Date: September 19, 1994
...............................
:
In the matter of :
:
EMMETT D. NOLAN, :
:
Complainant :
: Case No. 92-STA-37
v. :
:
AC EXPRESS, :
:
Respondent. :
:
...............................
APPEARANCES:
Emmett D. Nolan, Pro Se
For Complainant
Kenneth Gordon King, Esq.
Richard A. Buntele, Esq.
For Respondent
BEFORE: EDITH BARNETT
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
I. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Introduction
This proceeding arises under the employee protection provi-
sion, Section 405, of the Surface Transportation Assistance Act
of 1982, 49 U.S.C. App. §2305 ("STAA"), and the applicable
regulations at 29 C.F.R. Part 1978.
The complainant, Emmett Nolan, was born on October 1, 1928.
He has been a commercial tractor-trailer driver for many years,
also works part-time as a musician, and has taken courses
in
[PAGE 2]
business law and paralegal studies. (TR 222-224; CX 45).[1] In
December 1990, Nolan went to work as a driver at the Buffalo, New
York sub-terminal of AC Express ("AC"), a trucking company which
primarily services the air freight industry. Nolan was laid off
on November 23, 1991. He contends that the layoff and AC's
failure to recall him within his year's period of recall eligi-
bility were in retaliation for activities protected under STAA.
AC argues that its actions against Nolan were not retaliatory,
but reflected a decreased need for drivers in the Buffalo area
due to cancellation of a scheduled truck run to Canada, Nolan's
announced intention to retire at the end of 1991, and poor
performance.
AC moves goods to and from airline terminals in the midwest
and northeast to meet scheduled aircraft departures. AC's
corporate headquarters are at Romulus, Michigan in suburban
Detroit. The Buffalo sub-terminal is responsible for AC's opera-
tions in the local Buffalo area and for runs from Buffalo to
Rochester and Syracuse and to the Cleveland main operating termi-
nal, to which the Buffalo sub-terminal reports. AC also has main
operating terminals at Romulus and Chicago, and numerous other
sub-terminals. (TR 56, 380, 515, 516, 754, 760).
Nolan filed his STAA complaint against AC on April 21, 1992,
with the Buffalo Area Office of the Occupational Safety and
Health Administration. He stated as follows. He was told to
make the run to Cleveland in 4 hours. This would not allow time
to make DOT safety checks and would require him to speed. When
he complained to Cleveland third shift supervisor Leo Leonard
that it was unsafe to speed, Leonard said he didn't care. He was
also told to falsify his logbook in order not to show a 17-hour
day.
On July 27, 1992, OSHA Regional Administrator James W.
Stanley issued a report concluding that Nolan's retaliation com-
plaint to DOL had no merit, on the grounds that he was laid off
not in reprisal for protected activities, "but as a prelude to
the unspecified date of his intentions to retire." (CX 20-25).
Nolan timely appealed and requested a hearing.
After due notice, I held a hearing in this matter at Buffa-
lo, New York, on September 18, December 21 and December 22, 1992.
The employer was represented by counsel. The complainant ap-
peared pro se. Twelve witnesses gave testimony, including
vice-president Dale Erickson and controller Anthony Kern from AC
corporate headquarters; Cleveland terminal manager Dave Wilbert
and shift supervisors Leo Leonard and Terri Jarecki; Buffalo sub-
[PAGE 3]
terminal dock supervisor Ricky Lee Carpenter; and complainant and
five other present and/or former drivers from the Buffalo sub-
terminal. The record consists of the 867-page transcript of pro-
ceedings ("TR"); Administrative Law Judge's Exhibits ("ALJX") 1-
6; Respondent's Exhibits ("RX") 1-2; and Complainant's Exhibits
("CX") 1-55. Complainant's summaries of certain payroll and duty
records of Buffalo drivers Cavanaugh, Carpenter and Ridley are
received in evidence as CX 33-1, 38-1, 42-1 and 52-1. The
parties' post hearing briefs, including a summary of records
attached to the employer's opening brief, have also been consid-
ered.
B. Nolan's employment and layoff
The company is owned by its president, David Erickson, and
his brother, Dale Erickson, who is vice-president. During
Nolan's employment, they downsized and restructured their company
to eliminate the intermediate management positions of chief
executive officer, formerly held by Don Jones, and general
manager, formerly held by "Scorch" Harrington. Harrington had
supervised the terminal managers, serving as a coordinator
between the CEO and owners and the terminals. Jones and
Harrington were terminated in October, 1991 and January, 1992,
respectively. President Erickson also made personnel changes at
the Cleveland terminal, including the discharge of Larry Starkey,
the terminal manager who hired Nolan. He replaced Starkey with
former day shift supervisor, Dave Wilbert, in August, 1991.
Terri Jarecki was promoted to Cleveland shift supervisor for
Fridays, Mondays and weekends, effective September 6, 1991. Leo
Leonard remained as third shift supervisor. (TR 57, 380, 538,
576-7, 699, 700, 776, 834, 858, 859; CX 55).
During the summer of 1991, Dave Wilbert and Leo Leonard
issued a memorandum entitled "Service Parameters for
Roc/Syracuse/Buffalo drivers." It required, inter
alia, Buffalo drivers on the Buffalo-Cleveland run to leave
Buffalo by no later than 10:30 p.m (2230 military time) and to
arrive at Cleveland by no later than 2:30 a.m. (0230 military
time), i.e. 4 hours later. (CX 1; TR 224-5). Any arrival time
into Cleveland beyond 0230 was considered late. (TR 761). Disci-
plinary action could be imposed for failure to comply. Wilbert
testified that the memo was written at Scorch Harrington's behest
to lock the Buffalo drivers into a schedule because they seemed
to have "no sense of time. ..." (TR 783-784).
Nolan testified that Leo Leonard complained to him on numer-
ous occasions that he was taking more than four hours to run to
[PAGE 4]
Cleveland. (TR 260, 805). Leonard conceded that he had complain-
ed that Nolan was "late" on his runs to Cleveland, i.e. that he
had numerous arrivals beyond the 0230 arrival time. (TR 773).
Nolan testified that he told Leonard he did not want to make the
run to Cleveland, because he was not going to drive there in 4
hours. (TR 262,780). Leonard flatly denied that Nolan had made
such a statement to him. (TR 780). According to Nolan, however,
Leonard thereafter made insulting remarks, including a joke about
an old sick person, when he was trying to get some sleep at the
Cleveland terminal while his truck was being loaded. Leonard
denied that he had verbally abused or harassed Nolan. He testi-
fied that he did not "go into extremes ... really rant and rave
and scream and jump up and down on him." (TR 746). He claimed
that he meant to question Nolan about why the delays took place,
and that no insult was intended. (TR 772-3). He denied that he
had ever called Nolan an old man, or that, while Nolan was
sleeping in Cleveland while waiting to return to Buffalo, he
leaned over and yelled in his ear, "I've fallen and I can't get
up, old man." (Tr 746-8).
