Repair records for the Mack truck indicate
that the air compressor was fixed on September 12, 1996 and the sticking clutch was fixed on
September 18, 1996. (CX 32). The windshield wipers were repaired on December 19, 1996
along with the lighting system and the back up alarm. The defroster was checked on the 19th
also and the mechanic stated that it was O.K. and noted there was no low speed on the blower.
(CX 18). The odometer was repaired on December 25, 1996. These records and Complainant's
testimony indicate that the sticking clutch was fixed prior to the refusal to drive, the tires were
replaced and the defroster was actually working. (CX 32, TR 233). The driver who took the
Mack truck to New York in Complainant's place testified that there were no mechanical defects
with the truck. (TR 97). However the backup alarm was not working along with the dashboard
lights, as they had to be repaired on December 19th. Accordingly, I find that Complainant has
established that operating the Mack truck on the dates in question would violate federal safety
regulations. Therefore, Complainant engaged in protected activity under §
31105(a)(1)(B)(I) on November 22, 1996.
On November 13, 1996, Complainant alleges that he went to his
supervisor, Dean Kennedy, and was told to drive the truck or be fired after he complained of a
sticking clutch, no dash lights, a slashed tire, no backup warning device, and no tarp. However,
Complainant's log sheets only indicate there was no heater of defroster and these notations were
not contained on the original form. The actual inspections report indicated that the vehicle was
satisfactory and handwritten notes at the bottom indicated that the heater/defroster wasn't
working, the blinker was not working, and the dash lights weren't working. The handwritten
portion also appears to have been made at a later date as the writing is off-center, and trails off
the page. It also appears to be darker. I do not find Complainant's allegations as to this specific
date to be credible. He testified that he had an argument with Mr. Kennedy prior to adding these
notations and despite the fact that he had an opportunity to change the log, the notations only
note one defect, the lack of a heater or defroster. As noted above, there is no evidence that
[Page 15]
supports this contention. Therefore, Complainant did not engage in protected activity on
November 13, 1996 under § 31105(a)(1)(B)(I).
Complainant may also establish that he engaged in protected activity under
§ 31105(a)(1)(A) by establishing that he filed a complaint relating to a violation of
commercial motor vehicle safety regulations. In this case, Complainant went above his direct
supervisor's head on several occasions to complain directly to the company president about the
safety conditions of the trucks. He requested that a clutch be fixed on one of the trucks and he
also went to request new tires for the trucks. While Complainant also complained to his own
supervisor, Mr. Kennedy, about safety problems, these do not rise to the level of protected
activity, as the normal course of business was for Complainant to inform his supervisor as to any
repairs that needed to be made. However, going above the established chain of command is
activity which amounts to an internal safety complaint. A driver's reporting of defects in the
vehicles he has driven is an activity protected under § 31105(a)(1)(a). See Hufstetler
v. Roadway Express , 85-STA-8, slip op. at 24 (August 21, 1986). His complaints related to
motor vehicle safety standards as they addresses the condition of the tires as well as other
problems. See Perrine v. Poole Truck Line, Inc. 85-STA-13 (Sec'y Mar. 11, 1986). This
is sufficient to establish that Complainant was engaging in protected activity as STAA
complaints do not need to refer to a particular safety standards in order to be protected. See
Davis v. H.R. Hill , 86-STA-18 (Sec'y Mar. 1987).
Adverse Employment Action
In this case, it is undisputed that Complainant's employment was
terminated on November 22, 1996 following his refusal to go to a work site in Troy, New York.
While the Respondent may term this a layoff, adverse action was clearly taken against
Complainant.
Causal Relationship between Protected Activity and Adverse Employment Action
To prevail on a STAA whistleblower complaint, a complainant initially
must show that it was likely that the adverse action was motivated by a protected activity.
Roadway Exp., Inc. v. Brock , 830 F.2d 179, 181 n.6 (11th Cir. 1987); Guttman v.
Passaic Valley Sewerage Comm'rs , 85-WPC-2 (Sec'y Mar. 13, 1992), slip op. at 9, aff'd
sub nom ., Passaic Valley Sewerage Com'rs v. Dept. of Labor , 992 F.2d 474
(3d. Cir. 1993). The respondent may rebut such a showing by producing evidence that the
adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then
must prove that the proffered reason was not the true reason for the adverse action. St.
Mary's Honor Center v. Hicks , 125 L. Ed. 2d 407, 416 (1993).
