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Ass't Sec'y & Brown v. Besco Steel Supply, 93-STA-30 (ALJ Aug. 26, 1994)




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 pro se. 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, reprinted in 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); See also Arnold 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 prima facie 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. See Moon 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 prima facie 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).



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