USDOL/OALJ STAA Whistleblower Digest
DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON
FOR ADVERSE ACTION
[Last updated December 30, 2008]
IV. Burden of proof and production
* * *
B. Articulation of nondiscriminatory reason for
adverse action
The STAA whistleblower
provision prohibits "discharge . . . discipline or discriminat[ion] . . .
regarding pay, terms, or privileges of employment" because of protected
activity. 49 U.S.C.A. § 31105(a)(1) (emphasis added). Thus, in Minne
v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31,
2007), the ALJ erred when he found no adverse action because the evidence did
not show that the Complainants were fired, disciplined, or suffered any other
adverse employment action, but did not actually discuss whether the Respondent
had discriminated against the Complainants. The ARB found that it was possible
that the Complainants had suffered such discrimination when, for example, the
Respondent found replacement drivers for the Complainants' shows [the
Complainants being paid solely on commission for sales of ammunition made at
gun shows] while their names still were listed on the assignment board, and the
Respondent did not offer the Complainant work that did not require
participation in driving trucks with possible violations.
IV B 1 Secretary only looks to whether
articulated reason would violate
the STAA; does not consider whether
it would violate only anti-
discrimination statutes
In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), the Respondent meet its burden of articulating legitimate,
non-discriminatory reasons for the adverse actions, where, inter
alia, it explained that it chose the Complainant for layoff
because of a reduced need for drivers, the belief that Nolan
intended to retire soon, the fact that Nolan qualified for social
security in view of his age, and disappointment with Nolan's work
performance.
In a footnote, the Secretary observed that he was only finding
that the Respondent articulated reasons for the layoff that do
not violate the STAA, and that he was making no finding whether
it would violate other anti-discrimination statutes to select an
employee for layoff because he is old enough to receive social
security benefits or is planning to retire.
[STAA Digest IV B 1]
NON-DISCRIMINATORY REASON; RESPONDENT'S BURDEN IS ONE OF
ARTICULATION, NOT PROOF
In a STAA whistleblower case, it is not an employer's burden to prove a legitimate,
non-discriminatory, non-pretextual reason for its action in order to rebut evidence raising a
reasonable
inference of retaliatory discharge. Rather, if a complainant presents evidence raising a
reasonable inference of retaliatory discharge, the employer need only articulate a
non-discriminatory reason for its action. At all times, the complainant had the burden of
establishing
that the real reason for discharge was discriminatory. See St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742 (1993). Shute v. Silver Eagle Co., 96-STA-19
(ARB June 11, 1997).
IV.B.1. Respondent must raise genuine issue of
fact
An employer attempting to rebut a prima facie case of
discrimination must produce evidence that the adverse action was
taken for a legitimate, nondiscriminatory reason. The employer
"need not persuade the court that it was actually motivated
by the proffered reasons." Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). The evidence,
however, must be sufficient to raise a genuine issue of fact as
to whether the employer discriminated against the employee.
"The explanation provided must be legally sufficient to
justify a judgment for the [employer]." Id. at 255.
Brothers v. Liquid Transporters, Inc., 89-STA-1
(Sec'y Feb. 27, 1990), slip op. at 4-5 and n.4.
IV.B.1. Respondent's failure to establish legitimate,
nondiscriminatory reason for adverse
action
Respondent's purported legitimate, nondiscriminatory reason for
discharging the complainant -- his "overall work
record," including four warnings issued due to the
complainant's unavailability when a dispatcher tried to contact
him and for a weekend job assignment -- was not persuasive
where
Respondent had never previously discharged a driver for
receiving four such warnings
The fourth letter related to unavailability on the date
of a co-worker's grievance hearing at which the complainant
had previously obtained permission to attend for purposes of
testifying (issuance of this letter itself appears to
constitute unlawful adverse employment action).
A supervisor's had threatened discharge in retaliation
for giving testimony at the co-worker's hearing (which
constituted compelling evidence of motive).
Moyer v. Yellow Freight Systems, Inc., 89-STA-7
(Sec'y Nov. 21, 1989), aff'd in part on other grounds and
rev'd and remanded on this issue sub nom. because of the
Secretary's failure to afford respondent adequate notice it would
be litigated, Yellow Freight System, Inc. v. Martin, 954 F.2d
353 (6th Cir. 1992).
IV.B.1. Complainant Did Not Sustain His Burden of
Proving Adverse Action by the Employer in
Contesting Complainant's Entitlement to Workers'
Compensation Benefits was Motivated by a
Discriminatory Intent
The Secretary found that complainant had not established a
discriminatory motive on the part of the employer in contesting
complainant's entitlement to workers' compensation benefits. The
complainant, pro se, introduced no evidence in his case-in-chief.
The employer introduced direct testimonial and documentary
evidence supporting legitimate, non-discriminatory reasons for
its workers' compensation challenge. Flener v. H.K. Cupp,
Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
Respondent demonstrated legitimate, nondiscriminatory business
reasons for complainant's lay off where it established that
shortly before complainant was laid off, he was involved in three
vehicular accident which raised legitimate insurance concerns and
resulted in costs for damages; it offered credible testimony
concerning complainant's unauthorized use of company equipment
for personal use, and the deterioration of his job performance
and attitude; and complainant acknowledged that respondent was
previously upset about his leaving personal items on or near
company property, and that his part-time work for a nearby garage
had posed conflicts with working for respondent.
Hernandez v. Guardian Purchasing Co., 91-STA-31
(Sec'y June 4, 1992) (complainant failed to show pretext;
admitted that another driver had been fired after being involved
in two accidents in one month; complaint dismissed).
In Toland v. Burlington Motor Carriers, Inc., 93-
STA-35 (ALJ Oct. 31, 1994), adopted (Sec'y Feb. 27, 1995, the
ALJ found that although the Complainant had lodged complaints
about his trainer's log violations after an altercation with his
trainer, the Complainant was fired for his egregious behavior
rather than his protected activity. The ALJ took into
consideration that had the log violations not occurred, the
altercation may not have occurred. Nonetheless, the
Complainant's behavior included abusive language, threats of
violence, and a lunge at the trainer unlike Moravec v. HC
& M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992), where
the complainant merely had spontaneously challenged his
supervisor to a fight following provocation by the employer's
unlawful conduct, and where no blows where struck.
IV.B.2.b. Articulation of nondiscriminatory reason for
adverse action; complainant challenged
supervisor to fight; sufficient to shift
burden
In Moravec v. HC & M Transportation, Inc., 90-
STA-44 (Sec'y Jan. 6, 1992), the statements of the complainant's
supervisor that the complainant was discharged because he
challenged the supervisor to a fight, was a sufficient
articulation of a nondiscriminatory reason for the discharge such
that the burden shifted back to the complainant to establish
pretext.
In Ridgley v. USDOL, No. 07-3917 (6th Cir. Oct. 21, 2008) (unpublished) (case below ARB No. 05-063; ALJ No. 2004-STA-53), the Complainant had previously expressed a desire not to work beyond 4:00 pm on Mondays, because he was scheduled for a long Tuesday route. On Monday, December 1, 2003, the Complainant was scheduled for a longer than normal route because it was a holiday delivery. The Complainant, concerned that the trip would take 14 to 16 hours, objected to working past 4:00 pm, and asked for a helper. The company's president attempted to accommodate the Complainant but determined that no helper was available. Because it was not feasible to remove certain stops from the route, and there was no other available assignment for the Complainant that day, the route was assigned to a substitute driver and the Complainant was sent home for the day. When the company president called to confirm whether the Complainant would be in for his Tuesday route, he left what the ALJ found to be a calm and patient message, noting that the Monday run had only taken 8 hours and 20 minutes. When the Complainant returned the call, the Complainant asked whether any stops had been removed from the Monday run. The president said that they had not, and the Complainant indicated that he found that hard to believe. The president then asked if the Complainant was calling him a liar, and the Complainant replied "[y]es, and you've been lying to me for years." The president then fired the Complainant. The Complainant filed an STAA whistleblower complaint. After a hearing, the ALJ found that the Complainant was fired for insubordination, and that the termination was not causally related to any protected activity under the STAA. The ARB affirmed.
