Dated: December 2, 1993
Case No: 93-STA-17
In the Matter of
JOSEPHINE DOYLE
Complainant,
v.
RICH TRANSPORT, INC.,
Respondent
Charles J. Doerpinghaus, Esq.
Benton, Arkansas
For the Complainant
J.R. Buzbee, Esq.
Little Rock, Arkansas
For the Respondent
Before: JEFFREY TURECK
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the Surface Transportation Assistance
Act of 1982 ("the Act"), 49 U.S.C. §2301 etseq. Josephine Doyle ("complainant") filed a complaint
with the Occupational Safety and Health Administration ("OSHA")
of the United States Department of Labor on October 6, 1992,
contending that she was unlawfully terminated from her job with
Rich Transport, Inc. ("respondent") on September 28, 1992, in
violation of §405(a) of the Act, 49 U.S.C. §2305(a).
It is complainant's position that she was fired by the respondent
because she complained about a possible safety hazard.
Specifically, complainant reported that the left rear door of her
trailer was not closing properly (TR 24).[1] Respondent
contends that complainant was fired for constant complaining, for
late delivery of loads and for being argumentative and
insubordinate (TR 67). The Dallas Regional Office Regional
Supervisory Investigator of OSHA found the claim meritless, and
complainant requested a hearing.
[PAGE 2]
The hearing was held in Little Rock, Arkansas on August 11,
1993. At the hearing, complainant's motion that the record be
kept open for 30 days in order for complainant to provide
information regarding her earnings since her termination was
granted (TR 45). An affidavit by complainant and accompanying
documentation were forwarded to this Office by respondent's
attorney within the 30-day period. Without objection, the
affidavit and accompanying documents are admitted into evidence
as Complainant's Exhibit 1.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
a. Background
Complainant is 47 years old and lives in Little Rock,
Arkansas (JX 1, at 54; TR 10). She was hired by respondent, a
trucking firm located in Bryant, Arkansas, on August 21, 1992 as
an over-the-road truck driver (TR 11). She was hired by Mickey
Sims, respondent's Safety Director, whose responsibilities
include hiring and firing drivers (see TR 50). She
actually began working for respondent on Sunday, August 30, 1992,
when she left Arkansas for Mesquite, New Mexico on her first
shipment(TR 11; JX 1 at, 47, 49).
Complainant testified that around September 12, 1992,[2]
upon passing through Little Rock on her way to Cincinnati, Ohio
from Dallas, Texas, she informed PacLease, the lessor of
complainant's truck, that she was having difficulty closing the
doors on her trailer (TR 24; JX 1, at 49-50). Complainant called
PacLease because it is responsible for road maintenance on both
the truck and trailer (TR 27). Someone at PacLease told her it
probably needed a minor adjustment (id.). Complainant
drove on to Whittier, California where, on September 15, she
found that the left door of her trailer could not be closed and
locked properly (TR 24-25). Complainant stated that neither she
nor a "360 pound man" could close the door (TR 25). She
then stated that they could not lock the door (TR 25).
Her testimony is somewhat confusing on this point. Obviously,
she was at least able to close the trailer doors because she
continued to drive it for almost two weeks (TR 32). Complainant
testified that the lip of the right door, not the lock on the
left door, was holding the left door closed (TR 28). She was
concerned that this was a violation of Department of
Transportation regulations (TR 27) and that her freight could
"walk," i.e., break through the back doors of the trailer
(TR 29). Complainant called Charles Allen, one of the
respondent's dispatchers, and was again instructed to call
[PAGE 3]
PacLease (TR 26). Someone at PacLease told complainant that they
could try to fix the door with a nut and bolt, but she informed
them that would not repair the trailer door (id.).
Complainant then called Allen and informed him that PacLease
would not repair the trailer in California. He instructed her to
continue on her route (TR 30).
Allen testified that he asked complainant whether it was
unsafe to continue with the trailer, and she said no (TR 113-14;
JX 1, at 42). He said he referred her to Mickey Sims in
accordance with respondent's procedures (id.). Sims
testified that he first heard about the problem with the trailer
on September 17 or 18, when complainant called from San Jose,
California (TR 87). Sims said he asked her whether the door
could be locked and whether she could continue. He testified
that she said she could "manage" (TR 76-77, 88). Allen testified
that he specifically asked her whether the trailer door was a
safety hazard before he let her pick up another load for her
return trip. He testified that she said it was not (TR 114).
Complainant testified that she again brought the problem to
respondent's attention when she reached Houston, Texas (TR 30).
