ARB CASE NO. 05-129
ALJ CASE NO. 2005-STA-006
DATE: October 31, 2007
In the Matter of:
MARK MONTGOMERY,
COMPLAINANT,
v.
JACK IN THE BOX,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Larry Watts, Esq., Missouri City, Texas
For the Respondent:
J. Michael Colpoys, Esq., Vial, Hamilton, Koch & Knox, LLP, Dallas, Texas
James W. Stubblefield, Esq., Jack in the Box, San Diego, California
FINAL DECISION AND ORDER
Mark Montgomery filed
a complaint with the United States Department of Labor in which he alleged that
when his employer, Jack in the Box (JiB), terminated his employment, it violated
the employee protection section of the Surface Transportation Assistance Act
(STAA or the Act).[1]
After a hearing, a Department of Labor
[Page 2]
Administrative Law Judge (ALJ) concluded
that JiB did not violate the STAA. We affirm.
Background
JiB is a Delaware corporation that distributes food and related supplies to company owned and franchised
fast food restaurants.[2]
JiB hired Montgomery in 1999 to drive trucks out of its Dallas Distribution Center. He reported directly to Jason Whitefield and Jose Angel, two transportation
supervisors.
During his
employment, Montgomery complained about “a variety of things that [he] believed
were misconduct on the part of … management.”[3]
He testified that he inspected vehicles he drove and discovered “various
violations which indicated that repairs were needed, showing that the equipment
was sub-standard to DOT regulations and needed repairs” and that sometimes he
was ordered to drive “in violation.”[4]
He also made phone calls to JiB’s Ethics Hotline, which had been established
to allow employees to lodge complaints and receive guidance. During those
phone calls, Montgomery complained about employee performance evaluations, driver
safety, and what he perceived as management’s mistreatment of employees.[5]
Montgomery also
testified that, “During the year of 2003, [he] was assigned and instructed to
drive routes that had violations of the [DOT regulations pertaining to] service
hours. And when [he] recognized certain routes [he] was driving had those
violations, [he] definitely made immediate reports to various managers about
that.”[6]
Whitefield acknowledged that Montgomery complained that his assigned routes
could not
[Page 3]
be completed without violating the hours of service rules.[7]
And in March 2003 Gary Hunter, a human resources and training manager, sent a
letter to Montgomery acknowledging his complaints about “tight schedules” and
“being forced to drive illegally.”[8]
Furthermore, Montgomery testified that on July 5, 2003, David Cox, a driver and
occasional supervisor, instructed him to drive in violation of the hours of
service rules.[9]
Montgomery also stated that he contacted Frank Luna, General Manager of the Dallas Distribution Center, to complain about Cox’s instruction and that Luna told him to
continue driving.[10]
Meanwhile, between
May and August 2003, JiB disciplined Montgomery for several violations of
company policy, including failing to report damage to his vehicle, violating
the hours of service rules, harassing other drivers, and “substandard work.”[11]
On October 19, 2003, Montgomery had completed his scheduled route when he felt tired and decided that he needed
to stop driving and rest. He drove a short distance to a service station in order
to take a break in the service station’s parking lot. Since construction was
being performed in the front of the station, Montgomery entered an adjacent
driveway and began to make a left turn. When he realized that he could not
turn the vehicle, he began to back it up until the rear tires rolled over a
median and the truck became stuck.
