Date: April 29, 1996

CASE NO: 96-STA-9

In the Matter of:

DOUGLAS FRECHIN,
       Complainant,

    v.

YELLOW FREIGHT SYSTEM, INC.,
        Respondent.

APPEARANCES:
    Douglas Frechin, Pro Se
    7515 - 181st Place Southwest
    Edmonds, Washington 98206

    Ronald E. Sandhaus, Esq.
    Attorney and Assistant Secretary
    Yellow Freight System, Inc.
    10990 Roe Avenue
    Overland Park, Kansas 66207

Before: Steven E. Halpern
Administrative Law Judges

    This case involves a claim under the employee protection

(whistleblower) provisions of section 405 of the Surface Transportation Assistance Act of 1982, as amended, 49 U.S.C. §31105 ("the Act"), which, in essence, prohibits covered employers from discriminating against employees because they have engaged in certain protected activities.

    The instant proceeding was initiated by a complaint filed on or about July 17, 1995, with the Occupational Safety and Health Administration, U.S. Department of Labor, by Douglas Frechin ("complainant"), alleging that Yellow Freight, Inc. ("Yellow Freight" or "respondent") had discriminated against him in violation of section 405. Specifically, complainant contends that he was assigned to operate a "straight" truck, rather than an articulated tractor-trailer unit, in retaliation for his refusal to pull Trailer Number 29408, which he believed to be unsafe, on April 25, 1995. The Regional Administrator conducted an investigation and issued a determination dated November 13, 1995, in which he found no reasonable cause to believe respondent had violated section 405. On December 20, 1995, complainant filed objections to said determination.

    A formal hearing was held before the undersigned on March 5, 1996, in San Francisco, California. The transcript of the hearing was received on April 3, 1996.

    It is undisputed that respondent is engaged in interstate and intrastate trucking operations and maintains a place of business in Seattle, Washington. It is also undisputed that complainant was employed by respondent on or about July 1, 1986, as a driver of commercial motor vehicles having a gross vehicle rating of 10,000 or more pounds used on the highways in interstate commerce to transport general cargo. I therefore conclude that complainant was an "employee" and that respondent was his "employer" and a "person" within the meaning of the Act. 49 U.S.C. §31101(3)(A).

    The underlying facts in this case are undisputed. Complainant was initially hired by respondent in 1986 to work as a driver at the Yellow Freight terminal in Everett, Washington. In June of 1994, he transferred to the Yellow Freight terminal in Seattle, Washington. TR 35. On April 25, 1995, complainant reported to work and was given an assignment to deliver a load of freight. In the course of his pre-trip inspection, he discovered that the roll up cargo door on the rear of the trailer was not operating properly. Complainant reported the situation to his operations supervisor, Mark Hayes, who inspected the door and told complainant to take the trailer to the shop for repairs. It was complainant's feeling, however, that

the repair work could not be performed unless the trailer was unloaded of its cargo. Complainant consulted Mr. Hayes' supervisor, operations manager Dan Hazard, who gave complainant a direct order to take the trailer out as it was. TR 15. Complainant then complained to terminal manager Gregg Sigmund. At Mr. Sigmund's suggestion, Mr. Hazard applied some WD-40 to the tracks of the roll up door and began to move the door, at which point two of the rollers popped out of the tracks. Mr. Hazard told complainant to pry the rollers back into place with a crowbar, but complainant refused because he believed he would crush the cargo, which consisted of fragile boxes of freezedried food. TR 12-16.

    At Mr. Hazard's direction, complainant requested another assignment from the dispatcher. He proceeded to make his first delivery of the day and returned to the terminal, where he received another assignment. Complainant performed a pre-trip inspection and found a broken cable on one of the back doors of the trailer he was to pull. He contacted the dispatcher and was directed to take the trailer to the shop, where he waited 40 minutes for the cable to be repaired before he was able to complete his delivery. Complainant was then dispatched to a location approximately 30 minutes from the terminal with instructions to drop off his empty trailer and pick up two empty 28-foot trailers. Upon arrival, he inspected the two trailers and discovered that the air brake line on Trailer Number 29408 had a cut in it. TR 17-18.

    At approximately 2:55 p.m., complainant informed dispatch of the defective brake line on Trailer Number 29408 and was instructed to call a mechanic. The mechanic arrived at 4:15 p.m. and replaced the damaged air line within 15 minutes, at which time complainant drove back to the terminal and filled out his paperwork. Complainant testified that his manifest for April 25, 1995, showed over two hours of breakdown time. TR 18.

