Date: June 21, 1995
Case No.: 95-STA-13
IN THE MATTER OF:
William J. Lizotte
Complainant
against
Road and Sea Transport, Inc.
Respondent
Before: DAVID W. DI NARDI
Administrative Law Judge
RECOMMENDED ORDER OF DISMISSAL
This case arises under the Surface Transportation Assistance
Act of 1982 (herein STAA ), 49 U.S.C. § 2305, and the
implementing regulations found in 29 C.F.R. Part 24.
Pursuant to Section 405 of the STAA, Complainant, William
Lizotte, filed a complaint with the Secretary of Labor, alleging
that Respondent, Road and Sea Transport, Inc., discriminatorily
discharged Complainant after his repeated concerns about hours of
service violations under Federal Department of Transportation Motor
Carrier Safety Regulations. Respondent denied the allegation.
Following an investigation of this matter by duly authorized
investigator, the Secretary of labor, acting through his agent, the
Regional Administrator, Region I, for the Occupational Safety and
Health Administration, pursuant to Section 405 of the STAA;
Secretary s Order 9-83, 48 F.R. 35736 (August 5, 1983), and further
delegation of authority in Chapter X of the Field Operations
Manual, OSHA Instruction CPL 2.45A, issued the following
FINDINGS:
1. (a) Respondent, Road and Sea Transport, Inc., is a Maine
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Corporation. Respondent is engaged in both intrastate and
interstate trucking operations and maintains a place of business in
Hampden, Maine.
(b) In the regular course of business, Respondent s
employees operate commercial motor vehicles in both intrastate and
interstate commerce in the transportation of petroleum products and
various bulk chemicals.
(c) Respondent is now and, at all times material herein,
has been a person as defined in Section 401(4) of STAA (49 U.S.C.
2301(4)).
2. (a) At all times herein, William Lizotte was an employee
in that he was a driver of a commercial motor vehicle having a
gross vehicle weight rating of 10,000 or more pounds used on the
highways in both intrastate and interstate travel transporting
general freight.
(b) Complainant was employed by a commercial motor
carrier and in the regular course of his employment directly
affected motor vehicle safety (49 U.S.C. 2301(2)(A)).
3. (a) On or about August 1, 1994 Complainant filed a
complaint with the Secretary of Labor alleging that Respondent had
discriminated against him in violation of Section 405 of STAA (49
U.S.C. 2305). The complaint was timely filed.
4. (a) Complainant has been employed by Respondent since
November 18, 1988 as a Class A operator. His duties consisted of
transporting various petroleum and chemical products.
(b) Complainant operated under the Federal Motor Carrier
8 day 70 hour rule governing hours of service and was required to
keep and maintain a daily driver s log.
5. (a) Complainant alleged that he had engaged in several
instances of activity protected under the STAA. Specifically, he
had made complaints to respondent management about having to
violate federal DOT hours of service regulations to complete
assigned work.
(b) Complainant alleged that he was both terminated from
his employment, and denied compensation for vacation time which he
had previously accrued, in retaliation for his protected complaints
to management.
(c) Effective January 10, 1994 the Regional Director for
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the Federal Office of Motor Carriers, Stephen P. Crane issued a
Declaration of Emergency Notice providing relief from Parts 390
through 399 of the Federal Motor Carrier Safety Regulations for
those motor carriers providing fuel oil or propane to customers
during the emergency. This Declaration continued in effect until
February 28, 1994. Respondent was covered under this Declaration.
(d) Respondent denied knowledge of such complaints
indicating only that Complainant had mentioned to a dispatcher on
one occasion during the time period covered by the Declaration that
he was exceeding the hours of service rules. Respondent provided
documentation supporting the fact that Complainant was compensated
for vacation time which he had accrued and that the deductions made
from the compensation conformed to applicable Federal and State
Law.
6. (a) On February 17, 1994, Complainant received an on-the-
job injury as the result of attempting to raise the landing gear on
a trailer. During the entire period covered by this complaint,
Complainant remained an employee of Respondent. Further, he
remained on full disability as the result of the February 17, 1994
injury.
(b) Respondent, through its Workers Compensation
insurance carrier, attempted to return Complainant to work. In or
about August 1994, Respondent created the job of security officer.
The duties of this position were discussed with Complainant s
attending physician, who stated Complainant could perform the
duties.
(c) The job of security officer was offered to
Complainant, who did not report for work or contact Respondent by
the deadline specified. Complainant has been notified that under
applicable provisions of the Maine Workers Compensation Act he
would be terminated from employment on November 14, 1994.
In view of the foregoing, the Regional Administrator concluded
that there was insufficient evidence to conclude that Complainant s
firing resulted from his activity protected under the STAA or in
violation of Section 405 of the STAA. Additionally, the
Administrator found no evidence which supports Complainant s
contention that his vacation pay was withheld by the Respondent in
retaliation for the aforementioned protected activity.
Therefore, Complainant s complaint was deemed not to have
merit and was dismissed by the Regional Administrator.
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The matter was scheduled for hearing and this Administrative
Law Judge presided over two days of hearings on April 3 and 4, 1995
and Deanna Lizotte, Complainant s Legal Guardian and lay
representative in this proceeding, having moved that Complainant s
complaint be dismissed with prejudice and Respondent s counsel not
objecting thereto, it is determined that the complaint filed by
William J. Lizotte shall be, and the same hereby is DISMISSED
WITH PREJUDICE, pursuant to 29 C.F.R. § 24.5(e)(4)(ii).
DAVID W. DI NARDI
Administrative Law Judge
Dated: June 21, 1995
Boston, Massachusetts
NOTICE: This Recommended Order and the administrative file
in the matter will be forwarded for review by the Secretary of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Avenue, N.W., Washington, D.C. 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
DWD:dr
