DATE ISSUED: April 22, 1994
CASE NO: 94-STA-20
In the Matter of
Vince Webb,
Complainant,
v.
Hickory Springs, Inc.
Respondent.
Appearances:
Vince Webb,
305 Rafael Dr.
Elverta, CA 95626
In Pro Per
Dennis Cook, Esq.
555 Capitol Mall, Suite 425
Sacramento, CA 95814
For Respondent
Before: HENRY B. LASKY
Administrative Law Judge
DECISION AND ORDER
This is a proceeding under §405 of the Surface Transportation Assistance
Act (STAA), 49 U.S.C. app. §2305 and the implementing regulations issued by the
Secretary of Labor at 29 C.F.R. Part 1978. Complainant, filed a complaint under the
Act, alleging that his Employer, Respondent herein, suspended him for three days "in
retaliation for his refusal to drive his vehicle on a run because he was tired and
fatigued ...".
An investigation was conducted by the Regional Administrator for Occupational
[PAGE 2]
Safety and Health Administration who determined that the complaint had no merit and
the matter was dismissed. Complainant filed a timely request for hearing. The matter
was assigned to the undersigned on March 4, 1994 and an Amended Notice of Hearing and
Pre-Hearing Order was issued on March 9, 1994, scheduling the matter for hearing
on April 4, 1994.
On April 4, 1994 pursuant to the Notice of Hearing, a hearing was conducted in
Sacramento, California at which time Complainant's exhibits one and two and
Respondent's exhibits A through J were admitted into evidence. The parties were
ordered to file proposed findings of fact and conclusions of law on or before April
22, 1994.
Based upon the evidence introduced at the hearing, the testimony of the witnesses,
and having considered the arguments of the parties, I make the following findings of
fact and conclusions of law, and order.
EVIDENTIARY BURDEN
The Complainant bears the initial burden of establishing a prima facie
case of retaliatory conduct. He must prove by a preponderance of the evidence that
he engaged in a protected activity, that an adverse employment action occurred and
that there was a causal connection between the protected activity and the adverse
action. In the event a prima facie case is established, then the Respondent
has the burden of proving a legitimate nondiscriminatory reason for the adverse
employment action. The Complainant then must prove that the proffered reason was
not the true reason for the adverse action. In the event that a Complainant
demonstrates that the Respondent took adverse action in part because he engaged in a
protected complaint, the burden shifts to the Respondent to demonstrate that the
Complainant would have been disciplined even if he had not engaged in protected
activity. Pogue v. U.S. Department of Labor, 940 F. 2d 1287, 1289-1290 (9th
Cir. 1991): Mackowiak v. University Muclear Systems, Inc., 735 F. 2d 1159,
1164 (9th Cir. 1984).
It is therefore well settled that the elements of a prima facie case of
retaliatory discharge under §405 of the Act are: (1) statutorily protected
expression; (2) an adverse employment action; and (3) a causal link between the
protected expression and the adverse employment action. Moon v. Transport
Drivers, Inc., 836 F. 2d 226 (6th Cir. 1987). As to causation, proof must be
offered which raises the inference that participation in the protected activity was a
substantial motivating factor in the adverse employment decision.
Complainant relies on 49 C.F.R. §392.3 which provides in essence that no
driver shall operate a motor vehicle, and a motor carrier shall not require or permit
a driver to operate a motor vehicle, while the driver's ability or alertness is so
impaired, or so likely to become impaired, through fatigue, illness, or any other cause,
as to make it unsafe for him to begin or continue to operate a motor vehicle.
SUMMARY OF EVIDENCE[PAGE 3]
On November 30, 1993 the Complainant was employed as a truck driver of
commercial motor vehicles for the Respondent herein. He had been so employed for
approximately six months. On said date at approximately 6:00 p.m., Complainant was
involved in a vehicle accident in Sparks, Nevada resulting in injury to two
individuals. A police department investigation of the accident resulted in a
determination that the accident was the result of Complainant making an improper turn
and as a consequence he was given a citation for violation of the appropriate traffic
law. The Complainant's truck was damaged and needed some repair as a consequence
Complainant drove the truck following the accident to a truck repair facility for the
necessary repair. Complainant was off duty following the accident from 7:00 p.m. to
approximately 3:30 a.m. on December 1, 1993. He thereafter drove back to Sacramento
arriving at 6:45 a.m. on December 1, 1993 and related the circumstances of the accident
to representatives of Respondent. Complainant was scheduled to work that day but
indicated that his truck needed a repair involving the replacement of a cap holding the
steering axle oil. The Claimant's supervisor, Mr. Patterson authorized him to take
the truck to the appropriate repair facility for replacement of the cap. The
Claimant returned to the yard of the Respondent at approximately 9:30 a.m. and the
plant supervisor Vic Almaraz advised the Complainant that it was necessary for him
to take a drug test because he was involved in the accident in Sparks, Nevada. When
Complainant had returned to the Respondent's yard with his repaired truck he was
ready to work on December 1, 1993 and made no indication of any kind that he was too
tired to work. However, after being advised that he would have to submit to a drug
test he mentioned for the first time that he was "very tired" and he agreed to take the
drug test but insisted on being allowed to go home to take a shower prior to the drug
test. Mr. Almaraz agreed to allow him to go home and take a shower and to thereafter
report for the drug test at the designated facility. Prior to Complainant leaving the
Respondent's premises however, the Complainant was given a warning notice by Mr.
