DATE ISSUED: January 24, l994
CASE NO.: 93-STA-38
In the Matter of
DANIEL J. NOLAN
Complainant
v.
A. C. EXPRESS
Respondent
Appearances:
Daniel J. Nolan
Pro Se
Ginger D. Schroder, Esq.
For the Respondent
Before: DANIEL L. LELAND
Administrative Law Judge
RECOMENDED DECISION AND ORDER
Daniel J. Nolan (Complainant) filed a complaint with the
Department of Labor on or about November 4, 1992, alleging that
A. C. Express (Respondent) took disciplinary action against him
in violation of Section 405 of the Surface Transportation
Assistance Act of 1982, 49 U.S.C. 2305 (STA). The Regional
Administrator of the Occupational Safety and Health
Administration issued his determination on August 19, 1993 for
the Secretary of Labor, that Complainant's complaint lacked merit
and that Respondent's actions did not violate Section 405 of the
STA.
Complainant filed a written objection to the Regional
Administrator's determination on August 25, 1993 and requested a
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hearing. A hearing on the merits was originally scheduled on
October 6 and 7, 1993 in Buffalo, New York but was continued
because Respondent's attorney had a scheduling conflict. The
hearing was held in Buffalo on October 13 and 14, 1993.
Complainant's and Respondent's post hearing briefs were received
on November 29 and December 6, respectively.
BACKGROUND
Complainant was employed by the Respondent as an over the
road truck driver for approximately five and one half years
ending April 1, 1993. On September 11, 1992, Complainant was
subpoenaed to appear at a hearing in Buffalo, New York on
September 18, 1992 in a case involving a complaint brought by
Emmett Nolan, Complainant's brother, against the Respondent under
the STA. EX N-3. Complainant testified that he was told by
David Wilbert, the Respondent's Cleveland terminal manager, not
to appear at the hearing, and that no explanation was offered.
TR 94-95. Mr. Wilbert reportedly told Complainant "Who do you
listen to, me or the judge?". TR 105. Mr. Wilbert, however,
testified that as all four Buffalo drivers were subpoenaed to
testify on September 18, he was concerned that their absence
would shut down the Buffalo operation. TR 256-257. He averred
that Respondent's lawyer made arrangements with the judge that
only one driver, Ricky Lee Carpenter, would testify on September
18, and that the other Buffalo drivers would testify on other
occasions. Id. Mr. Wilbert told Complainant that he did not
have to appear at the hearing on the eighteenth because only one
driver would testify. Tr 258. Complainant, however, appeared at
the hearing on September 18 and testified. EX N-19. Mr.
Wilbert's version was corroborated by Ricky Lee Carpenter and
Anthony Kern, Respondent's controller. See TR 169, 202.
On September 21, 1992, the Monday after Complainant
testified on Friday, September 18, Terry Jarecki, Respondent's
Operations Supervisor who works at the Cleveland terminal,
telephoned Complainant and told him that he was not calling in
often enough after making his scheduled runs. TR 67, 329-330.
Ms. Jarecki testified that Complainant's call ins had become less
and less frequent beginning in August and that she felt that it
was necessary to bring this to Complainant's attention on
September 21. TR 329. She explained that Complainant's initial
pickups took only about two hours, and that for the next six
hours, he needed to call in to find out if Respondent's customers
in the Buffalo area required pickups. TR 330. Buffalo drivers
were not radio dispatched as were the Cleveland drivers. TR 330.
Customers often called in the same day to inform Respondent that
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they had freight ready to be picked up. TR 251. If the Buffalo
drivers could not be contacted, Respondent had to pay freight
agents to make these pickups at additional expense. TR 252.
Complainant admitted being told by Ms. Jarecki on September 21 to
call in after three stops, but he stated that he had never been
told this before and only called in when he was empty or had a
problem. TR 67, 111-112. Ricky Lee Carpenter also testified
that he called in after two or three stops but that there was no
company policy to that effect. TR 171. Richard Rogalski
testified that when he drove Complainant's run, he only called in
when the truck was empty or when he had a problem. TR 155.