Montgomery went into the service station and called a towing service. A driver arrived
and towed the vehicle off the median. The vehicle was not damaged. Montgomery used a personal credit card to pay $150.00 for the tow, and he did not request
reimbursement from JiB. Montgomery did not report this incident to JiB on
October 19. And on his time card, Montgomery designated the period when his
truck was towed as a “break.”[12]
According to its company
policy handbook and its Distribution Center handbook,[13]
which had been provided to Montgomery when he was hired, JiB required
[Page 4]
drivers
to immediately report accidents to their supervisors. Montgomery testified
that he knew about this policy and the potential consequences of not
immediately reporting.[14]
On October 23, 2003, but
before management knew about the October 19 incident, Montgomery received a low
score on his performance evaluation, which warned that he had to improve within
30 days “to continue employment.”[15]
General Manager Luna learned
of the October 19, 2003 incident when he received a call from an employee who
worked at one of the JiB restaurants. The caller had noticed that Montgomery’s truck was stuck on the median and required a tow. Luna called local towing companies
until he located the one that had towed Montgomery’s truck. On November 3, the
towing service sent Luna a copy of the report of the tow. Luna then reviewed Montgomery’s driver’s log and trip sheet, neither of which indicated that he had received
a tow on October 19.[16]
JiB human resources
official Gary Hunter, working in California, learned about the towing incident
when someone at the Dallas Distribution Center called him. Sometime
thereafter, according to Angel, Montgomery’s supervisor, and Isidro Galicia, the transportation manager, Hunter or someone else at human resources in California
recommended that Montgomery be terminated.[17]
As a result, Montgomery met with Angel and Galicia on November 8, 2003. They gave
him a “Separation Notice” that explained that JiB was terminating him for
“failure to report a company vehicle accident.”[18]
[Page 5]
Montgomery filed his STAA
complaint with the Department of Labor’s Occupational Safety and Health
Administration (OSHA) on April 20, 2004. OSHA investigated the complaint and
determined that JiB did not violate the STAA when it fired Montgomery. Montgomery requested a formal hearing, and on February 15, 2005, the ALJ conducted a
hearing in Dallas, Texas. On July 21, 2005, the ALJ issued a Recommended
Decision and Order (R. D. & O.) in which he concluded that JiB did not
violate the STAA when it discharged Montgomery. We automatically review an
ALJ’s recommended STAA decision.[19]
Jurisdiction and Standard of Review
The Secretary of
Labor has delegated to the Administrative Review Board (ARB or the Board) the
authority to issue final agency decisions under, inter alia, the STAA.[20]
When reviewing STAA cases, the ARB is bound by the ALJ’s fact findings if they
are supported by substantial evidence on the record considered as a whole.[21]
Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”[22]
We must uphold an ALJ’s finding of fact that is supported by substantial
evidence even if there is also substantial evidence for the other party, and
even if we “would justifiably have made a different choice” had the matter been
before us de novo.[23]
Discussion
The STAA provides that an employer may not
“discharge,” “discipline,” or “discriminate” against an employee-operator of a
commercial motor vehicle “regarding pay, terms, or privileges of employment”
because the employee has engaged in certain protected activities.[24]
These protected activities include complaining to the employer about “a
violation of a commercial motor vehicle safety regulation, standard, or order.”[25]
[Page 6]
To prevail, Montgomery must prove by a preponderance of the evidence that he engaged in protected
activity, that JiB was aware of the protected activity, that he suffered an
adverse action, and that JiB took the adverse action because of his protected
activity.[26]
The ALJ concluded
that Montgomery engaged in STAA protected activity when he complained to
management about hours of service violations and about the condition of his
vehicles.[27]
Substantial evidence supports this conclusion. Termination is, of course, an
adverse action. The remaining issue we must decide is whether JiB terminated Montgomery because he engaged in protected activity.
