Tierney v. Sun-Re Cheese, Inc., 2000-STA-12 (ALJ Apr. 27, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 856-757-5403 (FAX)

DATE ISSUED: April 27, 2000

CASE NO.: 2000-STA-00012

In the Matter of

ROBERT J. TIERNEY
    Complainant

    v.

SUN-RE CHEESE, INC.
    Respondent

Appearances:

Robert J. Tierney, Pro Se

David C. Shipman, Esquire
    For Respondent

Before: PAUL H. TEITLER
    Administrative Law Judge

    This proceeding involves a claim brought under Section 3105 of the Surface Transportation Act of 1982 (hereinafter, "STAA") (49 U.S.C. 2305). The Complainant, Robert J. Tierney, filed a complaint with the Secretary of Labor alleging that Respondent Sun-Re Cheese, Inc., discriminatively discharged him for refusing to operate a vehicle when such operation would constitute a violation of a Federal regulation to commercial motor vehicle safety. Respondent denied these allegations.

   The Secretary of Labor, acting through her duly delegated agent, the Regional Administrator for the Occupational Safety and Health Administration (OSHA) in Region III, Richard D. Soltan, made findings pursuant to the delegation in Section 31105 of the STAA and the Secretary's Order 1-90 (vol 55 FR 9033, March 9, 1990) and Chapter IX of the Investigator's manual, OSHA Instruction DIS, 4B.

   1. Respondent was engaged in commercial motor vehicle operations and maintained a place of business in Sunbury, Pennsylvania. In the course of their business Respondent's employees operate commercial motor vehicles over interstate highways to principally transport cargo. Respondent was a person defined in action 401(4) of the Act (49 U.S.C. 33105(4).

   2. On or about September 1990, Respondent hired Complainant as a driver of a commercial motor vehicle with a gross vehicle weight rating of 10,001 or more pounds.

   3. At all times material herein Complainant was an employee, in that he was a driver of a commercial motor vehicle having a gross weight rating of 10,001 or more pounds used on the highways in commerce to transport cargo, and he was employed by a commercial motor carrier, and in the course of his employment he directly affected commercial motor safety (49 U.S.C. 33105(2)(A).

   4. On or about August 31, 1999, Complainant, filed a complaint with the Secretary of Labor alleging that Respondent had discriminated against him in violation of Section 31105 of the Act (49 U.S.C. 2305). The Secretary denied jurisdiction on the ground that the complaint was not timely filed.

   5. On or about May 16, 1997, Respondent notified Complainant that he was discharged from employment principally because he caused a scene when he went to the office to pick up his pay check.

   6. The Secretary's representative determined that Complainant made complaints to management officials about the lack of brakes on one of his assigned vehicles in April and May of 1997. Complainant was terminated on May 16, 1997 and the facts surrounding the termination are in dispute. The Secretary's representative found that Complainant was not protected by Section 31105 of the STAA because his complaint was not filed in a timely manor.

   Complainant was afforded the opportunity to appear at a formal hearing which was held in Williamsport, Pennsylvania on Thursday, February 10, 2000. Complainant appeared pro se. He was advised of his right to have an attorney and that he could request an adjournment to obtain counsel. He declined the adjournment and at the conclusion of his hearing was given a completed copy of "THE SURFACE TRANSPORTATION ASSISTANCE ACT WHISTLE BLOWER DIGEST." Respondent was represented by David Shipman, Esquire. At the conclusion of the hearing the parties were notified that the undersigned was going to issue an Order to Show Cause relative to the jurisdictional issue and that both parties were to be afforded an opportunity to reply.

   The findings and conclusions which follow are based upon a complete review of the entire record in light of the arguments of the parties, applicable statutory provisions, regulations and pertinent precedent.

   The following issues were presented for resolution:

   1. Whether Complainant was discharged on May 16, 1997 in retaliation for an activity protected by Section 405 of the STAA, i.e. reporting safety violations.

   2. Was the complaint timely filed, if not, were there facts or circumstances which would allow equitable tolling of the time to file a complaint?