On Wednesday, September 23, Complainant again failed to call
in for unscheduled pickups, and the following Friday, September
25, Ms. Jarecki and Mr. Wilbert decided to write up a
disciplinary report warning Complainant of his failure to call in
often enough. TR 264-265, See EX R-12, Document #3. Complainant
was handed the disciplinary report on Monday, September 28, by
Mr. Carpenter, and he telephoned Ms. Jarecki. TR 120-121, 331.
He raised his voice to Ms. Jarecki on the phone and called her a
"liar" and an "idiot", and told her to "shut up". TR 332.
Complainant agrees with the substance of Ms. Jarecki's account of
the conversation but he stated that she called him a liar first.
TR 121-122. Ms. Jarecki then suspended Complainant for three
days, September 28, 29, and 30. TR 332. She wrote up a second
disciplinary report documenting the phone conversation. EX R-12,
Document #4.
On October 1, Complainant returned to work and was
approached by Mr. Wilbert, who in the presence of Mr. Carpenter,
asked Complainant to sign the two disciplinary reports. TR 269.
Complainant refused to sign the disciplinary reports, stating
that he believed that signing them was an admission of guilt. TR
124-125, 128. Mr. Wilbert, however, told Complainant that
signing the disciplinary reports was not an admission of guilt
but rather an acknowledgment of receipt. TR 269. Complainant
was informed that company policy required an employee to sign the
disciplinary report, that he could write his own comments on the
reports if he disagreed with them, and that he could return to
work as soon as he signed them. TR 269. Mr Carpenter confirmed
Mr. Wilbert's account that he told Complainant that signing the
disciplinary reports only acknowledged receipt. TR 177-178.
Complainant adamantly refused to sign the reports and was
suspended indefinitely by Mr. Wilbert. TR 270.
W. David Erickson, Respondent's president, wrote to
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Complainant on October 12, 1992 stating that he would like to
keep Complainant as an employee, but that he could not tolerate
Complainant's poor work ethic or hostile attitude. EX N-4. Mr.
Erickson determined to keep Complainant on suspension until
November 2. Complainant applied for and was denied New York
State unemployment compensation for the period of his suspension
because the New York State Department of Labor determined that he
lost his employment through misconduct. EX R-9.
Complainant returned to work on November 2, 1992 and worked
without incident until April 1, 1993 when Respondent's Buffalo
operation was closed. The operation was closed to save money and
the Buffalo drivers were given the opportunity to work out of the
Cleveland terminal with a loss of seniority. TR 286.
Complainant refused the offer.
DISCUSSION
Section 405 of the STA was enacted in 1983. This
legislation is intended to promote safety of the highways by
protecting employees from disciplinary action because of an
employee's engagement in protected activity. Section 405(a)
provides as follows:
No person shall discharge, discipline, or in any
manner discriminate against any employee with respect
to the employee's compensation, terms, conditions, or
priveleges of employment because such employeee (or any
person acting pursuant to the 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.
In a case brought under Section 405, the initial burden is
on the Complainant to establish a prima facie case of retaliatory
discharge. To do so, Complainant must establish the following:
(1) that he was engaged in protected activity under the STA;
(2)that he was the subject of adverse employment action; and
(3)that there was a causal link betweeen his protected activity
and the adverse action of his employer. Once Complainant
establishes a prima facie case, raising the inference that the
protected activity was the likely reason for the adverse action,
the burden shifts to the Respondent to demonstrate a legitimate
non-discriminatory reason for its action. Even if Respondent
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demonstrates such a reason, however, Complainant may prevail by
showing that the stated reason was pretextual. Moon v.
Transport Drivers, Inc., 836 F. 2d 226, 229 (6th Cir. 1987).
