DATE ISSUED: June 22, l994
CASE NO 94-STA-26
In the Matter of
RICHARD SICKAU
Complainant :
v.
BULKMATIC TRANSPORT CO.
Respondent
Appearances:
Joseph W. Bennett, Jr. Esq.
For the Complainant
Adam Leos, Esq.
For the Respondent
Before: DANIEL L. LELAND
Administrative Law Judge
RECOMMENDED DECISION AND
ORDER
Richard Sickau (Complainant) filed a complaint with the
Department of Labor on or about August 4, 1993, alleging that
Respondent had discriminatorily discharged him in violation of
the Surface Transportation Assistance Act of 1982, 49 U.S.C.
2305, hereinafter referred to as the "STA". The Regional
Administrator of the Occupational Safety and Health
Administration issued his determination on February 2, 1994 for
the Secretary of Labor. Said determination found that the
evidence failed to support a merit finding and consequently
Respondent's actions did not violate Section 2305 of the STA.
Complainant filed a written objection to the Regional
Administrator's determination on March 4, 1994 and requested a
hearing. A hearing on the merits was held in Buffalo, New York
on April 5, 1994. Complainant's exhibit A and B and Respondent's
exhibit A were submitted and admitted into evidence.
Complainant's and Respondent's post hearing briefs were received
[PAGE 2]
on May 16, 1994 and May 9, 1994 respectively.[1]
BACKGROUND
Complainant was employed by the Respondent from October 6,
1989 until June 17, 1993. (TR 6). Complainant worked primarily as
an interstate truck driver for Respondent. However, he did work
as an operations manager for Respondent for a fourteen month
period. On June 17, 1993 at approximately 9:00 a.m., Complainant
called Respondent after unloading a shipment in Sayre,
Pennsylvania in order to inquire as to his next dispatch. The
dispatcher on duty, Mrs. Rene Eberhardt, informed Complainant
that his next dispatch would be to Brooklyn, N.Y. Complainant
maintains that he told Mrs. Eberhardt that he did not want to
make the trip to Brooklyn but rather preferred a shorter one. In
response, Complainant contends that Mrs. Eberhardt told him to
take the load or be fired. Complainant told Mrs. Eberhardt that
he would call her back later. According to Complainant, when he
called her back, she insisted on his taking this load to
Brooklyn. Complainant maintains that he explained to her that he
had been working continuously for three weeks, that he was tired,
and that he did not like traveling to New York City because it
was an exhausting trip which did not allow for rest. (TR 9 -10).
Complainant testified that he told Mrs. Eberhardt that he lacked
sufficient hours to go to New York regardless of what his time
logs reflected. According to Complainant, Mrs. Eberhardt
responded that he was the only driver with enough hours to make
this trip. (TR 17). When Complainant arrived at his house in
Eden, N.Y. at approximately 3:00 or 3:30 p.m., the phone was
ringing and Mrs. Eberhardt was on the line attempting to
ascertain if Complainant was going to take the Brooklyn load. He
told her that he would have to check with his wife and would call
her back. After conferring with his wife, he told Mrs. Eberhardt
that he could not make the trip. (TR 20). She responded that he
should clean out his truck and return the trailer by five
o'clock. Shortly thereafter, a mechanic and another driver under
Respondent's employ arrived at Complainant's house to retrieve
the trailer. (TR 21).
Respondent's version of the events differs significantly
from Complainant's version. Respondent contends that Complainant
did not state that he was tired or that he lacked sufficient
hours. TR 58. Instead, Mrs. Eberhardt testified that
Complainant told her that he had plenty of hours and was willing
to make any run until she mentioned the load to Brooklyn. TR 52.
Respondent maintains that the only reason that Complainant gave
to her for refusing to take the load was his hatred of traveling
[PAGE 3]
to New York City. TR 52. Additionally, Respondent contends that
Complainant failed to inquire both as to when the load was to be
delivered to Brooklyn and as to when the trailer was to be
returned to Buffalo. TR 53. However, Mrs. Eberhardt testified
that she also failed to initiate these two topics with
Complainant. TR 69.
DISCUSSION
In order to prevail under the STA, an employee must
establish that the employer discharged him because of the
protected whistleblowing activity. Enacted in 1983 to promote
safety of the highways, section 2305(b) of the Act provides as
follows:
No person shall discharge, discipline, or in any manner
discriminate against any employee with respect to the
employee's compensation, terms, conditions, or privileges
of employment for refusing to operate a vehicle when such
operation constitutes a violation of any Federal rules,
regulations, standards, or orders applicable to commercial
motor vehicle safety or health, or because of the employee's
reasonable apprehension of serious injury to himself or the
public due to the unsafe condition of such equipment.
To establish a prima facie case, the Complainant has the
initial burden to show 1)that he or she engaged in protected
activity under the STA 2)that he or she was the subject of
adverse employment action and 3)that his or her Employer was
aware of the protected activity when it took the adverse
action. Complainant must also present sufficient evidence
to raise the inference that the protected activity was the
likely reason for the adverse action. Once Complainant has
successfully established a prima facie case, the burden of
production then shifts to the Respondent to articulate a
legitimate, non-discriminatory reason for its employment
decision. Moon v. Transport Drivers, Inc., 836 F. 2d
226(6th Cir. 1987). If the Respondent is successful in rebutting
the inference of retaliation, the Complainant must show either
that his protected conduct more likely motivated the employer or
that the employer's proffered explanation is not credible.
Carroll v. J.B. Hunt, 91 STA 17.