She asked Allen if she could switch trailers, but he refused (TR
30-31). Complainant continued on to the PacLease yard in
Arkansas where the door and latch were examined by Sims and Larry
Schaeffer, the service manager of PacLease (TR 31). Complainant
testified that Sims and Shaeffer told her to continue on without
repairing the latch (TR 32). Sims testified that upon examining
the door, he determined that there was no way the door could come
open (TR 91). He also testified that he was able to lock the
left door (TR 61). Schaeffer testified that the trailer doors
were bolted, locked and closed properly when he examined the
trailer (TR 133). In fact, Schaeffer stated that had the left
door not been latched properly, neither of the doors on the back
of the trailer could have been closed at all (id.).
Complainant later called respondent from Minnesota, and
Allen asked her if she still had the trailer. She said yes, and
Allen told her it would be fixed when she returned to Arkansas
(TR 33). Upon reaching Arkansas, complainant called Allen, and
then Sims, to find out where she was to drop off the trailer.
Sims told her to take the truck to PacLease where her car was
parked, and to get her belongings (TR 33). According to
complainant, the reason Sims gave her for her termination was
that Sims was "tired of hearing about the trailer" (id.).
Respondent alleges that it had various problems with
[PAGE 4]
complainant throughout her employment (TR 54). According to
Sims, she complained constantly about matters such as the type of
truck she was assigned to drive, the color of her truck and the
destinations she was assigned (id.) He stated that it was
"a constant every day [sic] hassle for either me or the
dispatchers to deal with her." (TR 76).
Sims also stated that complainant did not follow her route
assignments, specifically citing an incident when complainant was
late because she said she was forced to avoid traffic on Highway
94 (TR 20-21, 36, 95). Sims stated that there was no reason for
complainant to be on Highway 94 in the first place (TR 96). Yet
Sims also testified that drivers were not assigned specific
routes in traveling between cities (TR 96).
In addition, Sims testified regarding two occasions on which
complainant had been late in arriving at her assigned
destinations (TR 56).[3]
Charles Allen, the dispatcher, testified regarding numerous
complaints by complainant. He stated that complainant complained
between five and ten times regarding the color of her truck (TR
117). He also testified that she complained about wherever she
was assigned to go (TR 111). He said she also complained about
being assigned a leased rather than a company-owned truck (TR
112). Finally, Allen testified that complainant always called in
last among the drivers and that her call was usually late (TR
113). At both the hearing and in a letter written prior to the
hearing, Allen stated that the complainant was argumentative and
insubordinate (TR 18-19; JX 1, at 42). Allen testified that he
and the two other dispatchers began to avoid taking her phone
calls because they would be "tied up on the phone for 15 to 20
minutes over things that didn't amount to nothing." (TR 115).
Betty Richards, respondent's Vice President, was also
involved in the decision to terminate complainant (TR 142, 146).
She testified that the complainant was terminated because "it was
just something all the time and never, never happy with whatever
she was given to do.... [Sims] spent more time talking to her
than all the [other drivers]." (TR 143) Ms. Richards also said
that the complainant spent an inordinate amount of time in the
office and did not know when to leave (id.).
b. Discussion
Section 405(a) of the Act states in pertinent part that:
No person shall discharge, discipline, or
[PAGE 5]
in any manner discriminate against any
employee with respect to the employee's
compensation, terms, conditions, or
privileges of employment because such employee
(or any person acting pursuant to a request
of the employee) has filed any complaint or
instituted or caused to be instituted any
proceeding relating to a violation of a
commercial motor vehicle safety rule,
regulation, standard, or order, or has
testified or is about to testify in any such
proceeding.
Initially, in cases brought under the Act and other similar
statutes protecting whistleblowers, it is the complainant's
burden to present a primafacie case by showing
that:
1. The complainant engaged in conduct protected by the
applicable statute;
2. The party charged with unlawful discrimination knew of
the employee's protected activity; and
3. The adverse employment action was motivated, in whole or
in part, by the employee's protected activity.
See, e.g., Dartey v. Zack Co., 82-ERA-2
(Sec'y April 25, 1983); seealsoMackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir.
1984).
Complainant stated that she was concerned with the locking
mechanism on the left rear door of her trailer and with her fear
that, had her load moved while she was driving, the right door
alone would not have been sufficient to keep her cargo from
breaking through the back door (TR 40-42). Complainant is
therefore arguing that she was terminated for complaining to
respondent about a condition that would have been in violation of
Department of Transportation safety regulations, which are
contained in Title 49 of the Code of Federal Regulations.