Nolan testified that he complained to then general manager
Scorch Harrington that he was being forced to speed, that it was
impossible to get to Ohio safely in four hours because of road
construction, and that Leo Leonard was harassing him. He also
complained about the lack of seniority lists and safety meetings.
He made similar complaints to then Cleveland terminal manager
Larry Starkey. Harrington's response was that Nolan had to get
to Cleveland in four hours, and could "absolutely not" take a
short nap if he got tired. (TR 235, 258, 269, 804-6, 834). AC
did not call either Harrington or Starkey to contradict Nolan's
testimony in this regard.
Nolan also testified that he had complained about violations
of DOT regulations to then CEO Don Jones. After Colleen Zak
called his home and asked him to go out to a customer's to inves-
tigate a shortage on a load of videotapes he had delivered, Nolan
contacted the FBI, because he knew there was no shortage, assumed
that someone had stolen the freight, and was concerned that he
was a suspect. (TR 230-1, 555, 808-9, 811-13, 825). (Employee
theft is an ongoing problem for the company. See CX 55.) Nolan
then responded to a message he received to call CEO Jones. (TR
231, 265-7, 806). They discussed the missing freight and other
issues, including safety. Nolan then wrote a letter to Jones
dated September 3, 1991, elaborating on their discussion, stat-
ing, in pertinent part:
Here is some information that may help you avoid future
[PAGE 5]
problems:
(A) AC trucks that run east out of Buffalo never
have made out a log sheet- big problems if
audited.
(B) Your office keeps old logs longer than re-
quired.
(C) AC trucks that reportedly travel at over 70
mph with the use of electronic devices.
(D) AC trucks that violate the Motor Carrier
Safety Regulations by not stopping every 2
hours or every 100 miles.
(CX 7).
Nolan testified that CEO Jones promised to refer the issues
they had discussed to Scorch Harrington, and that Harrington
contacted him and promised to correct the situation, but failed
to do so before leaving the company. (TR 265, 268-9). Vice
President Dale Erickson stated in his response to Nolan's DOL
complaint that Nolan's memo to former CEO Jones was not in the
company's files or Nolan's personnel folder, "so we cannot
address this directly because we have not seen it." (CX 35, p.
2). David Wilbert testified that he had no knowledge of the
letter. He also testified that he believes Don Jones did not
either. (TR 619). He failed to give any persuasive reasons for
this belief, however, nor did AC produce former CEO Don Jones to
refute Nolan's testimony in this regard.
Nolan testified that "[t]here was no way I could possibly
get to Cleveland or was willing to get to Cleveland in four hours
and forego the DOT truck safety inspections and make false
entries in the books, and speed. I tried it once and I got a
ticket. ... I said, that's it, I'm not doing it anymore." (TR
234-5). He then arranged with Jim Cavanaugh, another driver at
Buffalo, to switch Cavanaugh's Rochester/Syracuse runs for his
Cleveland runs. (TR 227). Cavanaugh testified that Nolan com-
plained to him at the time that Leo Leonard had picked on him
about being an old man. (TR 314). It was conceded that Nolan
lost money by moving from the Cleveland to the Syracuse run. (TR
549-50).
Nolan was given two disciplinary warnings in the month of
November, 1991, one by Terri Jarecki on Dave Wilbert's orders and
the second by Leo Leonard.
The first warning arose from an incident which occurred on
[PAGE 6]
Sunday, November 3, 1991, when he went to pick up a trailer truck
at the Ryder yard to drive it to Cleveland. When he arrived at
the Cleveland terminal, Terri Jarecki told him that she had
received a telephone call from Ryder that he had hit the trailer.
He looked the trailer over with her and four other dock men and
they agreed he had probably hit a rub rail at Ryder in their
cluttered yard. The only mark on the trailer was some paint on
the buttom of the rub rail. Nolan offered to take off the paint
with steel wool and lacquer thinner but was told not to bother.
The following week, however, Jarecki gave him a note from
Dave Wilbert instructing him to make out an accident report.
Wilbert confirmed telling Jarecki to write Nolan up. Nolan once
again offered to take the paint off but they did not make the
truck available to him to do so. Jarecki then gave him a written
warning (called an "employee disciplinary report"). She identi-
fied the handwriting at the top of the warning form as Dave
Wilbert's. She added in her own handwriting that the next acci-
dent could lead to suspension and/or up to termination of employ-
ment. (). Jarecki conceded that the trailer was probably several
years old, that the damage was minor and that she had so stated
to Nolan. (TR 238, 625, 707-710; RX 1).
On November 8, 1991, Nolan was given a second written
warning, prepared by Leo Leonard. The warning stated that he had
gone to the wrong terminal to pick up a truck to begin a run to
Rochester and Syracuse, which allegedly resulted in a late trans-
fer of freight to Rochester and Syracuse, Mew York. Nolan
asserted that there was actually no lost time involved, and he
was not late getting to work. (TR 239, 718; RX 2). Unlike the
first warning, this letter did not threaten additional punitive
action.
On Thursday, November 21, 1991, at 9:00 a.m., AC vice-presi-
dent Dale Erickson intercepted Nolan on the loading dock at the
Buffalo sub-terminal and informed him that he was being laid off.
According to Nolan, Erickson stated that the reasons for his
layoff were a lack of work because of the loss of Ricky Lee
Carpenter's Motorola run to Toronto, and the fact that Nolan was
eligible for Social Security benefits. (TR 232, 272-4, 842-3).
Nolan testified that he protested that he was more senior than
other drivers, including Carpenter, who were being kept on. AC's
employee handbook provides that seniority is controlling in
determining employee lay off and recall. It is computed from the
employee's date of hire. (CX 36, pp. 2, 5; see also CX 13-18).
According to Nolan, Erickson responded that he had been selected
for layoff because Carpenter was a good man, highly capable and
[PAGE 7]
very productive, and they wanted to keep him. (TR 53, 232, 271,
845).
Erickson testified that he told Nolan that, since a customer
had cancelled a run, Buffalo only needed four drivers instead of
five, and Nolan was selected for layoff because of his intent to
retire. (TR 459, 510). He testified that Nolan said nothing
about his recall rights or denied that he was retiring. (TR 459).
Nolan denied that Erickson told him he was being selected for
layoff because of his pending retirement. (TR 844). He denied
telling Erickson that he intended to pursue a paralegal business
or that he intended to retire. (TR 271-272). Nolan said nothing
more about the layoff during the coffee break they took with
Daniel Nolan immediately after this conversation, because he saw
no reason to argue with Erickson, who obviously had the authority
to lay him off. (TR 460).