Complainant has met the first two requirements for
establishing a prima facie case: he engaged in protected
activity when he testified at his brother's STA hearing, and he
was the subject of adverse employment activity when he was
suspended without pay. However, the evidence does not show that
there was a causal link between his testimony and his supensions.
The only factor giving rise to an inference that Complainant
was suspended because of his testimony is the timing of his
supension: he was supended on September 28, ten days after his
testimony on September 18. However, his supension came only
after his argument with Ms. Jarecki. If Respondent wanted to
take adverse action against Complainant for his testimony, it
would have suspended him on September 18 or September 21, his
next day of work.[1] Complainant encountered problems with
Respondent shortly after his testimony on September
18 because he was not calling in frequently enough when he made
his runs. Ms. Jarecki, whose testimony I felt was highly
credible, declared that Complainant had begun to call in too
infrequently in August and that she had determined to admonish
him by mid-September. That her initial complaint to him was on
September 21, three days after the hearing, is therefore purely
coincidental. While Complainant maintains that he previously
called in only when he was empty or had a problem, Respondent's
policy that Buffalo drivers call in after the first few stops,
even if it was a new policy, made sense and saved Respondent the
additional expense of paying agents to make pickups. Complainant
should have heeded Ms. Jarecki's September 21 phone call.
However, Complainant persisted in not calling in frequently
enough on September 23, and Ms. Jarecki wrote up the disciplinary
report which was handed to Complainant on September 28.
Complainant called Ms. Jarecki on the telephone and a heated
argument ensued. In Ms. Jarecki's version of the telephone
converation, which I credit, Complainant raised his voice and
called her names. It was as a result of Complainant's
insubordination that Ms. Jarecki, as his superior, justifiably
suspended him for three days without pay. This supension was
totally unrelated to Complainant's testimony at the September 18
hearing.
Complainant's indefinite suspension on October 1, which
lasted thirty days, was caused by his unreasonable failure to
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sign the disciplinary reports. I believe the testimony of Mr.
Wilbert and Mr. Carpenter that Complainant was told that signing
the reports was not an admission of guilt but a mere
acknowledgement of receipt. It was Respondent's policy that the
employee must sign a disciplinary report. Complainant's second
suspension, therefore, had nothing to do with his previous
testimony. Furthermore, there is not even the slightest
inference that the closing down of Respondent's Buffalo operation
in April 1993 was an attempt to retaliate against Complainant. I
thus find no causal link between Complainant's testimony at his
brother's STA hearing and his supensions. Complainant has failed
to establish a prima facie case.
Even if Complainant had established a prima facie case, the
evidence clearly indicates that Respondent had legitimate
nondiscriminatory reasons for suspending Complainant, i.e. his
insubordination with Ms. Jarecki and his refusal to sign the
disciplinary reports. The closing of Respondent's Buffalo
operation also had a legitimate nondiscriminatory motive: cost
cutting. Complainant's conduct with respect to Respondent was
belligerent and intransigent as was his demeanor at the hearing.
He seemed to want to goad Respondent into taking action against
him so that he could file a complaint under the STA. There is no
merit to Complainant's complaint.
RECOMMENDEDORDER
IT IS ORDERED that the complaint of Daniel J. Nolan is
dismissed.
DANIEL L. LELAND
Administrative Law Judge
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[ENDNOTES]
[1] I give credence to the testimony of Mr. Kern and Mr. Wilbert
that the reason they did not want Complainant to testify on
September 18 was because the absence of all the Buffalo drivers
would close down the Buffalo operation rather than because they
were against Complainant testifying at all. This was fully
explained to Complainant who testified anyway. If Respondent had
taken any immediate adverse action against Complainant, it would
have been because he ignored Mr. Wilbert's instructions and
testified on September 18th when he could have testified on
another day without affecting Respondent's Buffalo operation.
Other Buffalo drivers, including Mr. Carpenter, apparently
testified at Emmett Nolan's STA hearing without any adverse
action being taken against them.