On appeal, the Complainant argued that because he was fired for a comment made during a conversation about the length of his Monday route, he was necessarily retaliated against. The Court disagreed, writing:
But "an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern," Am. Nuclear Res., Inc. v. U.S. Dept. of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998), as long as the termination is not because of the safety complaint. Ridgley claims he was fired "for challenging the employer's honesty about safety compliance," (Appellant's Reply Br. 2 (emphasis added)), but the ALJ found that the termination was motivated solely by the accusation of dishonesty, not by the fact that the accusation was related to the length of Ridgley's route. Similarly, Ridgley argues that he had "the right to speak out when his employer [used] deception to break trucking safety laws" and states that "the lying employer cannot ask, on a question of compliance with motor carrier laws, ‘Are you calling me a liar', and then fire an employer for saying, ‘Yes.'" (Id. at 4 (emphasis added).) These arguments presuppose facts that the ALJ found did not exist: that Dannemiller used deception to break trucking safety laws and that he lied to Ridgley.
Slip op. at 10-11. The court also found that the ALJ had properly distinguished a Secretary of Labor decision holding that the STAA provides some leeway for impulsive behavior, noting that such authority by its own terms held that the issue turns on the distinctive facts of the case. In the instant case, the Complainant had been accommodated and had not been asked to violate any commercial vehicle regulation.
[STAA Digest IV B 2 c] LEGITIMATE NON-DISCRIMINATORY
REASON FOR TERMINATION OF EMPLOYMENT; COMPLAINANT’S BIZARRE AND DISRUPTIVE
BEHAVIOR
In Frausto v. Beall Concrete
Enterprises, Ltd., ARB No. 05-122, ALJ No. 2005-STA-9 (ARB Aug. 24,
2007), the ARB affirmed the ALJ’s recommended dismissal of the Complainant’s STAA
complaint where overwhelming and credible evidence supported the Respondent’s
contention that it terminated the Complainant’s employment because of his
bizarre and disruptive behavior. The Complainant failed to prove that this
reason was pretext.
IV.B.2.c. Nondiscriminatory reason;
complainant's distrust of
company, refusal to transport
cash, and repeated requests
for pay advances
The respondent meet its burden of production to present evidence
of a legitimate, nondiscriminatory reason for firing the
complainant where its manager testified that he fired complainant
because of complainant's expressed distrust of the company and
its personnel, his refusal to transport cash between truck
terminals according to the company's usual practice, and his
repeated requests for pay advances. Auman v. Inter Coastal
Trucking, 91-STA-32 (Sec'y July 24, 1992).
[STAA Whistleblower Digest IV B 2 c]
LEGITIMATE, NON DISCRIMINATORY REASON; INSUBORDINATION
Even if an employee engages in protected activity, an employer may discipline the employee for insubordination. Clement v. Milwaukee Transport Services, Inc., ARB No. 02 025, ALJ No. 2001 STA 6 (ARB Aug. 29, 2003). In Clement, although Complainant was being approached about his use of flashers (Complainant alleged that federal law required use of the flashers whenever he stopped in traffic, whereas Respondent's policy was to use them only in emergencies) the record established that his discharge was for ignoring a supervisor and for his refusal to attend a meeting.
IV.B.2.c. Communication requirement STAA; Existence of
legitimate, nondiscriminatory reason for
adverse action
Complainant did not establish a causal link between his protected
activity and his subsequent discharge where the record did not
prove that the supervisor who discharged him had any knowledge of
the protected activity or, otherwise, that the decision to
discharge complainant was motivated in any part by complainant's
protected conduct. Instead, the record proved that complainant
was discharged for a legitimate, nondiscriminatory reason -- for
refusing to attend a counseling session pertaining to his
consistent problem of driving over Respondent's established speed
limit. Although the complainant contended that the speeding
resulted from the way he was dispatched, the Secretary concluded
that the record did not support that contention; she also noted
that the relevant inquiry is Respondent's perception of its
justification for the discharge. Moon v. Transport Drivers,
Inc., 836 F.2d 226, 230 (6th Cir. 1987).
Carroll v. J.B. Hunt Transportation, 91-STA-17
(Sec'y June 23, 1992).
IV B 2 c. Insubordination by using foul language over the
phone to Respondent insufficient to establish non-
discriminatory reason for adverse action.
In Kenneway v. Matlack, Inc., 88-STA-20, (Sec'y
June 15, 1989), Complainant was terminated after he refused to
accept a driving assignment which would have caused him to
violated the Federal Motor Carrier Safety Regulation governing
maximum driving and on-duty time. Complainant argued that his
termination was in response to his refusal to drive. Respondent
asserted that Complainant was discharged for vulgar and abusive
language directed at Respondent's dispatcher during a telephone
conversation.
In determining whether Complainant's alleged abusive language was
sufficient motivation for Complainant's termination, the
Secretary considered the fact that in labor relations cases
"[c]courts have recognized that the use of intemperate
language is associated with some forms of statutorily-protected
activities ... due to the adversarial nature of these
activities." Furthermore, the Secretary noted that
"[b]because protected work refusals under the STAA present a
similar potential for confrontation, recourse to labor relations
cases is useful..."
The Secretary held that the right to engage in statutorily
protected activity permits some leeway for impulsive behavior,
which is balanced against the employer's right to maintain order
and respect in its business by correcting insubordinate acts.
Citing NLRB v. Leece-Neville Co., 396 F.2d 773, 774 (5th
Cir. 1968) the Secretary stated:
"A key inquiry is whether the
employee has upset the balance that must be
maintained between protected activity and
shop discipline. . The issue of whether an
employee's actions are indefensible under the
circumstances turns on the distinctive facts
of the case."
In Kenneway, the Secretary determined that, for the
purposes of balancing Complainant's work refusal right against
Respondent's right to maintain shop discipline, little if any
injury was sustained by Matlack. (Alleged abusive language took
place during an off-duty hours, out of the work place, telephone
conversation with Respondent's dispatcher rather than in the
presence of other employees).
While expressing doubts whether Complainant used foul languages,
the Secretary held that the foul language stood alone as
assertedly constituting "insubordination."
Furthermore, the Secretary held that any language on
Complainant's part was not offered in defiance to management
authority, did not represent a refusal to follow reasonable
instructions, and did not present a threat to shop discipline.
Consequently, the Secretary held that Respondent failed to meet
its burden to produce evidence that Kenneway's discharge was
motivated by a legitimate, non-discriminatory reason. "In
its context [Complainant's] language was not insubordinate and
Respondent's 'reason' for discharge is not legally sufficient to
justify judgment in its favor."
IV.B.2.c. Insubordination; refusal to perform non-driving
duties
Homen v. Nationwide Trucking, Inc.,
93-STA-45 (Sec'y Feb. 10, 1994)
The Secretary approved the ALJ's recommended decision to
dismiss the complaint based on Complainant's failure to establish
a prima facie case. To establish a prima facie case under the
employee protection provision of the STAA. (49 U.S.C. app.
§ 2305), the complainant must show that he engaged in
protected activity, that he was subject to adverse action, and
that the respondent was aware of the protected activity when it
took the adverse action. The complainant was found to have
engaged in the protected activity only after he was fired for
insubordination and thus the Respondent was not aware of any
protected activities engaged in by the complainant when they
discharged him.
Even assuming that the complainant established a prima facie
case, the Respondents demonstrated a legitimate reason for
discharging him, which successfully rebuts the inference that the
adverse action was motivated by the protected activity. The
evidence showed that after the complainant refused to drive the
truck for safety reasons, the Respondent assigned him to
alternative, non-driving duties only; the Complainant refused the
assignment and became disruptive and uncooperative. Hence, the
complainant's insubordination was a legitimate reason for his
discharge.
IV.B.2.c. Chronic complainer; relation to safety
complaints
In Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1
(Sec'y July 13, 1984), the Secretary indicated that where an
employee's complaints center around perceived safety defects and
whose other complaints were not of great consequence (in this
case complaining about not getting full-time work he had been
promised and being assigned non-driving duties), an employer's
articulation of the reason for adverse action being that he is a
chronic complainer is probably not a legitimate reason for
discharge.
IV.B.2.c. Intemperate behavior by
complainant
In several decisions, the Secretary has considered labor
relations precedent in addressing intemperate language and
impulsive behavior associated with the exercise of STAA
rights.
See Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y
June 15, 1989), slip op. at 6-7, 10-13; Ertel v. Giroux
Brothers Transportation Co., 88-STA-24 (Sec'y Feb. 16,
1989), slip op. at 20-21, 30-31. Cf. Dunham v.
Brock, 794 F.2d 1037 (5th Cir. 1986) (ERA case).
The standard employed under the National Labor Relations Act
requires balancing the right of the employer to maintain shop
discipline and the "heavily protected" right of
employees to bargain effectively: to fall outside statutory
protection, and employee's conduct actually must be
"indefensible under the circumstances.
NLRB v. Southwestern Bell Telephone Co., 694 F.2d
974, 976-977 (5th Cir. 1982).
See Reef Industries, Inc. v. NLRB, 952 F.2d 830,
836-838 (5th Cir. 1991) (satirical letter and tee-shirt were
not so offensive as to lose protection "when not
fraught with malice, obscene, violent, extreme, or wholly
unjustified"); NLRB v. Lummus Industries, Inc.,
679 F.2d 229, 233-235 (11th Cir. 1982) ("allegedly
false and defamatory statements" made in context of
concerted activity "will be protected unless they are
made with knowledge of their falsity or with reckless
disregard for their truth or falsity").
Moreover, "an employer may not rely on employee conduct that
it has unlawfully provoked as a basis for disciplining an
employee."
NLRB v. Southwestern Bell Telephone Co., 694 F.2d
at 978-979. See NLRB v. Steinerfilm, Inc., 669 F.2d
845, 851-852 (1st Cir. 1982), citing Trustees of Boston
University v. NLRB, 548 F.2d 391, 392-393 (1st Cir.
1977) ("insubordination was an excusable, if a
regrettable and undesirable, reaction to the unjustified
warning . . . received just minutes before," and the
discharge therefore was improper).
Although under Title VII of the Civil Rights Act of 1964,
opposition to unlawful employment practices is protected,
"certain forms of 'opposition" conduct, including
illegal acts or unreasonably hostile or aggressive conduct, may
provide a legitimate, independent and nondiscriminatory basis for
sanctions."
Stated differently, the form of opposition may remove Title VII
protections.
>Id. at 1015 and nn. 4, 5, citing Rosser v.
Laborers' Intern. Union of North America, 616 F.2d 221,
223 (5th Cir. 19xx), cert. denied, 449 U.S. 886
(1980); Silver v. KCA, Inc., 586 F.2d 138, 141 (9th
Cir. 1978). See Jennings v. Tinley Park Comm. Consol
Sch. Dist. 146, 864 F.2d 1368, 1372 (7th Cir. 1988)
(decision to discipline employee "whose conduct is
unreasonable, even though borne out of legitimate protest,
does not violate Title VII").
Examples include
conduct interfering with employee work
performance, e.g., hostility to supervisor, militant
demands, loud and insubordinate behavior in work areas,
participation in destructive, noisy demonstrations
during work hours, and
conduct interfering with an employer's interest in
maintaining the confidentiality of employee records,
e.g., surreptitious copying of confidential
documents.
In contrast, sending a letter to a significant customer of the
employer which criticized its decision to present the employer
with an affirmative action award "had absolutely no effect
upon the [employees'] job performance or upon the workplace
environment" and thus constituted "perfected
appropriate," protected expression.
EEOC v. Crown Zellerbach Corp., 720 F.2d at 1015,
1016.
Similarly, an employee who surreptitiously tape-recorded
conversations with his supervisors to gather evidence in support
of his discrimination claim was held protected under the Age
Discrimination in Employment Act prohibition (29 U.S.C. 623(d))
against discharge for "oppos[ing] any practice made unlawful
by this section" or "participat[ing] in any manner in
an investigation, proceeding, or litigation under this
chapter."
Heller v. Champion Intern. Corp., 891 F.2d 432,
436 (2d Cir. 1989) (emphasis omitted). See Grant v.
Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569-70 (2d
Cir. 1989) (employee protected in drafting memorandum
documenting employer company's discriminatory practices,
presenting it to company president for approval, and using
signed memorandum in subsequent legal action against
company); Wrighten v. Metropolitan Hospitals, Inc.,
726 F.2d 1346, 1355-57 (9th Cir. 1984) (Title VII
protections extended to black nurse who, after unsuccessful
meetings with hospital administrators, finally convened
press conference to advocate the need for improved patient
care).
Compare Jennings v. Tinley Park Comm. Consol. Sch.
Dist. 146, 864 F.2d at 1374-75 (employee relinquished
Title VII protections by sandbagging supervisor;
"employee may not use legitimate opposition . . . to
embarrass a supervisor or thwart his ability to perform his
job"; an employer may discipline an employee for her
"deliberate" decision to disrupt the work
environment, including her superior's standing with his own
superiors"); Jones v. Flagship Intern., 793 F.2d
714, 727-29 (5th Cir. 1986), cert. denied, 479 U.S.
1065 (1987) (employer prerogative to run business must be
balanced against employee right to express grievances and
promote own welfare; an employee charged with representing
her company in equal employment matters was not protected in
soliciting others to join in her discrimination claim and in
"her expressed intent to serve at the vanguard of a
class action suit"); Hochstadt v. Worcester
Foundation for Experimental Biology, 545 F.2d 222, 230-
34 (1st Cir. 1976) (employee actions, albeit associated with
protected objective, fell outside Title VII when, over a
prolonged period, she interrupted staff meetings, circulated
rumors, commissioned a covert affirmative action study,
invited a newspaper reporter to examine confidential salary
information, misused secretarial and copying services,
incurred a large personal bill on the employer's telephone,
received reprimands for poor work performance, and caused
other employees to leave the company).
Citing this authority, and particularly the STAA Kenneway
and Ertel cases, the Secretary found in Lajoie v.
Environmental Management Systems, Inc., 90-STA-31 (Sec'y
Oct. 27, 1992), slip op. at 10-14, that the complainant's
spontaneous intemperate reaction to his unlawful discharge,
communicated privately over the telephone, neither removed
statutory protection nor provided the respondent with a
legitimate, nondiscriminatory motivation.
IV B 2 c Insubordination and deleterious effect on
morale
In Gentry v. Rocket Express, Inc., 94-STA-25
(Sec'y Mar. 17, 1995), the Secretary adopted the ALJ's finding
that the Respondent had discharged the Complainant for legitimate
and nondiscriminatory reasons -- insubordination and the
deleterious effect on worker morale of his ongoing dispute with
Respondent over his responsibility for performing dockwork.
[STAA Digest IV B 2 d]
RETALIATORY ANIMUS; SENDING COMPLAINANT FOR PSYCHOLOGICAL
EVALUATION
In Griffin v. Consolidated Freightways Corp. of
Delaware, 97-STA-10
and 19 (ARB Jan. 20, 1998), Respondent became concerned about Complainant's fitness for duty
based on statements made by Complainant in a letter to an ALJ presiding over a different STAA
complaint and in deposition statements. Respondent referred the letter to a psychiatrist, who
concluded that Complainant might have a delusional disorder and potential for dangerous
behavior during employment activities. Respondent then arranged for a certified forensic
psychologist who specializes in assessing threats posed by employees to evaluate Complainant.
The psychologist concluded that Complainant had a delusional disorder, paranoid type, and
recommended that Respondent find Complainant temporarily unfit for driving pending
mandatory psychological treatment. Respondent then put Complainant on paid medical leave,
and offered to pick up certain costs not covered under the health benefits plan if Complainant
would arrange an appointment with a recommended psychiatrist. Complainant did not seek
psychiatric help, and Respondent placed Complainant on medical leave without pay. Later,
Respondent notified a subsequent employer about the reason Complainant was on leave.
Complainant then filed the instant complaint alleging that because of earlier safety complaints
and his pending STAA complaint, Respondent removed him from driving service, discharged
him and blacklisted him.