Dale Erickson conceded that James Cavanaugh and Ricky Lee
Carpenter, who had been hired, respectively, in April and July of
1991, had less seniority than Nolan. The only more senior
drivers at the Buffalo sub-terminal were Nolan's brother Daniel,
and Richard Rogalski, who had already informed president Dave
Erickson that he intended to retire. Rogalski testified without
contradiction that, in August or September, 1991, AC president
Dave Erickson telephoned him and asked if Nolan was going to
retire. Rogalski responded that he was the one retiring, not
Nolan. (TR 140, 523-4, 531-4; CX 48).
At the time he laid Nolan off, Dale Erickson instructed
Nolan to call personnel supervisor Suzanne Fraser at the Romulus,
Michigan corporate office for information regarding his health
insurance and final wage determination. He described Ms. Fraser
as the AC official whom employees are expected to contact whenev-
er a termination, firing, or lay off occurs. (TR 518-19, 529).
Nolan subsequently received two letters signed by Fraser. The
first letter, dated December 2, 1991, confirmed his layoff. It
also stated, in pertinent part: "According to the AC Express
Company Policy Handbook, you are eligible for recall until
November 23, 1992. ... We appreciate the loyalty and dedication
you have shown AC Express." (CX 41). The employee handbook pro-
vides that employees with length of service between less than one
and five years retain recall rights for up to one year. (CX 36,
p. 5). The second letter, dated December 16, 1991, was "To whom
it may concern." It stated, in pertinent part: "Mr. Nolan was a
conscientious, dependable employee and AC Express would recommend
him highly." (CX 9).
[PAGE 8]
Dale Erickson asserted that Personnel Supervisor Fraser's
layoff letter of December 2, 1991 was incorrect as to Nolan's
recall rights because personnel supervisor Fraser did not realize
Nolan was going to retire. (TR 454-55). He testified that Nolan
was not on the recall record because "there was a
miscommunication on that." (TR 505). He admitted, however, that
he had no documentation to show any purported retraction of
Nolan's recall eligibility. (TR 458). Respondent failed to call
Ms. Fraser as a witness to contradict her statements about Nolan
or to undermine her reliance on the company's employee handbook,
although there was no indication that she was not still in AC's
employ and under its control at the time of the hearing.
No credible evidence was produced which would lead me to
question the continuing validity and applicability of the
company's employee handbook. The handbook has been in effect
since 1988 and has not been revoked. Nothing in the employee
handbook exempts Buffalo from any of the company's policies.
Dale Erickson testified, and AC's attorney stressed, that he was
not involved in AC hiring and operations, or day-to-day control
or dealings with the Buffalo subterminal. Nor did he have any
connection with the corporate personnel department. (TR 377, 444,
518.) Matters relating to recall and retirement come under that
department. (TR 458).
Apparently because of their lack of involvement with the
corporate personnel department, AC management expressed remark-
ably divergent views about the application of seniority. Presi-
dent Dave Erickson sees it as an inconvenience to be disregarded;
He told Daniel Nolan, when he requested Carpenter's Canadian run
as the most senior Buffalo employee, that "nobody tells me where
to put my men." (TR 169-170, 193-4). Vice President Dale
Erickson and Dave Wilbert believe that seniority applies but they
differ on where it applies -- at the Buffalo sub-terminal, or
only at the main terminals. (TR 379, 786-7).
Vice President Dale Erickson conceded that Nolan did not
tell him he wanted to retire or otherwise notify the company of
his intent to do so. (TR 435, 511). He had never seen any
written letter of retirement from Mr. Nolan or anything in
writing saying that "I, Emmett Nolan, am going to retire." (TR
456). Erickson testified that Nolan voiced his intent to retire
to a Cleveland staff person, but could not remember who it was.
(TR 454, 517). He then testified that Dave Wilbert told him he
had heard from Leo Leonard and Terri Jarecki that Nolan intended
to retire. He could not remember specifically if Wilbert said
that Nolan had personally spoken to him. (TR 527).
[PAGE 9]
Dave Wilbert testified that Nolan had notified him of his
intent to retire. Nolan denied any genuine intention to retire,
although he admitted telling Wilbert he was thinking about it
while he felt he was being harassed. (TR 272). Leo Leonard
testified that, when Nolan was late getting into Cleveland one
time, he said it was because of delays due to road construction,
but he would not have to put up with it much longer. Nolan did
not use the word "retire," and Leonard thought he was referring
to changing runs or changing employment. (TR 748-749, 752, 763).
Wilbert testified that, on any kind of personnel action
involving an employee leaving the job, he always tries to get
written notification. (TR 544). Leo Leonard testified that, if
he wanted to retire, he would put it in writing to Dave Wilbert.
(TR 763). When Richard Rogalski informed Wilbert of his inten-
tion to retire, Wilbert asked for two weeks notice and said they
would type a letter for him to sign, and "it will be official."
On January 24, 1992, pursuant to this procedure, Rogalski signed
and submitted a letter, addressed to AC personnel, which had been
typed by Colleen Zak in the Cleveland terminal, stating that he
was giving two weeks notice of his intent to retire. (TR 531-2,
544-545, CX 30).
In contrast to the formal written notification required of
Rogalski on retirement, Wilbert claimed that he based his belief
that Nolan intended to retire on oral notice. (TR 544). He
testified that he, although he asked Nolan for a letter like
Rogalski's, Nolan never produced one, and that he did not give
Nolan a letter of intent to retire to sign as he did for Rogalski
because Nolan did not request such a letter. (TR 611-612, 620,
622). Leo Leonard testified that he did not ask Nolan for
written notice of his retirement because he did not know that
Nolan was retiring. (TR 763). The company did not give Rogalski
a letter like Nolan's stating his recall rights. (CX 41, TR 532).
Neverthless, after his retirement, he was recalled by Dave
Wilbert, although he declined the work because of his eye prob-
lems. (TR 535).
Two days after Nolan's layoff, on November 25, 1991, Dave
Wilbert appointed Ricky Lee Carpenter dock supervisor at Buffalo.
(CX 52, p. 2; TR 383-4, 556, 798). Wilbert testified that he
promoted Carpenter because he did an excellent job on the Toronto
run, his times and paperwork were "perfect," he was always
prompt, and there was no absenteeism. (TR 557). No notice of the
job opening was posted for three days prior to Carpenter's
appointment, as required by the ACX employee handbook. (CX 31, 36
p. 7, Section N; TR 83, 170, 311-12). Nolan felt he was far more
[PAGE 10]
qualified than Carpenter for promotion on the basis of his
experience, education and the fact that Carpenter was driving
without a proper license. (TR 235-6, 846).
