DATE: AUGUST 26, 1994
CASE NO. 93-STA-00030
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
Prosecuting Party
and
JOHNNY E. BROWN,
Complainant,
v.
BESCO STEEL SUPPLY
Respondent.
Appearances:
Cynthia Welch Brown, Esq.
Office of the Solicitor
U.S. Department of Labor
Birmingham, Alabama
For the Prosecuting Party
Johnny Brown, Pro Se
Jasper, Alabama
For the Complainant
Kearney Dee Hutsler, Esq.
Gregory A. Kennemer, Esq.
Birmingham, Alabama
For the Respondent
BEFORE: JAMES W. KERR, JR.
Administrative Law Judge
[PAGE 2]
RECOMMENDED DECISION AND ORDER
This action arises under the Surface Transportation Assistance
Act of 1982 (hereinafter "STAA," or "the Act"), 49 U.S.C. Section
2305 and its implementing regulations, 29 C.F.R. Part 1978.
Section 405 of the STAA provides protection from discharge or other
forms of discrimination to employees who report violations of
commercial motor vehicle safety rules or who refuse to operate a
vehicle when the operation would be a violation of those rules.
Johnny Brown (hereinafter "Complainant") filed a complaint
with the Secretary of Labor on September 17, 1992, alleging that
Respondent, Besco Steel Supply (hereinafter "Respondent" or
"Besco") discriminated against him in violation of Section 405 of
the Act. Complainant charges that Besco discriminatorily
discharged him for complaining about and refusing to continue
driving in excess of Department of Transportation (hereinafter
"DOT") hours of service regulations. (PX-1). The Secretary of
Labor, acting through his agent, the OSHA Regional Administrator,
investigated the complaint. On May 5, 1993, the OSHA Regional
Administrator issued findings that there was reasonable cause to
believe that Besco had violated Section 405 of the STAA.
Specifically, the investigation revealed the following
findings: 1) Complainant and other drivers' total on-duty hours
exceeded sixty hours per week on a continuing basis, in violation
of the DOT's Federal Motor Carrier Safety Regulations; 2) that
Complainant's refusal to work the "Walker County" portion of his
job was protected activity as it required him to work in violation
of DOT hours of service regulations; and 3) Respondent's discharge
of Complainant based on his protected activity constituted a
violation of Section 405 (a) or (b) of the Act. The Administrator
ordered that Complainant's personnel records be expunged, that he
immediately be reinstated, and paid back pay plus interest.[1]
On May 20, 1993, Respondent filed an objection to the
Secretary's findings and requested a hearing. A formal hearing was
conducted on October 6 and 7, 1993, at Birmingham, Alabama. Both
the Prosecuting Party and Respondent were represented by counsel
and Complainant appeared prose. All parties were
afforded the opportunity to present evidence, examine witnesses,
and make oral argument. The parties submitted timely post-hearing
briefs. This decision is based on a review of the entire record.
[2]
The parties reached the following stipulations prior to trial:
1. Respondent, Besco, is a steel product supplier and
[PAGE 3]
is an employer involved in making local deliveries of their steel
product;
2. Complainant, Brown, was employed by Besco from May
20, 1991 through August 21, 1992;
3. Besco's delivery vehicles have a gross vehicle
weight in excess of 10,000 pounds;
4. Complainant filed a claim with OSHA on September
17, 1992; and
5. Complainant filed a claim with the Department of
Transportation.
(Tr. at 7)
FINDINGS OF FACT
Complainant began working as a truck driver for Besco in May,
1991. Besco is a steel product supplier located in Birmingham,
Alabama with most of its customer in a 100 mile radius of its
principal place of business. After approximately two weeks,
Complainant was assigned the "Walker County" run in addition to his
regular day delivery schedule. The Walker County run entailed
making deliveries on a northerly route at the end of the regular
work day. Complainant would load up his truck at the Birmingham
site and make up to ten deliveries in Walker and surrounding
counties.
Complainant, who lived in Walker County, would make the Walker
County deliveries and drive the truck home for the evening.
Complainant would then have the truck to drive back to work the
next morning. Testimony indicated that this arrangement was for
the benefit of both the driver and Besco.