The ARB focused on whether retaliatory animus motivated Respondent. The ARB found
that a DOT regulation, 49 C.F.R. § 391.41(b), provides a regulatory basis for an employer
to examine a truck driver's psychological fitness to drive, and, if justified, to remove the driver
from service. The ARB then noted that in some contexts, an employer's direction of a
psychological evaluation of fitness to work may be based on retaliatory animus for protected
activity, citing as examples, Robainas v. Florida Power
& Light Co., 92-ERA-10 (Sec'y
Jan. 19, 1996), and Robainas v. Florida Power & Light
Co. (Robainas II), 92-ERA-10
(Sec'y Apr. 15, 1996)(order denying reconsideration). On the other hand, in other contexts, a
referral for psychological evaluation may be warranted, as where Complainant exhibits aberrant
behavior. Citing Mandreger v. Detroit Edison
Co., 88-ERA-17 (Sec'y Mar. 30, 1994),
and Robainas II, slip op. at 4. The ARB then stated that Robainas and
Mandreger show that the evidence is examined "in each case carefully to
determine if the employer observed unusual or threatening behavior prior to referring an
employee for psychological evaluation of fitness for duty." Slip op. at 7. The ARB found
that such observations in the instant case justified Respondent's actions. In a footnote, the ARB
held that on the facts of the instant case, Respondent's letter to the subsequent employer
informing it of the reason for Complainant's medical leave, was not an adverse action under the
STAA, and that Respondent did not have a discriminatory motive in providing the information.
Slip op. at 6 n.8.
In Jackson v. Smedema Trucking, Inc., ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), a previous whistleblower complaint by the Complainant against the Respondent had resulted in the Complainant's reinstatement following a settlement. An audit of the Complainant's driving records revealed several serious violations, including log falsification, and upon his return to work, the Respondent warned the Complainant about the previous violations and had him sign a notice confirming the warning. Several weeks later the Respondent terminated the Complainant for intentionally falsifying logs. The Complainant filed a new STAA complaint alleging that he was fired as retaliation for complaining about violations of DOT's maximum driving times and for filing the earlier STAA complaint. The ALJ granted summary decision against the Complainant. On appeal, the ARB affirmed. The Respondent presented evidence that the Complainant was terminated because he falsified logs in violation of DOT regulations, and the Complainant failed to put forth evidence which, giving all favorable inferences to him, raised a genuine issue of material fact that he was terminated because of the prior complaint. The ARB noted that the Complainant had signed a written warning listing his previous log violations including log falsification, and that the Complainant had expressly admitted that he intentionally falsified the logs to provide a "smoking gun" against the Respondent in subsequent audits and that he had done this to "half a dozen" or more employers. Like the ALJ, the ARB also rejected the Complainant's claim of pretext on the ground that no other employee had been fired for log falsification and that the Complainant had not been fired on the spot but instead was fired the next day. The ARB found that the Complainant failed to raise a genuine issue of material fact. "The fact that Smedema did not terminate Jackson on the spot but instead waited until the next day to terminate him does not provide probative evidence of pretext."
[STAA Digest IV B 2 e] CAUSAL LINK; COMPUTER ERROR ON PERSONNEL RECORD UNKNOWN TO RESPONDENT UNTIL COMPLAINANT NOTIFIED THE RESPONDENT; ABSENCE OF PROOF OF INTENT TO RETALIATE
In White v. J.B. Hunt Transport, Inc., ARB No. 06-063, ALJ No. 2005-STA-65 (ARB May 30, 2008), the Complainant and Respondent had earlier entered into a settlement agreement, which included a provision concerning the procedure for responding to inquiries about the Complainant's employment with the Respondent. The Complainant alleged that the Respondent committed a new STAA violation when it changed his work record to reflect company policy violations. The Respondent presented an affidavit indicating that the change resulted from new computer software and that the Respondent was not aware of the change until the Complainant contacted the company's legal counsel about it. The affidavit indicated that the Respondent immediately corrected the information. The ARB held that"[b]ecause Hunt submitted admissible evidence that it did not intentionally retaliate against White, the burden shifted to White to produce enough evidence to create a triable issue of fact regarding Hunt's intent to blacklist him." Although the evidence showed that a change occurred to the Complainant's work record, he submitted no evidence demonstrating that the Respondent intentionally disseminated any information that caused the change. Because the Complainant failed to present sufficient evidence to create a genuine issue of material fact that the Respondent intentionally retaliated against him because of STAA protected activity, the Respondent was entitled to summary decision.
[STAA Digest IV B 2 e] CAUSATION; FAILURE TO PROVE THAT COMPLAINANT WAS GIVEN FEWER ASSIGNMENTS BECAUSE OF HIS PROTECTED ACTIVITY RATHER THAN A BUSINESS SLOWDOWN AND HIS LACK OF DEPENDABILITY AS OPPOSED TO OTHER DRIVERS
In Walkewicz v. L & W Stone Corp., ARB No. 07-001, ALJ No. 2006-STA-30 (ARB May 30,2008), the Complainant had refused to drive a truck which had run out of gasoline back to the yard because to do so would have violated the hours of service regulation. Over the course of the next few weeks, he received fewer assignments than other drivers. He then filed a STAA complaint alleging constructive discharge. The ARB agreed with the ALJ that the Complainant failed to produce sufficient evidence to establish a constructive discharge, but nonetheless had suffered adverse action in the form of loss of pay for fewer assignments. The Respondent, however, had presented evidence that there was a seasonal decrease in business during the period in question (from December to early January) – which was not contested by the Complainant. The Respondent also presented evidence that it assigned the Complainant fewer assignments than other drivers because he was less dependable. Specifically, the Respondent had observed him driving too fast; he had been cited because his truck's license plate was covered; he had threatened to abandon a load; he had run out of gas on two occasions; about 80% of the time he did not promptly return his truck to the yard for servicing. The Complainant did not adduce evidence that he was dependable compared to other drivers. In addition, he had been given a bonus and granted vacation requests two days after his protected refusal to drive. The ARB found that substantial evidence supported the ALJ's finding that the Complainant did not prove by a preponderance of the evidence that the Respondent retaliated against him because of his protected activity.
[STAA Digest IV B 2 e] ADVERSE ACTION; ABSENT
AN ACTUAL RESIGNATION, AN EMPLOYER WHO DECIDES TO INTERPRET AN EMPLOYEE'S
ACTIONS AS A QUIT OR RESIGNATION HAS, IN FACT, DISCHARGED THE EMPLOYEE
In Minne v. Star
Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the
ALJ found that the Complainants had not been fired because the record contained
no evidence that the Respondent had explicitly fired the Complainants – the ALJ
apparently concluding that it was the Complainants' behavior of deciding not to
return to work that ended the employment relationship. The ARB held that this
was error, writing that "…under our precedent, except where an employee
actually has resigned an employer who decides to interpret an employee's
actions as a quit or resignation has in fact decided to discharge that
employee." USDOL/OALJ Reporter at 14. The ARB held that because the did
not actually resign but simply did not return to their jobs, the Respondent's
"decision to remove them from the payroll rather than address the issues
they had raised constituted a decision to terminate them for what Star presumed
was job abandonment." USDOL/OALJ Reporter at 15. The ARB held,
therefore, that adverse action had occurred.
In a footnote, the ARB
rejected the Complainants' argument that they had been constructively
discharged, because under ARB precedent, constructive discharge can only be
found when a complainant actually resigns. In the instant case, the Complainants
argued that they did not resign.
IV.B.2.e. Manipulation of
dispatch system;
violation of exclusive
driving provision of
employment
contract
In Melton v. Morgan Drive-Away, Inc., 90-STA-41
(Sec'y Apr. 26, 1991), the Secretary held that assuming that
awareness of the Complainant's protected activity could be
imputed to the Respondent (which she had earlier found could not
be), the Respondent established that the adverse actions were not
motivated by the protected conduct. The first adverse action was
a barring of the Complainant from a certain terminal when he
tried to manipulate the dispatch system to obtain a more
profitable run. This action showed legitimate management concern
about the effect of such a manipulation on the operation of the
Respondent's business. The second adverse action was a
cancellation of the Complainant's lease to drive (which contained
an exclusive driving provision) when the Respondent learned that
the Complainant had signed a lease to drive for another company.