As discussed in further detail below, the Department of
Transportation conducted a safety investigation of AC's Buffalo
sub-terminal in June, 1992, and found that, inter alia,
Carpenter was driving without a proper license and had falsified
his required records of duty status. Wilbert then went to Buffa-
lo, and ran Carpenter's run with another driver, Jim Ridley. On
the run, he learned from the customers that Carpenter was contin-
uing to take his wife as a passenger on AC runs, although he had
been previously warned not to do so, that he was transporting
freight from Rochester to Buffalo for Associated, where his wife
worked, without the knowledge or permission of AC, and that she,
rather than AC, was making money from the freight by charging it
back to the customer through Associated. (TR 558-9). He warned
all the Buffalo drivers that he would terminate the next driver
that ran out of hours. (TR 559). He stressed that drivers' time
sheets had to match their logs because they could not afford the
DOT fines. (TR 607).
Despite Carpenter's theft from the company and the DOT
findings of his violations, Wilbert gave him a disciplinary
warning only. It was not until after his testimony in this pro-
ceeding on the first day of hearing on September 18, 1992 that
Wilbert fired him. Wilbert denied any connection between
Carpenter's discharge and his testimony. (TR 559-60). Despite
his close involvement with Nolan's discharge, AC vice president
Dale Erickson disclaimed any knowledge of the reasons for
Carpenter's discharge. (TR 529).
Respondent's counsel asserted in opening argument that
Nolan was their worst driver, they were concerned with his
general work performance, and he was not as conscientious as
their other drivers. (TR 23,29). Vice President Erickson assert-
ed in his July 8, 1992 response to Nolan's DOL complaint that
their other drivers work harder and are more capable, generally
have more extensive recent driving experience in their back-
grounds, and that letting Mr. Nolan drive on Sundays was an
accommodation. (CX 35). Erickson testified that "working harder"
in that context meant getting the job done in the prescribed time
they thought it should be done. (Tr 437). When Nolan asked him
why he did not fall within the parameters of being a capable
driver, Erickson evaded the question by stating that he was not
Nolan's immediate supervisor. (Tr 438). As to whether Nolan was
a capable driver, Erickson stated: "That is not my judgment to
make." He stated that he had relied on information received
[PAGE 11]
primarily from Wilbert. (TR 439). Erickson was admittedly
unaware that Nolan had received two warning letters prior to
informing him of his layoff. (TR 383). Although Wilbert testi-
fied that he received complaints about Nolan, he conceded that
Nolan was not laid off because of complaints but because of his
purported intention to retire. (TR 633).
Wilbert testified that, since laying off Nolan in November,
1991, they have operated "very successfully" in Buffalo with four
drivers. He disputed the notion that, because some drivers
worked excess hours, there should have been work for Nolan. (TR
787-8). The evidence demonstrates, however, that during Nolan's
recall eligibility year, there was considerable turnover of the
Buffalo drivers. Richard Rogalski retired on February 7, 1992.
(CX 34). AC hired Gary E. Archie in January, 1992 and James
Ridley in April, 1992. Archie was injured. Gary Kreutzer was
hired in October 1992 and quit in November 1992. Kenneth Lowe
and Emil Zell were hired and Zell quit. (CX 34, 47, 49; TR 236,
363). When Daniel Nolan reminded Buffalo Dock Supervisor Carpen-
ter that complainant had recall eligibility and asked if he would
be recalled, Carpenter told him that complainant was "history"
with AC. (TR 86-87, 166, 860).
Nolan credibly testified that, after his layoff in November,
1991, he did not apply for unemployment insurance benefits
because he looked for a job. He had no intention of retiring.
(TR 845-6). He was unemployed from November, 1991 through Janu-
ary, 1992. He averages $140 per week as a school bus driver for
the Laidlaw Company, a position he began training for in Decem-
ber, 1991. This represents a substantial decrease in the base of
$600 a week he averaged at AC. (TR 242-3, 845). He also has
continued to work part-time as a musician, as he did while at AC.
C. The Department of Transportation's findings of safety
violations at the Buffalo sub-terminal.
In addition to complaining to DOL after his layoff, Nolan,
along with his brother Daniel, complained about company safety
violations to New York Senator Daniel Moynihan and the Department
of Transportation (DOT). (CX 32,11). DOT investigator John
Wallace conducted a safety investigation on June 1, 1992 and
reported extensive violations of DOT regulations to AC controller
Anthony Kern on June 3, 1992. Investigator Wallace found,
inter alia, that AC drivers, including Buffalo dock
supervisor Carpenter, were driving excess hours and without
proper licensure, and failing to prepare and/or falsifying
required reports of duty
[PAGE 12]
status. AC controller Kern specifically acknowledged that driver
John Haggerty had failed to report an accident in which substan-
tial property damage had occurred, in violation of 49 CFR Part
394, and that Ricky Lee Carpenter had driven without a commercial
driver's license, in violation of 49 CFR Part 383. (ALJX 5).
On June 30, 1992, DOT issued a notice of claim to respondent
advising that it had found "numerous violations of the Federal
Motor Carrier Safety Regulations ... " as a result of the inves-
tigation. For purposes of prosecution, DOT documented 7 viola-
tions of 49 C.F.R. 395.3, limiting driver duty hours, and 3
violations of 49 C.F.R. 395.8, requiring drivers to correctly
fill out and submit records of duty status. The violations were
documented by findings that driver James Cavanaugh had worked
excess hours on three occasions in March, 1992, that driver James
Ridley had worked excess hours on four occasions in April and
May, 1992, and that Buffalo dock supervisor Ricky Lee Carpenter
had falsified his record of duty status on three occasions in
February and March 1992. The total penalty assessed was $4400.
(ALJX 2). On July 21, 1992, AC controller Kern signed a settle-
ment agreement with DOT in which the company agreed to pay the
full amount of $4400 in two installment payments. The agreement
does not deny AC's liability for the violations. (ALJX 4).
Despite the DOT findings, AC took no corrective action to
ensure that the violations did not continue. Rather, the
company's primary concern appeared to be avoiding detection and
fines in the future. At the hearing, AC vice president Dale
Erickson dismissed the DOT finding that Carpenter was not proper-
ly licensed as of no significance because it had not generated a
fine. (TR 444). Cleveland terminal manager Wilbert's only
reaction was to warn the Buffalo drivers that he would terminate
the next one who ran out of hours and that their time sheets had
to match their logs because AC could not afford the DOT fines.
(TR 559, 607). He apparently did not consider the investigation
or the findings of violations sufficiently important to inform
other managers at the Cleveland terminal. Leo Leonard testified
that he was not aware that AC had been fined by DOT investigation
for safety violations. (TR 766).
D. Continuing Safety Violations
I find that the safety violations uncovered in DOT's inves-
tigation were not isolated instances, but were AC management
policy throughout Nolan's employment and recall period. During
this period, and continuing at least until the time of hearing,
AC management required its drivers at the Buffalo sub-terminal to
[PAGE 13]
speed on the Cleveland run and to forego stops en route for
legitimate reasons such as DOT safety required inspections of the
trucks or naps to combat driver fatigue, to drive and work in
excess of DOT limits on hours intended to prevent such driver
fatigue, and to falsify their logs in order to conceal their
excess hours, in violation of 49 C.F.R. §§ 392.6,
395.3, and 395.8.
