Date: Mar. 27, 1995
Case No.: 94-STA-22
In the Matter of
ASSISTANT SECRETARY OF LABOR
for Occupational Safety and Health,
UNITED STATES DEPARTMENT OF LABOR,
Prosecuting Party,
and
JOHNNY LANSDALE AND DONNA LEE,
Complainants,
vs.
INTERMODAL CARTAGE CO., LTD.,
Respondent.
Appearances:
Brian W. Dougherty, Esq. John P. Scruggs, Esq.
Office of the Solicitor Allen, Scruggs, Sossaman and
U.S. Department of Labor and Thompson
2002 Richard Jones Road, Suite B-201 P.O. Box 17349
Nashville, TN 37215-2862 Memphis, TN 38137-0349
(615) 781-5326 (901) 763-4200
For the Prosecuting Party For Respondent
Johnny Lansdale and Donna Lee, appearing pro se
Before:
Christine M. Moore
Administrative Law Judge
RECOMMENDED DECISION AND ORDER[PAGE 2]
I. JURISDICTION AND PROCEDURAL HISTORY
This proceeding arises under the employee protection provisions of the Surface
Transportation Assistance Act of 1982, 49 U.S.C. App. §31105 (1994 Repl.), and
the applicable regulations at 29 C.F.R. Part 1978.
Complainants Johnny R. Lansdale [hereinafter "Lansdale"] and Donna B. Lee
[hereinafter "Lee"] filed a timely complaint on March 4, 1993, with the Secretary of
Labor alleging that they had been discharged by respondent Intermodale Cartage
[hereinafter "Intermodal" or respondent] in violation of the Act. On January 26, 1994,
as a result of its investigation, the office of the Assistant Secretary for the Occupational
Safety and Health Administration [OSHA] issued the Secretary's initial written findings
to the effect that Intermodal had discriminatorily discharged complainants (1) for
exercising their protected right to file complaints regarding violations of the commercial
motor vehicle safety regulations, and (2) for refusing to operate a commercial vehicle
when such operation would constitute a violation of Federal commercial motor vehicle
safety regulations and would present a safety hazard. OSHA also issued a preliminary
order that Intermodal offer to reinstate complainants to their former positions, and to
compensate them for back pay and damages.
Intermodal filed its objections to the Secretary's initial findings and preliminary
order and requested a hearing on the record. After due notice, I conducted a hearing in
this matter on October 3, 4, and 5, 1993, in Memphis, Tennessee. The record consists
of the 752-page transcript of proceedings ("TR"); Government's Exhibits ("GX") 1-11;
Respondent's Exhibits ("RX") 1-3; and Joint Exhibits ("JX") 1-12. The parties' post-
hearing briefs have also been considered.
II. DISCUSSION FINDINGS OF FACT A. Stipulations
The parties have stipulated and I hereby find as follows:
1. That both parties are subject to the Surface Transportation Assistance Act
(the "Act").
2. That the parties are subject to the jurisdiction of the Office of Administrative
Law Judges of the United States Department of Labor.
3. That respondent, Intermodal Cartage Co., Ltd. ("Intermodal"), is a person
within the meaning of the Act.
4. That complainants, Johnny Lansdale and Donna Lee, are employees within
[PAGE 3]
the meaning of the Act.[1]
5. That on January 1, 1993, Intermodal entered into two lease agreements with
Lansdale for the use of two trucks he owned.
6. That these two trucks passed annual inspection on February 1, 1993.
7. That Intermodal dispatched Lansdale and Lee to International Paper
Company in Pine Bluff, Arkansas, to transport two containers on February
2, 1993.
8. That on this same date, Lansdale and Lee refused to transport these two
containers.
9. That Intermodal terminated its leases with Lansdale on February 3, 1993.
10. That the average gross earnings for owner-operators who drove for
Intermodal from February 1, 1993, to May 24, 1994, were $5,796.43 per
month.
B. Complainants' Employment
Before the termination of their contracts, complainants had been employed by
Intermodal as owner-operator truck drivers for two and four years, respectively. (TR 74).
Lee owned her own truck (Unit 3239, a 1987 Kenworth) until June, 1992, and operated
it through a lease agreement with Intermodal. She then transferred ownership of her truck
to Lansdale, with whom she shares a personal relationship. (TR 74-5). In June, 1992,
Lansdale leased this truck, along with another truck that he owned (Unit 2389, a 1985
Freightliner), to Intermodal. On January 1, 1993, Intermodal renewed two lease
agreements with Lansdale, wherein it retained the use of both trucks, along with the
services of Lansdale as a driver. (JX 1). Lee continued to drive the truck she previously
owned pursuant to an agreement with Lansdale that had been approved by Intermodal.
Both drivers were based at Intermodal's Memphis terminal, and were dispatched to haul
containers throughout the Southeast. (TR 76-78).
C. Events Leading to Termination of Complainants' Employment
On February 1, 1993, both units were inspected by Bradley's Garage and passed
all inspection items required for the Annual Vehicle Inspection Report, in accordance with
49 U.S.C. § 396. (TR 83; JX 3). As it happened, Intermodal dispatched Lansdale
and Lee on that same date to International Paper Company in Pine Bluff, Arkansas, to
pick up transport containers KLFU107066-3 and KLFU111819-7 for transport to
Memphis, Tennessee. Complainants arrived at International Paper (hereinafter
"International Paper" or "IP") around 11:00 PM on February 1, 1993. Due to
International Paper's delay in preparing the containers, the containers were not ready for
shipment until 5:30 AM the next morning. (TR 95-6). While the drivers got some sleep,
each container was loaded
[PAGE 4]
with 16 paper rolls and weighed approximately 43,500 pounds. (JX 4; TR 101-103).
After signing their paperwork, the drivers checked the cargo inside the container
and noticed that there was more space than usual in the tail-end of each container. (TR
101). Lansdale observed five or six feet of empty space at the rear of his container (TR
101), and Lee observed ten to twelve feet of empty space. (TR 387). Upon pulling out
of the loading dock, both drivers believed that their containers felt heavy on the drive
axles.[2] (TR 102, 388). They decided to obtain courtesy weights from International
Paper's weight scales, which were located on International Paper's property. (TR 103,
389). Getting a courtesy weight is a common practice among truck drivers. (TR 106).
Complainants testified that they obtained a courtesy weight slip from a International
Paper's scale operator, and determined from the courtesy weight that Lansdale's truck
weighed 37,360 pounds on its drive axles (axles two and three), while Lee's truck
weighed 37,380 pounds on its drive axles. (TR 106, 390).[3] Under Arkansas state law,
it is illegal to drive a truck whose weight on the drive axles exceeds 34,000 pounds. (TR
43-44; RX 1). Captain James Brown, district commander with the Arkansas Highway
Police, testified that a weight distribution of 3,000 excess pounds on the drive axles would
pose a safety concern, as it would deprive the driver of full control of the vehicle. (TR
46-7). Lansdale concluded that hauling the loads would have been illegal (TR 106), and
worried that hauling such a load could have resulted in a blown tire or jacknifing, causing
serious injury. (TR 123). Lee believed that hauling her container would have been
unsafe insofar as it would have reduced her vehicle's maneuverability, and it would have
increased the chances of jacknifing or swerving were she to stop suddenly. (TR 409-10).
Lee testified that it is common for truck drivers to stop suddenly at least one time per trip.
(TR 409-410).
Captain Brown testified that it is common industry practice for a driver to alleviate
an overweight condition by adjusting the vehicle's "fifth wheel" to shift the position of
the container as it sits upon the tractor. (TR 42, 50-51). Lansdale testified, however, that
he was unable to adjust his tractor's fifth wheel because it was set into a fixed position.
(TR 108). Lansdale also testified that, because his trailer's axles were stationary, he was
unable to move them forward to shift the weight backwards. (TR 113). Further, he was
unable to move the trailer forward onto his tractor, since to have done so to the extent
required to make the load safe would have interfered with his ability to turn his vehicle.
(TR 114-117).
Lee's truck did not have an adjustable fifth wheel. (TR 440-44). Even if her truck
had been equipped with a fifth wheel, both drivers testified that any further adjustment
on her fifth wheel to compensate for the weight would have interfered with her tractor's
turning radius. (TR 119, 443-444). In any case, Captain Brown concluded that it would
be "almost impossible" for a driver with an adjustable fifth wheel to compensate for a
3,000 pound imbalance on the drive axles where the container being pulled has fixed
axles. (TR 53, 63). The drivers concluded that the only way either driver could have
made such a load legal was to request International Paper to reconfigure it within the
trailers. (TR 119).
[PAGE 5]
Lansdale informed an employee on International Paper's loading dock that their
loads were unsafe and needed to be reloaded. (TR 119). Lansdale testified that while the
employee understood the drivers' concerns, he refused to reload the container. (TR 120).
John Woodward, another Intermodal carrier, testified that International Paper has refused
to reload an unsafe container on two or three occasions in the past. (TR 196). Lee and
Lansdale decided that their best course of action would be to contact Intermodal to receive
instructions about how to handle this situation. During the next four hours, Lansdale and
Lee made several phone calls to various Intermodal representatives to accomplish this
purpose. The parties, however, have vigorously contested both the sequence and content
of these phone calls.
Lansdale testified that he called Larry Patterson, Intermodal's dispatcher, at 7:32
AM. (TR 121). He informed Patterson of the situation, and voiced his concerns that
hauling the loads would be unsafe and illegal. (TR 122-23). Lansdale claims that
Patterson told the drivers to call him back to allow him to confer with somebody else in
the office or with International Paper. (TR 123-24). Lansdale testified that he called
Patterson back fifteen minutes later, around 7:50 or 8:00 AM. (TR 321). Patterson
informed him that International Paper was not going to reload the container, that the
drivers were to pull it as loaded, and that Intermodal would pay the fine if they got
stopped. (TR 126).[4] Lee testified that she also spoke with Patterson during the second
phone call, and that during the course of the conversation the complainants specifically
informed Patterson of the container's weights. (TR 392). She claims Patterson told her
to "bring the containers in" to Intermodal and that Intermodal would pay the fines if they
got caught. (TR 393). Patterson did not testify at the proceedings. Based upon
respondent's failure to call Patterson as a witness, and given that Lansdale's account of the
second conversation with Patterson is consistent with Lee's account of her conversation
with Patterson, I draw an adverse inference against Intermodal and find that Patterson
would not have disputed complainants' testimony if called to testify. I therefore adopt
complainants' characterizations of these conversations.
