Date: November 3, 1995
Case No. 95-STA-35
In the Matter of:
PAUL POLCHINSKI,
Complainant,
v.
ATLAS BULK CARRIERS,
Respondent.
Appearances:
Paul Polchinski, pro se
Wayne Smith, Operations Manager,
Atlas Bulk Carriers
Before: EDWARD C. BURCH, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
A hearing in this matter under section 405 of the Surface
Transportation Assistance Act of 1982, 49 U.S.C. §31105
("STAA"), was held on September 21, 1995, in Las Vegas, Nevada,
on Complainant's timely filed complaint and objections to the
Secretary of Labor's finding of no reasonable cause to believe
that Atlas Bulk Carrier ("Atlas" or "Respondent") discriminated
against Complainant in violation of section 405. The issues in
dispute revolve around whether Complainant filed safety-related
complaints cognizable under the STAA prior to being discharged by
Atlas, and, if so, whether he was discharged in retaliation for
having engaged in this protected activity. Complainant seeks
back pay and compensatory damages; however, he does not seek
reinstatement pursuant to section 405(c)(2) of the STAA.
Findings of Fact and Conclusions of Law
It is uncontested that Respondent, a commercial motor
carrier engaged in interstate and intrastate commerce, hired
Complainant on or about November 7, 1993, as a driver of
commercial motor vehicles within the meaning of the STAA.
Further, it is uncontested that Complainant was fired on or about
May 17, 1995. Complainant alleges that he was fired in
retaliation for having lodged safety complaints with Atlas
[PAGE 2]
management regarding the unsafe condition of the trucks he was
assigned to drive. Specifically, Complainant contends that he
voiced concerns about overdue tank tests, loose and worn
fittings, air leaks, bad tires, leaking fuel hose connections,
and other mechanical problems prior to his discharge. RX 1:3.[1]
Respondent, however, asserts that the decision to fire
Complainant was based solely on his poor job performance. Atlas
Operations Manager Wayne Smith testified that Complainant once
drove a tanker full of fuel into a gas station when the rear
brakes were on fire. He also testified that on another occasion
Complainant was cited for driving a truck with the brakes
dangerously out of adjustment. TR 27-28. In addition, Mr. Smith
stated that Mohave Oil Co., which is one of Respondent's biggest
customers, requested that Complainant not be used to deliver
products after Complainant caused a fuel spill and had a
confrontation with the manager at one of Mohave Oil Co.'s gas
stations on April 23, 1995. TR 28; CX 2:6. Finally, Mr. Smith
testified that on May 17, 1995, Complainant caused a fuel spill
at a Nevada Power Co. facility. Mr. Smith testified that the
spill, which left Complainant "drenched in diesel," resulted from
his failure to close a safety valve while loading the fuel. TR
29. Respondent's accident report indicates that Complainant then
asked the Nevada Power Co. plant operator to call Atlas and
request that the truck not be sent back to the facility,
resulting in a "loss of revenue for one half day on that truck,"
CX 2:7.
Complainant does not deny that the incidents cited by
Respondent occurred. He argues, however, that he was
discriminated against because he was not afforded the benefit of
the progressive discipline policy set out in the Atlas Employee
Handbook. CX 1:1. The Employee Handbook lists a number of "major
violations" that subject an employee to immediate discharge. The
Handbook also lists violations that subject an employee to
reprimand or suspension, including "performing your job functions
in a negligent manner resulting in a minor accident, spill,
contamination or injury to persons or property." CX 3:45-46.
Complainant believes that the spills he was involved in fell
within the latter category and should not have led to his
termination.
Analysis
Section 405(a) of the STAA prohibits discrimination against
an employee on the ground that he has filed a complaint "relating
to a violation of a commercial motor vehicle safety rule,
regulation, standard, or order . . . ." 49 U.S.C. §31101(a).
In order to establish a prima facie case under the STAA,
the complainant must show that he engaged in some activity
protected under section 405 (i.e., that he notified his
employer of an
[PAGE 3]
alleged violation of the STAA), that the employer knew of the
protected activity, and that the employer took some adverse
action against the complainant. In addition, the complainant
must show it was likely that the adverse action was motivated by
the protected activity. Anderson v. Jonick & Co. Inc, 93-
STA-6 (Sec'y Sept. 29, 1993); St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993).