   Respondent, as part of its business of selling cheese products, is engaged in interstate commercial motor vehicle operations involving vehicles which weigh 10,001 or more pounds. Complainant was hired as an over the road 18-wheel motor vehicle operator on or about September 1990 and he possessed and still posses a commercial drivers license. Complainant was notified on or about May 16, 1997 that he was discharged. Respondent alleged that the discharge was due to an altercation on that day. Complainant alleges that his discharge was due to his making complaints relative to the lack of brakes and other conditions on the truck he was ordered to drive.

   Complainant testified that he started employment with Respondent on September 30, 1990 driving 18-wheel vehicles with a gross weight of more than 10,001 pounds on interstate roads. He alleged a safety violation on May 16, 1997 and he filed a complaint with the Secretary of Labor on August 31, 1999. TX 08. Complainant stated that he was unlawfully and unmorally fired and he wanted the restitution of his job and back wages. TX 06. He worked for Respondent for the better part of seven years as a tractor- trailer driver. TX 12. He testified that the safety problem was caused by the trailer floor having a hole and was cracked and they put two metal plates over the floor. Only one

plate was bolted down. The plates were never feather-edged or planed down. When the trailer was unloaded, the skid which had approximately 50 boxes of 50 pounds plus cheese on it, would hit against the edge of the metal plate. The skid would come crashing down, and the boxes would come crashing down hitting him. The safety problem was the trailer, and he drove it approximately once a month. The incident happened a few weeks before April the 16, 1997. TX 14-16. He stated that the company had about 25 employees, most making cheese, and two drivers. He reported the incident of the crashing skid to Mr. Pat Rescigno, the president of the company. There was an approximate 5/16 of an inch difference in height between the metal plates, and the skid became hung up and the chain would come off because the skid broke and would bounce around the trailer and out of the truck. TX 16-21. The incidents occurred over a month period, and the owner of the company that the cheese was delivered to gave him eight good skids with his name on them. These good skids disappeared, and his company skids were warn and in bad condition. Complainant further testified that the problem was multi-fold, the plates were not feather edged and his company's skids were no good. The result was that the torque of the pulling forced the skid to break and the chain released. TX 22-26. He told Mr. Rescigno about the problem and he said that he would take care of it. He said that he thinks the conversation took place in March of 1997. Complainant was told to tell the maintenance man to take care of it and the maintenance man said that he was aware of of the problem. TX 27. Complainant testified that he was due to take out the trailer with the plates in a couple of days and he asked to speak to Mr. Rescigno. Mr. Rescigno told him that his maintenance man, Rick Smith, had not had the time to fix it and besides he did not have time for this now. Complainant testified that he was leaving the office when Mr. Rescigno came behind me and screamed aloud and crashed the door against him, causing the blood to come out of his arm, and then Mr. Rescigno threatened him. TX 28. Mr. Rescigno told him that I have a baseball bat in my office. I have a gun at home and I have connections with the New York Mafia. TX 29. Complainant then went to Sunbury Hospital where he was treated with a sling, initially the company agreed to pay for the treatment and then denied payment. TX 30. He received notice that he was fired on May 16, 1997 because he had caused a disturbance. He pursued the case in Workman's Compensation Court where after trial he was awarded all medical bills paid and a 10% penalty. TX 30-34. He finished treatment approximately in May of 1998. TX 35-36. He testified that he could not hire an attorney because they wanted up front money, and that he looked in the Commercial Driver's Manual and it did not mention the the 180 days to file. He testified that he did not know that he had to file within 180 days, since the regulations were not posted as required in the company. TX 40. He testified that he filed with OSHA and had conversations with Mr. Rutsky and Mr.Seguin who told him that their investigation was merely a formality since the complaint was time barred. TX 51-52.

The Employee protection provisions of the STAA provide that:

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 or begun a proceeding related to a violation of a commercial motor vehicle safety standard, or order, or has testified or will testify in a 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 the public because of the vehicle's unsafe condition.

49 U.S.C. § 31105 (a)(1)

   STAA burdens of proof and production are derived from Tittle VIII cases, in particular McDonnell Douglas Corp. v. Green 411 U.S. 792 (1973) and its progeny. See Clean harbors Environmental Services Inc. v. Herman 146 F. 3d 12 (1st Cir. 1998); Moon v. Transport Drivers, Inc. 836 F. 2d 226 (6th Cir 1987); Kenneway v. Matlaack Inc., 88 STA-20 (Sec'y June 15, 1989) To establish a prima facie case, complainant must show that (1) he engaged in protective activity under the STAA; (2) he was subject to an adverse action; and (3) there was a causal link between his protected activity and the adverse action of his employer. See Moon 836 F.2d at 229.

