Cook v. Kidimula International, Inc., 95-STA-44 (ARB Mar. 12, 1996)

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Cook v. Kidimula International, Inc., 95-STA-44 (ARB Mar. 12, 1996)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 12, 1996
CASE NO. 95-STA-44

IN THE MATTER OF

GALE COOK,

COMPLAINANT,

KIDIMULA INTERNATIONAL, INC.,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER OF DISMISSAL

This cases is before me pursuant to the employee protection provision of the Surface Transportation Assistance Act of 1982, as amended in 1994 (STAA), 49 U.S.C.A. § 31105 (1995). Complainant Gale Cook (Cook) alleged that "he was discharged [by Respondent Kidimula International, Inc. (Kidimula)] on April 24, 1995 in retaliation for his refusal to operate an overweight vehicle." 49 U.S.C.A. § 31105(a)(1)(B)(i) prohibits the discharge of an employee when "the employee refuses to operate a vehicle because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health."

[Page 2]

On August 11, 1995, Cook was informed that the Department of Labor had investigated his complaint and determined that there was insufficient evidence to establish a finding on his behalf. Cook subsequently requested a hearing before an Administrative Law Judge (ALJ), which was held on October 16, 1995, in Seattle, Washington.¹ At the hearing, Cook and Wangi Mugenyi, Kidimula's owner (with his wife) and operations manager, were the only witnesses. On November 21, 1995, the ALJ issued a Recommended Decision and Order (R. D. and O.) that the complaint be dismissed.² R. D. and O. at 7-8.³

I have thoroughly reviewed the record and R. D. and O. in this case. The ALJ's factual findings are supported by substantial evidence on the record considered as a whole and therefore are conclusive. 29 C.F.R. § 1978.109(c)(3). Similarly, the ALJ's witness credibility determinations are supported by the record and I adopt them. Watson v. Smallwood Trucking Co., Inc., Case No. 94-STA-3, Sec. Fin. Dec. and Ord., Oct. 6, 1994, slip op. at 2; Paquin v. J.B. Hunt Transport, Inc., Case No. 93-STA-00044, Sec. Dec. and Ord., July 19, 1994, slip op. at 2; Homen v. Nationwide Trucking, Inc., Case No. 93-STA-45, Sec. Dec. and Ord., Feb. 10, 1994, slip op. at 1-2. The ALJ was in the best position to evaluate both witnesses' demeanor because he saw them in person and heard them testify. Williams v. Southern Coaches, Inc., Case No. 94-STA-44, Sec. Fin. Dec. and Ord., Sept- 11, 1995, slip op. at 6 (citing Pogue v. U.S. Dept. of Labor, 940 F.2d 1287, 1289 (9th Cir. 1991) and related cases.)

Based upon the record presented, Cook has not shown by a preponderance of the evidence that the container shipment he refused to transport was actually overloaded in violation of federal safety standards. R. D. and O. at 5-6. As the ALJ explained, "the only evidence concerning the weight of the container is the Complainant's testimony that one container he previously received from the same shipper had been overweight and the Complainant's assertion that he believed other drivers had reported receiving overweight loads from that shipper." R. D. and O. at 6. I agree that this evidence is insufficient to establish that Cook was protected under 49 U.S.C.A. § 31105(a)(1)(B)(i), which requires that a complainant show an actual violation of a commercial motor vehicle safety regulation; it is not sufficient that the driver had a reasonable or good faith belief about a violation. Yellow Freight System, Inc. v. Martin, 983 F.2d 1195, 1199 (2nd Cir 1993); Brandt v. United Parcel Service, Case No. 95-STA-26, slip op. at 5; Williams v. Carretta Trucking, Inc., Case No. 94-STA-07, Sec. Dec. and Ord., Feb. 15, 1995, slip op. at 6; Nolan v. AC Express, Case No. 92STA-37, Sec. Dec. and Rem. Ord., Jan. 17, 1995, slip op. at 6; Asst. Sec. and Brown v. Besco Steel Supply, Case No. 93-STA00030, Sec. Dec. and Ord., Jan. 24, 1995, slip op. at 4; R. D. and O. at 6; and cases cited.

Although Cook testified that his previous shipment from the same source was overweight, R. D. and O. at 2, 6, he produced no documentary evidence to that effect. T. at 18-21. In any event, a complainant's testimony that a shipper once gave him an overweight container is not sufficient to show that another container later offered by the same shipper was also overweight. See R. D. and O. at 6 n.6.