Almaraz because of Complainant's involvement in an excessive number of accidents.
The Complainant had been involved in five accidents in less than a two month period
involving Respondent's trucks. The Complainant had vehicular accidents on October
12, 1993, October 13, 1993, October 20, 1993, November 29, 1993, and November 30, 1993.
When Complainant left Respondent's facility on the morning of December 1, 1993
he was fully aware that he was to report for the necessary drug test following his
taking of a shower which Mr. Almaraz had given him permission to do, and then was to
return to the Respondent's facility to make the local deliveries for which he was
scheduled.
Complainant went home and showered but instead of reporting immediately
thereafter for the drug test, he went to sleep. The Respondent verified at 11:00 a.m.,
12:00 p.m., and 1:00 p.m. that Complainant had not reported to the clinic for the
required drug testing. Complainant's supervisor tried to reach Complainant at home
and left a message on Complainant's telephone message machine. At approximately 2:00
p.m. the Complainant called his supervisor and Mr. Patterson again told the
Complainant of the necessity of his taking the drug test. Complainant was very
agitated and said he had fallen asleep and was too tired to go to the clinic for the
drug test. Complainant hung up the phone on his supervisor.
[PAGE 4]
However, Complainant went to the drug testing facility at approximately 3:00
p.m. on December 1, 1993 and returned to work at approximately 3:30 p.m. following the
taking of the drug test. Complainant's supervisor issued Complainant a second
warning notice on December 1, 1993 because of Complainants' insubordination for
deliberately failing to report for the drug test when required after taking his shower
and for hanging up the phone on his supervisor earlier in the day as previously
described. With this warning notice Complainant was given a three day suspension.
This three day suspension was issued solely as a result of the Complainants
insubordination as described. The local runs which Complainant was scheduled to
accomplish were already taken care of by his supervisor because of the
Complainant's failure to report for the drug test as soon as he had taken a shower
and return to work as required.
Complainant was very upset with his receiving two warning notices on December
1, 1993 and his three day suspension and he testified that he went and visited friends
in Redding, California. After he returned from Redding, California and returned to
work on the following Tuesday, he responded to a message from Dr. Kalman and
thereafter called Dr. Kalman and was told that the drug test was positive for
amphetamines and methamphetamines. Complainant was very upset with the results of
the drug test and testified that he told Dr. Kalman he was taking "Mini-Thins" and
aspirin however, Dr. Kalman said that the over the counter Mini-Thins and aspirin
would not affect the positive results of the drug test. When Complainant had this
conversation with Dr. Kalman he was on a route for Respondent. He called Respondent
and reported the results of his conversation with Dr. Kalman and he was told to
finish the route and return.
On December 8, 1993 Complainant was terminated as a result of his five
accidents and the positive drug test.
Significantly, when Complainant returned from Sparks, Nevada on December 1,
1993 he did not complain to his supervisor about being tired or fatigued but only that
his truck needed repair which he was authorized and allowed to get the necessary
repairs on the morning of December 1, 1993. This authorization was from his
supervisor Mr. Patterson. It was upon his return from the truck repair that morning
that he received his first warning notice from the plant supervisor Vick Almaraz as
a result of his being involved in five accidents in less than two months. Complainant
admits having an argument with his supervisor on the phone after he woke up from
sleeping when he was home and hanging up on his supervisor. Complainant admits that
his second warning notice which he received from Mr. Patterson was for his
insubordination and was not for any safety infraction complaint or due to fatigue or
refusal to work or for any other reason. It was this second warning notice which
imposed the three day suspension. Complainant further acknowledges and admits that
his subsequent termination on December 8, 1993 was not related to any claim of fatigue
or complaining about any safety problem.
Mr. James Packer, the Human Resource Manager of the Respondent, testified to
[PAGE 5]
receiving the report of the November 30, 1993 accident from Mr. Patterson on
December 1, 1993. As a result of their discussion, the first warning notice for the
excessive accidents was issued on December 1, 1993 to Complainant. Later that day,
Mr. Patterson called Mr. Packer that Complainant did not go to the drug testing
facility as directed and that Complainant had hung up on Mr. Patterson when he
called him at home. After that discussion between Mr. Packer and Mr. Patterson, the
second warning notice and three day suspension was issued for complainant's
insubordination. Neither conversation between Mr. Packer and Mr. Patterson
involved the subject of Complainant's complaining of any safety problems or of
being too tired to drive but solely involved the reasons stated for the two warning
notices. The drug tests are required by the Department of Transportation. Mr.