AC's own driver handbook, which has been in effect since
1988, adopts the Federal Motor Carrier Safety regulations, and
specifically requires management, as well as all drivers, to know
and to meet or exceed their requirements. (CX 40, p. 29). Yet
AC's second highest management official, vice president and co-
owner Dale Erickson, claimed to be unaware that a driver work day
in excess of fifteen hours, or a driver work week in excess of 70
hours, violates the FMCSR limits. (CX 40, pp. 34,36; TR 394-5,
440). He was not sure he was under any obligation to train his
drivers and supervisors in truck safety. He was not familiar
with the requirements of Part 383 of the FMCSR in regard to
commercial driver license standards. (TR 443-4). Cleveland shift
supervisor Terri Jarecki was not even sure what the Federal Motor
Carrier Safety Regulations pertained to. She was unaware that a
17-hour driver work day was a violation. (TR 702, 704-5).
Cleveland terminal manager Wilbert and shift supervisor Leonard,
like Buffalo dock supervisor Carpenter (discussed below), were
aware of the requirements of the FMCSR, but chose to disregard
them. (TR 550-551, 764-5).
In addition, AC's corporate headquarters regularly applied a
"log checker" computer program to its drivers' logs which re-
viewed and analyzed compliance with the FMCSR and issued print-
outs to the terminals summarizing violations. (See CX 39, TR 136,
538-40). Nolan obtained a sample of the printouts, and twice
requested full production of the log checker records to support
his position that AC had knowledge of its FMCSR violations. AC's
attorneys failed to produce these documents, although they were
obviously appropriate subjects of discovery. (See CX 39; TR 113-
114, 426-7, 429, 495-8). As a sanction for AC's failure to
produce these obviously relevant documents, and because the
documents were in AC's custody and under its control, I draw the
adverse inference that these documents, if produced, would lend
additional support to Nolan's contention that AC had knowledge of
its FMCSR violations.
1. Speeding
I find that the "parameters" memo issued by Leo Leonard and
Dave Wilbert during the summer of 1991 and still in effect at the
[PAGE 14]
time of the hearing (CX 1) required Buffalo drivers to speed on
the Buffalo-Cleveland run by imposing a four-hour maximum on
driving time. Dave Wilbert's testimony that there was no four-
hour maximum because, although the 230 arrival time at Cleveland
was mandatory, a driver could leave Buffalo earlier than the 2230
departure time (TR 785), is convincingly contradicted by the evi-
dence that an earlier departure was highly unlikely. AC's
counsel conceded that the memo required a limit of four hours
driving time to Cleveland, if for any reason the driver had to
wait until 2230 hours to depart. (TR 261). Nolan testified that
he had never seen a truck that was ready to leave Buffalo for
Cleveland before 2230. (TR 255-256). Driver James Cavanaugh
testified that drivers were routinely unable to leave Buffalo
before 2230 because of, for example, late arrivals of freight
from Canada. (TR 354). Leo Leonard testified that, if a driver
was loading freight at a shipper's operation, and the freight was
only half loaded at 2230, the driver would have to finish loading
before departing. (TR 774-5).
It is undisputed that the Buffalo to Cleveland run is 220
miles and the speed limit in the states which AC drivers must
traverse is 55 miles per hour. (CX 35; TR 537). As a matter of
simple arithmetic, a four-hour time limit requires a minimum
driving speed of 55 miles per hour without delays or stops.
Delays are routine, and stops are essential, however. Construc-
tion delays on interstate highways are a common problem, and AC
drivers must travel through the City of Buffalo at speeds sub-
stantially below speeds of 55 miles an hour before even reaching
an interstate. (TR 103-4, 739). Stops are necessary at least to
make equipment checks and to combat fatigue. The AC driver hand-
book incorporates DOT requirements that drivers make an equipment
check condition every two hours or one hundred miles, and a cargo
check within the first 25 miles of beginning a trip and every
three hours or one hundred and fifty miles thereafter. (CX 40, p.
108; TR 234-5, 829). Daniel Nolan, the complainant's brother,
who did the Buffalo local driving, turned down the Cleveland run
in part because, when he asked Dock Supervisor Carpenter to
inquire of AC president Dave Erickson where he stopped for safety
checks and to eat, Erickson said "you do not stop." (TR 140-1,
168). As discussed above, Scorch Harrington prohibited complain-
ant from taking a nap if he became fatigued on the Buffalo to
Cleveland run.
Except for Nolan, the other Buffalo drivers routinely made
the drive to Cleveland in four hours or less. The trip took
drivers James Cavanaugh and James Ridley 3 3/4 and 3 1/2 hours
respectively. (TR 328, 352, 363; See CX 38-1, 42-1). Dock super
[PAGE 15]
visor Carpenter admitted that, when he drove the Cleveland run
at night, he did not stop to make DOT safety inspections of the
equipment. (TR 72-4). He was fully aware that AC drivers used
radar detectors so that they could speed and CB radios to warn
each other about highway troopers ("Smokey bears in the bushes")
and radar in use. (TR 80-1; see TR 324-5). He himself had been
cited for speeding in Ohio. (TR 63). Retired driver Richard
Rogalski frankly admitted that reaching Cleveland from Buffalo in
four hours required speeding, including running "flat out" across
New York at 65-68 miles per hour, and that he only avoided
getting caught because he used a radar detector. (TR. 533, 535-
6). The company does not prohibit the use of radar detectors.
(TR 112, 128).
Nevertheless, although AC management should have known that
a four-hour time limit required drivers to speed and forego DOT
required safety checks, they expected the run to Cleveland to
take no more than four hours. (TR 258, 547, 804-5). Cleveland
terminal manager Wilbert sarcastically characterized Daniel
Nolan's refusal to speed on the Cleveland run as laziness --
"because he wanted to take like, five, six hours, I don't know,
take a lunch, a dinner, you know, motel on the way." (TR 799).
Although vice president Dale Erickson claimed in his July 1992
response letter to Nolan's DOL complaint that the Buffalo drivers
took 4 1/2 hours to get to Cleveland, he conceded in his testimo-
ny at the hearing that the company "would not be upset" if a
driver made the run in four hours. (TR 511-12). As Buffalo dock
supervisor Ricky Lee Carpenter testified: "there's freight's got
to be peddled. You run 55 miles an hour you might as well walk."
(TR 103).
2. Excess Hours and falsification of driver logs
The AC driver handbook incorporates the requirements of the
FMCSR regulations on driver hours of service, that no driver can
be on duty for more than 70 hours in 8 consecutive days, that
total on-duty hours per day may not exceed 15 hours, and that
total driving hours per day can not exceed 10 hours without an 8-
hour consecutive off-duty or in the sleeper berth. 49 C.F.R.