Complainant testified that although he wanted overtime he did
not want the excessive overtime entailed in working the Walker
County run. He stated that he would have to work late in the
evenings, often unloading the heavy steel by himself because the
delivery locations were closed by the late hour at which he
arrived. Further, he stated he would have to wake early the next
morning to complete his deliveries in Walker County if he had been
unable to finish them the previous day. Complainant testified that
depending on the number of stops and the size of the deliveries, he
would work from 55 hours to 70 hours per week. (Tr. at 54).
Complainant, Brown, testified that he began complaining about
[PAGE 4]
having to lift heavy steel and work too many hours in the latter
part of 1991. (Tr. at 64-65). Specifically Complainant testified
that he would work his normal deliveries in the Birmingham area
during the day, and when he had completed those deliveries he would
return to the Besco shop and load the deliveries for Walker County.
Testimony regarding the time that the deliveries for Walker County
were loaded ranged anywhere between 2:30 and 6:00 p.m.
Complainant testified that he would complete his deliveries for
Walker County as late as 10:30 or 11:00 p.m. Further, Complainant
testified that he often had to unload the heavy steel by himself
since he usually arrived at the delivery site after closing.
Complainant testified that he complained to Joe Partridge, Dan
Levan, Bill Davis and Tommy McCarthy. Further, he stated that when
he complained to Bill Davis, he was told that Besco would arrange
for someone to help him. Although Besco eventually hired
additional drivers in 1991, Complainant's working conditions did
not change. (Id.)
Complainant testified that he had a busy day of work on August
20, 1991, and did not begin loading for Walker County until 4:30
p.m. He stated that he finished loading and left the Besco site to
begin making the Walker County deliveries at approximately 6:30
that evening. Complainant testified he made several deliveries
before returning home that evening at approximately 9:00 p.m.
Since Complainant still had two deliveries remaining the next
morning. and had been instructed to make one delivery in
Tuscaloosa by 7:30 a.m., he had to leave his house by 4:30 a.m. to
make the delivery. (Tr. at 67).
Apparently after finishing his deliveries the morning of
August 21, 1992, Complainant proceeded to the Besco office with a
small tape recorder concealed in his pocket. He testified that
several people were present in the office including Dan Levan and
Bobby McClendon. Complainant stated that based on the remarks made
by Levan and McClendon he understood that he had been fired. (Tr.
at 82).
Although the parties were instructed to submit a joint
transcript of the conversation contained on the tape with separate
transcripts on the parts of the conversation that are in dispute,
no joint submission was received. (See Transcript at 94).
However, the separate transcripts submitted by the parties are the
same in regard to the following statements made by Complainant:
Dan, Bobby, uh after today I won't, not even
today, I won't be doing no more Walker County,
[PAGE 5]
I'll work from 6:30 til 4:30 or however ya'll want me to.
(PPX-3, RX-13).
Regarding that taped conversation, Complainant answered the
following questions:
Q: During this conversation, did you understand
that you were fired, Mr. Brown?
A: Yes, I did. When he told me to find another
job.
Questions by the Court:
Q: Well, you were also telling them you weren't
going to do some of your assignments, weren't
you?
A: Yes, sir. I refused to work them late hours
out there. It's against Federal safety
regulations. And lifting that heavy steel by
myself late at night. 'Cause if I get hurt,
no one is out there to help me. The people
are gone. I lifted 40-foot beams off the
truck with a steel pipe and no one to help me.
Q: Well, why isn't is just as likely if you go in
and tell your boss that you're not going to do
what he tells you to do that you're in effect
saying, "I'm quitting?" I mean, were you in
effect saying, "I'm quitting Walker County?"
A: Yes. I said to them, "I ain't doing Walker
County again." That I would do it during the
day. See, I asked them could I take the load
home and deliver it in the morning when people
are there to unload the truck. They advised
us, said, "No, you get it off that night."
(Tr. at 82). Further, Complainant testified that by taking that
particular course of action he thought Besco "would set down and
talk about it." (Tr. at 91)
Complainant's transcript of the conversation also contains the
following statements:
Brown: I'm not the only man. You've got
[PAGE 6]
Tommy here.