Once the complainant establishes a prima facie case,
the burden shifts to the employer to produce evidence that the
adverse action was motivated by legitimate, non-discriminatory
reasons. At this point, however, the employer bears only the
burden of producing evidence, and the ultimate burden of
persuasion of the existence of intentional discrimination rests
with the complainant. If the employer successfully rebuts the
complainant's prima facie case, the burden shifts to the
complainant to demonstrate that the stated reason is merely
pretextual. The factfinder may then conclude that the proffered
reason is a pretext and that the complainant has proved
actionable retaliation. Conversely, the factfinder may conclude
that the employer was not motivated in whole or in part by the
complainant's protected activity. In the event that the
factfinder determines that the employer was motivated by both
prohibited and legitimate reasons, i.e., that the employer had
dual motives, the burden of proof shifts back to the employer to
show by a preponderance of the evidence that it would have taken
the same action with respect to the complainant, even in the
absence of the complainant's protected activity. See Darty v.
ZackCo., 80-ERA-2 (Apr. 25, 1983); Roadway Exp.,
Inc. v. Brock, 830 F.2d 179, 181 n. 6 (11th Cir. 1987).
Protected Activity
As noted above, in order to establish a prima facie
case a complainant must establish that: (1) he engaged in
protected activity; (2) the respondent knew of the protected
activity; (3) the respondent took adverse action against him; and
(4) the protected activity was the likely reason for the adverse
action. It is clear that Complainant has alleged facts that, if
accepted as true, establish all four prerequisites. First,
Complainant testified that he communicated his concerns to Atlas
management and his peers at the company. TR 18. Internal
complaints to superiors such as those alleged by Complainant are
protected activity under the STAA's employee protection
provisions. Doyle v. Rich Transport Inc., 93-STA-17
(Sec'y Apr. 1 1994); Davis v. H. R. Hill, Inc., 86-STA-18
(Sec'y Mar. 18, 1987). Second, Complainant's testimony, if
credited, establishes that he made Respondent aware of his
concerns. Third, it is undisputed that Respondent terminated
Complainant's employment. Finally, Complainant alleges that he
was fired on the basis of his safety
[PAGE 4]
complaints.
Respondent, however, denies that Complainant made internal
safety complaints at any time. Respondent further argues that
Complainant did not even submit mandatory vehicle inspection
reports that would have alerted Respondent to the alleged safety
problems. In this regard, section 396.11 of the Federal Motor
Carrier Safety Regulations, as prescribed by the U.S. Department
of Transportation, states that '[e]very motor carrier shall
require its drivers to report, and every driver shall prepare a
report in writing at the completion of each day's work on each
vehicle operated . . . .' RX 3:338. Mr. Smith testified that
vehicle inspection reports satisfying this regulation are
available in all Atlas trucks. TR 35. Atlas drivers are
instructed to complete predeparture checks before leaving the
yard as well as vehicle condition reports after each assignment.
RX 4.
Complainant acknowledges that he failed to document his pre-
trip and post-trip inspections as required. He argues, however,
that the inspection forms were not always in the trucks or were
wet or damp from coffee or soft drink spills. Complainant
testified that it was difficult to know which inspection book to
use because there were often several inspection books in the cab
of a truck. He also testified that he was never approached about
his failure to fill out the inspection forms. TR 9-10. He
contends, however, that he verbally complained about Respondent's
trucks, especially Truck 50, on many occasions. TR 17.
I find that Complainant has failed to provide any evidence
that he made internal safety complaints before he was fired.
Significantly, Complainant admits that he failed to turn in pre-
trip and post-trip vehicle inspection forms, which would have
supported his claim of protected activity. Accordingly, in the
absence of evidence that Complainant engaged in protected
activity or that Respondent was aware of his alleged safety
concerns prior to May 17, 1995, I am unable to conclude that
Complainant has established a prima facie case under the
STAA. Assuming, however, that Complainant's unsupported
allegations constitute sufficient evidence to establish a
prima facie case, the inquiry moves to a determination of
whether Respondent discriminated against him on the basis of the
alleged safety complaints.
Complainant's Termination
Respondent contends that the decision to discharge
Complainant on May 17, 1995, was motivated entirely by: the
episode in which he drove a burning truck into a gas station; a
complaint from Mohave Oil Co. on May 15, 1995; a complaint and
loss of revenue from Nevada Power Co. on May 16, 1995;
Complainant's involvement in two fuel spills; and his failure to
[PAGE 5]
perform pre-trip inspections. Respondent's termination form
listed the following reasons for Complainant's discharge: (1) the
request by Nevada Power Co. that Complainant not return to its
facility following a fuel spill on May 16, 1995; (2) the request
by Mohave Oil Co. that Complainant no longer service their
account on May 15, 1995; and (3) previous "write-ups" for poor
judgment, failure to perform pre-trip inspections and failure to
reflect a professional attitude. CX 2:4.