    On the following day, April 26, 1995, complainant was assigned to drive a straight truck instead of his usual assignment to one of Yellow Freight's articulated tractor-trailer units. In his Pretrial Statement, complainant alleged that he was assigned to drive the straight truck as a result of the delays caused by safety flaws in three of the trailers he was assigned to pull on April 25, 1995. At trial, however, he testified that he believed the assignment was based solely on his complaint about the brake line on Trailer Number 29408. TR 54.

    According to complainant, the straight truck assignment is considered undesirable among Yellow Freight drivers because it involves making deliveries primarily to the downtown Seattle area, where driving and parking are difficult, and because the driver of a straight truck is required to perform more manual lifting than drivers of tractor-trailer units. In addition, complainant asserts that straight truck drivers have less opportunity to work overtime because most overtime is generated by trips to destinations outside of Seattle. He claims that the straight truck is assigned to "a man low in seniority or else to a man who is being retaliated against." Complainant's Prehearing Statement.

    Notwithstanding these objections, it is clear from complainant's testimony that he was satisfied with the straight truck assignment for approximately two months. TR 31.

He subsequently became dissatisfied, however, and began requesting overtime work every day beginning on June 30, 1995. Despite his requests, respondent continued to assign complainant to drive the straight truck until the end of September, when he filed a grievance with his union concerning the assignment. The grievance committee determined that there was no evidence of "discrimination because of union activity," and referred the method of daily dispatch back to the parties. RX 5. Thereafter, respondent stopped assigning complainant to drive the straight truck on a daily basis.

    Complainant testified that his W-2 forms for 1994 and 1995 reveal that he lost five to six thousand dollars in overtime work as a result of the straight truck assignment. TR 34. He seeks relief in the form of lost wages based on the overtime work he was allegedly denied, and measures his damages as the difference between his wages in 1994 and in 1995.

    Yellow Freight branch manager Gregg Sigmund and operations manager Dan Hazard testified on respondent's behalf that the straight truck assignment is not considered to be a form of punishment or retaliation, and that the straight truck is not assigned in accordance with seniority. TR 75; 100. According to these witnesses, complainant was assigned to drive the straight truck based on his ongoing problems with the roll up trailer doors on the tractor-trailer units and because he regularly requested to be off work on time. They also gave testimony to the effect that management discussions regarding complainant's assignment took place before he made the safety-related report on April 25, 1995. According to Mr. Hazard, the decision to switch complainant to the straight truck was made approximately two weeks before the change in assignment was implemented on April 26, 1995. TR 98.

    In addition, Mr. Sigmund testified that the decrease in complainant's overtime in 1995 resulted in part from the general slowdown of Yellow Freight's business and the company's efforts to reduce overtime. In this regard, Mr. Sigmund testified that the Seattle terminal moved 10 to 15 percent less freight in 1995 than in 1994 and that Yellow Freight had laid off five employees around the end of 1995 due to the lack of business. TR 92-93. In support of this contention, respondent submitted into evidence a memorandum dated February 12, 1995, which indicates that Yellow Freight was looking for ways to reduce overtime. RX 1.

    Section 405(b) of the Act, inter alia, prohibits discharge, or any other manner of discrimination, against an employee "for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health. . . . " 49 U.S. C. §31105. In order to establish a prima facie case under the Act, the complainant must demonstrate that he engaged in some activity protected under section 2305, that the employer knew of the protected activity, and that the employer took some adverse action against him. In addition, the complainant must show it was likely the adverse action was motivated by

the protected activity. Anderson v. Jonick & Co., Inc., 93-STA-6 (Sept. 29, 1993); St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).

    Complainant alleges that he was retaliated against due to his refusal to pull Trailer 29408 on April 25, 1995. The testimony adduced at trial, however, persuades me that respondent actually instructed complainant not to drive Trailer Number 29408 until the brakes were repaired. Complainant described the situation as follows:

So, I called dispatch, Mark Hayes. I said I've got a trailer here that's got a bad air line -- and this is the crux of, you know -- I've got a bad air line, you know, either you need to give me another trailer to pull in, and there's other trailers here that are ready that I can hook together, or you need to send a mechanic out to fix this. And he says, "You sit tight. Here's the phone number. You call the mechanic, you tell him what you need and you wait there until he gets there to fix it. "

TR 18.

    Based on complainant's own testimony, I am unable to find that he engaged in a protected refusal to work on April 25, 1995. Nevertheless, it is clear that complainant's report to respondent regarding the defect in the brake line of Trailer Number 29408 was protected activity. See Davis v. H.R. Hill, Inc., 86-STA-18 (Mar. 18, 1987). Further, the testimony of Mr. Hazard and Mr. Sigmund establishes that respondent was aware that complainant had made a safety-related report. Thus, the first two elements of complainant's prima facie case have been established.