Besco: Well.
Brown: Oh I know, well, well. Johnny was
here longer than Tommy was that I
know of this last time. He gets up
to foreman job, I get stuck on the
on the truck, Bobby. What's the
deal on that?
Besco: Johnny, you don't know steel.
That's the reason he's the foreman.
Brown: Tommy don't know it neither. 'Cause
there's more mistakes made on my
truck that I keep catching before I
go out the gate with. But I don't
know nothing. You're right. I
don't know nothing.
Besco: I didn't say you didn't know
anything. I said you don't know the
material. That's what I said.
(PPX-3).
Complainant stated that all time keeping during his tenure
with Besco was done by the individual employees on an honor system.
(Tr. at 104). Complainant testified that after his separation from
Besco he made a good faith effort to find a job, and although he
had not kept detailed records since August, 1993, he continued to
look for work. (Tr. at 86). Specifically, Complainant testified
that in searching for employment he applied at the Pit Stop in
person on approximately 14 occasions and that on many of those
occasions he spoke with Brian Kocsis. (Tr. at 129). Further,
Complainant admitted to having contacted Mr. Kocsis after he
testified in the state unemployment compensation hearing to
ascertain why Mr. Kocsis had lied about not having seen Complainant
at his shop on more than one occasion. (Tr. at 132-134).
Complainant testified that in the fifteen months that he
worked for Besco, on approximately three occasions he traveled
further than a 100 mile radius from Birmingham. (Tr. at 114). On
two of those occasions Complainant picked up material from Reynolds
Aluminum in Atlanta, Georgia, and on one occasion went to
Mississippi. (Tr. at 135).
[PAGE 7]
Complainant testified that he signed the December 17, 1992,
OSHA complaint completed by Annette Smith, and even though he
signed the document below a statement saying that he had read and
understood the contents, he testified that he had not read the
complaint. Complainant stated that the complaint contained
"mistakes" that he attributed to "human error." (Tr. at 119).
Tommy McCarthy testified that he had worked for Besco as a
foreman during the time that Complainant worked there. He stated
he was employed first in the warehouse, then as a truck driver, and
later as a shop foreman. Mr. McCarthy stated that Complainant had
complained to him regarding the hours involved in the Walker County
run. Specifically, Mr. McCarthy testified:
Q: Did Mr. Brown ever talk to you about he hours
that he was working?
A: We discussed him being able to rotate off with
me and have days off during the week, but we
never got it ironed down to where we actually
did it.
***
Q: Did he ever talk about the long hours that he
was working in Walker County?
A: It was- I want to say it was more an option to
work as much as you wanted to, but there was
some instances where there was some long hours
to deliver for material that the customer
needed. That's the whole thing, we're
customer oriented. We supply them; they pay
the bills. When you've got stuff that they
need, they need it.
(Tr. at 163-165). McCarthy was not present in the Besco office on
August 21, 1991, and he did not know whether Complainant quit or
was fired. (Tr. at 170).
McCarthy testified that he drove the Walker County run when no
one else was available. (Tr. at 175). Further, he stated that he
did the Walker County run during the time that he worked in the
shop which allowed him to start the job earlier than some of the
other regular truck drivers. In his experience he had worked at
10:30 or 11:00 p.m. on one occasion but otherwise usually completed
the job by 7:30 or 8:00 p.m. (Tr. at 178).
[PAGE 8]
Ronald Joe Partridge testified that when he was a foreman at
Besco he hired Complainant to be a driver. (Tr. at 189).
Regarding the Walker County run, he testified that Besco usually
knew whether a driver was going to make all of his stops the same
evening he was loaded or if he was going to finish up the next
morning. Mr. Partridge stated that the preference was for all the
deliveries to be made that same night because the driver would be
available in the morning to load out. He stated that he was aware
that the Walker County run possibly could take until 9:30 or 10:00
p.m. to complete.
Bryan Kocsis, the owner the Pit Stop, an oil and lube shop in
Jasper, Alabama, testified under subpoena from Respondent. Mr.
