Thomas v. Hall Express, 2000-STA-43 (ALJ Sept. 19, 2000)

U.S. Department of Labor

Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 (504) 589-6268 (FAX)

Date: September 19, 2000

Case No.: 2000-STA-43

In the Matter of:

RONALD J. THOMAS,
    Complainant

    against

HALL EXPRESS,
    Respondent.

Before: LARRY W. PRICE
    Administrative Law Judge

   This case arises under the employee protection provisions of §405 of the Surface Transportation Assistance Act (STAA) of 1982, as amended and recodified, 49 U.S.C. §31105 (1994) , and the regulations at 29 C.F.R. Part 1978. Complainant, Ronald J. Thomas (Thomas) claimed that his employer, Respondent, Hall Express, violated §405 when it discharged him on January 10, 2000, as reprisal for his raising concerns to managerial personnel regarding safety defects on Respondent's vehicles. A hearing was held in Atlanta, Georgia, on July 11, 2000.

Stipulations (Tr. 13-14)

   1. Respondent is engaged in interstate trucking operations and maintains a place of business in Atlanta, Georgia, with corporate offices in Albany, Georgia. In the regular course of business, Respondent's employees operate commercial vehicles in interstate commerce, principally to transport air freight products. Consequently, Respondent is a commercial carrier and subject to the Surface Transportation Assistance Act.

   2. Respondent is now, and at all times material herein, was an "employer" as defined in section 31101(3) of STAA (49 U.S.C. §31101(3)).

   3. On September 27, 1999, Respondent hired Thomas, as a driver of commercial motor vehicles, to wit, a straight truck, with gross vehicle weight rating in excess of 10,001 pounds.

   4. At all times material herein, Thomas was an "employee" in that he was a driver of commercial motor vehicles having gross vehicle weight ratings of 10,001 pounds or more used on the highways 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 vehicle safety (Section 31101(2)) of STAA, 49 U.S.C. §31101(2)).

   5. On or about January 13, 2000, Thomas 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. §31101). This complaint was filed timely.

Thomas' testimony

   Thomas testified that Hall Express fired him on January 10, 2000. Thomas understood that his employer claimed to have fired him for tardiness in showing up for work and in making deliveries. (Tr. 16). When he was confronted about not being timely, he refused to sign the Employee Discussion Report. (Ex. p. 52).

   However, Thomas claims he was actually fired because he reported mechanical deficiencies in the trucks he was driving. (Tr. 16). Specifically, Thomas claims he was fired for reporting a faulty tire. (Tr. 16-17; Ex. p. 9). Daily Vehicle Reports show Thomas reported problems on several occasions. These problems included a faulty or no lift gate, a damaged bumper and a faulty tire. (Ex. pp. 9-51).

   Thomas blamed his tardiness on traffic during runs and stated he thought he was fired due to his safety reports, rather than his tardiness, because he did not have a set schedule. (Tr. 20- 21).

Becky Grier's testimony

   Becky Grier is the Director of Safety for Hall Express. She handles personnel for the company. (Tr. 29). Grier is the Respondent's representative who fired Thomas.

   Grier testified that on January 10, 2000, she summoned Thomas to her office to give him a written warning. Thomas had previously been verbally warned about his tardiness in showing up for work and making deliveries. (Tr. 28). Thomas had also been warned for failing to answer pages and disappearing for several hours at a time when out on the road. On the previous Friday Thomas had disappeared for two hours and despite several pages, he could not be contacted. (Tr. 37, Ex. p. 8). Linda Bullock, an owner of Hall Express, and dispatch had instructed Grier to discuss Thomas' tardiness with him and to give him a written warning. (Tr. 29).

   Grier testified that Thomas turned belligerent when presented with the written warning and refused to sign it as asked. (Tr. 28). Grier called Rod Bullock, president of Hall Express, into her office when Thomas turned belligerent. On January 17, 2000, Grier completed a Separation Notice for the Georgia Department of Labor in which she stated the circumstances of the separation as "unsatisfactory job performance". (Ex. p. 53).

    Grier denied knowledge of the faulty tire report when she summoned Thomas to her office to present him with the written warning. (Tr. 30). Thomas had turned the maintenance report in on Friday, January 7. (Tr. 31). Grier met with Thomas on Monday morning, before she was aware of the alleged faulty tire. (Tr. 30).

Rod Bullock's testimony

   Rod Bullock is the president of Hall Express. He testified about the safety procedures for Hall Express.

   Bullock testified that pre-trip maintenance reports are turned into the dispatch office first and forwarded to maintenance for screening. He stated that the maintenance inspector will use discretion to determine if corrective action is required. Bullock noted that whether or not a tire is worn out is a subjective matter where drivers and maintenance personnel will often disagree.