Section 396.3 of those regulations reads in part as follows:
(a) General. 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.
[PAGE 6]
(1) Parts and accessories shall be in safe
and proper operating condition at all times.
These include those specified in part 393 of
this subchapter and any additional parts
and accessories which may affect safety of
operations ....
(Emphasis added). Complainant believed that the left door of the
trailer did not close properly and that therefore she was in
violation of the Department of Transportation regulations (TR
27). Respondent's own list of "Drivers [sic] Duties and
Responsibilities," specifically item two, requires that all
drivers obey D.O.T. regulations (TR 89; RX 6). Sims and Schaffer
testified that they were able to close and lock the left door
and, in fact, that the trailer could not have been closed at all
had the left door been incapable of being locked (TR 77, 106).
Respondent also presented evidence that the same trailer was
driven for three weeks by another driver after complainant's
termination; that driver neither complained about the trailer nor
reported the trailer door as being dangerous or in violation of
D.O.T. regulations (TR 93-94). This is contradicted by another
of respondent's witnesses, the company President, Dan Richards,
who testified that the trailer was driven by complainant after he
repaired the back door (TR 151). This contradiction is
ultimately irrelevant. Regardless of whether the door was
repaired during or after complainant's employment, or whether the
condition of the left rear door of the trailer constituted a
violation of Department of Transportation safety regulations or
was a safety hazard at all, it is clear from all the evidence
that the left trailer door was in some way worn and in need of
repair; in fact, it eventually was repaired after complainant
returned to Arkansas (TR 60-65, 149-50).
It is not necessary to determine whether the trailer door
actually was a safety hazard or violated the D.O.T. regulations.
The Secretary has held that "a complainant is protected under
Section 405(a) even if the alleged violation complained about
ultimately is determined to be meritless." Hernandez v.
Guardian Purchase Co., 91-STA-31, slip op. at 3 n.1, (Sec'y
June 4, 1992)(Final Decision and Order)(citing Allen v. Revco,
D.S., 91-STA-9, slip op. at 6 n.3 (Sec'y September 24,
1991)(Final Decision and Order). SeealsoWu v.
Thomas, 863 F.2d 1543, 1549 (11th Cir. 1989); Womack v.
Munson, 619 F.2d 1292, 1298 (8th Cir. 1980), cert.denied, 450 U.S. 979 (1981); Pettway v. American Case
Pipe Co., 411 F.2d 998, 1007 (5th Cir. 1969). Thus, in
determining whether complainant engaged in protected activity
under the Act, it is sufficient that she believed she was
[PAGE 7]
operating her truck in a way which presented a safety hazard or
otherwise was in violation of D.O.T regulations. Moreover, it
was not unreasonable for her to believe that the failure of the
trailer door to close properly represented a safety hazard.
I find that by reporting her concerns regarding the trailer
door and its locking mechanism to respondent and to PacLease,
complainant engaged in conduct protected by the Act. Such
actions constitute internal complaints. The Secretary of Labor
and all United States Circuit Courts of Appeals other than the
Fifth agree that internal complaints are protected by the various
whistleblower statutes. See,e.g., Willy v.
Coastal Corp., 85-CAA-1 (Sec'y June 4, 1987)(Decision and
Order of Remand); KansasGas & Electric Co. v.
Brock, 780 F.2d 1505 (10th Cir. 1985), cert.
denied, 106 S. Ct. 3311 (1986); Mackowiak,
supra. But cf. Brown & Root v. Donovan, 747
F.2d 1029 (5th Cir. 1984).
For the foregoing reasons, I find that complainant has met
the first element of her primafacie case, that she
engaged in protected activity. Since it is uncontested that
complainant did report her concern with the trailer door to Sims
and Allen, employees of respondent, it is clear that the second
element of complainant's primafacie case
has also been met. In addition, since complainant was terminated
from her job with respondent, there is no doubt that adverse
action was taken against her.
I also find evidence of a causal connection between the
adverse action taken against complainant and her engagement in
protected activity, establishing the third element of
complainant's primafacie case. First, complainant
testified that Sims told her she was terminated because he was
"tired of hearing about that trailer" (TR 33). That testimony
was not specifically controverted by any of the witnesses for the
respondent, including Sims himself.