Kocsis testified in the instant proceeding that he also had
testified in the state court unemployment proceeding. Mr. Kocsis
stated that he could recall seeing Complainant in his shop on only
one occasion prior to being subpoenaed on May 25, 1992, for the
state court hearing. Further, Mr. Kocsis understood Complainant
claimed to have been to the Pit Stop on at least 9-14 occasions
looking for work, but he was unable to recall whether Complainant
was there on that many occasions. Mr. Kocsis stated that he had
given the same testimony in state court on August 17, 1992, and
that within an hour of that proceeding, Complainant arrived at his
shop and told Kocsis that he had "ruined his case." (Tr. at 230).
Bob Crowe, a mechanic who previously had done contract work
for Besco, testified that he was in the Besco office on August 21,
1992, during the conversation which Complainant recorded with his
pocket tape recorder. (Tr. at 240). Mr. Crowe's recollection of
the conversation was that Complainant came into the office and
stated "he wasn't gonna run that Walker County run no more; if
that's all they had, he'd go home." (Id.) Mr. Crowe stated
that he did not know verbatim what the parties said, but that both
had "said a good bit." In recalling the conversation, Mr. Crowe
testified that Besco asked Complainant why he was not going to do
the Walker County run anymore and Complainant responded that he
would only work eight hours per day. (Tr. at 247). Further, Mr.
Crowe stated that he understood Complainant's comments to mean that
he quit, although he did not know why Complainant was quitting.
(Tr. at 248).
Freddie Lawayne Muncher testified that he was a former
employee of Besco. Although he had not worked during the time that
Complainant worked at Besco, Mr. Muncher also worked as a truck
driver. (Tr. at 250). He stated that part of his job was to make
deliveries on the Walker County run. Mr. Muncher testified that
when he worked the Walker County run, the delivery schedule in
[PAGE 9]
large part was left to his own discretion. However, he also stated
that if he was instructed to make a Walker County delivery that
same evening, he would make that particular delivery first. (Tr.
at 258).
Mr. Muncher stated that his average work week was
approximately 60 hours per week, and overtime was not required by
Besco, "we could work as many hours as we wanted to." (Tr. at 252-
53). He added that he usually finished his deliveries at 6:00 or
7:00 that evening, and on the occasions when he stopped at his
house to have dinner he would finish delivering around 8:30 or 9:00
p.m. Mr. Muncher testified that he did not finish until 10:00
p.m. on only one occasion due to a truck break down. (Tr. at 253).
James L. Pridgen, III, a Besco employee testified that he
worked for Besco during the time that Complainant worked there.
Mr. Pridgen stated that on several occasions Complainant had stated
that he was tired of the Walker County run. He recalled that there
were many occasions when Complainant would come into work late,
after 10:00 a.m., explaining that he had finished his deliveries
from the previous night. (Tr. at 288). Specifically, on the day
that Complainant "quit," Mr. Pridgen recalled Complainant saying
that he did not want all of the hours involved with driving that
route. (Tr. at 279).
Mr. Pridgen testified that he had driven the Walker County run
on and off for approximately one year, and in doing so had worked
as late as 8:00 or 9:00 p.m. (Tr. at 274). Further, he stated
that unless specifically instructed otherwise, he would make some
of the deliveries in the evening and the remaining deliveries the
following morning. On these occasions he would arrive at work at
approximately 8:00 a.m. Specifically, he testified that if he did
not load up and leave the Besco site until 4:30 p.m., he would not
be able to make all of his deliveries that evening and he would
finish in the morning. (Tr. at 286).
Daniel Gary Levan, testified that he had been part owner of
Besco Steel for nine years and his job responsibilities included
buying and selling steel and working in the company office. (Tr.
at 293). He stated that he was in the office on August 21, 1991,
the day that Complainant tape recorded the conversation with his
pocket tape recorder. Mr. Levan stated that Complainant had never
complained to him prior to the August 21, 1991, incident. Further,
he stated that it was only after Complainant left the Besco
premises that Levan heard from other employees that Complainant
voiced dissatisfaction about the Walker County run. He was told
[PAGE 10]
that Complainant was dissatisfied with the fact that he had been
passed over for a promotion to foreman. (Tr. at 295). He stated
that based on the August 21, 1991, conversation he understood that
Complainant had quit his job. Mr. Levan stated that other drivers
were available to drive the Walker County run and that if Brown had
ever complained to him, something could have been worked out. (Tr.
at 317).
