She was aware that the letter specifically stated that she had thirty days to file an
objection to the Secretary's findings. It is her belief that her letter received by this office on
September 26, 1997 constitutes her objection to the findings. This letter was postmarked September
22, 1997. (ALJ-2).
Complainant has also filed a claim regarding her discharge under the
Mississippi Security Law. The Claims Examiner disqualified Complainant for benefits. She
appealed the decision of the Examiner to the Mississippi Employment Security Commission
(MESC). A telephone hearing was conducted on March 11, 1997. In that matter, the MESC
Appeals Referee found in Respondent's favor, holding that Complainant was discharged for repeated
violations of maintaining her log in accordance with company policy and DOT regulations after
having been warned. (Tr. 195-196; RX-3). Complainant appealed the decision of the Referee to the
Circuit Court of Holmes County Mississippi, which affirmed the lower decision, holding that
Complainant's action amounted to misconduct which resulted in her termination. (Tr. 197-198; RX-4).
Edward Dowell, Respondent's Safety Director, testified at this proceeding.
It is his responsibility to assure that the company and its drivers are in compliance with DOT
regulations and with company policy. Dowell testified that Complainant experienced several
problems with her log books during her time with Respondent. These problems included failing to
turn logs in on time according to both DOT regulation and company policy and violation of hours
of service rules. Dowell affirmed Complainant's testimony that she had received many warnings
regarding these violations. He also testified specifically regarding Complainant's final warning of
September 5, 1996. (Tr. 233-34).
Dowell testified that he was the individual who made the final determination
to terminate Complainant's employment and prepared the termination letter. The decision was made
after receiving notification of Complainant's citations of January 26, 1997. Regarding the
notification, Dowell testified that DOT regulations require a driver to notify the company within
twenty-four hours of receiving a speeding ticket or being placed out of service. Complainant failed
to comply with this regulation. Dowell next testified that being placed out of service is one of the
worst things that can happen to a driver as far as the company is concerned. Dowell added that any
of the violations incurred by Complainant can cause the company's safety rating to be affected in a
negative manner. (Tr. 235-36). He testified that the decision to terminate Complainant was based
on a combination of serious log violations, her being placed out of service, having no current vehicle
inspection, and all the other previous violations she had incurred. (Tr. 241; RX-6). Dowell added
that other individuals employed by Respondent in the past had been terminated for violation of the
same policies and regulations as Complainant and provided the names of two such individuals. (Tr.
245-46; RX-7).
Dowell also testified that he had never dispatched Complainant or any other
driver to operate her vehicle in violation of company or DOT regulations. Further, he did not have
any knowledge of any other individual employed by Respondent dispatching Complainant or any
other driver to operate her vehicle in violation of company or DOT regulations. (Tr. 242-43).
According to Dowell, it is the driver's responsibility to keep log books up to date in order to know
if they have the hours available for an assigned run. They are instructed to inform the dispatcher if
they are prevented from making a run because of hours of service regulations. (Tr. 243). Further,
Dowell had never instructed Complainant to falsify her log books, nor did he have knowledge of any
other individual employed by Respondent instructing Complainant to do so. (Tr. 245).
Regarding Complainant's suggestion that Respondent instructed her and other
drivers to illegally alter their log books, Dowell testified that DOT regulations require the company
to return logs which they find to be falsified to the driver and corrections are to be made. The types
of changes referred to by Complainant are not illegal, but rather required by the DOT. (Tr. 249).
Regarding Complainant's allegation that Respondent did not follow company
policy in their termination of her, Dowell testified that the company went above their obligation to
help Complainant. Dowell testified that Complainant was provided with assistance in overcoming
her deficiencies on numerous occasions, both by company officials and other drivers at the request
of Respondent. (Tr. 252). Further, Complainant received more warnings prior to termination than
either of the other terminated drivers identified by Dowell. (Tr. 264).
Ms. Dede Brunson, log and fuel auditor for Respondent, also testified at this
proceeding. It is her duty to audit driver log books in order to find discrepancies, falsified logs, and
violations and to make the driver aware of them, and thus avoid government fines. (Tr. 286). If
Brunson receives a falsified or erroneous log, she had been instructed by Jack Wall of the DOT to
return the log to the driver for the appropriate corrections. Respondent is not permitted to accept a
falsified log. Each driver who turns in a falsified or erroneous log receives a monthly form letter
informing them of their errors. (Tr. 287-288).