In this case, Complainant's own testimony establishes that the reason he
refused to go to Troy, New York was due to the living conditions at the company apartment and
[Page 16]
personality conflicts with workers there and this lead to his termination. This was unrelated to
truck safety issues and was the reason he was terminated. Complainant testified that he offered
to drive his own vehicle to and from the work site to avoid having to stay at the company
apartment. Complainant's testimony on this issue is less than credible. Mr. Rea testified that
Complainant wished to drive the Company truck back and forth every day. (TR 607). This
makes much more sense because if Complainant drove his own vehicle to Troy in order to drive
home every night, someone else would have to drive the company truck to the job site, which
would eliminate the need for Complainant to be in Troy at all. Complainant repeatedly
questioned witnesses about the living conditions at the apartment and whether they were aware
of his disagreements with other workers in Troy. However, in establishing a prima facie
case, a complainant need only raise the inference that his engaging in protected activities caused
the adverse action. The proximity in time between protected conduct and adverse action alone
may be sufficient to establish the element of causation for purposes of a prima facie
case. Stiles v. J.B. Hunt Transportation, Inc. , 92-STA-34 (Sec'y Sept. 24, 1993). In this
case, Complainant's refusal to drive the truck is closely related in time to his termination, as it
occurred on the same day. Complainant, however, cannot establish that Mr. Rea was aware of
his protected activity on the date in question. The causation element is not established where a
person taking adverse action had no knowledge of protected activity. Gay v. Burlington
Motor Carriers , 92-STA-5 (Sec'y May 20, 1992).
Neither Mr. Kennedy or Mr. Rea were aware that Complainant's refusal
was based upon a truck safety issue. Both testified that Complainant did not raise this issue on
the date he was fired. Their testimony on this crucial issue is more credible than Complainant
because as noted above, Complainant changed his log books at a later date. Complainant
admitted in his closing argument that he did not discuss the conditions of the trucks with Mr.
Rea. (Complainant's closing brief at p. 19). Instead, he addressed the living conditions at the
company apartment and his lack of a raise as the reasons why he was refusing to go to Troy, New
York. Id. As Mr. Rea was the one who terminated Complainant, if he was unaware of
any complaints regarding safety violations, his decision to terminate Complainant was based
solely on Complainant's stated reasons for refusing to go. This severs any causal link between
Complainant's prior complaints and his termination. In addition, when Complainant went to
speak to Mr. Mastronardi and Mr. Rea after his termination on December 5, 1995 he did not
mention anything about truck safety issues according to the contemporaneous memo prepared by
Mr. Mastronardi. (EX 11). Instead, he discussed his wages. I find this consistent with what
Complainant stated he told Mr. Rea on the date of his termination. Complainant was supposed to
go to Troy, New York on November 25, 1997 but refused to do so on November 22, 1997. He
did not request that the trucks be fixed before he had to go to Troy. I find that this supports
Respondent's contention that they were unaware that Complainant was refusing to drive the truck
for safety reasons as he did not even attempt to have the Mack truck repaired before he refused to
drive it. Accordingly, Complainant has failed to establish his prima facie case as he
cannot establish that his termination was causally related to his safety complaints.
[Page 17]
Even if Complainant were successful in establishing his prima
facie case, I further find that Respondent's sole motivation in terminating Complainant was
his refusal to go to the job site and the termination was not motivated by any of Complainant's
safety complaints. Mr. Kennedy, who Complainant asserts was most upset by his complaints,
appeared ready to give Complainant his job back and reluctant to terminate him on the date in
question. He himself did not fire him, but told him to talk with Mr. Rea. After that conversation,
he asked Complainant if he would change his mind. (TR 511). Mr. Rea was not even aware that
Complainant's refusal to drive the truck was related to his safety complaints and it does not
appear that Complainant was treated with animosity or hostility. Rather, based upon the given
information, that Complainant wanted an additional pay increase and did not want to have to go
to Troy, Mr. Rea told Complainant that he either had to go or he would be fired. A normal part
of the driver's jobs was to go to work sites and Respondent apparently had a large job in Troy
which necessitated the renting of an apartment to accommodate their employees. It also appears
that Complainant's "complaints" about his trucks were not treated as complaints
within the company but simply repair requests and were handled in that manner. Accordingly,
based upon all of the evidence of record, I find that Complainant's termination was not related to
his protected activity but was based solely upon the stated reasons that he gave to Mr. Rea for
refusing to drive the truck. I specifically find that Mr. Rea and Mr. Kennedy were more credible
witnesses as to the events that occurred on November 13th and 20th of 1996. Respondent has
proffered legitimate non-discriminatory reasons for Complainant's discharge. The reason
Complainant was fired was not for his refusal to drive the truck nor his complaints regarding the
trucks, but his refusal go to Troy, New York and stay at "Animal House".
Accordingly, I find that Respondent had a legitimate non-discriminatory motive for terminating
Complainant which was not motivated by his safety complaints in any manner.