Mr. Levan stated that at the time that Brown was hired he
expressed an interest in getting overtime, and was told that
overtime would be available. (Id. at 297). Levan stated
that Besco's policy regarding delivery was left to the driver's
discretion unless there was a specific priority delivery in which
case certain deliveries would have to be made the same evening.
Mr. Levan stated that since the onset of this case, Besco has
begun keeping track of the actual time and mileage of drivers. He
stated that in the three months of record keeping, the most any one
driver has been in the truck with "wheels rolling" is 5.2 hours out
of an eight and a half or nine hour day. (Tr. at 299). Mr. Levan
is unaware of any time that Brown would have been across state
lines in a Besco vehicle.
Sandra Jane Brom the office manager and custodian of records
with the Unemployment Claims Office in Jasper, Alabama testified
that she maintained Complainant's file with her office. (Tr. at
262). She testified that the document received as Prosecuting
Party's Exhibit No. 8 was a correct copy of the original document
kept on file at the Unemployment Claims Office.
CONCLUSIONS OF LAW
At the outset, Respondent moved the Court to dismiss
Complainant's claim on several grounds. Specifically, Respondent
argued lack of jurisdiction, waiver, and collateral estoppel.
First, Respondent argued that the Department of Transportation
(hereinafter "DOT"), lacked jurisdiction over Besco and thus, this
Court had no basis for enforcing the STAA. Respondent's second
argument for dismissal centered around a DOT letter dated December
17, 1992, wherein that agency expressly stated that it had no
jurisdiction over Respondent. Besco argued that the DOT thereby
had waived its jurisdiction and its right to enforcement.
Respondent contends that an agency's interpretation of the scope of
its authority over motor carriers is to be accorded substantial
weight. (Tr. at 20-22). Lastly, Respondent argued that
Complainant was collaterally estopped from asserting his claim
since a state Court in Alabama (in an unemployment compensation
[PAGE 11]
hearing) found that Complainant had not been discharged but rather
had quit his job with Respondent.
After addressing these issues, the Court will address
Complainant's specific claims that he was discriminatorily
terminated due to his complaints regarding driving in violation of
DOT hours of service as well as dangerous steel off-loading
activity, and Respondent's contentions that Complainant quit his
job; has continuously made false representations (e.g. his physical
condition) or lied; knew that he would get the Walker County run;
has not impermissibly worked overtime under either Alabama law or
DOT regulations because he falsified his time records; and that he
actually quit because he was disgruntled over losing a promotion.
Jurisdiction
The law is clear that the Act applies to interstate commerce
and to intrastate commerce that affects interstate commerce.
See, Taylor v. J.K. Trucking, 88-STA-4 (Sec'y Oct.
31, 1988). Further, although evidence of minimal interstate
commerce is not sufficient to establish activity as interstate
commerce, it is not necessary to cross state lines to be within the
ambit of Congress' power to regulate interstate commerce.
Moreover, in Killcrease v. S & S Sand and Gravel, Inc.,
92-STA-30 (Sec'y Feb. 2, 1993), where the respondent contended that
it was not subject to the STAA, the Secretary analyzed the
statutory and regulatory provisions in concluding that the
Respondent was subject to the STAA. Specifically, the Respondent
was a private carrier engaged in truck transport of sand and gravel
which it mined, processed, transported by commercial motor vehicle,
and sold. The Respondent also constituted an "employer" within the
STAA definition because its business affected commerce and the fact
that Respondent's drivers regularly operated vehicles on national
interstate highways also supported a finding that it was engaged
"in commerce".
The Secretary distinguished regulatory schemes in which
classification of a "motor private carrier" can require a quantum
of transportation between States or across national boundaries.