There was no believable showing of pretext.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE NONDISCRIMINATORY REASONS FOR TERMINATION; LACK OF RELATIONSHIP BETWEEN DISCIPLINE AND MOTOR VEHICLE SAFETY
The Complainant alleged that he was discharged because his back condition made him unable to complete his work assignments due to restrictions on his ability to perform lifting due to a back condition (i.e., inability to assist in unloading the truck). The ARB -- having affirmed the ALJ's finding that the inability to work due to lifting restrictions was not protected activity because there was no connection between the lifting restrictions and motor vehicle safety regulations -- found no unlawful discrimination under the STAA. Safley v. Stannards, Inc., ARB No. 05-113, ALJ No. 2003-STA-54 (ARB Sept. 30, 2005).
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; COMPLAINANT'S COMPLAINT UNREASONABLE AND PRESENTED IN AN ARGUMENTATIVE, CONFRONTATIONAL STYLE
Where the Complainant presented in an argumentative and confrontational manner the unreasonable contention that a road construction company was overloading his truck, the Respondent presented legitimate, nondiscriminatory reason for requesting that the Complainant not be sent back to its construction project. Where the Complainant did not establish by a preponderance of the evidence that this reason was pretextual, he did not prove discrimination under the STAA whistleblower provision. Feltner v. Century Trucking, Ltd., ARB No. 03-118, ALJ Nos. 2003-STA-1 and 2 (ARB Oct. 27, 2004).
[STAA Digest IV B 2 e]
LEGITIMATE NON-DISCRIMINATORY REASON FOR DISCHARGE; FAILURE TO ADEQUATELY CLEAN CONCRETE FROM TRUCK
In Mason v. CB Concrete Co., ARB No. 04-026, ALJ No. 2003-STA-21 (ARB Jan. 31, 2005), the ARB affirmed the ALJ's conclusion that the Respondent had discharged the Complainant for a legitimate reason — allowing the build-up of excess concrete on his truck in violation of the Respondent's rules. The Complainant argued that this reason was pretext because CB issued only warnings to other drivers who had concrete build-up and committed other, more serious infractions. The ARB, however, found that the fact that another driver was given only a warning for concrete build-up instead of being discharged was is insufficient to establish that the Complainant was fired because of protected activity, where the warning to the other driver followed the Complainant's discharge by more than three months, the warning letter threatening the other employee was more harsh than the initial verbal warning given to the Complainant (thus, the Complainant was not initially treated more harshly than the other driver), and the concrete build-up on the other truck was far less significant than the heavy accumulation on the Complainant's truck.
[STAA Whistleblower Digest IV B 2 e] REHIRING; A RESPONDENT MAY DECLINE TO REHIRE BASED ON POOR PRIOR PERFORMANCE EVEN IF IT HAS KNOWLEDGE OF COMPLAINANT'S PROTECTED ACTIVITY
The employee protection provision of the STAA does not require an employer to reinstate an employee who engages in STAA protected activity, quits his employment and subsequently changes his mind. Moreover, an employer is not required to rehire an employee when that employer is dissatisfied with the employee's previous work record. See, e.g., Gibson v. Arizona Public Service Co., 90 ERA 29, 46 and 53 (Sec'y Sept. 18, 1995). In Gibson a supervisor who had knowledge of a former employee's protected activity did not select that person for rehire. The Secretary ruled that respondent was justified in its refusal to rehire the complainant because the supervisor took into account the complainant's prior performance as an unproductive and uncooperative employee.
In Becker, the ARB found that substantial evidence supported the ALJ's finding that Complainant's conduct towards Respondent's employees and managers constituted a legitimate, nondiscriminatory reason for refusing to rehire the Complainant. The ARB found that Complainant's burden was to establish that this reason was pretext, and that he had failed to do so.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE NON DISCRIMINATORY REASON FOR DISCHARGE; INABILITY TO PERFORM THE PHYSICAL DEMANDS OF THE JOB
Where a complainant is terminated from employment because of physical inability to perform assigned duties, there is no violation of the STAA whistleblower provision. Sosnoskie v. Emery, Inc., ARB No. 02 010, ALJ No. 2002 STA 21 (ARB Aug. 28, 2003). In Sosnoskie Complainant returned to long haul truck driving following a disabling back injury several years earlier. On his first trip, he was unable to complete the return trip because of a sore back and fatigue. Respondent thereafter terminated Complainant's employment based in inability to perform physical demands of the job. Respondent had not required Complainant to drive in excess of 10 hours or while fatigued.
[STAA Whistleblower Digest IV B 2 e] "LEEWAY FOR IMPULSIVE BEHAVIOR" STANDARD DOES NOT APPLY WHERE COMPLAINANT'S ACTIONS WERE CONTINUING AND REASONED
In Harrison v. Roadway Express, Inc., ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), Complainant had been "red tagging" (marking as out of service) trailers, and after concluding that management had been ignoring his safety concerns when he found that the problems had not been fixed or that tags had evidently been removed, began red tagging without prior supervisory permission as required by Respondent's policy. The ALJ applied the Kenneway v. Matlack, Inc., 1988 STA 20 (Sec'y June 15, 1989), "leeway for impulsive behavior" standard for balancing an employer's right to maintain order and respect for its business by correcting insubordinate against the right to engage in statutorily protected behavior. The ALJ found that Complainant's actions in violating the policy about obtaining permission to red tag was reasonable in light of his good faith belief that his safety concerns were being ignored. The ARB found that resort to the Kenneway standard was error.
The ARB first indicated that Kenneway does not apply to section 31105(a)(1)(A) "filed a complaint" cases, as opposed to section 31105(a)(1)(B) "refusing to operate a vehicle" cases. The ARB indicated that Kenneway and similar DOL decisions should only be applied in cases involving implusive conduct incidental to the protected activity where the complainant is emotionally motivated B where the conduct is temporary and uncalculated.
In the instant case, Complainant's conduct was "unemotional, sustained and deliberate" and "continuing and reasoned." Thus, Kenneway does not apply.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT
ACTION; THREAT BY EMPLOYEE TO ABANDON LOAD
In Ass't Sec'y & Bates v. West Bank
Containers, ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the
ARB found a respondent's unwillingness to employ a driver who reserves the right to drop loads
that he considers "too heavy" is compelling evidence of a legitimate business motive.
Where the parties litigated this case on the theory that Respondent had only one motive for
terminating Complainant -- either animus because of Complainant's safety complaints or an
unwillingness to employ a driver who threatens to drop loads based on his subjective judgments
-- and the ARB concludes that the record supports only the latter and not the former, the
complaint will be dismissed.
[STAA Digest IV B 2 e]
ARTICULATION OF LEGITIMATE REASONS FOR SECOND DISCHARGE;
FAILURE TO FOLLOW CHAIN OF COMMAND
In Clean Harbors Environmental Services,
Inc., v. Herman, __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10,
1998) (case below 95-STA-34), Complainant had been rehired but placed on a short lease,
required to follow a strict chain of command. He was discharged for three instances of
purportedly violating that chain of command. The court agreed that there was substantial
evidence to support the agency's implicit finding that Complainant was placed on a rigid chain of
command, unlike other employees, precisely because of Respondent's frustration with
Complainant and his insistence on strict compliance with safety. The court also agreed with the
agency that it was significant that Complainant had received no warnings prior to the second
discharge, noting that Respondent's excuse that it had no time to issue warnings was weak
because chain of command "violations" would hardly trigger emergencies.
[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; EMPLOYEE'S WASTING TIME
In Frechin v. Yellow Freight Systems,
Inc., 96-STA-34 (ARB Jan. 13,
1998), Respondent articulated the legitimate, nondiscriminatory ground for discharging
Complainant that Complainant wasted company time (specifically, taking excessive time to
depart from the terminal). Although Complainant presented evidence tending to show that this
reason was prextexual, the ARB agreed with the ALJ's conclusion that such evidence was not
convincing.
[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; FAILURE OF COMPLAINANT
TO EXERCISE EMPLOYMENT OPTION FOLLOWING CLOSING OF TERMINAL
In Leidigh v. Freightway Corp.,
87-STA-12 (ARB Dec. 18, 1997),
Respondent lost a contract, and decided to close the terminal from which Complainant was
taking dispatches. Respondent gave drivers several employment options, including exercising
seniority rights and transferring to a different terminal, becoming an owner-operator, retiring, or
seeking employment elsewhere. Complainant missed several deadlines for stating which option
he would exercise, and Respondent actually informed Complainant that it considered his
employment to be terminated because he had not made himself available for dispatch at a new
terminal. Complainant failed to establish that retaliatory animus motivated this adverse action,
and his complaint was dismissed.