I further find that there is no evidence that the legitimate reasons were a
pretext for discriminatory actions. There does not appear to be any credible evidence that
Respondent was upset by Complainant's internal safety complaints. Rather, it appears that is was
Complainant's responsibility to keep the trucks he drove in satisfactory condition, and complaints
were treated as requests for repairs. Respondent left the decision making process regarding
repairs in the drivers' hands. The only person that Complainant asserts was upset by his raising
of safety issues was his immediate supervisor, Mr. Kennedy. However, on the date of the
termination, Mr. Kennedy appeared to be willing to give Complainant his job back if he would
drive the truck. This was after Complainant went to Mr. Kennedy's supervisor. This action
shows the lack of a discriminatory motive. Accordingly, even though Complainant has
established that he engaged in protected activity and that adverse action was taken against him,
he cannot establish the last required element, that there was a causal link between his protected
activity and the adverse employment action.
Attorney and Witness Misconduct
Complainant alleges that several witness lied under oath and Respondent's
attorney, Mr. Steflik, was guilty of misconduct by tampering with witnesses and encouraging
[Page 18]
them to give false testimony. A hearing was held on October 15, 1997 to allow Complainant to
further address these accusations. He asserted that the interrogatories signed by Mr. Wayne
Jones and Ms. Caryl Clapp contained false statements. (TR 889). Ms. Clapp testified that the
statements contained on the interrogatories were true and that Respondent did not try to influence
her answers. (TR 919). She further testified that she read the interrogatories and answered them
as fairly as she could. (TR 938). Complainant presented no evidence that her answers were
untruthful or that anyone influenced her. Therefore, this allegation of misconduct is without
merit.
Mr. Wayne Jones testified that he dictated the answers to the
interrogatories to his attorney and stated that no one influenced him. (TR 947-948).
Complainant alleged that some of Mr. Jones' answers sounded as if they were written by
someone else. (TR 955). However, Mr. Jones testified that he reviewed the answers before he
signed them and stated that they were his answers. (TR 957-58). As there is no credible
evidence that Mr. Jones was not truthful or that the answers contained on the interrogatories were
not his own, I find that this allegation is without merit.
Complainant alleges that Mr. Steflik had a conference with the witness
prior to their testimony and he told the witnesses what to say. (TR 891, 897). He also alleged
that Mr. Steflik improperly requested his tax returns. However, both Mr. Steflik and
Complainant spoke with the witnesses prior to trial, as Complainant called several witnesses at
home. There is nothing improper with a lawyer discussing the testimony of witnesses prior to
trial, provided they do not counsel the witness to testify falsely. Model Rules of Professional
Conduct, Rule 3.4(b) (1996). All of the witnesses testified that Mr. Steflik instructed them to tell
the truth. (TR 76). Complainant's tax returns were discoverable as they pertained to mitigation
of damages. He also alleges that Mr. Steflik told Mr. Reeves not to speak with Complainant.
However, the Rule 3.4(f)(1) of the Model Rules of Professional Conduct provides that a lawyer
may request that a person other than a client refrain from voluntarily giving relevant information
to another party if the person is an employee of the client. Therefore, even if this allegation were
true, it would not be unethical as Mr. Reed is an employee of Respondent. Accordingly, I find
that there is no evidence that Mr. Steflik behaved improperly in this matter.
RECOMMENDED ORDER
For the reasons set forth above, it is recommended that the complaint of
William Zurenda against J & K Plumbing and Heating Co., Inc. under § 31105 of the
Surface Transportation Assistance Act be DISMISSED.
Paul H. Teitler
Administrative Law Judge
Camden, NJ
PHT/cls
NOTICE: This Recommended Decision and Order and the administrative file in this matter
will be forwarded for review by the Secretary of Labor to the Administrative Review Board,
United States Department of Labor, Room S-4309, 200 Constitution Ave., N.W., Washington,
DC 20210 The Administrative Review Board 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).
[ENDNOTES]
1 The following abbreviations will be
used as citations to the record: ALJ = Administrative Law Judge''s exhibits, CX = Complainant's
exhibits, EX = Respondent's exhibits, and TR = transcript of the hearing.
2 The Mack truck's license plate
number is PD 5646, the small Volvo's license plate number is PD 4044, and the large Volvo's
license plate number is PD 3828. (TR 380-81).
3 Complainant later testified that
this incident involved the small Volvo as opposed to the Mack Truck. (TR 256).
4 This case falls within the
jurisdiction of the United States Court of Appeals for the Second Circuit as all of the alleged
activity occurred within the state of New York.
5 Even if Complainant were able
to show that he engaged in protected activity under these sections of the statute, he still would be
unable to establish a prima facie case as the evidence does not show a causal link
between his activity and his refusal to drive as noted below.
6 As Complainant did not drive
the truck between November 13 and November 22, it is unclear how he was aware of the alleged
problems with the hydraulic clutch, back up alarms, bad tire and dash board lights, none of which
he noted on the 13th. He did not inspect the Mack truck on the 22nd, as he was assigned to drive
the Volvo on that date and was refusing to drive the Mack on the 25th.