ARB CASE NO. 05-122
ALJ CASE NO. 2005-STA-009
DATE: August 24, 2007
In the Matter of:
GLEN FRAUSTO,
COMPLAINANT,
v.
BEALL CONCRETE
ENTERPRISES,LTD.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Glen Frausto, pro se, White Settlement, Texas
For the Respondent:
Mark J. Levine, Esq., Maricarmen Guzman Dollar, Esq., Levine von Sternberg,
P.C., Houston, Texas
FINAL DECISION AND ORDER
This case arises
under the employee protection provisions of the Surface Transportation
Assistance Act (STAA) of 1982, as amended and recodified, 49 U.S.C.A. § 31105
(West 1997). Glen Frausto filed a complaint alleging that his former employer,
Beall Concrete Enterprises, Ltd., violated the STAA by terminating his
employment. After a hearing on the complaint, a Department of Labor
Administrative Law Judge (ALJ) issued a Recommended
Decision and Order (R. D. & O.) in which he concluded that Beall did
not violate the STAA. We affirm.
Background
There is
substantial evidence in the record to support the ALJ’s findings of fact. A
brief summary follows. On June 2, 2004, Beall hired Frausto to drive a
concrete mixer out of its main plant in Euless, Texas. Frausto’s employment
was contingent upon his
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completion of a 90-day probationary period. During his
probationary period, Frausto complained to Beall managers about truck defects
such as cracked pedestals, bent bumpers, broken fuel gauges, and faulty brakes.
Frausto also complained about not being issued safety glasses, and he apprised
management of his difficulty working with other Beall employees.[1]
Bob Sweeney,
Beall’s Area Manager at the Euless plant, testified that during Frausto’s
probationary period, he received numerous complaints from other Beall employees
about Frausto’s behavior in the workplace. Sweeney and other Beall employees
testified that Frausto engaged in bizarre behavior, instigated several
inter-personnel conflicts, and disrupted production.[2]
After Sweeney began receiving daily complaints about Frausto, he told Frausto
to focus on his job, but Frausto did not change his behavior. On August 23,
2004, Frausto drove one of Beall’s trucks to its plant in Alliance, Texas. While waiting for mechanics to repair his truck, Frausto was so disruptive that
Alex Moody, Area Manager for the Alliance plant, drove him back to the Euless plant before the repairs were completed. Beall fired Frausto the following day.[3]
Frausto timely
filed his STAA complaint. The Occupational Safety and Health Administration
investigated the complaint and concluded that Beall did not violate the STAA. Frausto
requested a hearing, which the ALJ conducted on May 3, 2005. Following the
hearing, the ALJ issued an R. D. & O. in which he concluded that Frausto
engaged in activity protected by the STAA but failed to prove a causal
connection between this activity and his discharge. The case is now before the
Administrative Review Board (ARB) pursuant to the automatic review provisions
of 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1)(2006).
Jurisdiction and Standard of Review
The Secretary of
Labor has delegated to the ARB her authority to issue final agency decisions
under the STAA.[4]
When reviewing STAA cases, the ARB is bound by the ALJ’s factual findings if
those findings are supported by substantial evidence in the
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record considered
as a whole.[5]
Substantial evidence is defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”[6]
In reviewing the
ALJ’s legal conclusions, the Board, as the Secretary’s designee, acts with “all
the powers [the Secretary] would have in making the initial decision . . ..”[7]
Therefore, the Board reviews the ALJ’s legal conclusions de novo.[8]
Discussion
The STAA provides that an employer may not
“discharge,” “discipline,” or “discriminate” against an employee-operator of a
commercial motor vehicle “regarding pay, terms, or privileges of employment”
because the employee has engaged in certain protected activities.[9]
These protected activities include making a complaint “related to a violation
of a commercial motor vehicle safety regulation, standard, or order.”[10]
To prevail on his claim, Frausto
must prove by a preponderance of the evidence that he engaged in protected
activity, that Beall was aware of the protected activity, that Beall discharged,
disciplined, or discriminated against him, and that the protected activity was
the reason for the adverse action.[11] If Frausto fails to prove any one of these elements,
his claim must be dismissed.[12]
The ALJ concluded,
and we agree, that Frausto engaged in protected activity when he complained
about faulty brakes, as well as when he initially complained about
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cracked
pedestals prior to being shown that those pedestals were not cracked.[13]
The ALJ also found that Beall had knowledge of Frausto’s protected activities,
and he concluded that Beall subjected Frausto to adverse action by discharging
him from employment. However, the ALJ concluded that Frausto failed to
establish any causal connection between his protected activity and his
discharge.[14]
We concur.
We agree with the ALJ’s
conclusion that the “overwhelming and credible evidence” supports Beall’s
contention that it terminated Frausto’s employment because he “engage[ed] in
bizarre and disruptive behavior causing undue inter-personnel conflicts.”[15]
Frausto called five Beall employees to testify at his hearing, and four of
these employees provided personal recollections of Frausto’s disruptive
behavior. The record supports the ALJ’s findings that Sweeney counseled
Frausto about his disruptive conduct, and that Beall terminated Frausto’s
employment because Frausto did not improve his behavior.[16]
We therefore conclude that Beall did not violate the STAA because it fired
Frausto for a legitimate, non-discriminatory reason and Frausto failed to prove
that this reason was pretext.
Conclusion
We have reviewed
the record and find that substantial evidence on the record as a whole supports
the ALJ’s factual findings and that they are therefore conclusive. 29 C.F.R. §
1978.109(c)(3). Additionally, the ALJ correctly applied the relevant law. Therefore,
like the ALJ, we DISMISS Frausto’s complaint because he has not proven
that Beall violated the STAA.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] Transcript (Tr.) 43-45, 52, 110, 115; R. D.
& O. at 4-5, 9-10. Frausto failed to offer any evidence to support his
assertions that he complained about flooding in the mechanic’s work area or
that Beall told mechanics not to repair vehicles. Id. at 10.
[2] Tr. 77-78, 80, 85-87, 127, 135-36.
[3] Id. at 115-19, 145-46; Respondent’s
Exhibits 1-2; R. D. & O. at 7-9.
[4] Secretary’s Order 1-2002, 67 Fed. Reg.
64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
[5] 29 C.F.R. § 1978.109(c)(3); BSP Trans,
Inc. v. U.S. Dep’t of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle
Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995).
[6] Clean Harbors Envtl. Servs., Inc. v.
Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
[7] 5 U.S.C.A. § 557(b) (West 1996).
[8] See Roadway Express, Inc. v. Dole,
929 F.2d 1060, 1066 (5th Cir. 1991).
[9] 49 U.S.C.A. § 31105(a)(1).
[10] 49 U.S.C.A. § 31105(a)(1)(A).
[11] BSP Trans., Inc., 160 F.3d at 45; Yellow
Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Eash v.
Roadway Express, ARB No. 04-036, ALJ No. 1998-STA-028, slip op. at 5 (ARB
Sept. 30, 2005); Densieski v. LaCorte Farm Equip., ARB No. 03-145, ALJ
No. 2003-STA-030, slip op. at 4 (ARB Oct. 20, 2004).
[12] Eash, slip op. at 5.
[13] R. D. & O. at 9-10.
[14] Id. at 10.
[15] Id.
[16] Id.; Tr. 110, 115, 119.