Regarding Complainant's specific situation, Brunson testified that
Complainant had multiple problems with her log book requirements, including failure to turn in her
logs in a timely manner, sometimes several weeks to a month late, violations of hours of service
regulations, and log falsifications. (Tr. 289). Brunson testified that after a driver received his or her
monthly report, they would usually speak with her regarding the violations in an effort to correct
them in the future. Brunson estimated that she had at least nine or ten of these conversations with
Complainant. (Tr. 290). To her knowledge Respondent never instructed Complainant or any other
employee to falsify a log book. Also, to her knowledge, Respondent never instructed Complainant
or any other driver to operate their vehicle in violation of DOT hours of service regulations. (Tr.
291). Moreover, Complainant never complained to anyone inside or outside the company that she
was required to operate her vehicle in violation of hours of service regulations or to falsify her log
books. (Tr. 292).
Phillip Goodwin, a truck driver and driver trainer for Respondent, testified at
this proceeding. As part of his duties as a driver trainer, Goodwin instructs and assists student
drivers in how to keep log books in accordance with DOT and company requirements. (Tr. 294).
He testified that he worked with Complainant on several occasions at the request of company
officials in order to assist her with her log keeping problems. (Tr. 295). From his observations,
Complainant's major problems were caused by the fact that she did not keep her log books up to
date, but rather went back and tried to complete her logs days or weeks after she completed her runs.
Goodwin identified another former driver of Respondent who was terminated for similar failures in
the log keeping process. (Tr. 296).
Goodwin also testified that as a driver he had never been requested by
Respondent to exceed DOT hours of service regulations and he was not aware of Complainant or
any other driver being asked to do so. Further, he testified that he had never been requested to falsify
his log book and he was not aware of Complainant or any other driver being asked to do so. (Tr.
297).
B. Conclusions of Law
1. Timeliness
Section 31105(b)(2)(B) of the STAA provides that in order to prevent the
Secretary's Findings from becoming a final order, the complainant must object within thirty days of
notice of the Findings. The implementing regulations provide that the prescribed period begins the
day following notice and includes the final day of the period. 29 CFR § 18.4(a). An objection
will not be deemed to be filed until it is received by the Office of Administrative Law Judges.
However, if a complainant chooses to file her objection via mail, five days are added to the
prescribed period. 29 CFR § 18.4(c).
In this matter, the Secretary's Findings were originally sent to Complainant
by certified mail on June 6, 1997. It is not disputed that Complainant did not receive this letter, as
she has credibly testified she was away from home on business. Because Complainant did not have
notice of the Secretary's Findings, her prescribed period did not begin at that time. Therefore, this
original attempt at notification will not work as a bar in this proceeding. Respondent next attempted
notification via regular mail. The Findings were sent to Complainant's home on July 9, 1997.
Complainant presented credible evidence that the first opportunity she had to receive her mail after
returning from her run was August 23, 1997. Therefore, I find that the prescribed period began to
run as of August 24, 1997. See Bryant v. Bob Evans Transportation , 94-STA-24
@ 4 (Sec'y Apr. 10, 1995).
Complainant's prescribed period began to run on August 24, 1997. September
22, 1997, the date the objection was post marked, is the 30th day of that period. Because the
objection was filed via mail within the prescribed period, Complainant is entitled to five extra days
for actual receipt as provided by the regulations. Consequently, the actual receipt of the objections
by this office on September 26, 1997 was within Complainant's prescribed period and, therefore, is
deemed timely.
2. Prima Facie Case
Section 31105(a)(1) of the STAA provides:
A person may not discharge an employee, or discipline or discriminate against
an employee regarding pay, terms, or privileges of employment, because
(A) the employee, or another person at the employee's request, has filed a
complaint, begun a proceeding related to a violation of a commercial motor
vehicle safety regulation, standard, or order, or has testified or will testify in
such a proceeding; or
(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard or order of the United
States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious
injury to the employee or public because of the vehicle's unsafe
condition.
49 U.S.C. § 31105 (1994).
In order to successfully make a case for retaliatory discharge under the STAA,
a complainant must first establish a prima facie case. Moon v. Transport Drivers,
Inc. , 836 F.2d 226, 229 (6th Cir. 1987); Bryant v. Bob Evans Transportation , 94-STA-24 @ 4 (Sec'y Apr. 10, 1995). To establish a prima facie case under the STAA Complainant
must prove: 1) she engaged in a protected activity under the STAA; 2) she was the subject of adverse
employment action; and 3) there was a causal link between her protected activity and the adverse
action of the employer. It should be noted that while a pro se complainant may be held to
a lesser standard than legal counsel with regard to procedural matters, the burden of proving the
elements necessary for a claim of discrimination is no less. Flener v. H.K. Cupp, Inc. , 90-STA-42 @3 n.2 (Sec'y Oct. 10, 1991).
