adverse
inference from the fact that ACX did not call as witnesses some
of its former managers who resided outside the subpoena range of
the hearing. See Resp. Br. at 10-11. Nor do I draw any
adverse inference from the non-production of the "log checker"
program or records that ACX no longer uses. See Resp. Br.
33.
[9]
I take the ALJ's reference to liquidated damages, R.D. and O.
at 21, to mean punitive damages, an enhancement to compensatory
damages due to the wanton, reckless, or malicious character of
the statutory violation.
[10]
I have found no basis in the record for the ALJ's observation
that "it is unlikely that [Nolan] will retire until at least
October 1, 1998, when he reaches age 70." R.D. and O. 22. Nolan
did not state on the record when he expected to retire had the
discrimination not occurred.
[11]
Although Nolan had the opportunity to oppose the substance of
the evidence concerning the closing of operations, he did not do
so.
[12]
If the Buffalo employees had no transfer rights and all of them
were laid off when the operation closed, it would be appropriate
to cut off back pay as of the date of closing.
SeeBlackburn v. Martin, 982 F.2d 125, 129 (4th
Cir. 1992) (complainant entitled to recover damages for period of
time he would have worked but for wrongful termination; he should
not recover damages for time after which employment would have
ended for nondiscriminatory reason).