§395.3. It also incorporates the requirements of 49 C.F.R.
§395.8 for accurate driver logs. (CX 40, p. 32-36). In
practice, however, AC management has simply disregarded these re-
quirements as bad for business. As Cleveland terminal manager
Dave Wilbert explained, if, for example, trucking companies had
to follow a forty hour week for their drivers, "[t]hat would mean
that on some of the runs, if we're going from Buffalo, Rochester,
Syracuse, that we need a helicopter, so this guy could stop,
[PAGE 16]
because he hit his forty hours in Rochester. We'd have to drop a
body in there, pick that guy up in a helicopter and bring him
home. I mean it wouldn't make sense, it's not possible. ...
[It's] the nature of the business." (Tr 788).
In order not to show violations, AC managers routinely
instructed Buffalo drivers to falsify their driver logs. Larry
Starkey, the former Cleveland terminal manager, told Nolan to
make false entries in his log book when he came to Buffalo in
March or April 1991 to start the Syracuse run. (TR 831). He
explained to Nolan that "when you run over fifteen hours or you
run over the ten hours driving, you make your logs appear legal."
(TR 831). Buffalo dock supervisor Ricky Carpenter told Buffalo
drivers to keep their logs looking "legal," despite how the runs
were run. (TR 64).
Carpenter knew that federal law required a maximum of 10
hours a day driving, with a total of 15 hours on duty, and eight
hours consecutive time off before returning to duty. He knew
that drivers were only supposed to log 50 miles an hour. He
admitted, however, that he had himself run 25 consecutive hours
on several days and had falsified his log to show the excess
hours as time off. He would make a run from Rochester to Syra-
cuse, take four to five hours off, and make the run to Cleveland.
(TR 66-7; see CX 52-1). He acknowledged that, during August,
1992, he had driven an AC truck to Boston on what should have
been his day off as a favor to Dave Wilbert to fill in for vaca-
tioning Cleveland terminal drivers. (TR 137-9). He admitted
received log checker reports from headquarters indicating exces-
sive hour days as well as speeding violations, but disregarded
them because AC drivers, including himself, were not issued
disciplinary warnings on the basis of these violations. (TR 91-
3).
Terri Jarecki, the Cleveland terminal shift supervisor,
asked Dan Nolan to make a run to Cleveland on a Friday after his
regular shift. He refused because he would have violated the
maximum hours requirements of the FMSCR, 49 C.F.R. §395.3.
(TR 168, 185, 191). James Ridley, after replacing Carpenter as
Buffalo dock supervisor, asked former driver Gary Kreutzer to run
to Cleveland after he had completed his run to Syracuse.
Kreutzer also refused because he would have been out of hours.
(TR 358, 360). On another day, at Ridley's request, Kreutzer
ran seventeen hours on a particular day but only logged 15,
because he would have been in violation. Ridley told him to
transfer the extra 2 hours to another week. (TR 361). Driver
James Cavanaugh admitted that, to make extra money, he ran trips
[PAGE 17]
in excess of fifteen hours on duty when AC was short on drivers.
(TR 318, 321).
E. STAA Violations
To prevail under the STAA, Nolan must establish that AC took
adverse employment action against him because he engaged in an
activity protected under Section 405 of the Act. He must show
initially that it was likely that his layoff and the failure to
recall him was motivated by a protected complaint or work refus-
al. AC may rebut such a showing by producing evidence that the
adverse action was motivated by a legitimate, non-discriminatory
reason. Nolan must then prove that the proffered reason was
pretextual. If he makes such a showing, the burden then shifts
to the respondent to demonstrate that the complainant would have
been subject to the adverse action even if he had not engaged in
the protected activity. Spearman v. Roadway Express, Inc.,
Case No. 92-STA-1, Sec'y. June 30, 1993, Slip op. at 6-7.
1. Adverse employment actions
I find that Leo Leonard's verbal reprimands to Nolan for not
speeding on the Buffalo to Cleveland run, the written warnings
given him by Leonard and Wilbert, his layoff on November 22, 1991
and the failure to recall him during his year period of eligibil-
ity ending November 1992 were adverse employment actions. I give
no weight to AC vice-president Dale Erickson's after-the-fact
contention that personnel supervisor Suzanne Fraser's letter
confirming Nolan's recall rights was mistaken. Erickson admit-
tedly had no connection with the corporate personnel department
and no knowledge of AC's personnel procedures upon layoff,
termination, and discharge, items which were routinely referred
to Ms. Fraser. There was no evidence that Ms. Fraser was not
still in the company's employ or under its control, yet AC failed
to call her as a witness to repudiate her letter or the provision
of the AC handbook granting recall rights. I therefore draw the
adverse inference that, if Ms. Fraser had been called as a wit-
ness, she would have confirmed the rights stated in her letter.
I conclude that the AC employee handbook constituted continuing
company policy and that Nolan was entitled to the benefits of all
the rights stated therein, including the right to recall.
2. Protected activities.
Section 2305 of the STAA protects an employee against dis-
charge, discipline or discrimination if he or she has
[PAGE 18]
(a) filed any complaint or instituted or caused
to be instituted any proceeding relating to a
violation of a commercial motor vehicle safe-
ty rule, regulation, standard, or order, or
has testified or is about to testify in any
such proceeding;
or
(b) refus[ed] to operate a vehicle when such
operation constitutes a violation of any
Federal Rules, regulations, standards, or
orders applicable to commercial motor vehicle
safety or health, or because of the
employee's reasonable apprehension of serious
injury to himself or the public due to the
unsafe condition of such equipment.
AC argues that, during his active employment, Nolan's only
government agency contacts were with the New York State Labor
Board regarding the requirement for a lunch period and with the
FBI regarding missing freight delivered to a customer. I agree
that these do not constitute protected activities within the
meaning of the Act.
I find, however, that, during his active employment at
Buffalo, Nolan made internal safety complaints to at least four
members of AC management, CEO Don Jones, General Manager Scorch
Harrington, Cleveland terminal manager Larry Starkey and Cleve-
land shift supervisor Leo Leonard. Nolan was a credible and
sincere witness. His concerns and complaints about AC's safety
violations were amply supported by the DOT's findings after
investigation and AC management's continuing wilful disregard for
compliance with the FMCSR.
Nolan's testimony that he had complained to Jones,
Harrington and Starkey about safety conditions was unrefuted. I
also credit Nolan's testimony that he complained to Leonard about
having to speed and that Leonard thereafter verbally harassed him
by such tactics as calling him an old man. Nolan's position is
supported by Jim Cavanaugh's testimony that Nolan complained
about Leo's treatment contemporaneously with giving up the higher
paying Cleveland run. Finally, Leonard was the co-author of the
"parameters" memo which, as he should have known, required
Buffalo drivers to violate the 55 mile an hour speed limit to
Cleveland. Although he denied "ranting and raving and screaming"
at Nolan, he did not deny complaining to Nolan about his numerous
[PAGE 19]
"late" arrivals in Cleveland and questioning him as to why the
delays took place. I find that, in fact, Leonard badgered Nolan
to speed, that Nolan responded that he should not have to speed,
and that Leonard thereafter verbally harassed him.