In addition to this testimony, the proximity in time between
the protected activity and discharge creates a presumption that
the protected activity was the reason for discharge. The Eighth
Circuit has held temporal proximity sufficient as a matter of law
to establish the final requirement of a primafacie
case. Couty v. Dole, 886 F.2d 147, 148 (8th Cir.
1989)(employee discharged roughly thirty days after engaging in
protected activity). SeealsoKeys v. Lutheran
Family and Children's Services, 668 F.2d 356 (8th Cir. 1980);
Womack v. Munson, supra.
Once the complainant has established her primafacie case, the burden shifts to respondent to articulate
a legitimate, nondiscriminatory reason for its action.
See, e.g., Roadway
[PAGE 8]
Express, Inc. v. Dole, 830 F.2d 179 (11th Cir. 1987). This
analysis follows those set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and
Texas Dep't ofCommunity Affairs v. Burdine, 450
U.S. 248 (1981). Although these cases involved Title VII racial
discrimination, the Secretary has adopted this approach in the
employee protection cases adjudicated by the Department of Labor.
SeeDartey v. Zack Co., supra. In St.
Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993), the
Supreme Court made it clear that the respondent's burden at this
point is one of production, not of persuasion, and that that
burden is met if respondent "introduce[s] evidence which,
taken as true, would permit the conclusion that
there was a nondiscriminatory reason for the adverse action."
Id. at 2748 (emphasis in original).
Regarding the respondent's reasons for terminating
complainant in this case, Sims testified as follows:
Q. Was it the fact that Ms. Doyle
complained frequently to you, is that
what led to her termination?
A. No, sir.
Q. Okay. What was it that actually led
to her termination then?
A. Sir, basically her insubordination and
willingness, you know, not to do what
we were asking for. Of course, the
late loads had a factor in it too, but
it wasn't -- it was just a big combination
of things ...[.]
(TR 66-67). If considered in a vacuum, this testimony might
appear to be sufficient to meet respondent's burden of producing
evidence that complainant was terminated for lawful, job-related
reasons. However, when considered in the context of Sims'
testimony, that is not the case. Rather, when Sims' testimony is
considered in its totality, it becomes clear that complainant's
complaints about the failure of the back door of her trailer to
lock properly was one of the reasons she was terminated.
In response to a question from respondent's attorney, in
which Mr. Sims was asked to explain why complainant was fired,
Mr. Sims stated:
[PAGE 9]
Ms. Doyle ... was just not doing her job the
way we saw her job to be done. It was a
constant every day hassle for either me or
the dispatchers to deal with her. And
whenever she called about the door problem
on the telephone she was there, we weren't,
so we had to depend on her eyes to tell us
what she was seeing.
(TR 76). Sims then went on discussing the complainant's
complaints regarding the trailer door (TR 76-77). It is apparent
that these complaints were in the forefront of Sims' mind in
regard to complainant's termination.
The record also contains the following colloquy between
complainant's counsel and Sims:
Q. Okay. Prior to Ms. Doyle being terminated
were you generally satisfied with her work?
A. No, sir.
Q. Never were you satisfied with her work?
A. No, sir.
Q. An what did you base your dissatisfaction
with her work on.
A. Just her constant complaining.
Q. Did she complain to you?
A. Oh, yes.
Q. Okay. And that's all?
A. The late loads and everything that we've
discussed here, you know.
(TR 74).
In addition, although Sims indicated that complainant's
insubordination was a reason she was fired (seesupra), Sims testified that complainant was never
insubordinate to him, but rather was insubordinate to the
dispatchers (TR 67). However, it is clear that the dispatchers
considered her complaints about the
[PAGE 10]
trailer doors to be one the aspects of claimant's insubordination
(see, e.g., TR 119-20; JX 1, at 42).
Therefore, based on the testimony of Mickey Sims,
respondent's official primarily responsible for terminating the
complainant, there can be no doubt that complainant's complaints
regarding her trailer's door played a role in respondent's
decision to fire her. This protected activity was not the only
reason complainant was terminated; non-protected actions
including lateness and complaints unrelated to safety also played
a role in the decision to terminate complainant. Nevertheless,
it is clear that complainant's protected activity was one of the
reasons she was fired.
Under these conditions, this case must be considered under a
"dual motive" analysis:
The dual motive doctrine is implicated when
it is found that employer's adverse action
against the employee was motivated by both
prohibited and legitimate reasons, i.e., that
the employer had dual motives. SeegenerallyWilson v. Bolin Associates, Inc., 91-STA-4,
Final Dec. and Order, Dec. 30, 1991, slip op.
at 4; Palmer v. Western Truck Manager, Case No.
