Office of Administrative Law Judges 603 Pilot House Drive, Suite
300 Newport News, Virginia 23606-1904
(757) 873-3099 (757) 873-3634
(FAX)
DATE: November 9, 1999
CASE NO.: 1999-STA-0043
In the Matter of:
OLLICE TRIPP Complainant
v.
CON-WAY SOUTHERN EXPRESS Respondent
ORDER GRANTING MOTION TO DISMISS
The above-referenced matter arose upon a complaint filed by Mr.Ollice Tripp
against the above named Respondent under the Surface Transportation Assistance Act of 1982
(STAA) (49 U.S.C. § 31101, et seq.), and regulations promulgated thereunder at 29
C.F.R. Part 1978, et seq. A formal hearing is scheduled for November 15 and 16, 1999, in
Atlanta, Georgia.
On October 26, 1999, Counsel for Respondent submitted a "Motion to
Dismiss and Memorandum in Support." As grounds for the motion, Counsel argues that
Complainant's allegation of wrongdoing does not constitute protected activity under the STAA; and
that even if Complainant voiced a safety concern to Respondent, that such is insufficient to trigger
STAA coverage. Therefore, Respondent requests dismissal of the complaint. Respondent also
requests a ruling as soon as possible to avoid potentially unnecessary time and expense of a formal
hearing. To date, no response has been submitted by Complainant.
In considering this matter I am mindful of the fact that Complainant is not
represented by Counsel in this proceeding. I am also mindful of the concerns expressed by
Respondent regarding expenses of hearing preparation and transportation costs for witnesses, etc.
[Page 2]
The regulations provide that a party is permitted to move, with or without
supporting affidavits, for issuance of a summary decision. See, 20 C.F.R. § 18.40. The instant
motion was submitted without supporting affidavits. The file which is before me does not contain a
written complaint, but does contain an OSHA "Discrimination Case Activity Worksheet,"
and the findings of the Secretary dated June 30, 1999. The findings of the designee of the Secretary
state that,
Complainant, Ollice Tripp, alleged that he was
discharged from Respondent's employ on or about
March 16, 1999, in reprisal for complaining to
Respondent that company tractors do not have fuel
gauges.
Secretary's Findings at 2.
Respondent's motion argues that the Complainant's sole incident of alleged
"protected activity" involves the failure to equip tractors with working fuel gauges. As
indicated, Complainant has not responded to the Motion to Dismiss. Therefore, it is not disputed that
the allegation of protected activity involves the complaint regarding the absence of working fuel gauges.
The Act generally prohibits retaliation in employment because an employee has
filed a complaint related to a violation of a commercial motor vehicle safety regulation, standard, or
order. See, 49 U.S.C. § 31105(a)(1)(A); and 29 C.F.R. § 1978.100 et seq.
However, Respondent correctly argues that the Federal Motor Carrier Safety Regulations, 49 C.F.R.
§ 325 et seq., do not contain any requirement or standard relating to fuel gauges.
For the purpose of considering this motion, in the light most favorable to
Complainant, I accept that the complaint establishes that he reported that Respondent's tractors did not
have properly working fuel gauges. However, this allegation is not sufficient to establish that Mr. Tripp
filed a complaint related to a violation of a commercial motor vehicle safety regulation, standard, or
order. Therefore, I find, in accord with Respondent's motion to dismiss, that no genuine issue of a
material fact has been raised, and that Complainant's termination on March 17, 1999, was not violative
of Section 31105 of the Act.
It is, accordingly, Ordered, that:
1. Respondent's motion to dismiss is Granted.
2. The formal hearing is Canceled.
3. The findings of the Secretary of Labor issued on June 30, 1999, are
affirmed.