The Secretary has held that it would be inconsistent with
the purpose of the STAA to limit the coverage of paragraph (a) of
section 2305 only to those complaints filed with governmental
agencies. The purpose of the Act is to promote safety on the
highways. An employee's safety complaint to his employer is the
initial step in achieving this goal. Davis v. H.R. Hill,
Inc., 86-STA-18 (Sec'y Mar. 19, 1987). See also Stiles v.
J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24,
1993); Reed v. National Minerals Corp., 91-STA-34 (Sec'y
July 24, 1992); Doyle v. Rich Transport, Inc., 93-STA-17
(Sec'y Apr. 1, 1994); Juarez v. Ready Trucking Co., 86-
STA-27 (Sec'y July 7, 1988). Nolan's internal complaints to AC
management constituted protected activity under subsection (a).
In addition, Nolan's complaint about AC's practices during his
recall period to DOT, a governmental agency, also constitutes
protected activity under subsection (a).
An employee's refusal to drive over the speed limit in a
situation where the carrier's policies required drivers to
violate Department of Transportation speeding regulations also
constitutes protected activity under subsection (b). McGavock
v. Elber, Inc., 86-STA-5 (Sec'y July 9, 1986). I therefore
find that Nolan's refusals to speed were also protected activity
under subsection (b).
3. Causal relationship between the protected activi-
ties and complainant's termination.
Although AC management denied any causal relationship
between Nolan's protected activities and the adverse actions
against him, I find ample evidence to the contrary. The
company's practice was to disregard or violate safety standards
which they saw as interfering with their operations. The verbal
and written warnings from Leonard and Wilbert, layoff, and
failure to recall Nolan, closely followed his refusal to obey
their "parameters" memo requiring speeding, his safety complaints
to management, and his complaint to the Department of Transporta-
tion. AC's treatment of Nolan was significantly different from
its treatment of the drivers at Buffalo who speeded, exceeded the
[PAGE 20]
maximum allowable hours, and falsified their duty records. The
incidents for which Leonard and Wilbert gave Nolan performance
warnings were minor in comparison to the events which occasioned
Wilbert's performance warning to Ricky Carpenter. The company
laid off Nolan but promoted Ricky Lee Carpenter. Nolan was not
recalled although the company experienced substantial turnover,
and hired new drivers.
Although the company's operation includes numerous locations
other than Buffalo, and numerous drivers other than Nolan, AC
officials gave Nolan an unusual amount of personal attention and,
after his layoff, made it clear that he was, in the words of
Buffalo dock supervisor Carpenter, "history" with the company.
President Dave Erickson himself called Buffalo driver Richard
Rogalski (but not Nolan) to investigate Nolan's retirement plans,
and although AC vice-president and co-owner Dale Erickson admit-
tedly had little to do with personnel matters, he personally
traveled from corporate headquarters to the Buffalo sub-terminal
to inform Nolan of his layoff. I conclude that they had been in-
formed of his complaints by Scorch Harrington, Don Jones, Larry
Starkey and Leo Leonard, with whom they worked closely. I find
it unlikely that a lone driver such as Nolan would have been the
subject of this much interest and attention by AC's two top
management officials and co-owners unless they felt that Nolan
was a threat to their operation because of his safety complaints.
In sum, I conclude that Nolan has shown that his complaints
about AC's safety practices substantially motivated their adverse
employment actions against him.
4. Employer Reasons for the adverse actions
AC has articulated three legitimate, non-discriminatory
reasons for its adverse employment actions against Nolan: (1) his
layoff reflected a decreased need for drivers in the Buffalo area
due to cancellation of a scheduled truck run to Canada; (2) he
intended to retire anyway at the end of 1991; and (3) he was a
poor performer. I find that Nolan has met his burden to show
that these reasons are pretextual, as discussed below.
a. Lack of work.
Although lack of work is a legitimate reason for a layoff, I
find that it was not the reason for Nolan's layoff. AC argues
that the elimination of the Toronto run decreased its need for
drivers at Buffalo from five to four. Under the AC employee
handbook, however, the company should have laid off less senior
[PAGE 21]
drivers before laying off Nolan. He was more senior than Jame
Cavanaugh and Ricky Lee Carpenter, who were kept on the job.
Vice president Erickson arbitrarily disregarded the company's
long standing policy in denying Nolan this preference. AC also
knew that Richard Rogalski planned to retire imminently, leaving
only three drivers at the Buffalo terminal. In addition, it
hired several other drivers during Nolan's year recall period.
I do not accept AC's argument that, because drivers James
Cavanaugh and Daniel Nolan worked 35.25 and 2.5 hours less
respectively in the six-month period from April to September 1992
than during the same period in 1991, AC's work at Buffalo for the
four remaining drivers was decreasing. (R. Br. p. 15). This is
an insignificant difference in hours which may have simply
reflected variations in scheduling. There is no evidence that
the work hours for all the Buffalo drivers decreased during that
period. In short, I find that there was no genuine lack of work
and no valid reason for laying off and not recalling Nolan.
b. Pending retirement.
Nolan's credible testimony that he did not intend to retire
is supported by his immediate and successful search for alterna-
tive employment, albeit at a substantially lower rate of pay, and
by the testimony of AC management. Because of the telephone
inquiry to Richard Rogalski that he initiated, President Dave
Erickson knew that Nolan did not intend to retire. Given their
close family and working relationship, it is likely that Dave
Erickson told vice president Dale Erickson that Nolan did not
intend to retire. Dale Erickson conceded that Nolan had never
given him specific notice of his intent to retire. Although Dale
Erickson claimed he had learned of Nolan's retirement from Dave
Wilbert who had been told by, inter alia, Leo Leonard,
Leonard denied any understanding that Nolan intended to retire.
Dave Wilbert admitted that, as a rule, he seeks formal written
notice of retirement. Leo Leonard confirmed this procedure,
which was applied in the case of Richard Rogalski, who genuinely
did intend to retire. I do not credit Wilbert's claim that he
received and relied on oral notice in Nolan's case. In sum, I
find that Nolan did not intend to retire and that company offi-
cials knew he did not intend to retire.
c. Poor performance.
The company's assertion that Nolan was a performance problem
is not supported by the evidence. First, I find that the company
was concerned with Nolan's performance only in so far as he
[PAGE 22]
refused to speed and otherwise to violate safety regulations like
Ricky Lee Carpenter, whose performance was approved by both vice
president Dale Erickson and Cleveland terminal manager Dave
Wilbert, at least until after the first day of hearing in this
case. This kind of unlawful performance is exactly what STAA is
intended to prevent, and a driver's failure to perform in this
manner therefore cannot be a valid reason for an adverse employ-
ment action.