Here, Complainant did not offer any evidence that she ever made any
complaint to anyone employed by Respondent or to anyone who would have conveyed such a
complaint to Respondent. Rather, she testified specifically to the contrary. Nor did she offer any
evidence that she had or planned to testify against Respondent in any type of proceeding.
Further, Complainant specifically testified that she never at any time refused
to operate her vehicle for any reason. Complainant did suggest that she was required as part of her
employment to falsify her log books. However, she was unable to identify anyone employed by
Respondent who instructed her to do so and admitted that she was never told by anyone that her
employment depended upon these alleged falsifications. Moreover, Complainant exhibited a
misunderstanding of the log book policy regarding changes to the entries in the books. While she
testified that she was instructed to change her entries, she clearly was did not understand the policy
of Respondent, at the instruction of the DOT, to accept only complete and accurate logs from its
drivers. If an inaccurate log book was turned in to Respondent, they were required to return it to the
driver for correction. Complainant misunderstands this procedure as an instruction to illegally alter
her log book.
The evidence also established that drivers were provided with monetary
awards for keeping accurate log books. Complainant admitted that this known practice was not
consistent with the allegations posed at this hearing.
The testimony of Dowell, Brunson, and Goodwin rebutted Complainant's
allegations that she was required to violated company policy and DOT regulations regarding her log
books and hours of service as part of her employment.
Because Complainant continued to operate her vehicle in the normal course
of business until the time of her discharge, without reporting or complaining of any alleged
violations, I find that Complainant failed to establish that she was engaged in a protected activity
under the STAA, and thus failed to satisfy the initial element of her prima facie case.
Even had I accepted that Complainant was engaged in a protected activity, she
still has failed to establish any causal link between the activity and her discharge. Complainant
admitted that she consistently violated company policy and DOT regulations regarding her log book
and hours of service. As the record persuasively established, Complainant was warned repeatedly
regarding her log book violations, including at least three written warnings which threatened possible
termination. The last of which, on September 5, 1997, indicated that it was Complainant's
"final notice."
Holding true to the final warning, Complainant was discharged upon the
notification to Respondent by the Kentucky Transportation Cabinet Officer that Complaint was once
again in violation of company policy and DOT regulations. Complainant has presented no evidence
that her discharge was for any reason other than her failure to abide by company policy and DOT
regulations after repeatedly being warned to do so.
The credible testimony of Dowell, Brunson, and Goodwin support the finding
that Complainant had severe difficulty abiding by company policy regarding her log books and that
she had been warned repeatedly regarding that difficulty. Further, each identified other drivers of
Respondent who had been discharged in the past for failing to correct similar difficulties.
The situation at hand is similar to that in Moon , 836 F.2d at 229-230,
where the court found no causal link between Moon's protected activity and his discharge. There,
the fact that Moon had been repeatedly warned prior to his discharge that continued log book
violations could result in his termination was found to be persuasive in finding a break in the causal
link between the activity and the discharge. I find the evidence of Complainant's repeated warnings
equally persuasive in this matter.6
3. Preclusion from Re-litigation
Because Complainant failed to establish a prima facie case of
retaliatory discharge, examination of this issue is not warranted.
4. Summation
I find that although Complainant filed a timely objection to the Secretary's
Findings, she has failed to established a prima facie case of retaliatory discharge under the
STAA. Initially, she has failed to show that she was engaged in a protected activity. Further, even
accepting that there was a protected activity, Complainant has not established a causal link between
such an activity and her discharge. Consequently, this complaint must be dismissed.
IV. RECOMMENDED ORDER
The complaint of Ethel P. Self pursuant to Section 31105(a)(1) of the Surface
Transportation Assistance Act is DISMISSED .
CLEMENT J.
KENNINGTON
NOTICE: This Recommended Decision and Order and the administrative file in this
matter will be forwarded for review by the Administrative Review Board, U.S. Department
of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See
C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).
[ENDNOTES]
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5
6 Moon established that Moon was not singled out for his violations, as other employees were
terminated in the past for similar log book violations. The same situation has been established here.