[STAA Digest IV B 2 e ]
ARTICULATED REASON FOR DISCHARGE; CONTACT WITH GOVERNMENT
AGENCY
In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34
(ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was his contact
with the Massachusetts Department of Environmental Protection (DEP) relating to the lack of a
current vehicle identification card in a truck Complainant was assigned for a specific load.
Although Complainant was advised to take a different truck upon reporting the problem to
a supervisor, Complainant later telephoned DEP anyway.
The Board stated that it was "concerned any time that an employer faults an
employee for seeking information from, or making a complaint to, a government agency such as
DEP.... Here, even though [Complainant] received an acceptable response from [Respondent's]
employees -- that he should drive a different truck rather than the one that lacked a vehicle
identification card -- he still had the right to speak with DEP concerning a safety issue with that
agency's purview. We find therefore that one of the articulated reasons for the second discharge
directly violated the STAA." Slip op. at 7 (citations omitted).
[STAA Digest IV B 2 e]
ARTICULATED REASON FOR DISCHARGE; CIRCUMVENTING THE CHAIN OF
COMMAND
In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34
(ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was
bucking the agreed-upon chain of command. The Board wrote that "an adverse action
taken because an employee circumvented the chain of command to raise a safety issue would
violate the employee protection provision [of the STAA]" Slip op. at 7 (citations omitted).
[STAA Digest IV B 2 e]
LAWFUL REASON FOR DISCHARGE; GOING OUTSIDE CHANGE OF COMMAND
DOES NOT PROVIDE LAWFUL REASON IN STAA CASE
In Dutkiewicz v. Clean Harbors Environmental Services, Inc., 95-STA-34
(ARB June 11, 1997), the Board ruled that "[g]oing outside the chain of command to raise
safety complaints within the purview of the STAA would not provide a lawful reason for
discharge." Slip op. at 2-3 (citations omitted).
MOTIVE; CANNOT DEFEND BY PLACING BURDEN TO REFUSE OVERWEIGHT
LOADS SOLELY ON COMPLAINANT
[STAA Digest IV B 2 e]
A respondent who provides contract drivers to freight
companies cannot absolve itself of responsibility for failing to
respond to a driver's complaints about overloading by a freight
customer simply by maintaining that the question of which loads
to carry and which to refuse is a matter between the freight
company and the driver. SeeCook v. Guardian Lubricants,
Inc., 95-STA-43, slip op. at 22-29 (Sec'y May 1,
1996) (Editor's note: this is a paraphrase of the Secretary's
discussion of the Respondent's motive; it is not an explicit
ruling).
EVIDENCE; COMPLAINTS ABOUT THE COMPLAINANT PROXIMATE TO
DISCHARGE
[STAA Digest IV B 2 e]
Evidence that the decision to terminate the
Complainant's employment was reached shortly after two
different customers had lodged complaints about the
Complainant was found in Polchinski v. Atlas Bulk
Carriers, 95-STA-35 (Sec'y Mar. 7, 1996), to
"validate the nondiscriminatory nature of the discharge
decision."
IV B 2 e Acts of dishonesty and stealing time are
legitimate, nondiscriminatory reasons to
discipline an employee
Assertions that the Complainant engaged in "acts of
dishonesty" or "stealing time" are articulations
of legitimate, non-discriminatory reasons to discipline an
employee. Clifton v. United Parcel Service, 94-
STA-16 (Sec'y May 9, 1995) (enough to shift burden back to the
complainant).
IV.B.2.e. Complaints about employee's behavior; attempt to
remedy safety hazard; recalcitrance
The respondent, a school bus company, articulated a legitimate,
nondiscriminatory reason for discharge where the new owner and
management had made considerable effort to improve the situation
with the complainant (a driver/mechanic who had been the subject
of numerous complaints by parents, and who had a record of
tardiness and resistance to employment procedures) during the
three months preceding his discharge, and where the incident
resulting in the discharge involved the complainant's apparent
resistance to using required safety controls (installed as a
result of an OSHA complaint filed by the complainant). The
complainant failed to show that this reason was pretextual.
Jacobson v. Beaver Transportation, Inc., 92-STA-17
(Sec'y Aug. 31, 1992).
IV.B.2.e. Client adamant about compliance with speed
limit
Where the ALJ credited testimony and evidence that indicated
Complainant had tampered with a tachograph (a device used to
measure compliance with the 55 mile speed limit) and that
Respondent's sole customer was adamant that the speed limit be
complied with and had disqualified Complainant from driving their
equipment because of the tampering, he concluded that
Complainant's discharge was not in retaliation for his protected
safety activities. Wherry v. Penn Truck Aids, 85-
STA-14 (ALJ June 5, 1986), adopted (Sec'y Sept. 17,
1986).
IV.B.2.e. Excessive tardiness
In Roach v. Felts Enterprises, 93-STA-12 (ALJ Mar.
31, 1993), aff'd (Sec'y June 17, 1993), the ALJ found that the
Complainant had not established a prima facie case, but even if
he had, the Respondent's stated reason for the adverse action,
excessive tardiness, was a reasonable and justifiable (even
though the discharge of the Complainant occurred only three days
after a state inspection prompted by the Complainant's
allegations of unsafe conditions). The record included evidence
of over 100 instances of tardiness by the Complainant, and
although the frequency of tardiness had decreased, he had despite
warnings and counselling accumulated three tardys in the month he
was discharged, including two that same week.
IV.B.2.e. Post discrimination misconduct by
complainant
In Lajoie v. Environmental Management Systems,
Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 14,
the Secretary noted that under the NLRA, a bona fide
discriminatee who engages in post-discrimination misconduct can
forfeit his or her entitlement to being made whole, Alumbaugh
Coal Corp. v. NLRB, 635 F.2d 1380, 1385-86 (8th Cir. 1980),
but that STAA section 405(c)(2)(B), 49 U.S.C. app. §
2305(c)(2)(B) may proscribe remedial limitation in that it states
that if the Secretary determines that a violation has occurred,
the Secretary "shall order" reinstatement together with
back pay and compensatory damages.
In any event, the Secretary found that the record did not support
a finding of post-discrimination misconduct, rejecting the ALJ's
conclusion that the complainant had taken and refused to return
the respondent's tractor after having been fired. Rather, the
Secretary found that the respondent's difficulty in retrieving
the tractor was related more to its own storage arrangement
(employees were responsible for finding parking places since the
respondent did not have parking spaces at its facility) than to
any deliberate evasion by the complainant.
IV.B.2.e. Legitimate, nondiscriminatory motive;
employer's subjective perception of
circumstances
Where the complainant complained that the schedule did not allow
sufficient time for a requisite eight hour layover and was
discharged after completing the run, a prima facie case under 49
U.S.C. app. § 2305 was established. However, where the
employer presented evidence of a legitimate business reason to
discharge complainant -- falsification of logs and records -- and
where the evidence permitted an inference that the employer
believed that the schedule could be run legally and believed that
complainant illegally and unnecessarily falsified his logs to
cover up a self-imposed violation, the complaint was dismissed.
It is the employer's subjective perception of the circumstances
which is the critical focus of the inquiry. Allen v. Revco
D.S., Inc., 91-INA-9 (Sec'y Sept. 24, 1991).
IV.B.2.e. Use of vulgar language
Where Complainant had been discharged earlier for uncooperative
behavior and was reinstated by an employee Board of Review on the
condition that he would be discharged immediately if he refused
to work, damaged company property, or used abusive or vulgar
language with his coworkers, and there was testimony that
Complainant was fired the second time for insubordination and
using vulgar language with the safety manager of a terminal,
Respondent articulated a legitimate reason for the discharge:
violation of the conditions of reinstatement.
Complainant did not carry his burden of establishing that the
reasons stated for his discharge were not credible and that the
real reason was retaliation for safety complaints were
Complainant used extremely vulgar language while speaking with
the terminal employee who had no knowledge of Complainant's
earlier complaints about the condition of the truck or of
Complainant's reinstatement and its terms. That employee was
offended and telephoned Complainant's superiors to report the
vulgar language. See Dunham v. Brock, 794 F.2d 1037, 1041
(5th Cir. 1986) ("[a]busive and profane language coupled
with defiant conduct or demeanor justify an employee's discharge
on the grounds of insubordination" even though the employee
had also engaged in activity protected under an analogous
employee protection provision); Couty v. Arkansas Power &
Light Co., 87-ERA-10 (Sec'y Feb. 13, 1992) (no statutory
violation where Complainant discharged for engaging in abusive,
disruptive, profane, and threatening behavior towards
supervisors).