In addition, it became clear at the hearing that Dale
Erickson had no personal knowledge of Nolan's performance because
he was not Nolan's supervisor. He was not even aware that Nolan
had received two warning letters. He testified that he had
relied on information from Dave Wilbert, Nolan's supervisor, as
to Nolan's performance. Wilbert, however, specifically denied
any connection between Nolan's performance and his layoff.
I note that the two warning letters to Nolan involve minor
incidents that would not justify discharge. Further, I find it
significant that AC did not produce its derogatory assessment of
complainant's performance until after the filing of his STAA com-
plaint. Until that time, AC's position, as incorporated in two
letters written on behalf of the respondent by its personnel
supervisor Suzanne Fraser, was that Nolan was a conscientious,
loyal, dedicated and dependable employee whom the company would
recommend highly. I therefore do not credit the company's
defense that adverse employment actions were taken against Nolan
because of poor job performance.
5. Employer showing that complainant would have been
subject to the adverse action regardless of engag-
ing in the protected activity
AC has failed to establish that it would have taken the
adverse actions discussed above against Nolan in the absence of
his complaints about safety violations to company officials and
his refusal to speed on the Buffalo-Cleveland run. On the con-
trary, the evidence demonstrates that the company retained and
rewarded incumbent drivers such as Ricky Lee Carpenter who were
willing to speed, to work excess hours, and to commit other
safety violations, and that it continued to hire new drivers to
work at Buffalo, while there was supposedly a lack of work, in
violation of Nolan's rights to recall.
F. Remedy
Nolan contends that his layoff and subsequent termination,
plus the "wilful, extreme and outrageous" conduct of the respon
[PAGE 23]
dent, caused him to suffer "harassment, defamation, loss of self-
esteem, and emotional distress." He has established that, while
he was able to locate another job with reasonable promptness, he
had to take a pay cut of $460 per week. He requests full make-
whole relief, including back pay, front pay of $300,000, compen-
satory damages, liquidated damages, expenses, and any other just
and appropriate relief. (C.Br. 2, 3; CX 37; TR 242).
Claims for defamation, emotional distress and outrageous
conduct are not cognizable under the STAA. See Norman v. M.S.
Carriers, Inc., 741 F.Supp. 148 (W.D. Tenn. 1990). Section
405 of the STAA provides the exclusive remedy for violations.
The Secretary of Labor may, if a violation is found, order
reinstatement, back pay, compensatory damages, costs, expenses,
and attorneys fees. Nix v. Nehi-RC Bottling Company, Inc.,
84-STA-1 (Sec'y July 13, 1984). Liquidated damages are not
authorized. As discussed below, I find that back pay and front
pay in lieu of reinstatement are appropriate here.
1. Back Pay
An award of back pay under the STAA is not a matter of
discretion but is mandated once it is determined that an employer
has violated the STAA. Moravec v. HC & M Transportation,
Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing Hufstetler v.
Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip
op. at 50, aff'd sub nom. Roadway Express, Inc. v.
Brock, 830 F.2d 179 (11th Cir. 1987). Because I have found
that AC violated STAA with respect to Nolan, back pay is
mandatory. Pre-judgment interest is to be calculated in
accordance with 26 U.S.C. § 6621 (1988). I find that, given
his age, Nolan made more than reasonable efforts to mitigate his
damages by securing another driving job within two months of his
layoff, even at a substantially lower salary. He is entitled to
back pay of $600 per week (his base pay at AC) from his layoff in
November 1991 until January 1992 and of $460 per week thereafter
(his $600 base per week at AC less $140 per week at his present
employment). His earnings moonlighting as a musician are not
deductable. See Nelson v. Walker Freight Lines, Inc., 87-
STA-24 (Sec'y Jan. 15, 1988).
2. Front Pay in Lieu of Reinstatement
Ordinarily, back pay runs from the date of discriminatory
discharge until the date that the complainant receives a bona
fide offer of reinstatement or gains comparable employment. See
Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May 29,
1991); Nelson v. Walker Freight Lines, Inc., 87-STA-24
(Sec'y Jan. 15, 1988), slip op. at 6 n.3; Earwood v. D.T.X.
Corp., 88-STA-21
[PAGE 24]
(Sec'y Mar. 8, 1991), slip op. at 10. There has been no offer of
reinstatement here. Further, Nolan's post-discharge job is sub-
stantially lower-paying than his job at AC, and therefore does
not constitute comparable employment. See Rasimas v. Mich.
Dept. of Mental Health, 714 F.2d 614, 624 (6th Cir. 1983).
While an order of reinstatement is justified by the STAA
violations established here, I find that such an order would be
unwarranted because of the manifest and obvious hostility exhib-
ited between company officials and Nolan at the hearing. Front
pay in lieu of reinstatement is appropriate where, as here,
reinstatement would produce a dysfunctional working environment.
See Brooks v. Woodline Motor Freight, 852 F.2d 1061, 1065
(8th Cir. 1988); Fitzgerald v. Sirloin Stockade, 624 F.2d
945, 957 (10th Cir. 1980); EEOC v. Kallir, Phillips, Ross,
Inc., 420 F. Supp. 919, 926-27 (S.D.NY 1976), aff'd
without opinion, 559 F.2d 1203 (2d Cir.) cert. denied
434 U.S. 920 (1977).
Mr. Nolan is an active and vigorous man and it is unlikely
that he will retire until at least October 1, 1998, when he
reaches age 70. Front pay in the amount of $460 per week (his
$600 base per week at AC less $140 per week at his present
employment) until October 1, 1998 is therefore a reasonable
substitute for reinstatement.
II. RECOMMENDED ORDER
IT IS HEREBY RECOMMENDED that AC be found in violation of
the STAA and that complainant Emmett D. Nolan be awarded back pay
and front pay in lieu of reinstatement.
EDITH BARNETT
Administrative Law Judge
NOTICE OF REVIEW
NOTICE: This Recommended Decision and Order and the admin-
istrative file in this matter will be forwarded for review by the
Secretary of Labor to the Office of Administrative Appeals, U.S.
Department of Labor, Room S-4309, Frances Perkins Building, 200
Constitution Ave., N.W., Washington, D.C. 20210. The Office of
Administrative Appeals has the responsibility to advise and
assist the Secretary in the preparation and issuance of final
decisions in employee protection cases adjudicated under the
regulations at 29 C.F.R. Parts 24 and 1978. See 55 Fed.
Reg. 13250 (1990).
[ENDNOTES]
[1] Abbreviations used are as follows: C-Complainant; R-Respon-
dent; ALJ-Administrative Law Judge; X-Exhibit; TR-Transcript;
Br.-Brief.