The ALJ found that
JiB did not terminate Montgomery because of his protected activity but because
of “multiple incidents which resulted in disciplinary actions and several ‘final
chances.’”[28]
But according to the “Separation Notice” that Angel and Galicia presented to him on November 8, JiB terminated Montgomery for “Failure to report a company
vehicle accident.”[29]
Therefore, regardless of other reasons JiB may have presented at the hearing,
failing to report the October 19 incident was JiB’s stated reason, on November
8, for terminating Montgomery. If Montgomery proved by a preponderance of the
evidence that his failure to report the incident was not JiB’s true reason for
discharging him, but was a pretext for retaliating against him because of his
protected activity, the ALJ (and we) could infer that JiB terminated him
because of protected activity, though he is not (and we are not) compelled to
so infer.[30]
Montgomery argues that the incident on October 19 was not an accident because, as
stipulated, the vehicle suffered no damage. Besides, as also stipulated, JiB
“did not
[Page 7]
have a specific, written policy defining the term ‘accident.’”[31]
Therefore, Montgomery contends that terminating him for not reporting an
“accident” was a pretext.[32]
But the ALJ found
that the incident did constitute an accident. In so finding, he relied upon
testimony from other drivers and managers. Peter Romanuck, a JiB driver from
September 1973 to March 24, 2004, testified that when a vehicle becomes “high
centered” (raised in the middle so as to prevent the drive wheels from
propelling the vehicle), an accident has occurred. Whitefield opined that
getting stuck and requiring a tow constitutes an accident. Angel testified
that when a vehicle runs into a stationary object, an accident has occurred. Galicia said that he had “no doubt” that Montgomery had been involved in an accident. And Luna
testified that becoming stuck on a median is considered an accident.[33]
Given this substantial
evidence supporting the ALJ’s finding that Montgomery was involved in an
accident, we are bound to accept that finding. Moreover, the record clearly
indicates that Montgomery did not report the incident. Therefore, like the
ALJ, we find that JiB’s reason for firing Montgomery was not a pretext.[34]
Furthermore, even if JiB policy did define “accident,” and even if the October
19 incident did not fall within JiB’s definition of “accident,” Montgomery has not presented evidence that JiB terminated him because he complained about violations
of DOT hours of service and condition of vehicle regulations. Absent evidence
of pretext or other evidence that JiB retaliated because of protected activity,
Montgomery’s STAA claim must fail.
Montgomery’s November 15, 2005 Motion
On November 15, 2005,
Montgomery submitted a 366 page document captioned “Motion Pursuant To
Administrative Rule 18.201 Official Notice Of Adjudicative Facts; Motion
Pursuant To Administrative Rule 18.609 Impeachment By Evidence Of Conviction Of
Crime; Amended Motion To Supplement Discovery And Evidence; Amended Motion To
Reopen The Hearing And Amended Motion For New Trial
[Page 8]
Pursuant To Federal Rule Of
Procedure 59.” This motion presents five arguments which we discuss in turn.
First,
Montgomery contends that he “is granted the right, pursuant to AR 18.201, to
Officially Notice All Facts Request [sic] Contained in the TWC Hearing Opinion
and Matching Transcript; all DOT Judgments Against the Company; All Certified
Transcripts of Audio Recordings; and Steve Bell’s Affidavit, of this motion.”[35]
Montgomery asks that we take official notice of these documents and have
their contents “declared conclusive fact.” We must deny this request.
Rule 18.201,
Rules of Practice and Procedure for Administrative Hearings Before The Office
of Administrative Law Judges, is a rule of evidence applicable to adjudicatory
proceedings before Department of Labor ALJs.[36]
It permits an ALJ to take official notice of facts not subject to reasonable
dispute because generally known within the local area, or capable of accurate
and ready determination by consulting reliable sources, or derived from
reliable scientific, medical, or technical process, technique, or principle. Montgomery has provided no authority for this Board to take official notice of the facts
contained within the documents he lists. Moreover, since Montgomery requests
that we officially notice “all facts” contained in the all of the documents he
lists, his request far exceeds the scope of the rule.
Montgomery also contends that the ALJ “erred in failing to officially notice” the facts
contained in the documents. But Montgomery did not request the ALJ to take
official notice. Therefore, we decline to consider an argument that a party
raises for the first time on appeal.[37]
Second, Montgomery requests that he be “granted the right, pursuant to AR 18.609, impeachment to
Company for its civil conviction for falsification of documents.”[38]
While that rule does provide that when a party seeks to attack the credibility
of a witness, the ALJ “shall” admit evidence that the witness has been
convicted of certain crimes, Montgomery did not argue this to the ALJ. Thus,
we will not consider it.
[Page 9]
Montgomery’s third
and fourth requests ask that we reopen the record and compel further discovery.[39]
Montgomery presented these requests to the ALJ on June 7, 2005, in a motion
captioned “Motion to Compel Document Production, Supplement Discovery and
Evidence, and Re-Open Hearing or Alternatively to Continue Deadline to File
Post-Hearing Briefs Due on June 17, 2005.” The ALJ denied the motion.[40]
Montgomery has not demonstrated that the ALJ acted arbitrarily or abused his
discretion in denying the motion for additional discovery.[41]
Furthermore, as the ALJ noted, Montgomery has not demonstrated, as the
applicable rule requires, that the evidence he now seeks to admit was unavailable
before the record closed.[42]
Therefore, we too deny this request.
