Date: August 6, 1994
Case No.: 93-STA-31
IN THE MATTER OF:
Gregory A. Dutile
Complainant
against
Tighe Trucking, Inc.
Respondent
Appearances:
Gregory A. Dutile
Pro Se
Joseph F. McEvoy, Esq.
For the Respondent
Before: David W. Di Nardi
Administrative Law Judge
RECOMMENDED DECISION AND ORDER ON MOTION FOR
RECONSIDERATION
This case arises under Section 405 of the Surface Transportation Assistance Act (hereinafter
referred to as the "Act"), 49 U.S.C. §2305. Complainant, Gregory A. Dutile of Plainville,
Massachusetts, filed a complaint under the Act, alleging that his employer, Tighe Trucking, Inc.
("Employer" or "Respondent") discharged him "because he refused to drive a truck that had a
broken roof." (ALJ EX 2) The Respondent denied the allegation.
PROCEDURAL HISTORY
On June 28, 1993 a hearing was held in Providence, Rhode Island on the merits of the
complaint. Complainant appeared Pro Se and the Employer was represented by
counsel. The parties were
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afforded the opportunity to present oral argument, their witnesses and documentary evidence. A
briefing schedule was established on July 15, 1993, (ALJ EX 9A) Copies of certain exhibits
were sent to Complainant on July 19, 1993. (ALJ EX 9A) Claimant's 1992 Tax return and form
W-2's have been admitted as CX 7. Claimant's position paper has been identified as CX 7. A
copy thereof was sent to Respondent's counsel on August 6, 1993 (ALJ EX 10) and counsel was
given seven (7) days to file a response. The record was closed on August 11, 1993, at which
time Attorney McEvoy filed his response to Complainant's brief. (RX 1)
The following abbreviations shall be used: TR for the official transcript, ALJ EX for an
exhibit offered by this Administrative Law Judge, CX for an exhibit offered by Complainant and
RX for an exhibit offered by Respondent.
This Administrative Law Judge, after a full hearing and review of the evidence presented by
the parties, concluded (1) that Complainant had reasonable grounds to refuse to drive truck 36 on
December 24, 1992 because of the unsafe condition of the truck, (2) that Respondent's
termination of Complainant violated Section 405 of the STAA and (3) that Complainant was
entitled to an award of all benefits provided by the Act.
This closed record conclusively establishes (1) that Complainant was discharged from his
employment with Respondent and that he was the subject of adverse employment action, (2) that
Complainant had established that he was engaged in protected activity under the Act, (3) that
Complainant established a prima facie case of retaliatory discharge by Respondent and
(4) that Respondent's witnesses, were, in certain material respects, less than candid to such an
extent that I credited Complainant's version in those areas of inconsistencies.
Complainant does not seek reinstatement with the Respondent (TR 29) and I conclude that he
is entitled to an award of back pay, plus appropriate interest, commencing on December 24,
1992, the date of termination. Thus, I awarded Complainant back pay at the rate of $634.90 per
week, commencing on December 24, 1992 and continuing until such time as Respondent pays
the amount of the award to Complainant. Appropriate interest was awarded on such back wages
in accordance with 26 U.S.C. §6621. Park v. McLean Transportation Services,
Inc., 91-STA-47 (Sec'y June 15, 1992).
I also found and concluded that Complainant had sustained his burden of mitigating damages
as he has been unable to obtain employment.
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In my prior Decision and Order, I specifically found that Complainant was entitled to an
award of back pay from December 24, 1992 to the date of actual payment, including appropriate
interest thereon, and that while he had alleged certain lost benefits as a result of the termination,
he had not established the value of such benefits, and the burden is on the Complainant to do so.
I also concluded that Complainant was also entitled to a provision herein directing that the
Respondent immediately expunge from Complainant's personnel records all derogatory or
negative information contained therein relating to Complainant's work for the Respondent and
his termination on December 24, 1992.
Accordingly, on August 12, 1993, I issued the following ORDER:
It is therefore ORDERED that Respondent shall pay to Gregory A. Dutile the back
pay award at the rate of $634.40 per week, commencing on December 24, 1992 and continuing
until payment of the award by Respondent, plus appropriate interest at the IRS rate, computed
until the date of payment to Complainant.
It is further ORDERED that Respondent shall immediately expunge from
Complainant's personnel records all derogatory or negative information contained therein relating
to Complainant's employment with the Respondent and his termination on December 24, 1992.
The matter was then appealed to the Secretary of Labor and the Secretary, by Decision and
Order dated November 29, 1993, affirmed this Administrative Law Judge and issued an
ORDER adopting the ORDER I had issued.
While the case was pending before the Secretary, Respondent tendered to Complainant a
check for $29,245.70, which represented, according to Respondent, back pay from December 24,
1992 through November 5, 1993, in the amount of $634.90 per week. Respondent calculated
interest according to the rate for "T-bills" and compounded it monthly. On November 18, 1993,
Complainant returned the check to Respondent, stating that he did not consider it to be adequate
compensation and that he would await the Secretary's decision.