   While a pro se Complainant may be held to a lessor standard than that of legal counsel in procedural matters, the burden of proving the elements necessary to sustain a claim of discrimination is no less, See Flener v. H. K. Cupp inc., 90-STA-42 ( Sec'y Oct. 10, 1991).

   In the case at bar, I can make the following findings of fact. Respondent was engaged in commercial motor vehicle operations and maintained a place of business in Sunbury, Pennsylvania. In the course of their business Respondent's

employees operate commercial motor vehicles over interstate highways to principally transport cargo. Complainant was a person defined in action 401(4) of the act (49 U.S.C. 33105(4). Complainant was an employee, in that he was a driver of a commercial motor vehicle having a gross weight rating of 10,001 or more pounds used on the highways in commerce to transport cargo and in that he was employed by a commercial motor carrier, and in the course of his employment directly affected commercial motor safety (49 U.S.C. 33105(2)(A).

   In his allegations before the Secretary's investigator, Complainant made basically two allegations. He said that he complained to management about a lack of brakes on one of their vehicles. However, there is no evidence of record that this complaint was not resolved by a repair to the motor vehicle. His major complaint was that a repair to a trailer floor to cover holes was poorly performed and it created a dangerous condition to him and possibly to persons on the street when the trailer was unloaded. The parties agree that Complainant was discharged on or about May 16, 1997. The reason for discharge are in dispute. Complainant on or about August 31, 1999, more than two years after he was discharged, filed a Complaint with the Secretary of Labor alleging that Respondent had discriminated against him in violation of Section 31105 of the Act (49 U.S.C. 2305). The Secretary 's representative found that Complainant was not protected by Section 31105 of the STAA because his complaint was not filed in a timely manor.

ISSUE 1.

Whether Complainant was discharged in retaliation for activity protected by Section 405 of the STAA, i.e. reporting safety violations.

   Complainant testified that he was due to take out the trailer with the plates in a couple of days and he asked to speak to Mr. Rescigno. Mr. Rescigno told him that his maintenance man, Rick Smith, had not had the time to fix it, and besides he did not have time for this now. It would appear that Complainant had a reasonable apprehension of serious injury to the employee of the company receiving the delivery, himself and the public because of the vehicle's unsafe condition, and the cheese and chain falling into the street. The unsafe condition which was attributed to the manor in which a hole in the trailer was covered.

   Sworn testimony was taken at trial before Pennsylvania Compensation Judge Karl K. Baldys held on October 6, 1998 and November 10, 1998. In his Decision, Judge Baldys found that Complainant testified and President of the Company testified that Complainant did come into the president's office on April 16, 1997 to discuss a safety problem involving equipment. (Worker's Compensation Decision dated February 16, 1999, Page 6) The Decision also indicated that a confrontation occurred and Complainant's right hand was injured when it was slammed by a door. Page 8.

Complainant testified at that hearing that he did not return to work for Respondent because he had ongoing problems with the hand and arm including spasms and a sensation of electric shock. That the entire incident and his treatment post-incident caused anxiety. Complainant testified that he was released to return to work on May 13, 1997. When he contacted the Respondent he was told that his job had been "abolished". Page 4. Complainant was not awarded any wage loss benefits under the Compensation Act by Judge Baldys.

   In the instant case, I find that as result of Complainant's complaint about the safety of a trailer he was to drive a confrontation took place. He was discharged upon receipt of the letter dated May 16, 1997. Complainant has creditably established that engaged in protective activity under the STAA, he was subject to an adverse employment action, and there was a causal link between his protected activity and the adverse action of the Respondent, See Moon, supra.

ISSUE 2.

Was the Complaint timely filed, if not, were there facts or circumstances allowing equitable tolling of the time to file a complaint?

   The controlling filing requirements are found in 49 U.S.C. 31105, (b)(1). An employee alleging discharge, discipline or discrimination in violation of subsection (a) of this section or another person at the employee's request, may file a complaint with the Secretary of Labor not later than 180 days after the alleged violation occurred.