Lansdale testified that he was upset with Patterson's indifferent response, and asked
to be transferred to Crystal Bryant, Intermodal's safety director. (TR 126).[5] Lansdale
testified that he explained to Bryant that the trailers were overweight, and that Bryant
placed him on hold. (TR 126-27). While on hold, Lansdale spoke to Rodney Hibbler, a
safety trainer for Intermodal, who expressed sympathy for the drivers but declined to get
involved in the situation. (TR 128-29). Bryant then got back on the line with Lansdale
and told him to pull the load, and that International Paper had agreed to pay the fine if
they got caught. (TR 129). Lansdale told her that he was more concerned with the safety
risk of hauling the container than with potential fines. (TR 130). After becoming irritated
with Bryant's response, Lansdale testified that he handed the phone to Lee. (TR 130).
Lee also admits to confusion regarding the sequence of complainants' phone calls
to Patterson and Bryant. (TR 448-457). She was certain, however, that she spoke with
Bryant after she spoke with Patterson. (TR 454-455). Lee testified that she informed
Bryant of the problem, and told Bryant she would not pull the load for safety reasons.
(TR 394). She claims Bryant expressed sympathy, but told Lee to pull the load anyway,
and that International Paper would pay the fines. (TR 394-95). Lee testified she soon
became irritated with Bryant and told her to "shut up." (TR 395). According to Lansdale,
[PAGE 6]
who was listening to Lee's side of the conversation, Lee informed Bryant that the
containers' drive axles were 3,360 pounds and 3,380 pounds overweight. (TR 131). Lee
testified that she then suggested to Bryant that she and Lansdale "bobtail"[6] their tractors
to a site approximately 800 yards from International Paper where the Arkansas
Department of Transportation (DOT) had set up some portable scales. Once there, the
drivers could ask the DOT for advice and solicit them to direct IP to reload the
containers. (TR 396-97). Lansdale corroborated Lee's version of this conversation. (TR
131-32). Lee thought Bryant responded positively to this suggestion, and claimed Bryant
directed the drivers to drive to the DOT scales and to do whatever the DOT told them to
do. (TR 397).
Bryant contested complainants' characterizations of these conversations. According
to Bryant, she spoke only with Lee, and never spoke with Lansdale. (TR 639). Bryant
also denied telling Lee to haul the trailers, that International Paper would pay the fines,
or that Lee ever told her to "shut up". (TR 644-45). Bryant conceded that Lee informed
her that both containers were heavy on the drive axle, and that International Paper had
refused to redistribute the weight. (TR 639). She also concurred that she allowed Lee
to speak with Hibbler, and that she once put Lee on hold, during which time she
conferred with Intermodal's terminal manager, Ron Donahoo, who had come over to
Bryant's desk during the conversation to listen. (TR 640). The two then discussed
possible options to resolve the situation. (TR 640-41).[7] After Lee informed her that
the DOT had set up portable scales down the road from IP's plant, Bryant testified, she
and Lee agreed that the drivers should haul their trailers to the portable scales to be
weighed by the DOT, who could then determine if they were safe or should be reloaded.
Lee agreed with this decision, and the conversation ended. (TR 641-42). Hibbler testified
that he heard Bryant tell Lee to have the loads weighed at the DOT scales, and if the load
was deemed unsafe, then Intermodal would pay any fines incurred, and would have the
container reloaded if necessary. (TR 658-59). Bryant did not recall Lee ever telling her
that the trucks had already been weighed, or that there were scales on IP's property. (TR
640-41).
Rodney Hibbler testified that he spoke only with Lee, but never spoke with
Lansdale. (TR 656). He claimed that Lee did not inform him that the trucks had already
been weighed at International Paper, (TR 656), but admitted that she did tell him that the
loads were overweight and that both drivers had been trying "for about an hour" to adjust
the axles to make the loads legal. (TR 657). Hibbler testified that he did not have any
further advice to offer. (TR 657).
Ron Donahoo, Intermodal's terminal manager, testified that he first learned of the
problem from Patterson, who told him that Lansdale and Lee were on the phone
complaining that the containers were unsafe and were damaging their tractors. (TR 662).
Donahoo ordered the phone call transferred from Patterson to Bryant, and he stood by her
desk to listen. (TR 662-63). He testified that he was not sure whether Lansdale or Lee
was on the line. (TR 662). When Bryant put the caller on hold, he discussed the
problem with her, and directed Bryant to instruct the drivers to "take the loads to the
scales and let them -- let the DOT make the determination as to whether it was safe or
not." (TR 664).
[PAGE 7]
Lansdale testified that following the conversation with Bryant, he and Lee dropped
their containers on International Paper's property and drove their tractors bobtail to the
DOT scales. (TR 132-33). Lee testified that she did not want to remove the containers
from International Paper's property since to do so would be to assume responsibility for
an illegal load. (TR 446-47). Both drivers testified, however, that the DOT scales were
no longer in place when they arrived, so complainants proceeded to a truck stop, where
Lee called the Arkansas State Police, where they spoke to Captain Brown. (TR 133-34,
397-98). Complainants explained that they called the police because Bryant had directed
them to do whatever the DOT recommended regarding the unsafe loads, and they wanted
somebody with authority to tell them how to proceed. (TR 135, 397). Lee explained to
Captain Brown that she and Lansdale were being instructed to bring a load that was 3,000
pounds overweight back to Memphis, and that she did not want to pull the load.
According to Lee, Brown responded that if she were to pull that load he would "'put your
ass in jail." (TR 398-99).
Lee testified that after her conversation with Brown, she placed a call to Intermodal
and asked to speak with Mark George, company president. (TR 399). Because George
was unavailable, Lee testified that she was put through to Donahoo. Lee told Donahoo
that she would not haul the load, and that she had contacted Captain Brown. (TR 399-
400). Lee testified that Donahoo told her International Paper would not reconfigure the
load, and then told Lee to "'do what you feel you must'". (TR 400-01).
Lansdale testified that he also placed a call to George, and he was instead put
through to Donahoo, since George was unavailable. (TR 136-37).[8] During this call,
he informed Donahoo of Lee's conversation with Captain Brown. (TR 136-37). Lansdale
testified that Donahoo responded by telling him he was aware of their situation, that
International Paper was not going to reload the containers, but that he had received
assurances from the scale operators that they would look the other way when Lansdale
and Lee came across the scales. (TR 137-38). Lansdale testified that when he again
refused to haul the containers because it was unsafe, Donahoo told him to do what he
thought was right. (TR 139).
Donahoo testified that he initially learned of the situation through complainants'
calls to Patterson and Bryant. (TR 661-64). He claimed he received a call from Lee
around 11:00 AM or 12:00 noon informing him of her call to Captain Brown, expressing
concern that the drivers would be arrested if they hauled the containers, and telling him
that they were going to bobtail home. (TR 666). He conceded that Lee told him that
both drivers believed their loads were unsafe. (TR 674). Donahoo denied, however,
receiving a call from Lansdale that day. (TR 667-68). He also denied telling Lee that the
scale operators would look the other way. (TR 673). He also denied being told by Lee
that the containers had already been weighed on International Paper's scales. (TR 666).
He testified that he did not direct the drivers further, since he felt they had already made
a decision to bobtail home. (TR 667, 670). After speaking with Lee, he called the
Arkansas Highway Patrol and spoke with Captain Brown for clarification of what he had
told the drivers. (TR 669).
[PAGE 8]
Captain Brown testified that he recalled having a conversation with two or three
truckers who were coming out of the International Paper plant and who told him they
were 3,000 pounds overweight on their drive axle. The truckers, whose names he could
not recall, inquired as to whether he would contact their employer and tell him this was
illegal. (TR 47-48). Brown responded that he would not do so as long as the truckers
were still on private property, but that they should tell their employer that they would be
stopped were they on a public road. They would then be required to adjust the load to
make it legal. (TR 48-50). Brown testified that this is the normal policy for the Arkansas
Highway Patrol. (TR 57-58). The drivers would not be placed under arrest or sent to jail.
(TR 64).
Lansdale testified that, following their conversation with Donahoo, the drivers
notified an employee on International Paper's loading dock that they would not be
carrying the containers. (TR 139). According to Lansdale, both drivers acted "as nice as
we could be," and International Paper's personnel did not appear upset. (TR 139-41). On
their way back home to Memphis, the drivers stopped at a restaurant, where they called
Intermodal and spoke to Patterson. Patterson told them to report to Donahoo the next
morning. (TR 142).
After getting back on Route 40, the complainants stopped at a truck stop near Lehi,
AR, where they informed an officer of their situation and of Donahoo's alleged statement
that the scale officers would look the other way for an International Paper shipment. (TR
143-47). Lansdale then provided the officer with Intermodal's phone number, and
watched as he dialed it. (TR 147). Lee also testified that she observed the officer dial
Intermodal's number, ask for Donahoo, and speak with somebody on the other end. (TR
403). Lansdale heard the officer ask to speak to Ron Donahoo. (TR 151). Both drivers
testified that the officer told the person to whom he was speaking that he would not allow
an overweight load to go across his scales, and that International Paper does not receive
preferential treatment at the scales. (TR 150-51, 404). Donahoo denied receiving a phone
call from anyone associated with Arkansas Highway Patrol or the scale house. (TR 668).
Lansdale and Lee then proceeded home. (TR 151).
D. Intermodal's Termination of Complainants
Following his conversation with Captain Brown, Donahoo called George, who was
in his car, to apprise him of the situation. (TR 670). Donahoo testified that he told
George that "we were having a problem with a couple of loads at IP, that it was my
opinion that Donna and Johnny were causing a problem, causing a scene there from my
past experience, and that we could have some phone calls from irate customers at IP, K-
Line, and possibly even the Arkansas Highway Police." (TR 671). George testified that,
on the basis of what Donahoo had told him, he understood that it appeared complainants
had a container with a weight problem on the drive tandems, Donna and Johnny had made
"...a scene on the dock of International Paper with their staff and shipping personnel, that
he was demanding and shouting and causing a major confrontation with our customer"
...(TR 586). George also understood that Lansdale had refused to make any attempt at
readjusting the load, while Lee was unable to move her fifth wheel, and that both drivers
were now being confrontational with Intermodal's staff, refusing to do anything that was
requested of them, including having the loads weighed at the portable scales. (TR 586-
[PAGE 9]
87).[9] George also testified that "Johnny and Donna had called the Arkansas Highway
Police which is -- that's never been done before by a driver." (TR 590).
During this conversation, Donahoo and George agreed that both Lansdale and Lee
had been increasingly negative and disruptive employees, despite George's efforts to
address Lansdale's complaints. (TR 587-89; 671-72). Specifically, George testified that,
six months before these events occurred, he had met with Lansdale to discuss Lansdale's
frustration with Intermodal's compensation, escrow and tire replacement policies. (TR 576-
78). At that time, George also selected Lansdale to serve on a committee designed to
renegotiate Intermodal's owner-operator contract. (TR 579-81). While Lansdale was very
involved in the committee's meetings, he once expressed a desire to sell his truck and get
out of the trucking business. (TR 580). During breaks in these meetings, George testified
that Lee, who was waiting outside in the parking lot, would often confront him and
express her dissatisfaction with her contract. (TR 582). Following ratification of this
contract, Lansdale confronted George to express his dissatisfaction with the new contract's
terms. (TR 584-85).