The Secretary then issued his ORDER and Respondent's counsel asked the Secretary
to allow a reduction on the interest owed according to the Secretary's November 29, 1993
Decision and Order. However, the Secretary denied that request as the Secretary has continually
required interest to be paid according to the rate
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specified in 26 U.S.C. § 6621 (the interest rate for underpayment of Federal income tax).
The Secretary denied the motion and remanded the matter to this Administrative Law Judge
for a calculation of the precise amount of back pay and interest owed to Respondent, according to
the November 29, 1993, Decision and Order.
The matter was docketed at the Boston District Office and this Administrative Law Judge, by
ORDER dated May 12, 1994 (ALJ EX A), advised the parties of such docketing and
the parties were given thirty (30) days to file briefs on the Secretary's mandate herein.
Complainant's response, dated June 14, 1994, was filed on June 16, 1994 (CX A) and as
Respondent did not favor this Court with a response, the record was closed on June 16, 1994.
DISCUSSION
While the matter was initially pending before this Administrative Law Judge, Complainant
generally alleged the deprivation of certain fringe benefits. However, he was unable to document
same and, on page 16 of my decision, I pointed out that Complainant had not sustained his
burden on this issue.
Complainant has now submitted data relating to those fringe benefits and as the Secretary's
ORDER of November 29, 1993 has not become final and as this matter is still pending,
I admitted into evidence the data submitted by Complainant.
Complainant retained the services of Viens & Associates of Attleboro, Certified Public
Accountants, and, in a most professional presentation, Complainant has now identified his lost
fringe benefits and has provided specific figures for his back wages, plus appropriate interest at
the rate mandated by the Secretary; for his medical insurance benefits and for the Respondent's
contributions to his retirement plan.
Complainant's specific data is as follows:
1. Compensation for lost salary $54,604.85
Based on 1992 W-2 Statements with interest
calculated pursuant to 26 U.S.C. 6621.
2. Medical insurance pay back $13,624.51
Based on 1993 rates from Paul Brideau/
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controller, Tighe Trucking
3. 401 K Plan w/employer contributions $ 4,788.40
Based on information from Wausau Life
Insurance Company (plan administrator).
Complainant has indicated that the data submitted by him has been computed until July 15,
1994, thereby allowing Respondent sufficient time to comply with the RECOMMENDED
ORDER I shall issue herein.
Findings of Fact and Conclusions of Law
It is now well-settled that the Complainant, in addition to his award of back pay and interest
thereon, is also entitled to restoration of the pension contributions and the health and welfare
benefits of which he has been deprived as a result of the discriminatory and illegal actions of the
Respondent. In this regard, see Hufstetler v. Roadway Express, Inc., Case No.
85-STA-8(Sec'y, Aug. 21, 1986) (dealing with the restoration and payment of all pension
contributions and lost medical benefits). These remedies are provided by the STAA as a
reasonable remedy to "make whole" the employee and to restore to him the exact and specific
benefits he has lost. (Hufstetler, supra (dealing with the restoration and payment of all
pension contributions and lost medical benefits). These remedies are provided by the STAA as a
reasonable remedy to "make whole" the Complainant and these remedies are needed herein to
restore Complaint to the status quo ante he would have enjoyed but for the
discriminatory actions of the Respondent, which actions have already been affirmed by the
Secretary as violative of the STAA.
While Complainant has been appearing Pro Se, he, as the prevailing party, is
entitled to an award of his expert witness fee. See 29 C.F.R. § 24.6(b)(3). As I
have already found above, Complainant documented his back pay and lost fringe benefits in a
most professional manner and the charge therefor, $175.00, is most reasonable and Respondent
shall reimburse Complainant for that amount.
Complainant properly refused the "tender" offer by Respondent because the proferred check
was inadequate and was not computed in accordance with the ORDER issued by this
Administrative Law Judge and as affirmed by the Secretary. Moreover, Complainant's
acceptance of that check might have prejudiced and/or waived his right to the full restoration of
his benefits as awarded herein.
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Accordingly, on July 2, 1994, I issued the following:
RECOMMENDED ORDER
1. It is therefore ORDERED that Respondent shall pay to Gregory A. Dutile the
back pay award at the rate of $634.90 per week, commencing on December 24, 1992 and
continuing until payment of the award by Respondent, plus appropriate interest at the IRS rate,
computed until the date of payment to Complainant, and the amount of back pay and interest
until July 15, 1994 totals $54,604.85.
2. It is further ORDERED that Respondent shall pay to Gregory A. Dutile the
amount of $13,624.51 as restoration of his medical insurance benefits.
3. It is further ORDERED that Respondent shall pay to Gregory A. Dutile the
amount of $4,788.40 as restoration of Respondent's contributions to the Complainant's 401(k)
plan.
4. It is further ORDERED that Respondent shall reimburse Complainant the
amount of $175.00 as the expert witness expense.