   Bullock further testified that on January 10, 2000, he heard loud noises from a room in which Grier and Thomas were meeting. Bullock subsequently asked Thomas to leave.

   The employee protection provisions of the STAA provide in relevant part:

(a) Prohibitions (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, privileges or 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 regulation, standard, or order, or has testified or will testify in such a proceeding;

...

49 U.S.C.A. §31105(a).

   Claims under the STAA are adjudicated pursuant to the standard articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the complainant must initially establish a prima facie case of retaliatory discharge, which raises an inference that the protected activity was likely the reason for the adverse action. Once a prima facie case is established, the burden of production then shifts to the respondent to articulate, through the introduction of admissible evidence, a legitimate, nondiscriminatory reason for its employment decision. If the respondent is successful, the prima facie case is rebutted, and the complainant must then prove, by a preponderance of the evidence, that the legitimate reasons proffered by the respondent were but a pretext for discrimination. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

   The Supreme Court recently addressed the burden-shifting under such statutes in extensive detail in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). In that case, Justice Scalia, writing for the Court, held that in meeting its burden of production, an employer need only articulate a legitimate reason for the adverse action, and that no credibility assessment is appropriate at that time. Id. At 2748. In proving the asserted reason is pretextual, an employee must do more than simply show that the proffered reason was not the true reason for the action. Instead, he or she must prove both that the asserted reason is false (i.e. not the true reason for the action), and that discrimination was the real reason for the adverse action. Id. at 2752-56. Such a requirement is necessary in that it is the employee who bears the ultimate burden of persuading the trier of fact that he or she was the victim of intentional discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 253; see also Hicks, supra, 113 S.Ct. At 2751.

   To establish a prima facie case of retaliatory discharge, the complainant must prove: (1) that he engaged in protected activity under the STAA; (2) that he was the subject of adverse employment action; and (3) that there was a causal link between his protected activity and the adverse action of his employer. Moon, supra, 836 F.2d at 229. The Secretary has taken the position that, in establishing the "causal link" between the protected activity and the adverse action, it is sufficient for the employee to show that the employer was aware of the protected activity at the time it took the adverse action. See Osborn v. Cavalier Homes, 89-STA-10 (Sec'y July 17, 1991); Zessing v. ASAP Express, Inc., 92-STA-0033 (Sec'y Jan. 19, 1993).

   It is undisputed that Thomas engaged in protected activity under the STAA when he reported the unsafe condition of the truck. It is also undisputed that Thomas was subjected to an adverse employment action when his employment was terminated. The focus of the dispute is, therefore, whether a causal link exists between Thomas' protected activity and the adverse action of his employer. Thomas testified that he thought the real reason for his separation was his reports of safety problems. While Grier denies this accusation, considering the temporal proximity between the faulty tire complaint on January 7 and Thomas's firing on the next work day, I find Thomas has established a prima facie case of retaliatory discharge.

   However, the testimony of Grier points to different reasons for Thomas' separation. Grier testified that she was unaware of the faulty tire report when she met with Thomas on January 10, 2000. She called Thomas to give him a written warning concerning his tardiness and failure to answer pages. Thomas was fired only when he became belligerent and refused to sign the written warning. I find Respondent has articulated legitimate, nondiscriminatory reasons for its employment decision.

   I find Grier to be a very credible witness. Thomas turned the report in the previous Friday and it is reasonable that Grier would not have read the report yet on Monday morning when she met with Thomas. Grier also testified she had met with Thomas at both her superior's and dispatch's request to present him with a written warning for being tardy. She also stated that Thomas did not mention the faulty tire in the meeting and this is verified by Thomas' testimony. Finally, I find the true reason for Thomas' separation from Hall Express' employment was his belligerence in the meeting with Grier. Grier testified that Thomas turned belligerent upon being presented with the written warning to sign and that she had to call the operations manager into the room. Since Grier had initiated the meeting solely to give Thomas a written warning for tardiness and failing to answer pages and discharged him when the meeting ended in an argument, I find Thomas' belligerence to be the cause of his separation. I believe Grier's testimony that any safety concerns that may have been expressed by Thomas had nothing to do with her decision to fire Thomas. Thomas has failed to establish a causal link between his protected activity and the adverse employment action.

   Accordingly, I find that Thomas has failed to establish that he was the victim of intentional discrimination under the STAA and recommend that the Secretary enter the following order pursuant to 29 C.F.R. §1978.109(c)(4):

   The complaint of Ronald J. Thomas is DENIED.

   SO ORDERED.

      LARRY W. PRICE
      Administrative Law Judge

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, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).