At the conclusion of their conversation of February 2, 1993, George directed
Donahoo to direct the drivers to bobtail back to Memphis, and to terminate complainants'
lease contracts with Intermodal the following morning. (TR 593). George decided to
terminate the contracts on grounds of "inadequate equipment" instead of "failure to follow
dispatch procedures," as Donahoo recommended, because it would look better on the
drivers' records, and because neither driver was able to adjust for the overweight load.
(TR 593-94). George testified that neither the drivers' safety concerns nor their call to the
police had affected his decision to terminate the contracts. (TR 592, 595). Rather, he
testified that he terminated the contracts because he had given up on Lansdale, and that
he viewed this incident as Lansdale's way of demonstrating how unhappy he was with his
contract agreement. (TR 595). George had been concerned that complainants'
unhappiness with the terms of their employment could begin to affect other drivers as well
as Intermodal's relationship with its customers. He testified that complainants'
confrontation with International Paper was the "straw that broke the camel's back." (TR
588).
The following day, complainants reported to Donahoo, and were also met by
Patterson. Donahoo presented them with notices cancelling his owner-operator contracts
with Intermodal, and asked Lansdale to sign them. Lansdale testified that he refused to
sign the notices because they stated the contracts were being cancelled on the basis of
"inadequate equipment specifications," whereas there was nothing wrong with his truck.
(TR 155-57). He and Lee left without signing the termination notices. (TR 160).
E. Events Subsequent to Complainants' Termination
John Woodward, a driver for Intermodal, testified that he was dispatched the
following day to pick up one of the containers, KLFU111817, from International Paper.
(TR 197-98; JX 11). Woodward initially refused this dispatch, as well as a second
dispatch the next day for the same load, because he had been informed by Lansdale that
the container was overweight. (TR 198-99). He accepted the third request to pick up the
[PAGE 10]
load on February 5 when he began to fear that he would not "go on to bigger and better
things" if he did not accept the assignment. (TR 238).[10] Woodward testified that the
seal on the container had not been broken when he attached it to his tractor. (TR 210).
The load felt heavy on his drive axle, so he asked International Paper if they would reload
the container if a courtesy weight showed it to be overweight. (TR 202). He then met
another Intermodal driver, Cedric Martin, who had been dispatched to pick up the other
container, about a mile from the International Paper plant. He warned Martin not to have
a courtesy weight taken since to do so would put the driver on notice that he was hauling
an illegal load. (TR 203). He testified that he did not believe the container presented a
safety hazard because his truck had new tires. (TR 228-29). He also testified, however,
that because the front-heavy containers made the trailer prone to dip, he could not make
sharp turns on his return trip (TR 229), and that he worried the load might cause tire
problems on the trailer. (TR 204-05).
About three miles out of Little Rock, Woodward was pulled over by an Arkansas
Highway Police officer and was weighed with a portable scale. (TR 205-06).[11]
Woodward was issued a warning ticket for weighing 36,400 pounds on his drive axle.
(TR 207-08; GX 3). Woodward was also informed that he would not be allowed to
proceed until the load was readjusted, so he called Donahoo from a truck stop and
informed him of the situation. (TR 208). Donahoo told Woodward to take the load back
to International Paper to allow them to readjust the load. (TR 209). When Woodward
returned to International Paper, he was met by a state trooper to ensure its cooperation.
(TR 209). International Paper reloaded the container, and required Woodward to weigh
the load for their records. Woodward then pulled the container to Memphis. (TR 210-11).
Johnny McDowell, the regional investigator for the Department of Labor who conducted
an investigation into this complaint, testified that the driver carrying the other container
also received a citation on February 5 for carrying an overweight load. (TR 713).
On February 5, 1993, Lansdale wrote a letter to the Tennessee Public Service
Commission complaining about the compensation terms of the January 1, 1993, contract.
Lansdale also recounted the events leading to his termination, and asserted that he had
been terminated for following Intermodal's own safety policies. (TR 357; GX 12).
F. Intermodal's Policy Regarding Overweight Loads and Driver's
Complaints
The weight limit for the drive axles of trucks traveling in interstate commerce on
Arkansas roads is 34,000 pounds. Ark. Stat. Ann. § 27-35-203 (b)(1) (1994 Repl.).
Captain Brown testified that if a vehicle is found to be overweight on its drive axle, the
Arkansas Highway Police Department's policy is to stop that vehicle in a safe location and
require the driver to adjust the cargo to the correct weights on each axle. (TR 57). If such
an adjustment cannot be made at the side of the road, the vehicle would be allowed to
travel to a nearby location where such an adjustment could be made. (TR 58).
Intermodal president Mark George testified that it is Intermodal's policy "not to
move any containers that are over gross, that are overweight on the axles." (TR 568). If
Intermodal is aware that a load is overweight, George stated that it has always been the
company's practice to make the shipper correct an overweight load before a driver will
[PAGE 11]
carry it. (TR 591). If the shipper refuses to correct the problem, the driver may drop the
load and bobtail home. George testified that Intermodal does not force its drivers "in any
circumstances whatsoever to carry a load that's overweight in any way." (TR 591). He
also stated that shippers routinely pay any fines for weight violations resulting from how
a container was loaded, and that Intermodal encourages drivers who think their load is
heavy to have the load weighed. (TR 564-66). Intermodal does not require drivers to
have a fifth wheel on their truck. (TR 573-74).
Nevertheless, in a July 7, 1992, memo instructing Intermodal's contract drivers on
how to handle overweight loads, Intermodal's terminal manager Ron Donahoo did
not tell drivers they did not have to carry overweight loads. Rather,
Donahoo directed drivers not to deliver the loads to their destinations until they received
faxed authorizations for repayment of any fines received by the driver from the shipper.
The memo also directs drivers who have received a fine at a scale to call their dispatcher
so that Intermodal can obtain such authorization from the shipper. (JX 5). In an earlier
memo, dated December 2, 1991, Donahoo directed drivers who have received a fine at
a scale house to hold the load until Intermodal obtains a written authorization from the
customer guaranteeing repayment. The memo directed drivers to proceed to the
destination, but not to allow unloading until given permission by Intermodal. (JX 5).
Four current drivers for Intermodal testified that they had never been required by
Intermodal to carry an overweight load. (TR 533, 541, 547, 553-54). Driver Donald
Stribling further testified that, on at least two occasions when he had found a load to be
overweight, he was given the option by the company to have the load reloaded. (TR 534-
35). Jimmy Grice testified that, when faced with a similar situation, he was directed to
drop the load and return to Memphis bobtail. (TR 541). Jerry King testified that he was
directed to return an overweight load to the shipper to be reloaded. (TR 549).
Other drivers, however, testified that they had been directed by their dispatcher at
Intermodal to pull an overweight load. Woodward testified that he had been directed to
pull an overweight load from International Paper on at least one occasion before February
5, 1993. (TR 214). He also testified that he was once asked by Intermodal to bypass
scales and to pull an overweight load. (TR 218, 222, 235). Dwight Saulsberry, who drove
for Intermodal from 1991 to 1993, testified that on at least one occasion he was directed
by Donahoo to pull a load he knew was overweight, and was directed to bypass weigh
stations to avoid incurring a fine on for the load. (TR 728-29). He also testified that he
was dispatched on less profitable runs in retaliation for refusing to haul the overweight
load, and for complaining about having to pull such loads. (TR 729-30).
Other evidence in the record indicates that Intermodal tolerates the carrying of
overweight loads. McDowell's investigation revealed that Intermodal's drivers incurred
roughly 89 weight violations per year in the state of Tennessee from 1989 to 1993. (TR
484; JX 6). George testified that this amounts to fines for 1.7 loads per 1,500 shipments.
(TR 563-64). Further, George admitted that he dispatched Woodward to pick up the
trailers from Intermodal even though he knew the containers posed a weight problem. (TR
607-08).
[PAGE 12]
Donahoo admitted that other drivers sometimes complained about their jobs at
Intermodal, and that a small percentage of them are a "pain" with complaints about their
jobs and their mileage and their pay. (TR 674). He also admitted that he does not know
"that any driver has ever been disciplined for being a pain ...." (TR 675). The company
has no formal policy with regard to disciplining a driver-owner. (TR 676).
CONCLUSIONS OF LAW
It is well-settled that it is within the province of the fact-finder to determine
the credibility of the witnesses, to weigh the evidence, and to draw her own inferences
from it. Banks v. Chicago Grain Trimmers Assoc., Inc., 390 U.S. 459, 467,
reh. denied, 391 U.S. 929 (1968); Smiley v. Director, OWCP, 984 F.2d
278 (9th Cir. 1993); Chavez v. Director, OWCP, 961 F.2d 1409 (9th
Cir. 1992); Todd Pacific Shipyards v. Directror, OWCP, 913 F.2d 1426
(9th Cir. 1990).
A. STAA violations -- Overview
A complainant may recover under the Act under three circumstances. First, by
showing that he or she was subject to an adverse employment action for refusing to
operate a vehicle "because the operation violates a regulation, standard, or order of the
United States related to commercial motor vehicle safety or health." 49 U.S.C. §
31105 (a)(1)(B)(i).[12] Second, by showing that he or she was subject to an adverse
employment action for refusing to operate a motor vehicle "because the employee has a
reasonable apprehension of serious injury to the employee or the public because of the
vehicle's unsafe condition." 49 U.S.C. § 31105 (a)(1)(B)(ii).[13] To qualify for
protection under this provision, a complainant must also "have sought from the employer,
and been unable to obtain, correction of the unsafe condition." 49. U.S.C. § 31105
(a)(2). Third, by demonstrating that he or she was subject to an adverse employment
action because the complainant "has filed a complaint . . . related to a violation of a
commercial motor vehicle safety regulation, standard, or order." 49 U.S.C. § 31105
(a)(1)(A).
The burdens of proof under the Act have been adopted from the model articulated
by the Supreme Court in Texas Dept. of Community Affairs v. Burdine, 450
U.S. 248 (1981) and, more recently, in St. Mary's Honor Center v. Hicks, __
U.S. __, 113 S.Ct. 2742 (1993). See Anderson v. Jonick & Co., Inc., 93-STA-6
(Sec'y Sept. 29, 1993). Under this model, complainants must first establish a prima
facie case under the Act by demonstrating, through a preponderance of the evidence,
that they were engaged in a protected activity, were subject to adverse employment action,
and that respondent Intermodal was aware of the protected conduct when it took the
adverse action. They must also present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action. Greathouse v.
Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 2.