E.g., 49 U.S.C. §§ 3101-3104 (DOT); 49 U.S.C.
Subtitle IV (ICC). STAA section 405 has a remedial purpose that
applies a more generic "commercial motor carrier" that is not
statutorily defined. Absent a statutory definition, the Secretary
concluded that it is appropriate to accord "commercial," deriving
from "commerce," its legal meaning. In addition, the Secretary
concluded that the
[PAGE 12]
legislative history of the STAA militates in favor of construing
the term expansively to describe motor carriers "in" or "affecting"
commerce. See H.R. Conf. Rep. No. 987, 97th Cong., 2d Sess.
at 163-164, reprintedin 1982 U.S. Code Cong. &
Admin. News (USSCAN), 3639, 3744-3745.
Given the Secretary's ruling that the Department of Labor is
not bound by the Department of Transportation's interpretation and
application of its regulations, the Court finds that the
Department of Transportation's May 15, 1992, letter stating that it
had no jurisdiction over Respondent as it was an intrastate carrier
does not dispose of this Court's jurisdiction. In fact, the
Secretary's rulings allow that without deciding the issue of
whether Respondent engages in interstate commerce as defined by the
DOT, the STAA does in fact apply to strictly intrastate carriers if
those carriers "affect" commerce. Consequently, Mr. Levan's
testimony that Besco obtained its steel from all over the country
including Tennessee, Kentucky, Georgia, and Mississippi, as well as
Complainant's testimony that he drove interstate highways and even
crossed state lines into Georgia and Mississippi brings this case
squarely within this Court's jurisdiction. Killcrease v. S &
S Sand and Gravel, Inc., 92-STA-30 (Sec'y Feb. 2, 1993);
SeealsoArnold v. Associated Sand and Gravel
Co., Inc., 92-STA-19 (Sec'y Aug. 31, 1992); Taylor v. T.K.
Trucking, Inc., 88-STA-4 (Sec'y Oct. 31, 1988)(where the
Secretary accepted the ALJ's finding that Respondent's activities
had a close and substantial relation to trade, traffic and commerce
among the states) (Sec'y Oct. 24, 1988).
Collateral Estoppel
In Judd v. Helena Truck Lines, Inc., 91-STA-48 (ALJ
Dec. 24, 1992), the administrative law judge noted that the Supreme
Court has liberalized the applicability of the doctrine of
equitable estoppel, or issue preclusion, and therefore other courts
will continue to do so. University of Tennessee v. Elliott,
478 U.S. 788 (1986); United States v. Utah Construction & Mining
Co., 384 U.S. 394 (1966). Such an approach has been endorsed
under the STAA since the regulations promulgated thereunder
authorize the Secretary of Labor to afford deference to the
determinations of other jurisdictions on issues related to the Act.
See 29 C.F.R. § 1978.112.
The ALJ concluded, however, that collateral estoppel should
not be applied where the determination relied on was made by the
Area Director of the Equal Employment Opportunity Commission based
[PAGE 13]
on evidence obtained from an agency investigation rather than
through a judicial process. In making this determination, the ALJ
stated that if an agency, whether federal or state, is "acting in
a judicial capacity" and "the proceedings were fair, regular and
free of procedural infirmities" with both parties having "a full
and fair opportunity to argue their version of the facts and an
opportunity to seek court review of any adverse findings," then the
determination should be controlling on another agency which is
addressing the same factual issue. Elliott, 788 U.S. at
799; 29 C.F.R. § 1978.112(c); Utah Construction & Mining
Co., 394 U.S. at 422.
Given that an Alabama state court has already ruled that
Complainant quit his job and thus suffered no retaliatory
discharge, this Court finds that acceptance of the state proceeding
would serve little purpose since collateral estoppel generally is
applied to avoid duplicative litigation, and the parties in the
instant case have already developed extensive evidence and the only
matter remaining is the issuance of the Court's decision based on
that evidence.