It is further ORDERED that Respondent shall immediately expunge from
Complainant's personnel records all derogatory or negative information contained therein relating
to Complainant's employment with Respondent and his termination of December 24, 1992.
Respondent shall also refrain from reference to this incident when providing employment
reference concerning Complainant.
Respondent finally entered an appearance herein on July 8, 1994 when Attorney McEvoy sent
the following letter (RX A) and moved for reconsideration of the Recommended Order:
"As legal representative of the Respondent, I wish to object to the provisions of your
recommended order number 2 (that Tighe Trucking, Inc., should pay to Gregory A. Dutile the
sum of $13,624.51 as restoration of his medical insurance benefits).
"Mr. Dutile refused medical insurance when it was offered to him with other employees. His
comment was that he was young and his wife also is young, and that they did not need medical
insurance.
"I also disagree with the recommended order number 3. Pension
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benefits are paid on straight time only by the Respondent and in view of the fact that $12.70 was
the Complainant's hourly wage, a recapitulation indicates that for 86 weeks pension benefits
should be only $2,184.40."
Thereafter, Attorney McEvoy filed, on July 15, 1994, the following letter (RX B):
"Since my letter of July 6, 1994, to you in reference to the above matter, it has been brought
to my attention that my last paragraph was incorrect in that Mr. Dutile should only have been
entitled to $436.88 for his 401-K benefits as he had not been with the Company a sufficient
amount of time so that his pension would become vested."
Complainant was directed to file a response to the Motion for Reconsideration filed
by the Employer. (ALJ EX B)
Complainant filed the following response on July 28, 1994 (CX B):
"Concerning the above matter, at the time of wrongful discharge, Mr. Dutile's 401 K
retirement plan was 20% vested. On January 1, 1993, six days later, would have been 40%
vested. On January 1, 1994 would have been 60% vested. The calculations were made using
employer contributions on straight time only with an hourly wage of $12.70.
"Prior to the complainant's wrongful discharge he learned that Tighe Trucking Company had
changed to a better insurance company and policy. He applied for the medical coverage. This
coverage had not come through at the time of his discharge.
"Medical benefits and 401 K retirement plan were part of the complainant's salary package.
The remedies provided by the STAA are to "make whole" and restore to the status quo
ante the complainant. Therefore these benefits are due Mr. Dutile."
As the Secretary of Labor has not yet issued a FINAL ORDER, this matter is still
pending and, while this Court would have preferred a more timely response by the Employer on
Complainant's brief filed on June 16, 1994, the Employer has now responded timely by moving
for reconsideration and I shall now consider the Employer's position on Complainant's
entitlement to an award of medical and pension benefits.
On these issues I agree with the Employer that Complainant is not entitled to those benefits as
he rejected the Employer's
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medical insurance plan and as his rights had not vested in the Employer's retirement and pension
plan.
As Claimant does not seek reinstatement herein, he is entitled to be made whole as to his
benefits actually lost as a result of his discriminatory discharge. However,
Complainant seeks that I now award him more benefits than he actually enjoyed while
at the Employer. However, I conclude that Complainant's thesis is most speculative and is not
sanctioned by the Act and pertinent precedents. This I cannot do in the guise of making him
"whole." He is entitled to be restored to the status quo ante he enjoyed on his last days
of employment and on that day he did not participate in the medical insurance program offered
by the Employer and his rights in the retirement and pension plan had not vested.
However, as the Employer now concedes that Complainant "should only have been entitled to
$436.88 for his 401-K benefits as he had not been with the Company a sufficient amount of time
so that his pension would become vested," he is entitled only to those benefits. (RX B)
Accordingly, in view of the foregoing, I issue the following:
AMENDED RECOMMENDED ORDER [1]
1. It is therefore ORDERED that Respondent shall pay to Gregory A. Dutile the
back pay award at the rate of $634.90 per week, commencing on December 24, 1992 and
continuing until payment of the award by Respondent, plus appropriate interest at the IRS rate,
computed until the date of payment to Complainant, and the amount of back pay and interest
until July 15, 1994 totals $54,604.85. Respondent is entitled to a credit for such payment already
made to Complainant.
2. It is further ORDERED that Respondent shall pay to Gregory A. Dutile the
amount of $436.88 as restoration of Respondent's contributions to the Complainant's 401(k) plan,
including interest thereon at the appropriate IRS rate per 26 U.S.C. § 6621.
3. It is further ORDERED that Respondent shall reimburse Complainant the
amount of $175.00 as the expert witness expense.
4. It is further ORDERED that Respondent shall immediately expunge from
Complainant's personnel records all derogatory or negative information contained therein relating
to Complainant's employment with Respondent and his termination of December 24, 1992.
Respondent shall refrain from reference to this incident
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when providing employment references concerning Complainant.
DAVID W. DI NARDI
Administrative Law Judge
[ENDNOTES]
[1] The Final Order will be issued herein by the Secretary.