Once complainants have established a prima facie case under the Act, the
burden
[PAGE 13]
of production shifts to respondent Intermodal to rebut the presumption of discrimination
by producing evidence that, if believed by the trier of fact, would support a finding that
the adverse action was motivated by a legitimate, non-prohibited reason. Should
Intermodal rebut the presumption, the burden of production then shifts back to the
complainants to demonstrate that Intermodal's proffered reason was not the true reason
for the adverse action. On the basis of this evidence, I may then find for the complainant,
should I conclude that Intermodal's proffered reason is pretextual, and that the
complainants have proved retaliation; or I may find for the respondent, should I conclude
that Intermodal was not motivated, in whole or in part, by the protected conduct.
Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992),
slip op. at 3 n.1. Should I conclude, on the basis of the evidence, that Intermodal was
motivated by both a prohibited and a legitimate reason, Intermodal would escape liability
only by establishing that it would have reached the same decision even in the absence of
the protected conduct. Moravec v. HC & M Transportation, 90-STA-44 (Sec'y
Jan. 6, 1992), slip op. at 12 n.7.
B.Prima Facie Case (1) Protected Activities
I conclude that complainants have established a prima facie case under
the second and third, but not the first, of the three means by which they may recover
under the Act. Although complainants have failed to establish through a preponderance
of the evidence that by hauling the containers they would necessarily have violated a
federal motor vehicle regulation, I nevertheless conclude that they engaged in a protected
activity when they refused to haul the containers based on their reasonable apprehension
of serious injury, and when they reported the containers to officials from the Arkansas
Highway Patrol and to their superiors within Intermodal.
(a) violation of federal regulations
Complainants argue that they refused to haul the containers because doing so
would have been a violation of a federal commercial motor vehicle safety regulation.
Section 392.2 of the Federal Motor Carrier Safety Regulations provides:
[e]very motor vehicle must be operated in
accordance with the laws, ordinances, and
regulations of the jurisdiction in which it
is being operated.
49 C.F.R. § 392.2. Under Arkansas state law, the total gross load that may be
imposed on the highway by two consecutive axles is not to exceed 34,000 pounds. Ark.
Stat. Ann. §27-35-203 (b)(1)(1994 Repl.).
To come within the protection of Section 33105 (a)(1)(B)(i) of the Act (which is
known as the "when" clause), a complainant must demonstrate that an actual violation of
[PAGE 14]
a federal regulation would have occurred had complainant not refused to operate a vehicle
as directed by his employer. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17,
1995), slip op. at 6. A complainant's unsubstantiated opinion that a violation would have
occurred had he driven the vehicle, even if reasonable and made in good faith, is
insufficient to invoke protection under this provision. Brame v.
Consolidated Freightways, 90-STA-20 (Sec'y June 17, 1992), slip op. at 3. Rather,
the complainant must prove that his assessment of the unlawful condition was correct.
Brame; see also Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y April
1, 1994), slip op. at 2-3 (complainant must prove conclusively that condition violated
federal safety regulation); Yellow Freight System, Inc. v. Martin, 983
F.2d 1195, 1199 (2d Cir. 1993) (driver must show that operation would have "been a
genuine violation of a federal safety regulation at the time he refused to drive").
Complainants' evidence that hauling the trailers would have violated a federal
safety regulation consisted of their testimony that the containers felt heavy on their drive
axles, and that the courtesy weights provided by International Paper revealed that the
drive axle weights on both vehicles exceeded state law limits. Complainants also
established that the two drivers dispatched to retrieve the two containers three days later
were stopped by Arkansas police, weighed on a portable scale, and issued warning
citations for being overweight on their drive axles. Driver Woodward testified that when
he picked up his container from IP, the seal on the container had not been broken.
While this is admittedly a close call, I conclude from the record before me that
complainants have failed to establish, through a preponderance of the evidence, that
hauling the containers would have actually violated a federal highway safety regulation.
I do not doubt that complainants received a courtesy weight from International Paper, and
that they concluded in good faith from this courtesy weight that their vehicles were
overweight on their drive axles and therefore unsafe to operate. Complainants have
produced no direct evidence, however, that the condition of the containers at the moment
complainants refused to haul them violated the Arkansas state law pertaining to axle
weight limitations. Although the Assistant Secretary as prosecuting party offered the
handwritten weight slip, he did so not to prove the weight of the containers but to show
the drivers' state of mind in terms of their reasonable apprehension of a safety violation,
which is discussed below. Thus, there is no direct evidence of what the containers
actually weighed. Further, while complainants have established that the two drivers
hauling the containers were cited for violation of state law three days later, they have not
established that the condition of these trailers was identical to their condition on the
morning of February 2. For instance, it is unclear from the record whether the container
hauled by Woodward remained sealed from complainants' original dispatch or had been
re-sealed for Woodward's dispatch. As a result, it is unclear whether the containers were
in the same condition on February 2 as they had been when picked up by Woodward on
February 5. Given the inconclusive nature of the circumstantial evidence presented by
complainants, I conclude that they have failed to meet their burden of proving that hauling
the two containers would have violated a federal highway safety regulation at the time
they refused to haul them.
(b) reasonable apprehension of serious injury[PAGE 15]
I do, however, find that complainants harbored a reasonable apprehension of
serious injury had they not refused to haul the containers as dispatched. Under the Act,
an employee's apprehension is reasonable "only if a reasonable individual in the
circumstances then confronting the employee would conclude that the unsafe condition
establishes a real danger of accident, injury, or serious impairment to health." 49 U.S.C.
§ 31105 (a)(2) (which is known as the "because" clause). Further, to qualify for
protection under this provision, the employee "must have sought from the employer, and
been unable to obtain, correction of the unsafe condition." Id.
Unlike Section 31105 (a)(1)(B)(i), Section 31105 (a)(1)(B)(ii) does not require
complainants to establish that an unsafe condition actually existed at the time of their
refusal to drive. Rather, complainants need only demonstrate that their apprehension of
serious injury was reasonable at the time of their refusal to drive. See Thom v.
Yellow Freight System, Inc., 93-STA-2 (Sec'y Nov. 19, 1993), slip op. at 6-7
("Whether a condition is sufficiently hazardous requires the exercise of judgment and
ordinarily is made on the basis of information available at the time of the refusal"), aff'd,
Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76, 82-83 (2d Cir. 1994) (court
holds that the Act's "because" clause provides broader protection than does its "when"
clause, and concludes that a driver's perception of an unsafe condition at the time the
driver refused to drive could be found "reasonable" despite the fact that a subsequent
mechanical inspection revealed no actual defect).
In the instant case, complainants each testified that there was more space than usual
in the rear of their containers, and that both trucks felt heavy or sluggish on their drive
axles. Complainants also testified that a courtesy weight provided by International Paper
showed both trucks to be overweight on their drive axles. Lee further testified that, based
upon her experience, the manner in which her container was loaded would have impaired
her ability to maneuver and control her vehicle, and would have increased the chances of
jacknifing or swerving in a sudden stop. Lansdale concluded that hauling such a load
increased the risk of a blown tire or jacknifing, and therefore could have resulted in
serious injury. Captain Brown confirmed that it is unsafe for a truck to be overweight on
its drive axles, and that such a condition would interfere with the driver's ability to brake
and turn. Based upon the record before me, I conclude that a reasonable individual in the
circumstances then confronting the complainants would have concluded that the unsafe
condition of the containers established a real danger of accident, injury, or serious
impairment to their health or the health of others. See, e.g., Newkirk v. Cypress
Trucking Lines, Inc., 88-STA-17 (Sec'y Feb. 13, 1989) (driver's refusal to haul
improperly loaded container is protected activity under "because" clause of Section 2305
(b)).
I also conclude that complainants sought, and were unable to obtain, correction of
the unsafe condition from Intermodal. While the parties have disputed the sequence and
content of the various calls made by the complainants, it is apparent from the record that
during the morning of February 2, one or both of the complainants spoke with, and asked
for assistance from, four Intermodal employees: Larry Patterson, Intermodal's dispatcher;
Crystal Bryant, Intermodal's safety director; Rodney Hibbler, a driver trainer for
Intermodal; and Ron Donahoo, Intermodal's terminal manager. In each case, complainants
[PAGE 16]
testified that one or both informed the employee that their loads were overweight on the
drive axles, expressed complainants' safety concerns about hauling the load, and reported
that they had been unable to adjust the load to remedy the problem.
Complainants both testified that Patterson, in response to their request for
assistance, informed them that International Paper had refused to reload the containers,
directed the drivers to pull the containers as loaded, and told them that Intermodal would
pay any fines they incurred. Based upon the adverse inference I am allowed to draw from
Intermodal's failure to call Patterson as a witness, and the fact that his alleged response
conforms to Intermodal's written policy and practice regarding overweight loads [cite to
exhibit #], I find that complainants' account of this conversation was accurate. I also
conclude that complainants were justified in refusing Patterson's advice on grounds that
it would have required them to carry unsafe and possibly illegally overweight containers
back to Memphis. See, e.g., Galvin v. Munson Transportation, Inc., 91-STA-41
(Sec'y, August 31,1992), slip op. at 6 (complainant justified in refusing employer's
proposal for correcting a problem that would have required the driver to drive 240 miles
with overweight load).
Neither Hibbler nor Bryant deny that they spoke with Lee. Hibbler testified that
after learning that the drivers had been unable to adjust their axles to compensate for the
load, he did not make any further recommendations to correct the problem. Bryant
rigorously contested Lee's account of their conversation, but both conversants agreed that
Lee informed Bryant of the overweight problem and asked for assistance in the matter.
Lee testified that Bryant first directed complainants to pull the overweight load and let
International Paper pay the fines, and then agreed with Lee's suggestion that complainants
bobtail to the portable scales to ask for further guidance. Bryant, on the other hand,
testified that she discussed the problem with Donahoo[14] , and then instructed
complainants to haul the containers to the portable scales to have them weighed. Under
either party's version of this conversation, however, I conclude that her instructions to the
drivers were not directed toward correction of the problem. As noted, the drivers would
have been justified in refusing to haul the containers back to Memphis. They also would
have been justified in refusing to haul the containers to the portable scales, on grounds
that it would have required the drivers to carry the unsafe containers across a public
thoroughfare. See, e.g., Galvin, supra. Accordingly, I conclude that
complainants sought from Intermodal, and were unable to obtain, correction of the unsafe
condition.
(c) filing a complaint related to a safety violation
The Act also protects persons who file a complaint regarding an unsafe condition
with either a government agency or their own superiors. Stiles v. J.B. Hunt
Transport, 92-STA-34 (Sec'y Sept. 24, 1993), slip op. at 4 (noting that it would be
inconsistent with the purpose of the Act to limit protection to complaints filed with
government agencies, since a complaint to an employer is the initial step in achieving
safety). Further, a person need not cite specific motor vehicle standards or rules to be
protected, but need only cite safety concerns. Nix v. Nehi-RC Bottling
Company, 84-STA-1 (Sec'y July 13, 1984), slip op. at 8-9. This activity is protected
even if the underlying complaint proves to be
[PAGE 17]
meritless. Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4,
1992), slip op. at 3 n.1.