IV.B.2.e. "Availability" policy; policies which
operate to discipline employees for protected
activity
In Self v. Carolina Freight Carriers Corp.,
91-STA-25 (Sec'y Aug. 6, 1992), the Secretary found that the
employer's "availability policy," which required a
driver to call in when too ill or fatigued to be available to
drive to avoid discipline, did not provide and legitimate and
nondiscriminatory motivation for disciplining a driver who
refused to drive due to fatigue. To permit an employer to rely
on a facially-neutral policy to discipline an employee for
engaging in statutorily-protected activity would permit the
employer to accomplish what the law prohibits. Moreover,
independent statutory rights "cannot be abridged by contract
or otherwise waived," and they take precedence over
conflicting provisions in a bargained employment arrangement.
Barrantine v. Arkansas-Best Freight Systems, Inc., 450
U.S. 728, 740-741 (1981). See Roadway Express, Inc. v.
Dole, 929 F.2d 1060, 1064 (5th Cir. 1991) ("if the
collective bargaining agreement conflicts with [the] STAA, then
the statute supersedes the agreement because labor contracts
cannot operate to deprive employees of rights specifically
protected by federal statutes").
STAA section 405(b) does not require that an employer necessarily
harbor an animus-motivated, specific intent to retaliate against
an employee for engaging in protected activity. The prohibition
applies equally to policies which operate to discipline employees
for their protected refusals.
The Secretary concluded that the question is whether the
respondent's legitimate business interests outweigh the policies
underlying the STAA in the particular circumstances of the case.
See Squier Distributing Co. v. Local 7, Intern. Brotherhood of
Teamsters, 801 F.2d 238, 242 (6th Cir. 1986) ("[t]he
question whether employees' protests should be protected by the
Act involves the balancing of sensitive competing interests, and
the employees' method of protest is relevant as one factor
affecting this balance); Consolidation Coal Co. v.
Marshall, 663 F.2d 1211, 1219-1221 (3d Cir. 1981) (employee
pronouncement that machine was "closed down," which
prevented assistant from operating it, removed employee from
statute's protection); Kenneway v. Matlack, Inc.,
88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7, 10-13 (right to
engage in statutorily-protected activity permits some leeway for
impulsive behavior, which is balanced against employer's right to
maintain order and respect in its business by correcting
insubordinate acts; key inquiry is whether employee has upset
balance that must be maintained between protected activity and
shop discipline; defensibility of employee actions turns on
distinctive facts of case). In this instance, the STAA promotes
highway safety and protects employees from retaliatory discharge.
The problem of driver fatigue pervades the transportation
industry, and has resulted in extensive regulation. See,
e.g., 49 C.F.R. §§ 392.3, 395.3, 395.8, 392.4. The
respondent's interests were scheduling concerns and maintenance
of employee discipline and management.
IV.B.2.e. Violation of conditions of
reinstatement
If the complainant succeeds in establishing a prima facie case,
the respondent has the burden of articulating a legitimate reason
for taking the adverse action.
Where Complainant had been discharged earlier for uncooperative
behavior and was reinstated by an employee Board of Review on the
condition that he would be discharged immediately if he refused
to work, damaged company property, or used abusive or vulgar
language with his coworkers, and there was testimony that
Complainant was fired the second time for insubordination and
using vulgar language with the safety manager of a terminal,
Respondent articulated a legitimate reason for the discharge:
violation of the conditions of reinstatement.
In Killcrease v. S & S Sand and Gravel, Inc.,
92-STA-30 (Sec'y Feb. 2, 1993), where a Complainant established
that a prima facie case of discrimination and the Respondent
proffered no legitimate, nondiscriminatory reason for discharging
the Complainant, the Complainant was found to have prevailed on
the merits of the complaint.
In Etchason v. Carry Companies of Illinois, Inc.,
92-STA-12 (Sec'y Mar. 20, 1995), the Secretary found that the ALJ
had applied an erroneous standard in determining the causal
element of a prima facie case. Nonetheless, the Secretary noted
that "[o]nce a respondent has presented rebuttal evidence
... the answer to the question whether the complainant has made a
prima facie showing is not particularly useful. See
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec.
Dec., Feb. 15, 1995, slip op. at 11 (restating and clarifying
legal principles applicable in whistleblower proceedings). At
that point, 'the real battleground revolves around whether the
reasons articulated by respondent Carry . . . are pretextual,'
and whether Complainant met his ultimate burden of proof.
Complainant's Brief at 4; Carroll, slip op. at
12."
[STAA Whistleblower Digest IV B 4]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS
The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02 122, ALJ No. 2001 STA 33, slip op. at n.9 (ARB Oct. 31, 2003).
[STAA Digest IV B 4]
PRIMA FACIE CASE ANALYSIS; NO ANALYTICAL PURPOSE ONCE
RESPONDENT PRODUCES EVIDENCE IN ATTEMPT TO ARTICULATE A LEGITIMATE,
NONDISCRIMINATORY REASON FOR ITS PERSONNEL ACTION
In Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No.
1999-STA-5 (ARB Mar. 29, 2000), the ARB repeated its direction to ALJs that it serves no
analytical purpose to consider whether a complainant has established a prima facie case
once the respondent produces evidence in an attempt to articulate a legitimate, nondiscriminatory
reason for its personnel action. "Instead, the relevant inquiry is whether complainant
prevailed, by a preponderance of the evidence, on the ultimate question of liability." Slip
op. at 7-8 n.11.
[STAA Digest IV B 4]
PRIMA FACIE CASE ANALYSIS NOT USEFUL ONCE RESPONDENT PRESENTS
REBUTTAL EVIDENCE
In Stopak v. River Valley Paper Co., ARB No. 00-001, ALJ No.
1999-STA-10 (ARB Dec. 30, 1999), the ARB affirmed the ALJ's recommended decision finding
no discrimination where Respondent's president, who had made the decision to fire Complainant,
had no knowledge of Complainant's asserted protected activity, and neither party filed a brief
before the ARB. The ARB, however, modified the decision because the ALJ had focused his
analysis on whether Complainant had made out a prima facie case. The ARB cited
Carroll v. Bechtel Power Corp., 1991-ERA-46 , slip op. at 11 (Sec'y Feb. 15, 1995), for
the proposition that once a respondent produces rebuttal evidence, the question whether a
plaintiff has presented a prima facie case is no longer particularly useful. Thus, the ARB
modified the decision, not to be based on failure to establish a prima facie case, but on
Complainant's failure to "carry his burden of proof because he did not show that the
management official of Respondent who made the decision to terminate his employment was
aware of Complainant's protected activity."
[STAA DIGEST IV B 4]
QUESTION OF PRIMA FACIE SHOWING IRRELEVANT ONCE EMPLOYER
PRESENTS REBUTTAL
In Andreae v. Dry Ice, Inc., 95-STA-24 (ARB July 17, 1997), the Board
declined to discuss the ALJ's findings on whether a prima facie showing had been made
because once Respondent presented rebuttal evidence, the answer to the question whether
Complainant made a prima facie showing is not useful. The Board emphasized that it
applies the following principle set out in United States Postal Serv. v. Aikens, 460 U.S.
709 (1983):
Because this case was fully tried on the merits, it is surprising to find the
parties and the [court] still addressing the question whether [the plaintiff] made out a
prima facie case. . . .
Where the defendant has done everything that would be required of him if the
plaintiff had properly made out a prima facie case, whether the plaintiff really
did so is no longer relevant. The [court] has before it all the evidence it needs to
decide the [ultimate question of discrimination].
Andreae, 95-STA-24, slip op. at 2, quoting Aikens, 460 U.S. at
713-14, 715 (emphasis added by Board).