85-STA-6, Sec. Dec. and Order on Remand, Jan. 16,
1987, slip, op. at 9-10; McGavock [v. Elbar,
Inc.,Case No. 86-STA-5, Sec. Final Dec. and Order,
July 9, 1986] at 12. In such a case, in order
to avoid liability, the employer has the burden
of showing by a preponderance of the evidence
that it would have made the same decision as to
the employee's discharge even in the absence
of the protected conduct. SeePrice
Waterhouse v. Hopkins, 490 U.S. 228 (1989);
Wilson at 4. Park v. McLean Transportation
Services, Inc., 91-STA-47(Sec'y June 15, 1992)
(Final Decision and Order).
I find no credible evidence in the record demonstrating that
respondent would have discharged complainant "even if
[she] had not engaged in protected conduct." Pogue v. United
States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir.
1991)(citing Mackowiak, supra; Mt.
Healthy School Dist. v. Doyle, 429 U.S. 274 (1977))(emphasis
in original). Rather, as indicated above, the evidence
establishes just the opposite -- that the complainant was fired
because her constant complaining annoyed those people
[PAGE 11]
with whom she came into frequent contact, i.e., the
dispatchers (see JX 1, at 42) and her supervisor (TR 74,
76). Those complaints included numerous complaints regarding the
difficulty in closing the left rear door of complainant's trailer
(e.g., TR 76).
This not to say that respondent's action in firing the
complainant for complaining about the trailer was motivated by
animus due to whistleblowing. There is absolutely no evidence in
this record that respondent felt threatened by complainant's
complaints about the trailer or was concerned that her complaints
could cause respondent problems with OSHA or other agencies.
Rather, respondent was simply annoyed about the frequency of
complainant's complaints and their perceived lack of merit, not
by the fact that many of these complaints had safety overtones.
Respondent would have acted no differently had complainant
complained as frequently about the logo on the left rear door of
the trailer as she did about her difficultly in locking that
door.
Nevertheless, complainant did raise complaints which are
protected under the Act, and it appears that these protected
complaints directly led to her termination. To the extent that
there may be testimony in the record to the effect that the
complaints about the left rear door had no connection with
complainant's termination, any such testimony is outweighed by
the totality of the evidence from respondent's officers and
employees.
Accordingly, I find that respondent has failed to establish
that complainant would have been terminated absent her protected
activity, thus failing to satisfy the dual motive test.
Therefore, complainant was terminated in violation of
§405(a) of the Act.[4]
C. Damages
Once it is determined that there has been a violation of the
Act, appropriate damages and remedies are to be determined
according to §405(c)(2)(B), which reads in pertinent part:
[T]he Secretary of Labor shall order (i) the
person who committed such violation to take
affirmative action to abate the violation, (ii)
such person to reinstate the complainant to the
complainant's former position together with the
compensation (including back pay), terms,
[PAGE 12]
conditions, and privileges of the complainant's
employment, and (iii) compensatory damages.
Since complainant desires to be reinstated, she shall be
reinstated immediately (see 29 C.F.R. §1975.109(b)).
Further, the complainant presented no evidence of any
compensable injury other than evidence of the back wages she is
owed.
In regard to the amount of back wages due complainant, this
issue was not briefed by the parties, and the scant evidence in
the record as to complainant's wages while employed by respondent
is unexplained. However, the Secretary has held that in
determining back wages in cases governed by whistleblower
protection statutes, unrealistic exactitude is not required.
Lederhaus v. Paschen, 91-ERA-13, slip op. at 9-10 (Sec'y
October 26, 1992)(Decision and Order adopting the Administrative
Law Judge's calculation of back wages). In addition, any
uncertainties in calculating back pay are to be resolved against
the discriminating party. Kovas v. Morin Transport, Inc.,
92-STA-41) (Sec'y October 1, 1993)(Final Decision and Order).
In order to determine how much back pay complainant is
entitled to be awarded, it first must be determined how much she
was paid while working for respondent. Complainant was paid by
the number of miles she drove. She testified that she was paid
25 cents per mile when she was carrying freight and 12.5 cents
per mile when she was not (TR 13).[5] However, respondent's pay
records for the complainant, although confirming these figures,
show that 8 of the 25 cents per mile complainant was paid when
carrying freight was a payment of per diem, and was not
considered taxable income (see JX 1, at 59-64).
Presumably, therefore, these per diem payments were to reimburse
complainant for travel expenses, and should not be included in
calculating her income for purposes of back pay.