Packer was notified on December 7, 1993 of the positive results of Complainant's drug
test and thereafter got a written report on a later date. Mr. Packer notified the
supervisor Mr. Patterson of the positive drug test results on December 7, 1993 and
also consulted with his own boss in North Carolina, Mr. John Shumaker. After that
conversation, Mr. Packer called Mr. Patterson and after further discussion Mr.
Patterson decided to terminate the Complainant. The sole basis for the decision the
terminate the Complainant was the excessive number of accidents and the positive drug
test and the fear that to allow the Complainant to drive for the Respondent might
seriously result in death or bodily harm to other people in the future. The termination
was communicated to the Complainant on December 8, 1993.
Mr. Almaraz testified credibly that on December 1, 1983 Complainant never
stated anything about being fatigued or being too tired upon his return from the truck
repair facility in the early morning of that date. It was only after being told by Mr.
Almaraz of the necessity of Complainant taking a drug test that he suddenly
complained about being tired and insisted upon going home to take a shower and
thereafter report for the drug test.
After weighing all of the evidence and particularly the credibility of the
witnesses, including the Complainant, I hereby specifically find that Complainant was
not engaged in any protected activity under the Act for which he was subject to
adverse employment action and there was no causal link between any protected
activity and the adverse action of his employer involving his three day suspension
and ultimate termination. When Complainant reported the need for truck repair on
December 1, 1993 he was authorized to have the necessary repairs made. After
returning from the truck repair facility on December 1, 1993 ready for work he had
not made any complaints of fatigue or inability to drive due to fatigue until he was
advised of the necessity of taking a drug test.
The second warning notice and the three day suspension which Complainant
received was clearly the result of Complainant's insubordination by hanging up on his
supervisor and in failing to report for the drug test at the time he was instructed to
do so following his taking of a shower. When he returned to the Employer's facility
after finally taking the drug test, the local deliveries for which he was scheduled
were already taken care of by others, he received his second warning notice with the
three day suspension for his insubordination and failure to take the test when required.
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Complainant has not shown by a preponderance of evidence that he engaged in any
protected activity under the Act herein. Complainant has not shown that he was
subjected to any adverse action as a result of any protected activity nor even is
there the remotest inference that any protected activity was the likely reason for the
adverse action.
Respondent has shown clear and convincing evidence that the adverse action
taken against Complainant was motivated by legitimate, nondiscriminatory reasons. In
addition, the reasons for Complainant's suspensions and ultimate termination were not
pretextual. Indeed, the driving record and the behavior of the Complainant was such
that the failure to terminate the Complainant would have reasonably exposed the
employer to liability for allowing Complainant to continue to drive trucks on public
thoroughfares exposing the general public to an unwarranted risk of injury. The
termination of the Complainant can only be deemed a prudent action on the part of the
Employer herein.
Counsel for Respondent filed a Motion the Dismiss this matter prior to trial,
renewed the motion at the time of trial and said motion is deemed to be well founded.
Complainant has not proven a prima facie case for retaliatory suspension
and/or discharge for any engagement in protected activity under the Act which was
causally related to adverse employment action.
Conclusions of Law
1. Respondent, Hickory Springs Inc. is engaged in interstate trucking operations
and maintains a place of business in Sacramento, California. In the regular course of
this business, Respondent's employees operate commercial motor vehicles in interstate
commerce principally to transport carpet products. Respondent is now and at all
times material herein, a person as defined in §401 (4) of the Act [49 U.S.C.
§2301 (4)].
2. On or about June 10, 1993, Respondent hired Complainant, Vince C. Webb, as
a truck driver of a commercial motor vehicle, to wit, a tractor/trailer vehicle with
a gross vehicle weight rating in excess of ten thousand pounds.
3. At all times material herein Vince C. Webb was an employee in that he was a
driver of a commercial motor vehicle having a gross vehicle rating of ten thousand
or more pounds used on the highways in interstate commerce to transport carpet
products. He was employed by a commercial motor carrier and in the course of his
employment he directly affected commercial motor vehicles safety.
4. On or about December 3, 1993 Complainant filed a complaint with the
Secretary of Labor alleging that Respondent had discriminated against him in violation
of §405 (b) of the Act. This complaint was timely filed.
5. The Secretary, acting through his duly authorized agent, thereafter
investigated the above complaint and determined that there was insufficient evidence
to establish reasonable cause to believe that Respondent violated §405 of the
STAA.
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6. The Complainant's suspension for three days on December 1, 1993 by the
Respondent herein was solely for insubordination for failing to report for a required
drug screening test at the time required and for insubordination to his supervisor.
7. The termination of the Complainant by the Employer on December 8, 1993 was
solely for the Complainant's involvement in five accidents and for testing positively,
as reported by a certified laboratory, for the substances of amphetamines and
methamphetamines, and neither suspension or termination was causally related to any
protected activity under the Act herein.
8. Complainant's three day suspension and subsequent termination as a driver
for Respondent does not constitute a violation of §405 of the STAA on the part
of Respondent.
ORDER
It is therefore ordered that the complaint filed herein by Complainant is
dismissed.
HENRY B. LASKY
Administrative Law Judge