In the instant case, complainants testified that they reported the unsafe containers
to Captain Brown of the Arkansas Highway Patrol as well as to an unidentified officer
in a scale house near Lehi, Arkansas. Captain Brown confirmed that he received a call
from two or three truck drivers regarding an overweight load at International Paper. I
find that this activity was protected under Section 31105 (a)(1)(A) of the Act. See, e.g.,
Gagnier v. Steinmann Transportation, 91-STA-46 (Sec'y July 29, 1992), slip op.
at 2 & n.3 (driver's complaint to state highway patrol officer constituted protected
activity). I also find that complainants engaged in protected activity when they reported
the unsafe condition of the containers to safety director Bryant, and to terminal
manager Donahoo. See, e.g., Newkirk, supra, slip op. at 5 (driver
engaged in protected activity when he complained to management about front-heavy
container).
(2) Adverse Employment Action
Complainants have demonstrated that they were subject to adverse employment
action, namely, termination of Lansdale's contracts on February 3, 1993.
(3) Intermodal's Awareness of the Protected Activity
As already noted, both parties agree that on the morning of February 2, 1993, one
or both of the complainants voiced their concerns that the containers could not be safely
hauled to four Intermodal employees. Donahoo subsequently informed company president
Mark George that complainants "had a container that had a problem with its weight on
the drive tandems of the tractor," and that complainants had refused to haul the containers
on this basis. George knew of these circumstances when he made the decision to
terminate the contracts. From this I conclude that George was aware of the drivers'
refusal to haul the loads on the basis of their apprehension of serious injury to themselves
or others when he terminated the contracts.
I also conclude that George was aware that the drivers had complained of the
situation to officials from the Arkansas Highway Patrol and to Bryant and Donahoo at the
time he decided to terminate the contracts. George knew that complainants had
complained to Donahoo since it was Donahoo who had informed George of the situation.
George also testified that he was aware of the police report at the time of his decision:
"[m]y understanding was that Johnny and Donna had caused a major confrontation with
our customer, that Johnny and Donna had called the Arkansas Highway Police which is -
- that's never been done before by a driver . . .". (TR 590).
(4) Inference of Causation
To complete their prima facie case, complainants must present evidence
sufficient to raise the inference that their protected activity was the likely reason for their
discharge. Because it is rare that a complainant can produce direct evidence establishing
a connection between protected activities and an adverse employment action, it is well
established that
[PAGE 18]
a complainant may prove such a connection with circumstantial evidence. Clay v.
Castle Coal & Oil Company, 90-STA-37 (Sec'y Nov. 12, 1991), slip op. at 6 n.5.
In the instant case, complainants have raised an inference that their refusal to haul
the containers, and their subsequent complaints about the situation to Intermodal
management and Arkansas highway officials, were the likely reasons for their termination.
George testified that he decided to terminate the drivers' contracts during his initial
conversation with Donahoo, the same conversation in which George learned that the
drivers had refused to haul the containers on safety grounds and had complained to the
police. At George's request, Donahoo drew up the paperwork to terminate the contracts
at the conclusion of this conversation, and the notices of termination were served on
complainants early the next day. Such temporal proximity is by itself sufficient to raise
an inference of causation between the protected activity and the employment action. See,
e.g., Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y August 3, 1994), slip op.
at 6 (causal inference raised where driver is discharged four days after refusal to make
deliveries); Toland v. Werner Enterprises, 93-STA-22 (Sec'y Nov. 16, 1993), slip
op. at 3 (inference raised where complainant is discharged the same day that he raised
safety complaints); Clay, supra, slip op. at 9 (inference raised where
driver is suspended same day he refuses to make two deliveries).
C. Intermodal's Reasons for Terminating the Contracts
Because complainants have established a prima facie case of retaliatory
discharge, the burden shifts to Intermodal to produce evidence that, if believed by the trier
of fact, would support a finding that the termination of the contracts was motivated by a
legitimate, non-prohibited reason.
George testified that his relationship with both drivers had deteriorated over the
past six months, and that both drivers had become increasingly unhappy with the terms
of their employment at Intermodal, including their compensation and Intermodal's policy
on tire repair, equipment replacement and dispatch procedures. George worried that this
attitude threatened to affect the attitude of other drivers and to interfere with customer
relations, and testified that complainants' behavior on the day in question was the "straw
that broke the camel's back" leading to their termination. Specifically, George testified
that he was upset that the drivers had created a scene at International Paper, a major
client, by refusing to haul the containers; had failed to obey Bryant's instructions to take
the containers to be weighed at the portable scales; and had complained of the situation
to Intermodal employees and the police. George also directed that the drivers' notice of
termination list "inadequate equipment specifications" as the basis of termination.
On the basis of George's articulated reasons for terminating the contracts, I
conclude that respondent has produced evidence that, if believed, would support a finding
that complainants' termination was motivated, at least in part, by a legitimate, non-
prohibited reason.
D. Evaluation of the Respondent's Reasons[PAGE 19]
While respondent has successfully rebutted complainants' prima facie
case, George's own testimony reveals that his decision to terminate complainants was
motivated, at least in part, by a protected activity. Specifically, George testified that part
of what "broke the camel's back" regarding his continued tolerance of complainants'
deteriorating attitude was the fact that complainants had caused a confrontation with
International Paper. This "confrontation" arose when complainants engaged in protected
activity by refusing to haul the containers due to their apprehension of injury, a protected
activity. George also testified that he was upset by the fact that complainants had called
the Arkansas Highway Patrol regarding the unsafe condition, also a protected activity.
Because I conclude that respondent's decision was motivated, in part, by activity that was
protected under the Act, I am required to analyze respondent's reasons for termination
under the "dual motive" framework. See, e.g., Kovas v. Morin Transport, Inc.,
92-STA-41 (Sec'y October 1, 1993), slip op. at 6-7 (dual motive framework appropriate
where employer cites complainant's poor attitude, constant complaining and
insubordination, but admits that complainant's complaints about maintenance and safety
conditions to supervisor were the "straw that broke the camel's back" leading to
termination); see also Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y
December 9, 1992), slip op. at 14 (dual motive analysis appropriate where supervisors
admit they were motivated in part by employees safety complaints); see also Yellow
Freight System, Inc. v. Reich, No. 93-3488 (6th Cir. June 24, 1994) (holding that
treatment of mixed motive cases was undisturbed by Supreme Court's decision in St.
Mary's Honor Center, supra).
Under the "dual motive" framework, the respondent, in order to avoid liability
under the Act, must show by a preponderance of the evidence that it would have made
the same decision as to the employee's discharge even in the absence of the protected
conduct. Kovas, supra, slip op. at 7. In such cases, the respondent
bears the risk that the influence of the legitimate and prohibited motives cannot be
separated. Green, supra, slip op. at 14-15. On the basis of the record
before me, I conclude that respondent has failed to demonstrate that it would have
terminated complainants' contracts even if complainants had not engaged in protected
activity.
At the outset, I conclude that respondents have failed to establish that they would
have fired complainants based upon their deteriorating attitude absent complainants'
protected activity. Donahoo admitted that other drivers sometimes complained about their
jobs, but was unaware that any driver had ever been disciplined for their attitude. While
George testified that he had contemplated complainants' discharge prior to February 3,
there is no evidence to support that this action was going to occur absent complainants'
engagement in protected activities on February 2, 1993. See, e.g., Kovas,
supra, slip op. at 7.
I also conclude that respondent would not have terminated complainant for the
reason set forth in its notices cancelling complainants' contracts, "inadequate equipment
specifications," absent complainants' protected activities. According to George, Donahoo
had recommended that the company list "failure to follow dispatch procedures" as the
reason for termination. George declined, and decided to write "inadequate equipment,"
because he felt this reason would be less prejudicial to complainants in finding future
employment. George earlier testified that Intermodal has no requirement that drivers'
[PAGE 20]
tractors have fifth wheels. George's later statement to Investigator McDowell that he
would change the stated reason if necessary (TR 479) supports the conclusion that
Intermodal did not terminate complainants' contracts for the reason listed on the notices.
I further conclude that respondent has failed to demonstrate that it terminated the
contracts because complainants had "created a scene" at International Paper. George
based this conclusion upon his conversation with Donahoo regarding the incident.
Donahoo's own testimony suggests that his conclusion about complainants' conduct was,
in turn, based solely upon speculation, and that he made that basis clear to George.[15]
I find nothing in the record to indicate that either party had any other grounds for
concluding that complainants had upset anybody at International Paper. Indeed,
Lansdale's unchallenged testimomony suggests that, rather than being upset, International
Paper's loading personnel were very understanding. Accordingly, I conclude that this
reason lacks credibility, and that respondent would not have terminated complainants for
this reason absent the fact that they had engaged in protected activity.
Finally, I conclude that respondents have failed to establish that complainants'
failure to haul the containers to the portable scales was the reason for complainants'
termination. The parties fundamentally disagree as to whether complainants were even
given this instruction in the first place. According to Bryant, Lee told her that the trucks
were heavy on the front axles, but not that the trailers had already been weighed at
International Paper. Donahoo testified that, on the basis of this information, he directed
Bryant to instruct the drivers to have the trailers weighed at the portable scales to
determine if they were safe. Lee, on the other hand, testified that she told Bryant that the
containers had already been weighed, and that they were overweight. She claimed that
Bryant responded favorably to Lee's suggestion that complainants bob-tail to the portable
scales to solicit the DOT for advice.
I find that Lee's version of this conversation is more credible than Bryant's version.
Specifically, I find it incredible that a person in Bryant's position, having just been
informed of a driver's refusal to haul a container on grounds that it was overweight, would
not have inquired as to whether the driver had any basis for this assertion. It is also hard
to believe that Lee would not have volunteered this information at the outset of her
conversation with Bryant. Consistent with Lee's account, it would have been superfluous
for Bryant to have instructed the complainants to haul the containers to the DOT scales
to be weighed once again, particularly since such a request would have required
complainants to engage in an unsafe and potentially illegal act. Accordingly, I find that
Bryant did not instruct complainants to have the containers weighed at the portable scales,
and conclude that respondents have failed to establish that they terminated the contracts
on the basis of complainants' failure to obey this instruction.[16]
In support of my finding that respondent terminated complainants for refusing to
haul the unsafe containers, I note that such a decision on the part of respondent would not
have been inconsistent with its policy and past practices regarding these types of
situations. George testified that respondent does not require drivers to haul any containers
that are overweight. Rather, Intermodal would make the shipper correct the overweight
load before a driver may carry it, and if the customer refused, the driver could bobtail
[PAGE 21]
home. Four witnesses who currently drove for the company and who were called to
testify by the respondent testified that they had never been directed by Intermodal to carry
overweight loads.