Moreover, the pay records in evidence are incomplete, for
they do not cover complainant's last two trips for respondent
(compare JX 1, at 59-65, with JX 1, at 47).
Instead, these records appear to reflect complainant's earnings
for the first 25 days (August 30 - September 23) she actually
worked for respondent. Since there are no other records in
evidence, the wages for this period will be used.
Finally, since the record fails to establish the number of
days complainant actually worked during this 25 day period, it
appears reasonable to total complainant's taxable wages for the
period for which records are available and obtain an average
[PAGE 13]
weekly wage, and base the back pay award on this amount
multiplied by the number of weeks from the date she last worked
for respondent until she is reinstated.
The pay records show that complainant's taxable income for
the 25-day period covered by the wage statement in evidence
totalled $1350.82. Dividing this amount by 3 4/7 (the number of
weeks in 25 days) equals $378.38. Accordingly, I find that
complainant is entitled to back pay in the amount of $378.38 per
week from the date of her termination -- September 28, 1992 --
until she is reinstated. SeePalewsky v. B&L Lines,
Inc., 90-STA-21 (Sec'y May 29, 1991)(Final Decision and
Order).
Respondent is, however, entitled to an offset for wages
earned by the complainant from her termination until
reinstatement. In this regard, complainant submitted records
showing her earnings and unemployment benefits from October 1,
1992, through August 19, 1993 (CX 1). The Secretary has
determined that in cases arising under the Act, unemployment
compensation is not deducted from a back pay award. Phillips
v. MJB Contractors, 92-STA-22 (Sec'y October 6, 1992)(Final
Decision and Order). Other than unemployment compensation,
complainant has earned $4,741.54 from her termination through
August 19, 1993 (see CX 1).
Complainant also is entitled to pre-judgment interest on the
amount of back wages she receives pursuant to a final order in
this case. Decisions by the Secretary awarding back pay under
the Act calculate interest in accordance with 26 U.S.C.
§6621 (1988), which specifies the rate for use in computing
interest charged on underpayment of federal taxes. Phillips
v. MJB Contractors, supra. SeealsoAnderson v. Jonick & Co., Inc. 93-STA-6 (Sec'y September
9, 1993)(Decision and Order).
Complainant has requested and will be entitled to attorney's
fees in this case pursuant to §405(c)(2)(B) of the Act. No
fee petition has yet been filed in this case. Complainant's
counsel shall file his fee petition within 30 days of receipt of
this decision. When the fee petition is filed, respondent shall
file any objections within 15 days of receipt.
ORDER
1. Respondent shall immediately reinstate the complainant.
2. It is recommended that respondent pay back wages to
complainant at a rate of $378.28 a week from September 28, 1992,
[PAGE 14]
until complainant is reinstated in her previous position.
Respondent is entitled to a credit in the amount of $4,741.54 a
resulting from complainant's earnings during that period, and on
additional credit if complainant earned additional wages from
August 19, 1993, until she is reinstated. Prejudgment interest
calculated pursuant to 26 U.S.C. §6621 (1988) shall be paid.
3. Complainant's counsel shall file a fee petition within
30 days of receipt of this decision. Respondent shall file any
objections to the fee petition within 15 days.
JEFFREY TURECK
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations will be used to cite the record
of the proceeding: TR -- Hearing Transcript; JX -- Joint
Exhibit; CX -- Complainant's Exhibit; RX -- Respondent's Exhibit.
[2] The chronology of events in this case was not presented
very clearly by the parties. Where appropriate, I have attempted
to supply dates of particular events. In any event, exact dates
are not crucial to any determination of fact or law.
[3] Complainant may have been late as many as four times out of
eight trips (TR 17-22), but as respondent was only aware of two
at the time of her termination, any other such instances are not
relevant.
[4] That respondent was hired as a probationary employee for a
30-day period does not effect the outcome of this case. Whether
respondent terminated the complainant, or simply decided not to
retain her services past the 30-day probationary period, is
irrelevant. For in either case respondent's action in not
retaining complainant as an employee was motivated, at least in
part, by complainant's protected activities.
[5] Complainant also alleged that she was underpaid 12.5 cents
per mile for 400 miles she drove during her employment with
respondent (TR 12-13). Other than complainant's allegation of
underpayment, there was no evidence presented on this issue.
Without any evidence, I cannot determine the truthfulness of this
allegation and have not considered it in calculating the back
wages due complainant.