Complainant admits that each of the above-cited incidents
occurred but he disputes Respondent's characterizations of the
incidents. First, in regards to the charge that he drove a
burning tanker full of fuel into a gas station, Complainant
contends that the truck was not actually on fire. He testified
that he saw smoke coming from the right rear wheel drive but that
smoke comes out of the exhaust pipe of that particular truck
every time the accelerator pedal is pushed. According to
Complainant, the fact that the police department and the fire
department responded to the incident but did not file reports
indicates that it was not "a fire or something of great
importance.' TR 37. Complainant later testified, however, that
smoke was "belching" out from the rear of the truck and that he
'grabbed a fire extinguisher and put it out, or cooled the metal
down in particular." TR 38.
At the hearing, Complainant indicated that he did not
consider pulling the truck off the road before reaching the gas
station when he saw smoke, and that, even in retrospect, he did
not consider this to be a viable alternative because he was
intent on completing his delivery. TR 38. Mr. Smith, however,
testified that Complainant should have realized a gas station is
not a "safe haven" for a burning truck. TR 26. I agree with
Respondent that Complainant's decision to continue into the gas
station after seeing smoke 'belching' out of the rear end of the
truck demonstrates poor judgment.
Next, Complainant claims that he should not be held
responsible for receiving a citation for driving an Atlas truck
with the brakes out of adjustment, notwithstanding a federal
regulation that places the responsibility of checking the brakes
on the driver of the truck.[2] Complainant contends that the
rear axle of the truck he was driving on that occasion had been
disassembled for repairs a month earlier and that two company
mechanics had approved the use of the truck without re-engaging
the brakes. TR 39. Thus, he argues that Atlas is solely
accountable for the citation. He additionally asserts that none
of the other Atlas drivers regularly check the brakes on the
trucks they are assigned to drive. In view of the applicable
regulation, however, I find that Complainant is indeed
responsible for driving a truck with the rear brakes completely
[PAGE 6]
disengaged. The record shows that Complainant was additionally
cited for driving with expired gasoline tank tests on March 14,
1994. CX 3:51.
In regards to his failure to complete pre-trip and post-trip
inspections, Complainant asserts that his log books establish
that he performed these inspections. TR 9-10; RX 2. The log
books do not indicate whether or not the driver has performed
inspections. Complainant appears to argue, however, that the
books prove that he accepted and completed the listed
assignments, thereby establishing that he performed the requisite
inspections. The issue, however, is not whether Complainant
inspected the trucks but whether he informed Respondent of any
problems that he found. I find that the log books do not lead to
a reasonable inference that Complainant notified Atlas of his
alleged safety concerns.
Notwithstanding his failure to turn in inspection forms,
Complainant argues that Atlas was aware of mechanical problems
with its trucks. He contends, for instance, that Truck 50 was
written up many times and that company records show that it was
in violation of federal laws. In support of this contention,
Complainant submits a copy of a "shop note" addressed to all
Atlas drivers regarding the proper usage of a clutch.
Complainant states that this shop note was circulated because
Truck 50 had lost two clutches within two months. TR 10-11.
However, the shop note does not refer to any specific truck and,
in any event, it not clear how the loss of two clutches reflects
a violation of federal laws. More important, the shop note does
not prove that Complainant communicated his alleged safety
concerns regarding Truck 50 to Atlas.[3]
Finally, Complainant asserts that he was not responsible for
the fuel spills he was involved in. In regards to the incident
at Mohave Oil Co.'s Shell Station No. 2 on April 23, 1995,
Complainant testified that only three to five gallons of gas
spilled and that the spill was caused by a problem in the
station's underground tank. He admitted that the station manager
yelled at him as he was cleaning up the mess but stated that
there was no confrontation because he "backed down." TR 43.
Complainant contends that Respondent's documentation of the
incident is misleading because the termination form creates the
impression that Mohave Oil Co. no longer wanted him to service
any of their stations, as opposed to the specific station where
the spill occurred. TR 7. Complainant does not dispute, however,
that on May 15, 1995, Mohave Oil Co. requested that he no longer
deliver products to Shell Station No. 2.
Complainant also admits that he was involved in a fuel spill
at the Nevada Power Co. facility. He argues, however, that there
is a 'problem' with the loading and unloading procedures at a
[PAGE 7]
Nevada Power Co. facility, and that every driver spills some fuel
there. TR 42. Complainant contends that Respondent took
insufficient measures to verify the accuracy of the verbal
complaints against him. RX 1:7; TR 7. In addition, he argues
that he should not be held responsible for the loss of revenue
because the Atlas Assistant Terminal Manager was entirely
responsible for deciding to "shut the truck down' after the
incident. TR 9; RX 5. Finally, Complainant disputes Respondent's
contention that Nevada Power Co. called Atlas and requested that
he not return to the facility. However, Complainant admitted
that his safety valves might not have been closed or that perhaps
he "should have waited a few seconds more so as to let the
pressure in the hose stabilize." RX 1:4. Based on the totality
of the evidence, I credit Mr. Smith's testimony that Nevada Power
Co. asked Atlas not to send Complainant back to the facility.