I find this evidence to lack credibility, however, in the face of two memoranda that
had been distributed to company drivers by Ron Donahoo which indicate that respondent
fully expected drivers to haul containers they knew were overweight, so long as the driver
first secured assurances that the shipper would pay any fines incurred. I also conclude
that George's violation of his own purported policy, evidenced by his decision to dispatch
Woodward and Martin to pick up two containers that he had reason to know were
overweight, is further evidence that Intermodal routinely expected drivers to haul
overweight containers. Another driver who no longer worked for Intermodal, and who
therefore had less incentive to misrepresent respondents' practice, testified that he had
once been retaliated against by Intermodal for refusing to haul an overweight load.
E. Conclusion
Respondent has failed to establish that it would have discharged the complainants
even if they had not engaged in the protected activities. Accordingly, I find and conclude
that complainants are entitled to relief under the Act on grounds that respondent
discharged them for refusing to operate a vehicle based upon their reasonable
apprehension of serious injury, and for filing a complaint related to a motor vehicle safety
violation.
III. DISCUSSION OF REMEDIESSUMMARY OF THE EVIDENCE A. Complainants' Interim Employment
On the day of their termination, both respondents submitted applications with a
comparable trucking company in Memphis, Bridgeport Terminal Transport (BTT), where
they knew a trucker named Curtis Harley. (TR 161-63). Harley promised them that they
would be hired, according to complainants. (TR 163). The drivers checked back with
Harley three times, but they were not hired. (TR 165-67). They also applied at TCW and
Contract, two other trucking companies, but were not hired at either company. (TR 168).
While their applications were pending, Lee called Mike Kriese, a customer relations agent
at Intermodal. (TR 416). According to Lee, Kriese told her that Intermodal was giving
Lee and Lansdale a bad reference. (TR 417-18). Lee knows of no other evidence showing
that Intermodal was blackballing her or Lansdale. (TR 462). Kriese denies ever telling
Lee that Intermodal was blackballing her and Lansdale. (TR 710-11).
In March, 1993, complainants were hired to drive at Morgan-Southern, Inc., and
received compensation for runs completed from March 15, 1993, to April 10, 1993. (TR
169; GX 10). It is unclear from the record, however, exactly how much complainants
earned during this period.[17] Lansdale terminated his agreement with Morgan-Southern
on
[PAGE 22]
grounds that he was earning less than one-third of the gross income he earned at
Intermodal. (TR 173). James Rogers, the branch manager for Morgan-Southern, testified
that Lansdale and Lee would not always accept a second dispatch in a day, even though
such dispatches were available, and carrying a second dispatch would have increased their
revenue. (TR 682, 687-89). He also testified that Lansdale and Lee could have worked
more days per week than they did, and did not run as many miles as their counterparts.
(TR 689-90). Lansdale testified that second dispatch runs of the variety offered by
Morgan are unprofitable, because they are short runs which involve considerable delays
caused by backups at the loading terminals and traffic. (TR 719). He also explained that
he did not make runs every day because he was looking for more profitable, long-haul
work with another company. (TR 719-20).
Lansdale subsequently secured an agreement to drive both of his trucks for ESI
Trucking, Inc. (TR 174). He and Lee received compensation from ESI for runs completed
during the period from April 19, 1993, to July 29, 1993. (GX 10).[18] Beginning April
4, 1993, Lee began working as a driving instructor with the Tennessee Technology
Institute for $26,000 per year. (TR 422-23, 177). Lee received a raise to $26,500 per year
on April 4, 1994, and another raise to $28,000 per year on July 1, 1994. (TR 435). After
obtaining this job, she drove the second truck only part-time, during nights and weekends.
(TR 423, 335-36). Lansdale made no effort to find a full-time driver for his other truck.
(TR 337). Lansdale left ESI because he felt that he was not earning enough per mile, and
that he was not allowed to drive enough miles for ESI. (TR 247).
In May, 1993, Lansdale began running classified advertisements to sell his 1987
Kenworth truck for $25,000. (TR 182-83). On July 27, 1993, he sold the 1987 truck back
to the original dealer for $18,000. (TR 185; GX 6). Lansdale testified that he sold the
truck for that price because he needed the money. (TR 186).[19] Three days later, on
July 30, 1993, Lansdale sold his other truck, the 1985 Freightliner. He had originally
advertised the truck for sale in April, 1993, for $18,500. After six weeks, he reduced the
price to $16,500. He finally sold the truck for $15,000. (TR 182-86; GX 6). Lansdale
testified that he sold the truck, rather than holding onto it to allow him to stay in the
trucking business, because he had made an oral commitment with the buyer to sell for that
price. (TR 187-88). Lansdale did not try to get out of this commitment (TR 350-51).
After the sale of his trucks, Lansdale made no further applications to short-hauling
companies in the Memphis area on grounds that he had no truck and because he believed
he was the victim of blackballing by Intermodal. (TR 243, 373-74). He admitted,
however, that he could have bought another truck, and that there were plenty of
employment opportunities for a truck driver or an owner-operator. (TR 352-53). Lee
admitted that she could have, but did not, apply to any other trucking firms. (TR 430).
They both admitted that they could have tandem-driven in a single truck, but decided that
it did not fit their lifestyle. (TR 372-73, 429-30). James Rogers, branch manager for
Morgan- Southern, testified that there were plenty of jobs available for drivers and owner-
operators in the Memphis area in 1993. (TR 692). Hugh Hollowell, general manager of
Mallory Transportation, testified that it is increasingly hard to find truck drivers and
owner-operators, and his company has advertised for drivers for the last 16 months. (TR
702). To the best of his knowledge, neither Lansdale nor Lee has ever applied for
employment with his company, nor has either driver been blackballed by Intermodal. (TR
[PAGE 23]
702, 705). Lansdale claimed he did not apply at Mallory because he believed they did
not pay scale, and that it was not an expanding company. (TR 721-22).
In October, 1993, Lansdale used some of the proceeds from the sale of his trucks to
purchase a distributorship with Mac Tools. (TR 247-48). In 1993, Lansdale took in
$10,960.46, and paid out $13,107.40 for inventory. (TR 256-58; GX 5). In 1994, he took
in $66,811.93, and paid out $61,796.31 for inventory. (TR 255-56; GX 5). He never
showed a profit. (TR 249). When Lansdale resigned from his distributorship on August
12, 1994, he owed Mac Tools $7,048.47. (TR 251; GX 5).
B. Intermodal's Reinstatement of Complainants
On July 15, 1994, in response to the Secretary's January 15, 1994, order,
Intermodal offered to reinstate the two leases for the trucks owned by Lansdale. (TR 294).
Lansdale accepted the offer on July 21, 1994, but notified Intermodal that he was
financially unable to purchase two trucks. By August 24, 1994, he had purchased a truck
for $46,000, and notified Intermodal he would be ready for dispatch on September 1,
1994. (TR 294-95, 299, 301). Lee took vacation leave from her job as a driving
instructor on September 2, 1993, and then left the company's payroll four weeks later. (TR
434). Intermodal would not, however, let her tandem-drive with Lansdale, even though
it had allowed her to do so in the past. Intermodal also refused Lansdale's request to help
him secure financing for a second truck. (TR 433-34).
C. Complainants' Rate of Back Pay at Intermodal
The parties have stipulated that the average gross earnings for owner-operators who
drove for Intermodal from February 1, 1993, to May 24, 1994, were $5,796.43 per month.
George testified that, in 1992, owner-operators were compensated at 72 cents per mile for
their first year, 74 cents per mile their second, and 76 cents per mile for their third year.
Sometime after 1993, these rates were increased to 75 cents, 76 cents and 77 cents,
respectively. (TR 629-30). George estimated that it costs approximately 50 cents per
mile to operate a tractor, and suggested that this figure might be higher for owner-
operators, since their tractors, like complainants', have sleeper berths and are heavier and
less fuel efficient. (TR 631-32).
Lansdale testified that his average gross earnings prior to his discharge were $5,600
per month. (TR 90). He later testified, however, that this figure was $6,500 per month.
(TR 312). He also concluded that he incurred about 45 cents per mile in expenses.[20]
The Assistant Secretary has determined, and respondents have failed to dispute, that
complainants would have been reimbursed, on average, 77 cents per mile in 1993, and 79
cents per mile in 1994. See Government's Brief at 43-44.[21]
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Based upon my finding that respondent has violated the Act, complainants are
entitled to damages pursuant to 49 U.S.C. § 31105 (b)(3). Complainants are no
longer
[PAGE 24]
seeking reinstatement because they apparently secured comparable employment on
November 28, 1994 with another short-haul trucking company in the Memphis area. See
Brief for the Assistant Secretary at 39. They are seeking back pay and interest from the
date of their discharge until November 28, 1994, in the amount of $224,074.
Complainants also seek compensatory damages, including the loss Lansdale incurred on
the sale of his trucks, along with attorneys fees, in the amount of $19,380.
A. Back Pay
An award of back pay is not a matter of discretion but is mandated once it is
determined that an employer has violated the Act. Moravec, supra,
slip op. at 18. The parties disagree on almost all aspects related to the calculation of this
back pay amount.
The parties first dispute how much complainants would have earned at Intermodal
in 1993-94 but for their unlawful termination. Intermodal compensates its owner-
operators on the basis of the number of miles driven. While the parties have stipulated
that the average monthly gross earnings for Intermodal owner-operators during 1993-94
were $5,796.43, the government claims that, because complainants drove more hours per
week and more weeks per year than the average owner-operator, their monthly gross
earnings for 1992 averaged $6,569.[22] The government also argues that, based upon
this higher figure, complainants would have earned $157,641 per year during the interim
period.
Generally, a complainant's back pay may be calculated by using the wages of
representative employees during the time of the complainant's absence. See, e.g.,
Reed v. National Minerals Corp., 91-STA-34 (Sec'y July 24, 1992), slip op. at
7. If a complainant demonstrates, however, that he had been consistently willing to work
overtime prior to the unlawful discharge, and that this willingness would have resulted in
significantly more income during the discharge period than would have been earned by
a representative employee, this uncertainty as to what he would have earned must be
resolved in favor of the complainant. See Hamilton v. Sharp Air Freight
Service, 91-STA-49 (Sec'y Nov. 25, 1992), slip op. at 4 (affirming ALJ's decision
to use unrefuted evidence of complainant's actual earnings prior to discharge and after
reinstatement to establish weekly wage).
It is undisputed that complainants' gross income from Intermodal for 1992 was
$142,957.40 (JX 8). By simply dividing this figure by twelve and then by two, it
becomes apparent that complainants' average monthly gross income per truck ($5,957) is
higher than the average owner-operator's gross monthly income ($5,796). While I agree
that complainants' willingness to work longer hours than the average owner-operator gives
rise to an uncertainty that must be resolved in favor of complainants, I conclude that it
is best resolved by adopting the $5,957 per month figure rather than the higher figure
($6,569) suggested by the government. I arrive at this conclusion for several reasons.