   It is well established however that the STAA limitation period for filing an administrative complaint may be subject to equitable tolling. 29 C.F.R. § 1978.102(d), (3): See Hicks v. Colonial Motor Freight Lines Case No. 84 -STA-20(Sec. Dec. Dec. 10, 1985)Slip op. 7-8 cf. Larry v. The Detroit Edison Co., Inc., Case No. 86-ERA-32 (Sec. Dec. June 28, 1991) at 11-19, aff'd, No.91- 3737 (6th Cir. April 17, 1992 ).

   On March 11, 2000 , Complainant expressed, in his opposition to Respondent's Motion to Dismiss, the reasons for his filing his complaint after the 180 day period. He indicated that he sought help from the Department of Transportation Commercial Driver's manual and there was no information there relative to filing under the STAA. He stated that he filed on September 28, 1997 a claim with the Department of Labor and Industry, Commonwealth of Pennsylvania. EX 02. There was a ruling that Complainant left his employment with cause due to his alleged mistreatment, which was not contested by the Respondent. He was awarded 26 weeks of benefits. He

also contacted the Commonwealth of Pennsylvania Human Relations Commission, they advised him by letter that he had 180 days to file a complaint. EX 01. Complainant wrote that he contacted Legal Aid who told him they were understaffed and suggested that he file a Workers' Compensation Claim. He was successful with this claim. Complainant claimed that it took Respondent two years to pay money due to him, and three years later he is still owed money. He summarized his arguments relative to toll the 180 day filing period as follows:

   He contacted several Government Agencies and since the did not know or inform him of the filing period, he should not be penalized.

   In Kelly v. Flav-o-Rich, Inc Case No 90- STA-14 (Sec. Dec. May 22, 1991) the Secretary of labor held that pendency of state employment security commission case did not toll the STAA limitation period of 180 days. Therefore, I do not find the contacting of various state agencies sufficient to toll the filing requirement. Further there is no evidence that Complainant has raised the precise statutory claim in issue but has mistakenly done so in the wrong forum. See School District of Allentown v. Marshall 657 F.2d 16(3d. Cir. 1981).

   Respondent failed to post the requirements of the STAA, and therefore their failure to post the regulations should toll the filing period. Complainant raised this allegation for the first time in his opposition to the Order to Show Cause. However, the Commercial Drivers manual mentioned the STAA, and when Complainant decided the statue was violated he had the opportunity to examine the filing provisions of the statue. I do not find this reason sufficient to toll the statue. Complainant alleged that the Commercial Driver's Manual did not give an exact status of time for filing and this should constitute a reason for waiver of the 180 days to file. I disagree! The fact that the statue was mentioned would lead a prudent individual to go to a library and research its contents.

   Complainant alleges that Mr. Rescigno mislead him relative to the reason for discharge. However, the record is clear that he was discharged as a result of the violent confrontation that Mr. Rescigno and Complainant had.

   Complainant makes two allegations, if creditable, would be sufficient to equitably toll the filing requirement of the act. If Complainant could prove that Mr. Rescigno continually prevented him from obtaining employment or that he was continuously afraid to assert his rights under duress or was afraid of physical retaliation, he could argue that equitable tolling should take place. Complainant has not demonstrated in the record by creditable testimony or written proof of a continuous prevention of his obtaining employment by Mr. Rescigno or his company. The record does not establish that Complainant was continuously under duress or afraid of physical retaliation. The record

establishes that Complainant brought a workers' compensation claim, a claim for unemployment benefits, and also complained to the Commonwealth of Pennsylvania Human Relations Commission. He has not established that he has in some extraordinary way been prevented from asserting his rights . See School District of Allentown, supra. Complainant has not established that pursuant to 29 C.F.R. 1978.102(D)(3) that the alleged discrimination was in the nature of a continuous violation.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, I recommend the following Order:

   That the Complaint be dismissed for failure to justify not filing within the one hundred eighty (180) days as required by 49 U.S.C. 31105, (b)(1). of the STAA.

      PAUL H. TEITLER
      Administrative Law Judge

Dated: April 27, 2000

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, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29. C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).