PRIMA FACIE CASE ANALYSIS NOT USEFUL AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON; ERROR
FOR ALJ TO CONSIDER
[STAA Digest IV B 4]
In Polchinski v. Atlas Bulk Carriers, 95-
STA-35 (Sec'y Mar. 7, 1996), the Secretary observed that it
was "harmless error" for the ALJ to have held that
the Complainant had not established a prima facie case after
the hearing on the merits. The Secretary stated that
"[o]nce Respondent produced evidence that the was
subject to discharge for a legitimate, nondiscriminatory
reason, the answer to the question of whether a prima
facie case was presented is no longer useful."
Slip op. at 3 n.2.
In Olson v. Missoula Ready Mix, 95-STA-21
(Sec'y Mar. 15, 1996), the Secretary stated that where a
respondent has introduced evidence to rebut a prima
facie case of a violation of an employee protection
provision, it is unnecessary to examine the question of
whether the complainant established a prima facie
case. Where the Respondent produces evidence of a
legitimate, nondiscriminatory reason for the adverse action,
the relevant question is whether the complainant showed by a
preponderance of the evidence that one of the real reasons
he or she was discharged was his or her safety complaints.
To the same effect: Cook v. Kidimula
International, Inc., 95-STA-44 (Sec'y Mar. 12,
1996).
PRIMA FACIE CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[STAA Digest IV B 4]
In White v. Maverick Transportation, Inc.,
94-STA-11 (Sec'y Feb. 21, 1996), the Secretary held that once
the Respondent produced evidence that the Complainant was
subjected to an adverse employment action for a legitimate,
nondiscriminatory reason, the issue of whether a prima
facie case was presented is no longer useful. If the
Complainant has not prevailed by a preponderance of the
evidence on the ultimate question of liability, it does not
matter whether a prima facie case was presented.
IV B 4 Burden of proof; after trial on merits and
proper articulation by employer, analysis of prima
facie case looses relevance
In Wignall v. Golden State Carriers, Inc., 95-STA-7
(Sec'y July 12, 1995), the Secretary indicated that where a case
is fully tried on its merits, it is not necessary to engage in an
analysis of the elements of a prima facie case. The Secretary
stated that once the Respondent produced evidence that the
Complainant was subjected to adverse action for a legitimate,
nondiscriminatory reason, the answer to the question whether a
prima facie case was presented is no longer useful. If the
Complainant has not prevailed by a preponderance of the evidence
on the ultimate question of liability, it matters not at all
whether he presented a prima facie case.
IV B 4 Ultimate burden of persuasion
In Bryant v. Bob Evans Transportation, 94-STA-24
(Sec'y Apr. 10, 1995), Complainant's assertion that the assigned
co-driver was unsafe, together with the testimony of two other
drivers that the complained of driver was unsafe in certain
conditions, was sufficient to establish the protected activity
element of a prima facie case. The Secretary, however, found
that the Complainant did not carry his ultimate burden of
persuasion on the issue of protected activity because the
Complainant failed to establish that his belief that the other
driver was an unsafe driver was reasonable. The Respondent had
presented evidence that the other driver's driving was
satisfactory.
IV B 4 Adverse action element; complainant's burden in
regard to prima facie case versus ultimate burden
of persuasion
In Ass't Sec'y & Brown v. Besco Steel Supply,
93-STA-30 (Sec'y Jan. 24, 1995), the Secretary found, contrary to
the ALJ, that the Complainant's testimony that he was fired
established adverse action element of the prima facie case. In a
footnote, the Secretary noted that this testimony, standing
alone, would satisfy the adverse action element of a STAA claim
if not contradicted and overcome by other evidence.
Nonetheless, the Secretary found that the Complainant did not
meet his ultimate burden of persuasion on the adverse action
element. The Respondent "sufficiently articulated a
legitimate basis for its actions, i.e., that it did not
fire [the Complainant], but simply accepted his decision to
resign." The Secretary adopted the ALJ's finding that the
Respondent's co-owner believed the Complainant had resigned
voluntarily. Thus, although the Complainant established a prima
facie case that he was fired, he did not ultimately sustain the
burden of persuasion in establishing that fact. Thus, the
Secretary found that the Complainant failed to establish that the
Respondent took adverse action against him because he engaged in
protected activity.
[Editor's note: The Secretary appears to be applying a burden of
articulation for the Complainant in making a prima facie
case.]
IV.B.4. Ultimate burden of proof
In an STAA employee protection case, the Assistant Secretary has
the ultimate burden of establishing that the respondent took
adverse action against the complainant for reasons prohibited by
the STAA. Waldrep v. Performance Transport, Inc.,
93-STA-23 (Sec'y Apr. 6, 1994), citing Stiles v. J.B.
Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993),
slip op. at 7.
IV.B.4. Bursting bubble (STAA digest)
In St. Mary's Honor Center v. Hicks, ___ U.S. ___
(1993) (available at 1993 U.S. LEXIS 4401), the United States
Supreme Court held that under the McDonnell
Douglas/Burdine allocation of the burdens of proof and
production for Title VII discriminatory-treatment cases, the
trier of fact's rejection of the employer's asserted legitimate,
nondiscriminatory reasons does not entitle the employee to a
judgment as a matter of law. The mere production of evidence of
nondiscriminatory reasons, whether believed or not, rebuts the
presumption of intentional discrimination. Upon articulation of
a reason, the McDonnell Douglas framework becomes
irrelevant and the trier of fact must then decide the ultimate
question of fact.
Although Hicks involved racial discrimination, the
Secretary has adopted the McDonnell Douglas/Burdine
approach to the employee protection provisions adjudicated by the
Department. See Dartey v. Zack Co. of Chicago, 82-ERA-2
(Sec'y Apr. 25, 1983).
IV. B. 4. St. Mary's Center, bursting bubble upon
articulation
In Yellow Freight System, Inc. v. Reich, No. 93-
3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS
15585), the court agreed with the Respondent's interpretation of
St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407,
U.S. , 113 S. Ct. 2742 (1993). Specifically, when a trial
court finds that an employer's proffered reasons for disciplining
an employee are pretextual in a McDonnell Douglas
analysis, the trial court may not automatically find illegal
discrimination based on this finding alone. Rather, an employer's
articulation of legal reasons for disciplining an employee
satisfies its burden of production, 113 S. Ct. at 2747, and the
employee must then satisfy his or her burden of proving that the
employer discriminated against the employee on a forbidden basis.
The finding that an employer's proffered reasons for an adverse
action are pretextual does not, standing alone, compel a finding
in favor of the employee. Id. at 2749.
The Sixth Circuit, however, found that the St. Mary's rule
does not come into play when neither the ALJ nor the Secretary
held that the complainant is entitled to a judgment solely on the
basis that the respondent's claimed reason for discharging the
complainant was not the "true reason" for his or her
termination.
In the instant proceeding, the Secretary, after rejecting Yellow
Freight's proffered reason, continued with the required analysis
and found that Smith proved that Yellow Freight intentionally
discriminated against him for exercising his own rights under
section 405 and in retaliation for assisting other employees to
complain of safety-related violations.
IV.B.4. Secretary recognizes St. Mary's in
STAA case
Burdens of proof under the STAA have been adopted from decisions
under Title VII of the Civil Rights Act of 1964, such as Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).
The Supreme Court's recent decision in St. Mary's Honor Center
v. Hicks, No. 92-602, 1993 U.S. LEXIS 4401 (U.S. June 25,
1993), clarifies that the plaintiff in a Title VII case has the
burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff on an
impermissible basis.
Anderson v. Jonick & Co., Inc., 93-STA-6 (Sec'y
Sept. 29, 1993).
IV B 4 St. Mary's in STAA case
In Settle v. BWD Trucking Co., Inc., 92-STA-16
(Sec'y May 18, 1994), the Secretary adopted the ALJ's findings
that although Respondent's stated reason for the
suspension was pretext, the record failed to substantiate
that Complainant's discharge was motivated by retaliatory
animus.
[Editor's note: The Secretary adopted the ALJ's decisions in
their entirety (ALJ issued a supplemental decision on a motion
for reconsideration and damages). The ALJ's thorough analysis
relied heavily on St. Mary's Honor Center v. Hicks, 61
U.S.L.W. 4782, 1993 U.S. LEXIS 4401 (1993). Settle v. BWD
Trucking Co., Inc., 92-STA-16 (ALJ July 30, 1993).]