Complainant's Prima Facie Case
Under the Act, Section 2305(a), it is prohibited to discharge,
discipline, or discriminate against an employee for filing or
instituting or causing to be instituted a complaint relating to
violation of a commercial motor vehicle safety rule, regulation,
standard or order. Under Section 2305(b), it is prohibited to
discharge, discipline, or discriminate against an employee for
refusing to operate a vehicle when such operation violates any
federal rule or regulation applicable to commercial motor vehicle
safety or health. The employee's apprehension must be reasonable,
and the employee must have sought from employer and been unable to
obtain correction of the unsafe condition. Interestingly,
Complainant urges that Section 2305(a) is the applicable provision;
Respondent cites Section 2305(b) as applicable.[3] Due to the
fact that Complainant alleges he was fired for "whistleblowing"
(Ct's 1 pp. 2-3), and presented his proof primarily on that issue,
the Court will considered Section 2305(a) the applicable provision.
To make a primafacie case of whistleblowing,
Complainant must show (1) the discharged employee was engaged in a
protected activity under the act, and it must be a proceeding
relating to a violation of a commercial motor vehicle safety rule,
regulation, standard or order; (2) he was the subject of adverse
employment action; and (3) there was a causal link between his
protected
[PAGE 14]
activity and the adverse employment action. SeeMoon v.
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).
In this instant case, the Court finds, without deciding if
Complainant engaged in protected activity, that he was not
subjected to adverse employment action. Complainant bases his
claim of discriminatory discharge in large part on the tape
recorded conversation between himself and Besco management. In
that regard however, the Court finds that Complainant has not
carried his burden of establishing that he was fired as opposed to
having quit. In fact, the parties agree that the first statement
that Complainant made upon entering the Besco offices were: "I
won't be doing no more Walker County."
The Court bases its decision on several factors. Complainant
admitted that when he went to the Besco officers he told them he
was not going to do some of his assignments - that he in effect was
quitting Walker County. (Tr. at 82). Although Complainant
understood that he was terminated, Levan and Bob Crowe both
understood that Complainant was quitting. Complainant also
testified that by taking that particular course of action, he
thought Besco "would set down and talk about it," however the
record reflects that any such problems routinely were handled by
Levan.
In that regard, the Court found Mr. Levan to be particularly
credible and recognizes his testimony that Complainant had not
approached him regarding dissatisfaction with the Walker County
run. In fact, Mr. Levan stated that other drivers were available
to work Walker County and had Complainant expressed his discontent
something could have been worked out. To that end, Joe Mccarthy
testified that he and Complainant had discussed the possibility of
sharing the responsibility for the Walker County run and that such
a plan just had not yet been implemented. Moreover, the Court
finds that the evidence supports a finding that Complainant was
disgruntled about having been passed over for a promotion and that
this in fact contributed to his mind set the morning of August 21,
1992.
The facts that Complainant was upset by not getting a
promotion, chose not to approach Levan about obtaining relief on
the Walker County run, did not follow up on the arrangement with
Mccarthy to share the route, and entered the Besco office with the
caustic statement that he would not do part of his job any longer,
leads the Court to the conclusion that Complainant resigned his
position with Besco and was not discharged. Consequently,
Complainant has failed to establish that he suffered any adverse
employment action and thus, has failed to establish his
primafacie case.
Conclusion
Complainant, while credible, has not proved that as a matter
of law he should prevail. In sum, Complainant has not met his
burden of proof or persuasion in proving a violation of the Act.
Recommended Decision
It is therefore ORDERED, ADJUDGED and ORDERED that the
complaint of Johnny E. Brown against Besco Steel Company is hereby
DISMISSED.
Entered this 26th day of August, 1994 at Metairie, Louisiana.
JAMES W. KERR, JR.
Administrative Law Judge
[ENDNOTES]
[1] By order dated September 23, 1993, the prosecuting party's
Motion to Amend was granted and the Regional Administrator's
Order was amended to explicitly state that Respondent was
required to offer to reinstate Complainant to his former position
immediately.
[2] Evidence will be cited as follows: Transcript - "Tr.;"
Prosecuting Party's exhibits - "PPX-__;" Respondent's exhibits -
"RX-__."
[3] Complainant cites Section 2305(b) for remedies; the Court
believes complainant is referring to Section 2305(c)(1)(B).