[Page 3]

Assuming, arguendo, that Cook established that an actual violation would have occurred had he accepted the shipment, I agree with the ALJ that "'there is no convincing evidence that at the time of the termination of the Complainant's employment anyone at Kidimula was aware of or could have even reasonably suspected the Complainant's reasons for refusing the shipment offered by the United dispatcher." R. D. and O. at 7. Cook conceded that he did not give any reason to anyone for his refusal to accept the shipment offered by the United dispatcher. R. D. and O. at 7; T. at 40-44, 51-55. Thus, Cook failed to establish the liability prerequisite that Kidimula was aware of the alleged protected activity. White v. Maverick Transportation, Inc., Case No. 94-STA-11, Sec. Fin. Dec. and Ord., Feb. 21, 1996, slip op. at 5-6; Watson v. Smallwood Trucking Co., Inc., Case No. 94-STA-3, slip op. at 3; Paquin v. J.B. Hunt Transport, Inc., Case No. 93-STA-00044, slip op. at 5, 7; Homen v. Nationwide Trucking, Inc., Case No. 93-STA-45, slip op. at 4-5.

I also agree that regardless of whether Cook engaged in a protected refusal to work under 49 U.S.C.A. § 31105(a)(1)(B)(i), Kidimula took no adverse action against him for engaging in this alleged protected activity. As the ALJ stated:

In this case, the evidence on this issue is conflicting. on one hand, the Complainant contends that he was fired by Mr. Mugenyi when he spoke to him on the telephone about hauling shipments for someone other than United. On the other, Mr. Mugenyi asserts that the Complainant in effect quit by handing him the keys to his truck at the same time that he refused the shipment offered by the United dispatcher. In view of the lack of evidence to corroborate either man's testimony on this issue and an inability to discern the truth through the demeanor of the witnesses, I cannot conclude that the Complainant's version of events is any more credible that Mr. Mugenyi's. Thus, there is an insufficient basis for finding that the Complainant has shown the occurrence of an adverse action by a preponderance of the evidence.

R. D. and O. at 7. See Shoup v. Kloepfer Concrete Co., Case No. 95-STA-33, Sec. Fin. Dec. an Ord., Jan. 11, 1996, slip op. at 45; Asst. Sec. and Brown v. Besco Steel Supply, Case No. 93-STA00030, slip op. at 6-7; Watson v. Smallwood Trucking Co., Inc., Case No. 94-STA-3, slip op. at 4.

Accordingly, I adopt the ALJ's recommendation that the complaint be DISMISSED.

SO ORDERED.

ROBERT B. REICH
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The basis of Cook's complaint is also reflected in his September 29, 1995 preheating statement to the ALJ that "[alfter my refusal to haul more containers from United Motor Freight that were over the legal limits I was terminated by Mr. Mugenyi of Kidimula International." Similarly, at the hearing, Cook referred to "my complaint of being terminated for refusing to haul overloads, loads that are over the legal limits." Hearing Transcript (T.) at 16.

²The R. D. and O. refers to various types of protected employee activity under the STAA involving: (1) engaging in safety-related complaints, 49 U.S.C.A. § 31105(a)(1)(A); (2) refusals to operate a vehicle, the operation of which would in fact violate federal safety standards, 49 U.S.C.A. § 31105(a)(1)(B)(i); and (3) refusals to operate a vehicle if an employee has a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition, 49 U.S.C.A. § 31105(a)(1)(B)(ii). R. D. and O. at 5. Although Cook's complaint encompassed only 49 U.S.C.A. § 31105(a)(1)(B)(i) (discussed supra through n.1), and the ALJ focused on that issue, he also ruled against Cook on § 31105(a)(1)(A) and (B)(ii). R. D. and O. at 5-6. Since the latter were not issues raised in this case, the discussion of those issues is irrelevant. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 357-59 (6th Cir. 1992); Caimano v. Brink's Inc., Case No. 95-STA-4, Sec. Dec. and Ord. of Rem., Jan. 26, 1996, slip op. at 9; Brandt v. United Parcel Service, Case No. 95-STA-26, Sec. Fin. Dec. and Ord., Oct. 26, 1995, slip op. at 34.

³The ALJ's analysis contains various references to the presentation of a prima facie case. R. D. and O. at 4-8. 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. If Cook has not prevailed by a preponderance of the evidence on the ultimate question of liability, it does not matter whether he presented a prima facie case. Brown v. Wilson Trucking Corp., Case No. 94-STA-54, Sec. Dec. and Rem. Ord., Jan. 25, 1996, slip op. at 3 n.3; Williams v. CMS Transportation Services, Inc., Case No. 94-STA-00005, Sec. Fin. Dec. and Ord., Oct. 25, 1995, slip op. at 2-3; Asst. Sec. and Boyles v. Highway Express, Inc., Case No. 94-STA-21, Sec. Fin. Dec. and Ord., July 13, 1995, slip op. at 2-3; Wignall v. Golden State Carriers, Inc., Case No. 95-STA7, Sec. Dec. and Ord., July 12, 1995, slip op. at 2.