    The parties disagree, however, on the issue of whether the straight truck assignment constituted "adverse action." It is complainant's contention that the assignment involved harder physical work and cost him the opportunity to earn overtime wages. Respondent, however, asserts that the straight truck assignment can not be characterized as adverse action because it was designed to accommodate complainant's wish to avoid overtime and to alleviate his persistent problems with the roll up doors on the tractor-trailer units.

    "Any employment action by an employer which is unfavorable to the... compensation, terms, conditions or privileges of employment constitutes an adverse action. " Long v. Roadway Express, Inc., 88-STA-31 (Mar. 9, 1990). In this case, the evidence that complainant worked less overtime and earned lower wages in 1995 than in 1994 shows that the straight truck assignment had an negative impact on his income and supports a finding of adverse action.

    The analysis then moves to the question of whether a causal relationship exists between the protected activity and the adverse action. I find that the proximity in time of complainant's April 25, 1995, safety-related report to respondent, and the change in his assignment on April 26, 1995, supports an inference of a causal link between the two events.

Accordingly, I conclude that complainant has succeeded in establishing a prima facie case of discrimination under section 405.

    Once an employee has established a prima facie case of discrimination, the burden shifts to the employer to produce evidence to rebut the presumption of discrimination by presenting evidence that the alleged discrimination was motivated by legitimate, nondiscriminatory reasons. The employer bears only the burden of producing evidence, however, and the ultimate burden of persuasion of the existence of intentional discrimination remains with the employee. Once the employer presents rebuttal evidence, the factfinder may conclude that the employer's proffered reason is a pretext and rule that the complainant has proved actionable retaliation for the protected activity. Conversely, the factfinder may conclude that the respondent was not motivated in whole or in part by the employee's protected activity and rule that the employee has failed to prove his or her case by a preponderance of the evidence. Finally, the factfinder may determine that the employer was motivated by both legitimate and prohibited reasons, i.e. that the employer had dual motives, whereupon the burden shifts to the respondent 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 protected conduct, See Darty v. Zack, 80-ERA-2 (April 25, 1993); Roadway Express, Inc. v. Brock, 830 F. 2d 179, 181 n. 6 (111th Cir. 1987).

    In this case, respondent has articulated two nondiscriminatory reasons for its decision to assign complainant to drive a straight truck. As discussed above, respondent asserts that the assignment was based on complainant's ongoing problems with the roll up doors on the articulated tractor-trailer units. According to Mr. Sigmund, these problems caused "continual delays." TR 94. In this regard, complainant admits that he had persistent problems with roll up doors at Yellow Freight prior to the change in his assignment, and that these problems ceased once he was assigned to drive the straight truck. TR 37-38. In addition, respondent contends that the straight truck assignment was designed to accommodate complainant's frequent requests to get off work on time by giving him an assignment that would not require as much overtime. Complainant does not dispute that he frequently requested to get off on time prior to the change in his assignment. In fact, he testified that he was getting too much overtime work in August, September and October of 1994, and that he had an "ongoing battle with overtime going back a couple years at the Everett terminal." TR 50-55; 66. The record shows that complainant regularly filed written requests to be off work on time between September of 1994 and April of 1995. RX 2.

    I find that respondent's decision to reassign complainant was reasonable in light of his ongoing difficulties with the roll up doors on the articulated tractor-trailer units. In addition, I find that the assignment was consistent with respondent's documented business goal of reducing overtime. I conclude, therefore, that the straight truck assignment was a legitimate personnel action dictated by nondiscriminatory business considerations. Moreover, the evidence that complainant was satisfied with driving the straight truck for over two months persuades me that neither he nor respondent considered the assignment to be retaliatory at the time it was made. Finally, Mr. Sigmund and Mr. Hazard credibly testified that the decision was

reached to assign complainant to the straight truck prior to his safety-related report on April 25, 1995. It is clear from this testimony that respondent would have assigned complainant to drive a straight truck even if he had not made the safety-related report.

    Based on the foregoing, I conclude that respondent's stated reasons for assigning complainant to the straight truck were not pretextual, and that complainant has failed to prove his case by a preponderance of the credible evidence. Accordingly, I recommend that the complaint of Douglas Frechin against Yellow Freight, Inc. be DISMISSED.

STEVEN E. HALPERN

Administrative Law Judge

San Francisco, CA

    This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Office of Administrative Appeals, U.S. Department 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 CFR Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).