Finally, Montgomery requests that we “remand” his case to “the investigator and/or ALJ” because “Complainant
contends he can show ‘clear and convincing evidence’ to support the Respondent
has produced no genuine issue of material fact adverse to him either at fact
and law to support his termination.”[43]
Montgomery’s request that we remand to the ALJ was premature in that we had
not yet reviewed the record, the ALJ’s recommended decision, or the parties’ arguments
when Montgomery filed his motion. Since we have now reviewed the record, the
ALJ’s decision, and the briefs, and since the record supports our conclusion
that JiB did not violate the STAA, and since the ALJ did not commit prejudicial
error, we have no reason to, and will not, remand.[44]
[Page 10]
Conclusion
Montgomery did not
prove by a preponderance of the evidence in the record before the ALJ and the
ARB that JiB terminated him because of his protected activity. Since this proof
was necessary for Montgomery to prevail, we must DENY his
complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[1] 49 U.S.C.A. § 31105(a) (West 1997). Regulations implementing the
STAA are found at 29 C.F.R. Part 1978 (2007). The STAA has been amended since
Montgomery filed his complaint. See Implementing Recommendations of
the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). Even
if the amendments were applicable to this complaint, they would not affect our
decision.
[2] Complainant’s Exhibit (CX) 60.
[3] Transcript (Tr.) 234.
[4] Tr. 198. U.S. Department of Transportation (DOT) regulations in
effect at the time required that “Every motor carrier shall systematically
inspect, repair, and maintain, or cause to be systematically inspected,
repaired, and maintained, all motor vehicles subject to its control.” 49 CFR §
396.3(a) (2002). This regulation is still in effect. See 49 C.F.R. §
396.3 (a) (2007).
[5] Tr. 227; CX 26.
[6] Tr. 205. The regulation in effect at the time stated that drivers
are not permitted to drive more than 10 hours following 8 consecutive hours off
duty, or for any period after having been on duty 15 hours following 8 consecutive
hours off duty. See 49 CFR § 395.3(a) (2002). Effective on June 27,
2003, the regulation was amended and prohibited driving more than 11 hours
after 10 consecutive hours off duty, or for any period after being on duty 14
hours following 10 consecutive hours off duty. See 49 C.F.R. § 395.3(a)
(2003).
[7] Tr. 47-49.
[8] CX 23.
[9] Id. at 210-11.
[10] Id. at 212-13.
[11] Respondent’s Exhibit (RX) 31, 33, 37, 38.
[12] Tr. 184-87; RX 7-G.
[13] CX
58 (policy handbook) at 128 (“Immediately report to your supervisor all unsafe
conditions, accidents and injuries, even if they seem minor. Failure to do so
could result in disciplinary action.”); RX 4 (Distribution Center handbook) at 139 (“JiB requires that any violation of company policy, traffic laws regulations,
or accidents be reported to your supervisor as soon as possible (no later than
completion of the day’s activities.) Failure to follow this requirement may
result in disciplinary action, up to and including termination.”); 140-41 (“You
are responsible for reporting all vehicle accidents no later than completion of
the day’s activities. Failure to meet this requirement will result in
disciplinary action up to and including termination.”).
[14] Tr. 251.
[15] RX 21.
[16] RX 7-C through 7-J.
[17] Tr. 92, 127-128.
[18] RX 7-A.
[19] 29 C.F.R. § 1978.109(a).
[20] Secretary’s Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).
[21] 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co.,
ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
[22] Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)
(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
[23] See Universal Camera Corp., 340 U.S. at 488; McDede
v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 2003-STA-012,
slip op. at 3 (ARB Feb. 27, 2004).
[24] 49 U.S.C.A. § 31105(a)(1).
[25] 49 U.S.C.A. § 31105(a)(1)(A).
[26] Ridgley v. C.J. Dannemiller,
ARB No. 05-063, ALJ No. 2004-STA-053, slip op. at 5 (ARB May 24, 2007).
[27] R. D. & O. at 19.
