Quintero v.Coca Cola Bottling Co. 2000-STA-0031 (ALJ July 7, 2000)

U.S. Department of Labor

Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 (415) 744-6569 (FAX)

Date: JULY 7, 2000

Case No. 2000-STA-0031

In the Matter of:

AURELIO QUINTERO,
    Complainant,

    v.

COCA COLA BOTTLING CO.,
    Respondent.

Before: Edward C. Burch
    Administrative Law Judge

   Aurelio Quintero (Complainant) filed a complaint with the Secretary of Labor dated November 30, 1999, alleging discrimination against Coca Cola Bottling Company (Respondent) under the employee protection provisions of the Surface Transportation Assistance Act (STAA), 49 U.S.C. §31101 et seq. The Regional Administrator of the Occupational Safety and Health Administration issued his determination on February 1, 2000, for the Secretary of Labor. The Regional Administrator determined that Complainant made no complaint, nor did he institute any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard or order, or testify in any proceeding relating to such a violation. The Regional Administrator further determined that Complainant never refused to drive a commercial motor vehicle when such operation constituted a violation of a commercial motor carrier safety regulation or because of his reasonable apprehension of serious injury to himself or the motoring public due to the unsafe condition of a motor vehicle. For the above reasons, the Regional Administrator determined that Complainant did not engage in any activity protected by the STAA and as a result there was no merit to his claim of discrimination under the STAA. Complainant filed a written objection to the Regional Administrator's determination on March 14, 2000. A hearing on the merits was held in Sacramento, California on May 31, 2000.

   Respondent, Coca Cola Bottling Company, is engaged in intrastate trucking operations and maintains a place of business in Marysville, California. (CX 12)¹ At the hearing, the parties stipulated that the STAA is applicable in this case. (TR 4)

   Complainant drove a commercial vehicle for Coca Cola Bottling Company. (CX 13) Drivers of commercial vehicles are required by law to have a current valid medical certificate.² (CX 10) Upon review of Complainant's driver's file, Respondent determined that Complainant's medical certificate had expired on August 20, 1998, and was not renewed until February 22, 1999, which resulted in a six month period of time in which he operated the company vehicle without a current medical certificate. Complainant was informed of the gap in his medical certification coverage and was asked to provide Respondent with the appropriate documentation to cover this period of time. (CX 10)

   Respondent took disciplinary action against Complainant for driving with an invalid license for six months. As of August of 1999, Respondent reassigned Complainant to a non-driving position. (TR 26, 35; CX 10) Respondent contends that disciplinary action was necessary because driving a commercial vehicle without a valid medical certificate is considered a serious violation of the Department of Transportation regulations and company policy and may result in penalties and citations for the company. (CX 10) Complainant alleges that he was demoted from a driver to a delivery merchandiser because he was unable to provide the company a falsified medical certificate. (CX 6) Complainant testified that District Sales Manager Guy Shinkle and Sales Center Manager Tom Quilty told him to get a back-dated medical certificate so that he could continue driving. (TR 39; CX 8) Complainant contends that other similarly situated drivers in the company were treated differently in that they were not demoted for working without a valid medical certificate in their possession. (TR 28, 43-45; CX 7) In addition, Complainant contends that he was demoted because he is Hispanic and the company wanted to promote a Caucasian employee to the position of driver.³ (TR 29-30, 46; CX 8) Further, at the hearing Complainant admitted that he never refused to drive a truck at the request of Respondent. (TR 38-39)

   Section 405(a) of the STAA prohibits a person from discharging, disciplining or discriminating against an employee on the ground that he has filed a complaint "relating to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding." 49 U.S.C. § 31105(a)(1)(A). Additionally, an employee may not be discharged, disciplined or discriminated against on the ground that he 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)(B). In order to establish a prima facie case under the STAA, the complainant must show by a preponderance of the evidence that (1) he engaged in protected activity, (2) he was subjected to adverse action, and (3) the respondent was aware of the protected activity when it took the adverse action. Additionally, the complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Auman v. Inter Coastal Trucking, 91-STA- 32 (Sec'y July 24, 1992); Osborn v. Cavalier Homes of Alabama, Inc., 89-STA-10 (Sec'y July 17, 1991).

¹ The following abbreviations will be used: TR = transcript of the hearing on May 31, 2000 and CX = Complainant's exhibits. At the hearing, Complainant's exhibits C1-14, with the exception of exhibit C3, were admitted into evidence.

² California Vehicle Code § 12804.9(c) provides that no driver's license or driver certificate is valid for operating any commercial motor vehicle unless a medical certificate approved by the department, the Federal Highway Administration, or the Federal Aviation Administration, that has been issued within two years of the date of the operation of the vehicle, is within the licensee's immediate possession, and a copy of the medical examination report from which the certificate was issued is on file with the department. (CX 10, 14) In addition, the Federal Motor Carrier Safety Regulations provide that a person shall not drive a commercial motor vehicle unless he or she is physically able to do so and has on his or her person the original, or a photographic copy, of a medical examiner's certificate that he or she is physically qualified to drive a commercial motor vehicle. (CX 10, 13, 14)

³ Mark Walden, formerly employed by Respondent, testified at the hearing that in his opinion Complainant was demoted so that a Caucasian driver could be promoted. (TR 54-55)