It is noteworthy that Complainant was discharged on May 17,
1995, following a complaint from Mohave Oil Co. on May 15, 1995,
and a complaint from Nevada Power Co. on May 16, 1995. This
close time frame supports Respondent's contention that
Complainant's termination was in fact triggered by the incidents
cited in the termination notice.
Complainant, however, relies on a July 27, 1995, decision by
the State of Nevada Employment Security Division as proof that
his termination was wrongful. Pursuant to this decision,
Complainant was found to be entitled to unemployment benefits
because there was insufficient evidence that he had engaged in
"misconduct" connected with work. The decision indicated,
however, that the term 'misconduct" specifically 'excludes
failure of performance because of inability, ordinary negligence
in isolated instances, and good faith errors in judgment and
discretion." CX 2:21-23. Thus, a finding of no 'misconduct' does
not constitute evidence that the termination was wrongful or that
Complainant's performance on the job was adequate.
In view of the potential dangers involved in the
transportation of hazardous materials and Respondent's liability
for the actions of its drivers, I find that the record contains
compelling evidence that the decision to discharge Complainant
was justified by Respondent's legitimate concerns about his
judgment and performance. Accordingly, even if it could be
concluded that Complainant's allegations suffice to establish a
prima facie case of discrimination, it is clear that
Respondent has produced sufficient evidence in rebuttal. Thus,
the burden shifts to Complainant to show that the proffered
reasons are a pretext.
Complainant testified that he was fired for the simple
reasons that he was not "one of the boys" and because he did not
"hit it off" with an Atlas terminal manager. TR 16. Complainant
[PAGE 8]
also argues that he was not afforded equal treatment with Atlas
drivers who had more seniority. TR 9. As proof that he was
subjected to discriminatory treatment, Complainant contends that
other Atlas drivers have had bigger spills without being
disciplined. TR 9. He testified that one driver with 20 years
seniority was only given a three day suspension after causing a
$20,000 loss by dumping 8,000 gallons of fuel in the wrong hole.
TR 9. Complainant also contends that he was once forced to take a
difficult assignment that a senior driver had refused. CX 1:5.
He testified that drivers with more seniority got better paying
dispatches, better assigned days off, assignments to newer trucks
and higher wages than he did. TR 13.
I find that Complainant's testimony regarding the
preferential treatment of Atlas drivers with seniority is not
proof of illegal discrimination because seniority with a company
typically entitles an employee to preferential treatment and
higher wages. In fact, the only reasonable inference to be drawn
from Complainant's testimony is that any differential treatment
of Atlas drivers was based on seniority and does not reflect
discrimination designed to retaliate against Complainant for
engaging in protected activity.
In summary, I find that even if Complainant succeeded in
establishing a prima facie showing of unlawful
discrimination under the STAA, Respondent clearly rebutted that
showing by producing evidence of legitimate, non-discriminatory
reasons for the termination. I further find that Complainant
failed to prove that these reasons were pretextual. I conclude,
therefore, that Respondent's decision to terminate Complainant
was a legitimate personnel action dictated by non-discriminatory
business considerations.[4] Accordingly, it is concluded that
Complainant was not discriminated against within the meaning of
the STAA.
ORDER
It is recommended that the complaint of Paul Polchinski
against Atlas Bulk Carriers under section 405 of the Surface
Transportation Assistance Act be dismissed.
EDWARD C. BURCH
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be used: 'TR' -
transcript of the hearing; 'CX' - Claimant's exhibits; 'RX' -
Respondent's exhibits. Claimant's exhibits 1, 2 (titled
"Unemployment") and 3 (titled "O.S.H.A."); and Respondent's
exhibits 1-4 were admitted as offered.
[2] Section 392.7 of the Federal Motor Carrier Safety Regulations
provides that "[n]o motor vehicle shall be driven unless the
driver thereof shall have satisfied himself that the following
parts and accessories [including service brakes and trailer brake
connections] are in good working order." RX 3:192.
[3] Complainant also testified that it is Respondent's policy to
overload trucks on routes that do not require the driver to stop
at a weigh station. Complainant testified that this practice is
both illegal and harmful to the trucks. TR 37. I note that the
filing of a complaint by a current employee regarding an
employer's practice of overloading trucks would be protected
activity under the STAA. In order to fall within the protection
of the STAA's whistleblower provision at this juncture, however,
Complainant must establish that he filed a complaint or engaged
in some other protected activity before his employment was
terminated.
[4] As I find no evidence that illegal motives played any part in
Respondent's decision to discharge Complainant, a dual motive
analysis is not applicable. See Hernandez v. Guardian
Purchasing Co., 91-STA-31 (Sec'y June 4, 1992).