First, I am not convinced that complainants would have driven 51 weeks per year in 1993
and 1994. Complainants' only evidence that they would have done so is their own
testimony to this effect. I find this testimony to be speculative at best, given the fact that
the types of mechanical breakdowns and accidents that kept complainants off the road in
1992 are not uncommon in the trucking industry. I also find that the credibility of
[PAGE 25]
complainants' assertion that they would have driven 51 weeks per year in 1993-94 was
eroded by the fact that neither party drove as many miles or took as many dispatches as
they could have taken during their subsequent employment at Morgan-Southern. See, e.g.,
Hamilton, supra (calculating back pay on basis of complainant's actual
earnings before discharge and after reinstatement). Finally, I conclude that this average,
while higher than the average monthly gross income for the average driver, more closely
reflects Lansdale's own initial estimate of his earnings prior to February, 1993. On the
basis of these findings, I conclude that complainants' gross income for 1992 ($142,957)
is a credible estimate of their average annual income.
Neither party has disputed that complainants earned an average of 72 cents per mile
in 1992. Dividing complainants' gross income for 1992 by this rate, I find that
complainants drove a total (both trucks) of 198,547 miles in 1992, and that this represents
a credible estimate of complainants' average gross earnings per year.
Having established complainants' mileage rate per year, I now address respondent's
strong objection to the government's failure to deduct operating expenses from
complainants' gross income in calculating their back pay entitlement. To my surprise, I
was unable to find any authority addressing whether an owner-operator's back pay award
under this Act should include expenses the owner-operator would have incurred had he
been driving during the back pay period. Nevertheless, I conclude that it should not. The
purpose of a back pay award is to make the employee whole by restoring the employee
to the position where he or she would have been had the unlawful discharge not occurred.
Blackburn v. Metric Constructors, Inc., 86-ERA-4 (Sec'y October 30, 1991), slip
op. at 11, aff'd sub nom.Blackburn v. Martin, 982 F.2d 125 (4th Cir.
1992). Unlike ordinary drivers, owner-operators' compensation includes both salary and
operating expenses, out of which the operator must pay fuel, maintenance, depreciation,
interests, licensing, permits, and insurance costs. (TR 633). Of course, complainants
should recover any salary that they would have earned had they not been unlawfully
terminated. Reimbursing the complainants for expenses that they never incurred,
however, would place complainants in a better position than where they would have been
had they continued driving for Intermodal in 1993-94. Because this would violate the
purpose of the back pay remedy, complainants are not entitled, as part of their back pay,
to any portion of their compensation designed to reimburse them for operating
expenses.[23]
From the record before me, I find that there is some uncertainty as to what portion
of complainants' compensation was devoted to expenses. Lansdale himself estimated that
he earned 32 cents of his 77 cents per mile gross compensation, suggesting that his
expenses amounted to 45 cents per mile.[24] George estimated that owner-operators
incurred expenses of at least 50 cents per mile. Resolving, as I must, this uncertainty in
favor of complainants, I find that complainants would have incurred expenses at the rate
of 45 cents per mile, and conclude that complainants' total back pay compensation should
be reduced by 45 cents for every mile they would have driven.
As noted, complainants established that they would have been compensated an
average of 77 cents per mile in 1993, and 79 cents per mile in 1994. Deducting average
operating expenses in the amount of 45 cents per mile, and multiplying these rates by the
average number of miles complainants would have driven per year in both trucks
[PAGE 26]
(198,547), I conclude that complainants would have earned $63,535 for all of 1993
(,222 per week), and $67,506 for all of 1994 (,298 per week).
Respondent offered to reinstate Lansdale's two contracts on July 15, 1994. As
such, complainants would be entitled to back pay for the period from February 3, 1993,
until July 15, 1994. Polewsky v. B & L Lines, 90-STA-21 (Sec'y May 29,
1991) (back pay ordinarily runs from date of discharge to date that complainant receives
a bona fide offer of reinstatement).[25] Accordingly, I conclude that complainants would
have earned $9,776 of back pay in the first quarter of 1993, and then $15,886 in each of
the remaining three quarters. Complainants would have also earned $16,874 in each of
the first two quarters of 1994, and $2,596 for the first two weeks of the third quarter of
1994.
B. Mitigation of Damages(1) Complainant's Duty to Mitigate
Respondent argues that complainants should be denied back pay on grounds that
they failed to take reasonable steps to obtain substantially equivalent employment to
mitigate their damages. Alternatively, respondent argues that complainants should not be
entitled to back pay after leaving the employ of Morgan-Southern in April, 1993, or after
Lansdale sold his remaining truck in July, 1993, on grounds that these actions constituted
an abandonment of the trucking industry. Complainants, on the other hand, argue that
they were forced to abandon their jobs at Morgan-Southern and ESI because these jobs
did not pay enough, and that they were unable to secure more profitable positions due to
respondent's efforts to blackball them. They also contend that Lansdale was forced to sell
his trucks due to financial hardships.
Respondent bears the burden to show that complainants failed to mitigate their
damages. Polewsky, supra, slip op. at 2. To meet this burden,
respondent must establish that comparable jobs were available during the interim period,
and that complainants failed to make reasonable efforts to find new employment that was
substantially equivalent to their former positions and suitable to a person of their
background and experience. Id. at 3.
In the instant case, respondent has failed to meet this burden. In support of its
assertion that there were plenty of job opportunities for truck drivers, respondent produced
a newspaper article detailing the shortage of truck drivers, a collection of classified
employment advertisements, and testimony from managers in the trucking industry that
there was a demand for drivers. It is not clear from any of this evidence, however,
whether these positions would have been substantially equivalent to complainants'
positions with Intermodal. See, e.g., Stone v. Nu-Car Carriers, 86-
STA-16 (ALJ December 28, 1988), slip op. at 7. Further, while complainants have failed
to establish that they were in any way prevented from finding employment due to
Intermodal's alleged blackballing efforts, respondent has not established that complainants
failed to use reasonable efforts in seeking suitable employment. Lansdale and Lee both
applied at several short-haul trucking companies, in one case checking back with the
company three times. Complainants then accepted positions at two companies, Morgan-
Southern and
[PAGE 27]
ESI, that did not offer the same number of lucrative long-term runs as Intermodal. While
I do find that complainants voluntarily left Morgan-Southern and ESI without performing
to their full potential, their behavior hardly constituted the type of willful disregard for
their own financial interests required to breach their duty to mitigate damages. See
Hufstetler v. Roadway Express, 85-STA-8 (Sec'y August 21, 1986),
slip op. at 55, aff'd sub nom.Roadway Express v. Brock, 830 F.2d 179
(11th Cir. 1987); Polewsky, supra, slip op. at 3 (complainant did not
breach obligation to mitigate by declining to accept lower paying position).
With regard to complainants' attempts to find employment outside of the trucking
industry, I conclude that Lansdale's effort to start his own tool franchise, and Lee's foray
as a driving instructor, came only after both had made reasonable efforts to find
substantially similar employment in the trucking industry. Neither should be penalized,
therefore, for attempting to find employment in another field. See, e.g., Boone v.
TFE, Inc., 90-STA-7 (Sec'y July 17, 1991), aff'd sub nom.Trans Fleet Enterprises v. Boone, 987 F.2d 1000 (4th Cir. 1993). Finally, I
conclude that respondents have failed to rebut Lansdale's own testimony that he was
forced to sell his trucks to remain financially solvent.
(2) Complainants' Earnings in the Post-Discharge Period
Although respondent has not established that complainants failed to take reasonable
efforts to mitigate their damages, respondent is entitled to a reduction of complainants'
back pay award by any earnings received by complainants in the post-discharge period.
This reduction is to be calculated on the basis of quarterly earnings to ensure that
complainants' interim earnings in one particular quarter have no effect on their back pay
award for any other quarter. Polewsky, supra, slip op. at 4. For the
sake of consistency, however, complainants' earnings should not include any compensation
designed to reimburse them for expenses they incurred while driving.
(a) Morgan-Southern
It is clear from the payroll receipts included in the record that complainants'
compensation from Morgan-Southern included reimbursement for their expenses. It is not
clear, however, how Morgan-Southern calculated complainants' salary or expenses, nor
is it clear how many miles complainants drove during their employment with the
company.[26] I therefore conclude that, while respondent may reduce the award of back
pay owed complainants by any amounts complainants received from Morgan-Southern,
respondent may not deduct from the back pay award any portion of this compensation that
was devoted to complainants' expenses. To do so would unfairly penalize the
complainants and provide a windfall to the respondents.
While there is no direct evidence of complainants' expenses per mile while driving
for Morgan-Southern, there is such evidence for the complainants' work at Intermodal.
While complainants' expenses at Morgan-Southern may well have been greater than 45
cents per mile, given the short-range nature of their hauls, it is highly unlikely that their
expenses were less than 45 cents per mile, the figure Intermodal has been allowed to use
[PAGE 28]
in reducing complainants' back pay claim. Fairness dictates that complainants should be
entitled to no less a reduction for expenses than respondents. Accordingly, for purposes
of determining complainants' earnings at Morgan-Southern, I conclude that complainants'
expenses would not have exceeded an amount equivalent to 45 cents for every mile driven
during their employment there.
(b) ESI
The record contains fourteen payroll receipts issued by ESI to Lansdale and Lee
for the period from April 28, 1993, to July 28, 1993. Unlike the Morgan-Southern
records, these records break down the portion of total compensation that is devoted to the
driver's salary. Based upon these records, I find that complainants earned $4,260 during
their employment at ESI. Complainants earned $2,684 of this amount in the second
quarter of 1993, and ,576 in the third quarter of 1993.
(c) Tennessee Technical Institute
It is undisputed that Lee earned $26,000 per year ($500 per week) at the Institute
from April 4, 1993, until April 4, 1994, when her salary increased to $26,500 per year
($510 per week). On July 1, 1994, she received another raise to $28,000 per year ($538
per week). As such, Lee earned $6,500 in the second, third and fourth quarters of 1993
and in the first quarter in 1994. She earned $6,620 in the second quarter of 1994, and
,076 for the first two weeks of the third quarter, before July 15, 1994, when she was
no longer eligible for back pay.
(d) Mac Tool
Lansdale had no reportable income from his Mac Tool's business in either 1993 or
1994.
C. Compensatory Damages
Complainants claim compensatory damages for losses Lansdale incurred by selling
his two trucks. Specifically, they calculate that Lansdale lost $3,500 on the sale of his
Freightliner truck, which he sold for $15,000, based upon their argument that "comparable
advertisements" in trade magazines demonstrate that the Freightliner truck was worth
$18,500. (GX 6). They also calculate that Lansdale lost $8,995 on the sale of his
Kenworth truck, which he sold for $18,000, based upon the amount ($26,995) the
dealership received when it resold the tractor.