[28] Id. at 22.
[29] RX 7-A.
[30] See Dannemiller, slip op. at 5; St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 511 (1993) (“The factfinder’s disbelief of the reasons
put forward by the defendant (particularly if disbelief is accompanied by a
suspicion of mendacity) may, together with the elements of the prima facie
case, suffice to show intentional discrimination. Thus, rejection of the
defendant’s proffered reasons will permit the trier of fact to infer the
ultimate fact of intentional discrimination.”).
[31] Brief at 29; R. D. & O. at 3 (Stipulations 6, 7).
[32] Brief at 2, 29. We reject Montgomery’s additional arguments
pertaining to collateral estoppel, perjury, judicial error, and “final order
out of time” either because Montgomery presented no legal authority for his
argument or because the argument is not relevant to the issue before us, which
is whether JiB retaliated because of protected activity. Id. at
2-28. Furthermore, we deny Montgomery’s October 13, 2005 “Motion for Leave to
Amend Brief In Opposition To ALJ’s R. D. & O.” because he has not
demonstrated why he could not present the amended brief’s new arguments in his
original brief.
[33] Tr. 36-37, 79, 103, 139, 150.
[34] R. D. & O. at 21 (“I do not find
that Complainant has established that his accident was not the true reason for his termination, and therefore he
has not established causation.”).
[35] Motion at 7-9, 347-350, 362.
[36] See 29 C.F.R. §§ 18.201, 18.1(a).
[37] See Rollins v. Am. Airlines, Inc., ARB No. 04-140, ALJ
No. 2004-AIR-009, slip op. at 4 n.11 (ARB Apr. 3, 2007 (corrected)); Carter
v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-023, slip op. at 7 (ARB Sept. 29, 2006).
[38] Motion
at 10, 362. Montgomery is referring to 29 C.F.R. § 18.609.
[39] Motion at 117-150, 362.
[40] “Complainant’s counsel conducted themselves
competently at trial, [and] the fact that Complainant now disagrees with their
presentation or strategy of the case and wishes to add additional evidence that
was either available prior to the first hearing or which has been created
post-hearing, provides no grounds to reopen the record. Likewise, as to
discovery, ample time for discovery existed prior to trial and at trial the
parties were given the opportunity to examine and cross-examine both witnesses
and documents.” June 7, 2005 Order at 2.
[41] See Friday v. Northwest Airlines, ARB No. 03-132, ALJ Nos.
2003-AIR-019, -020, slip op. at 4 (ARB July 29, 2005) (“As to discovery
motions, the Board has held that ALJs have wide discretion to limit the scope
of discovery and will be reversed only when such evidentiary rulings are
arbitrary or an abuse of discretion.”).
[42] See 29 C. F. R. § 18.54 (c) (“Once the record is closed, no
additional evidence shall be accepted into the record except upon a showing
that new and material evidence had become available which was not readily
available prior to the closing of the record.”).
[43] Motion at 25-26, 362. Despite the Motion’s caption indicating that he
is moving for a new trial pursuant to Fed. R. Civ. P. 59, Montgomery’s Motion
does not cite or present argument about that rule.
[44] Because we deny the November 15, 2005
Motion, the following motions are moot: Respondent’s November 25, 2005 “Motion
to Strike and Opposition to” Montgomery’s November 15, 2005 Motion; Complainant’s
December 16, 2005 “Motion For Leave to File Complainant, Mark Montgomery’s
Supplemental Response To The Complainant’s Response To Jack in the Box’s Motion
To Strike” Montgomery’s November 15, 2005 Motion; Complainant’s January 20,
2006 “Motion For Leave To File” an amended version of the November 15, 2005
Motion; and Complainant’s January 26, 2006 “Amended Motion For Leave” pursuant
to the January 20, 2006 Motion. Furthermore,
we note that on December 2, 2005, Montgomery submitted to the Board a document
captioned “Complaint, De Novo, At Law.” Pursuant to 29 C.F.R. § 1978.102(c),
STAA complaints must be filed “with the OSHA Area Director responsible for
enforcement activities in the geographical area where the employee resides or
was employed, but filing with any OSHA officer or employee is sufficient.”
