In Spearman v. Roadway Express, Inc., 92-STA-1
(Sec'y June 30, 1993), the ALJ made, and the Secretary adopted, a
finding that a purported policy that drivers who did not make to
their destination on time because they stopped due to illness or
fatigue could not be reimbursed for lodging was not actually in
effect. The ALJ also made an alternative finding that such a
policy, if in effect, would violate the STAA, citing DeFord v.
Tennessee Valley Authority, 700 F.2d 281 (6th Cir. 1983), in
which the court indicated that employee protection provisions
could not be defeated by a uniformly discriminatory policy.
Respondent and amicus argued that this alternative ruling
contravenes Roadway Express, Inc. v. Dole, 929 F.2d 1060
(5th Cir. 1991), in which the court stated that drivers are
guaranteed equal economic treatment, not special economic
treatment. In Roadway, the court "discern[ed] no
conflict" between its decision and DeFord in that the
employee in DeFord who was unlawfully demoted
"established an entitlement to the job he occupied and
therefore established unlawful discrimination when he was removed
from it for an impermissible reason."
The Secretary declined to rule on the alternative finding because
the finding that Respondent did not have the alleged policy
resolved the case. Nonetheless, he did point out that
[T]he Roadway "entitlement" theory is
potentially troublesome because it may unduly delimit
employee protection. Discrimination cases may well arise in
"discretionary" circumstances. For example, an
employer may consider an employee for a promotion
"earned" and deserved due to exemplary job
performance but to which the employee is not strictly
"entitled" under the terms of his employment.
Protection arguably could extend to that employee if the
employer decided against promotion for an impermissible
reason.[*/]
The entitlement theory also may prove difficult in
cases of harassment or intimidation, a consideration which
concerned the ALJ. . . . In fact, the Roadway court
case involved just such a situation. . . . [W]hen drivers
refused to continue, the dispatchers retaliated by
withholding the authorization to shut down. . . . This
response clearly was calculated to keep the drivers on the
road despite their legitimate safety concerns.
__________ [*/] The DeFord distinction drawn by the
Roadway court -- that a demoted employee is
"entitled" to his former job -- is questionable.
An "at will" employee ordinarily has no job
entitlement -- he may be terminated at any time, for any
reason, or for no reason -- and an employee subject to
discharge only for "just cause" may have no job
entitlement depending on his employment history. Also
troubling is the manner in which the court's entitlement
criterion appears to alter burdens of proof in
discrimination cases. Ordinarily a complainant must show
that the respondent likely took adverse action against him
because he engaged in protected activity, and a respondent
may rebut by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. Under
Roadway, a complainant would be required to show that
he was entitled to the job or benefit he had been denied,
i.e., that the respondent had no legitimate reason
for its denial.