While I conclude complainants would be entitled to compensatory damages for any
losses Lansdale incurred as a result of selling his trucks, I find that they have failed to
establish that Lansdale actually incurred losses on either sale. Complainants have not
provided evidence as to the actual depreciated value of either truck, based upon the trucks'
age, mileage and condition. The monetary values upon which complainants have based
their damages claim simply do not provide a credible basis for awarding such damages.
Accordingly, I deny these claims.
[PAGE 29]
Complainants are entitled, as the prevailing party, to an award of reasonable
attorney's fees and expenses related to the complaint. 49 U.S.C. § 31105 (b)(3)(B);
Spinner v. Yellow Freight System, 90-STA-17 (Sec'y September 23, 1992).
Litigation expenses incurred by the complainants' attorney through July 14, 1994, amount
to $5,673.43. (GX 6). The statement submitted by complainants' attorney includes a
detailed itemization of expenses, and reveals that complainants were billed at a rate of
$100 per hour, a rate I conclude would be reasonable for this type of case in a locality
the size of Memphis, TN. See, e.g., Spinner, supra, slip op. at 3
(finding a $175 per hour rate to be reasonable in a comparable market). Accordingly, I
find that complainants are entitled to $5,673.43 in attorney's fees.
D. Interest
Complainants are entitled to pre-judgment interest on their back pay award,
calculated pursuant to 26 U.S.C. § 6621. Complainants are not entitled to interest
related to their attorney's fees. Blackburn, supra, slip op. at 12-13.
IV. RECOMMENDED ORDERIT IS ORDERED that respondent, Intermodal Cartage Co., shall make
complainants, Johnny Lansdale and Donna Lee, whole for any lost wages suffered by
reason of their unlawful discharge by paying the following amounts:
1. For the period of February 3, 1993, to March 31, 1993, $9,776 of back pay,
less an amount equivalent to wages earned by complainants during this period at
Morgan-Southern, to be calculated in conformity with this opinion.
2. For the period of April 1, 1993, to June 30, 1993, $15,886, less an amount
equivalent to wages earned by complainants during this period at Morgan-Southern [to
be calculated in conformity with this opinion], and less $2,684 earned at ESI and
$6,500 earned at TTI.
3. For the period of July 1, 1993, to September 30, 1993, $15,886, less ,577
earned at ESI and $6,500 earned at TTI.
4. For the period of October 1, 1993, to December 31, 1993, $15,886, less
$6,500 earned at TTI.
5. For the period of January 1, 1994, to March 31, 1994, $16,874, less $6,500
earned at TTI.
6. For the period of April 1, 1994, to June 30, 1994, $16,874, less $6,620
earned at TTI.
7. For the period of July 1, 1994, to July 15, 1994, $2,596, less ,076 earned
at TTI.
IT IS FURTHER ORDERED that respondent shall pay pre-judgment interest
on the above amounts pursuant to the method set forth in 26 U.S.C. § 6621.
IT IS FURTHER ORDERED that respondent shall pay complainants
$5,673.43 in attorney's fees.
[ENDNOTES]
[1] The two lease agreements by which Lansdale granted use of his trucks and
services are incompletely reproduced in the record. (JX 1). Inspection of the portions
that are included in the record, however, suggests that complainants would properly be
characterized as "independent contractors" to the respondent. Complainants' status as
independent contractors does not affect the applicability of the Act to their service for
respondent, insofar as the Act's definition of "employee" expressly includes "an
independent contractor when personally operating a commercial motor vehicle." 49
U.S.C. § 31101 (2). It does, however, affect the manner in which complainants'
entitlement to back pay damages is calculated, as shall be discussed in Part III of this
decision.
[2]
The drive axle connotes the two wheels [axles two and three] that sit at the front of the container,
just behind the fifth wheel of the tractor. The steering axle [axle 1] is positioned in front of the
tractor, slightly ahead of the cab. The trailer axle means the wheels [axles 4 and 5] at the rear of
the container.
[3]
Respondent's objection to introduction of Complainants' Exhibit 1, the handwritten weight slips
upon which the weights were allegedly noted, was sustained on hearsay grounds. The slips were
allowed into evidence, however, to show the drivers' state of mind with regard to the actions they
took on February 2. (TR 107). Respondents did not object to either complainants' testimony as
to what the courtesy weights revealed.
[4]
Lansdale initially testified that Patterson simply put him on hold while he checked into the
situation. (TR 122). Lansdale later testified that Patterson told him to call him back fifteen
minutes later. The first call to Intermodal was made from Lansdale's mobile phone, and is
reflected in his phone records. (GX 2). The second call was allegedly made to Intermodal's
"800" number from a pay phone at a truck stop down the road from IP, and is not, therefore,
reflected in the mobile phone bill. (TR 320).
[5]
Lansdale admits to some confusion as to when he first spoke with Byrant. (TR 322-23). Upon
cross-examination, he stated that the drivers did not first speak with Bryant until placing a
separate call to Bryant at 9:14 AM. (TR 321-22). Lansdale's phone records indicate that a call
was placed on his cellular phone to Intermodal at this time. (GX 2).
[6] "Bobtail" is a truckers' term, meaning to drive the tractor without a load such as a container.
[7]
Regarding her conversation with Donahoo, Bryant testified that "[t]he question was we had an
overweight drive axle, okay, how much overweight, okay, is it unsafe, should it roll, should IP be
made to redistribute the weight? Those were the questions." (TR 640-41).
[8]
Lee originally testified that Lansdale spoke with Donahoo during her phone call. (TR 400). She
later testified, however, that Lansdale had placed a separate call to Donahoo, though she could
not recall the sequence of the two calls. (TR 458-60). Lansdale testified that he placed a separate
call to Donahoo, but gave conflicting testimony as to whether his call was placed on their mobile
phone or at a pay phone. (TR 328-29).
[9]
George testified that he had not been told that Lansdale and Lee had already weighed the
containers on IP's scales, or that the portable scales had been removed by the time the drivers got
to them. (TR 591-92).
[10]
Woodward testified that after his initial refusals to pick up the IP load, he began to be dispatched
on less desirable hauls.
[11]
Lansdale admits that he informed the Arkansas Highway Patrol on February 5 that the two
overweight containers would be transported from International Paper. (TR 284). He also warned
Woodward that the police would be looking for the containers. (TR 284-85).
[12]
Before the Act was recodified in 1994, this provision prohibited adverse employment action
against an employee for refusing to operate a vehicle "when such operation constitutes a
violation of any Federal rules . . ." (emphasis added). For this reason, it was often referred to as
the Act's "when" clause. The legislative history of the recodification makes it clear that the
substantive law of the Act is intended to remain unchanged. H.R. Rep. No. 180, 103rd Cong., 2d
Sess. 5 (1994).
[13]
This provision has traditionally been referred to as the "because" clause, though the 1994
recodification of the Act would appear to make this distinction impractical. See note 8,
supra.
[14]
Apart from his participation in this phone call, Donahoo denied offering any further advice to
either driver for correcting the problem.
[15]
Specifically, Donahoo testified that he told George "that it was my opinion that Donna and
Johnny were causing a problem, causing a scene there from my past experience, and that we
could have some phone calls from irate customers at IP . . ." (TR 671).
[16]
Even if I were to believe Bryant's version of this conversation, respondent would not have
established that this was a legitimate basis for termination. Bryant admits that Lee informed her
that the containers were overweight, and that neither driver would haul the containers on safety
grounds. As such, any instruction that Bryant may have given that the drivers should haul the
loads across public thoroughfares to the portable scales would have required the drivers to
engage in an unsafe and perhaps unlawful activity. Complainants would have been justified in
refusing to carry out these instructions.
[17] The record contains copies of eleven paychecks received by Lansdale from
Morgan-Southern that amount to approximately $8,885 in gross pay. (GX 10). Lansdale's
"1099-MISC" tax form for 1993, however, states that he received a total of $10,514.64 from
Morgan-Southern. (JX 9).
[18] The copies of fourteen pay receipts, dated April 28, 1993,
to July 28, 1993, that were included in the record reveal that
complainants earned a total of $15,698 during this period from
ESI. (GX 10). Lansdale's "1099-MISC" tax form from ESI states,
however, that he earned a total of $17,424.14. (JX 9).
[19] This truck was resold by the dealership on August 6, 1993,
for $26,995. (GX 6).
[20] Specifically, Lansdale testified that when he was earning
77 cents per mile, he kept about 32 cents per mile after
deducting expenses. (TR 364). Lansdale later testified that
this estimate of his earnings per mile had been low. (TR 526).
[21] Specifically, Lansdale would have earned 74 cents per mile
in 1993, while Lee, a more senior driver, would have earned 76
cents per mile. It is reasonable to assume, and respondents have
failed to dispute, that both drivers would have earned a 2 cents
per mile safety bonus for 1993. In 1994, both drivers would have
earned 77 cents per mile, and likely would have both received the
2 cents per mile safety bonus.
[22] To arrive at this number, the government divided
complainants' gross earnings for 1992 by 46.25 weeks, the average
number of weeks complainants claim that each truck was on the
road in 1992. It then multiplied this figure ($3,091 per week)
by 51 weeks, the number of weeks, according to complainants (TR
281, 381), that both trucks would normally have been on
the road. It then divided this product ($157,641) by 12 months
to determine that both trucks grossed $13,137 per month, and
divided this figure by two to determine that each truck grossed
an average of $6,569 per month in 1992. See Government's Brief
at 41 n. 14; TR 510-11.
[23] I am encouraged by the fact that at least one court, faced
with a similar dilemma when calculating the back pay award of a
truck driver pursuant to a Title VII claim, has reached this same
conclusion. See Bing v. Roadway Express, 485 F.2d 441,
453 (5th Cir. 1973).
[24] Lansdale later claimed that he had underestimated his
average earnings per mile. I find his later disclaimer to lack
credibility, however, as it was made only after respondent raised
the issue of expenses in the calculation of back pay.
[25] Respondents were only obligated to offer complainants
reinstatement on the same terms as before their discharge, an
obligation they met on July 15, 1994, by offering to reinstate
the contracts for the two trucks. I therefore reject
complainants' assertion that Lansdale is entitled to back pay
until the date he returned to work on September 2, 1994.
I also reject complainants' argument that Lee would have been
entitled to back pay until November 28, 1994, when she and
Lansdale apparently accepted an offer of employment with another
trucking company.
[26] Rogers testified that drivers at Morgan-Southern are paid
not by the mile but by a percentage of the revenue of the load.
Seven of the eleven payroll receipts included in the record list
the number of miles accumulated by the driver for that pay
period. Adding the total number of miles that were credited to
the drivers for these periods (7067), and dividing this number
into their gross compensation for the same periods ($5,968), I
estimate that the drivers received about 84 cents per mile in
gross compensation while at Morgan-Southern. Dividing this
number into complainants' total compensation for the eleven
paychecks included in the record ($8,885), one could conclude
that complainants drove approximately 10,577 miles while at
Morgan-Southern.
