Polchinski v. Atlas Bulk Carriers, 1995-STA-35 (Sec'y Mar. 7, 1996)

DATE: March 7, 1996
CASE NO. 95-STA-35

IN THE MATTER OF

PAUL POLCHINSKI,
    COMPLAINANT,

    v.

ATLAS BULK CARRIERS,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    Before me for review is a Recommended Decision and Order (R. D. and 0.) issued on November 3, 1995, by the Administrative Law Judge (ALJ) in this case arising under the employee protection provision of the Surface Transportation Assistance Act of 1982, (STAA) 49 U.S.C.A. § 31105 (West 1994). The ALJ found that the Complainant, Paul Polchinski, failed to establish that Respondent, Atlas Bulk Carriers, violated the STAA when it terminated his employment, and recommended dismissal of the complaint. Upon review of the ALJ's R. D. and O., as well as the case record and the parties' submissions, I agree that the complaint should be dismissed for the reasons set forth below.

    Complainant, a bulk fuel truck driver, had as his primary duty with the Respondent the delivery of fuel to customers. It is undisputed that Complainant began his employment with Respondent on November 7, 1993. On May 17, 1995, he was terminated by Respondent for spilling approximately three to five gallons of gasoline at a delivery site. As a result of this

spill, the customer asked that Complainant not be allowed to return to the site.[l] This incident took place on May 16, 1995. On the previous day Respondent received a separate complaint regarding Complainant's conduct from another of its customers. That incident involved Complainant's driving a burning truck into a gas station.

    Complainant's contention is that safety-related concerns he voiced regarding overdue tank tests, loose and worn fittings, air leaks, bad tires, leaking fuel hose connections and "other mechanical problems," RX 1 at 3, R. D. and 0. at 2, led to his discharge. Respondent, on the other hand, denies that Complainant made any internal safety complaints at any time and points out that Complainant failed to submit the mandatory vehicle inspection reports which the company required of all its drivers. R. D. and 0. at 3. Respondent contends that these reports, had they been properly submitted, would have alerted them to all alleged safety problems. Complainant did not contest the allegation that he failed to submit the mandatory vehicle inspection reports.

    The ALJ's finding that Complainant failed to provide any support for his allegation that he made internal safety complaints before he was fired is supported by substantial record evidence and is therefore, conclusive. 29 C.F.R. § 1978.109(c)(3)(1995).[2] Further, the ALJ found, and I agree, that the decision to terminate Complainant was reached following separate complaints against him by two different customers and the proximity of these customer complaints to the termination action serves to validate the nondiscriminatory nature of the discharge decision.

    I accept the ALJ's holding that Complainant's termination was "a legitimate personnel action dictated by nondiscriminatory business considerations." R. D. and 0. at 7. Accordingly, this complaint IS DISMISSED.

    SO ORDERED.

        ROBERT B. REICH
        Secretary of Labor

Washington, D.C.

[ENDNOTES]

[1] This is the sole reason listed on Complainant's termination notice as well as in the original summary of allegations contained in the Occupational Safety and Health Administration. (OSHA) Discrimination Case Activity Worksheet. In evidence developed during the course of the hearing, however, Respondent supplemented its reasons for discharging Complainant with other acts of misconduct. See, R. D. and 0. at 4. While the Complainant disagrees with Respondent's "'characterization" of these incidents, he does not dispute their occurrence. Id.

[2] The ALJ committed harmless error in holding that Complainant did not established a prima facie case. Since "this case was fully tried on the merits," it is not necessary to engage in an analysis of the elements of a prima facie case. USPS Bd. of Governors v. Aikens, 460 U.S. 711, 713 (1983); Carroll v. Bechtel Power Corp., Case No. 91-ERA- 0046, Sec. Dec., Feb. 15, 1985, slip op. at 11 n.9, petition for review docketed, No. 95-1729 (8th Cir. Mar. 27, 1995) (under the Energy Reorganization Act). Once Respondent produced evidence that Complainant was subject to discharge for a legitimate, nondiscriminatory reason, the answer to the question of whether a prima facie case was presented is no longer useuseful. If Complainant has not prevailed by a preponderance of the evidence on the ultimate question of liability, it matters not at all whether he presented a prima facie case. See Boyles v. Highway Express, Inc., Case No. 94-STA-21, Sec. Dec., July 13, 1995, slip op. at 2-3.