Considering all of the evidence in the record, Complainant
has met the three requirements for establishing his prima facie
[PAGE 4]
case. First, he engaged in protected activity; he refused to
operate a vehicle "when such operation constitutes a violation of
any Federal rules, regulations, standards, or orders applicable
to commercial motor vehicle safety or health." Section 2305(b)
of the STA. Specifically, Complainant refused to take a load to
Brooklyn, N.Y. because he was too fatigued. According to section
392.3 of the Federal Motor Carrier Safety Regulations : "no
driver shall operate a motor vehicle, while the driver's ability
or alertness is so impaired, or so likely to become impaired
through fatigue, illness, or any other cause, as to make it
unsafe for him to begin or continue to operate the motor
vehicle." Complainant testified that he alerted Mrs. Eberhardt
of his fatigue and of his inability to make this trip to
Brooklyn. TR 9-10. In his own words, Complainant stated that "I
just felt I couldn't do the run. I was beat." TR 10. Although
Rene Eberhardt's testimony conflicts with that of Complainant, I
find Complainant's testimony more credible, as the evidence in
the record supports Complainant's contention that he was
fatigued. Complainant's testimony is corroborated by the
testimony of his wife, Vicki Sickau, who was in close proximity
to Complainant at the time of his final conversation with Mrs.
Eberhardt. Mrs. Sickau testified that her husband told Mrs.
Eberhardt that he was tired and was out of hours. TR 78. In
fact, Mrs. Sickau testified that her husband had been complaining
of being tired over the past two weeks, as he had been repeatedly
driving two to three days straight without sleep. TR 79-80.
Complainant testified that he had already been on the road
for eleven straight hours when the dispatcher gave him the
dispatch to Brooklyn. Prior to his run to Sayre, Pennsylvania,
he had delivered a load to Baltimore and then a load from
Baltimore to Columbus. He testified that between the time of his
Columbus load and the time he left for Sayre (4 a.m. on June 16,
1993) that he had only a few hours to clean up and change clothes
without any time for rest. TR 13. I find that this evidence, as
well as Mrs. Sickau's testimony, supports Complainant's
contention that he felt too fatigued to take the load to
Brooklyn.
As a result of Complainant's refusal to take the Brooklyn
load, Respondent terminated Complainant's employment. Such
termination establishes the second step of Complainant's prima
facie case: that he was subject to adverse employment action.
In addition, Respondent was aware of Complainant's protected
activity, to refuse to drive due to fatigue, when Respondent
fired Complainant. As previously discussed, Complainant
repeatedly stated that he was too tired to take the Brooklyn run.
[PAGE 5]
However, Complainant must also establish that there was a causal
link between his refusal to take the load due to his fatigue and
Respondent's termination of his employment. In order to satisfy
this link, Complainant must present evidence sufficient to raise
an inference that the protected activity was the likely reason
for the adverse action. Mace v. Ona Delivery Systems,
Inc., 91-STA-10. Neither party disputes that Respondent's
firing of Complainant resulted from Complainant's refusal to take
the Brooklyn load. Rather the disagreement surrounds the actual
reason behind Complainant's refusal to take the load. Because I
give more credence to Complainant's version of the events,
specifically his articulation to Respondent of his fatigue and
inability to make the run, I find that Complainant has
satisfactorily established the required elements of his prima
facie case.
However, the Respondent can rebut the inference arising from
Complainant's prima facie case by setting forth legitimate non-
discriminatory reasons for its adverse employment decision.
Here, the Respondent sets forth two such reasons: 1) that
Complainant had sufficient hours to take the Brooklyn load as
illustrated by his time logs and 2) that Complainant could have
taken an eight hour break before leaving for Brooklyn. See
Respondent's brief, p. 1-2. However, I find neither of these
reasons to be credible or legitimate. As for Complainant's time
logs, Respondent is correct that they showed 23 1/2 hours of
remaining driving time. However, Complainant testified that he
falsified these logs. TR 15. Complainant explained that the
falsification of time logs was a well known and condoned practice
within his employer's company. TR 17-18. According to
Complainant's testimony, Respondent told its employees to "be
creative" in order to insure that the loads be delivered on time.
A former employee of Respondent's company, Gary Webster,
corroborated Complainant's testimony that the practice of
falsifying logs was silently encouraged by Respondent. Mr.
Webster testified that he had changed his logs many times during
his employment with Respondent. TR 42. In addition, Mr. Webster
testified that he, like Complainant, was told by Respondent to
"be creative." TR 43. Because I find the falsification of time
logs to be an acknowledged practice within Respondent's
company,[2] I accordingly discount Respondent's explanation that
it relied on Complainant's time logs as its basis for terminating
Complainant. Consequently, I find Respondent's explanation to be
without merit.
[PAGE 6]
Similarly, I am not convinced of the legitimacy of
Respondent's explanation that Complainant could have taken an
eight hour break and still have made the trip to Brooklyn. In
light of the fact that Respondent denied any knowledge of
Complainant's fatigue, it seems inconsistent for Respondent now
to base its rebuttal on an accommodation of Complainant's
exhaustion. In fact, Mrs. Eberhardt admitted that she did not
suggest or even discuss with Complainant the possibility of
taking an eight hour break before delivering the load to
Brooklyn. TR 65. She did not even tell Complainant when the
load was due to arrive in Brooklyn or when the trailer was to be
returned to Buffalo. TR 53. The evidence in the record fails to
support Respondent's contention that it was willing to
accommodate Complainant's fatigue.
Because I find neither of Respondent's proffered
explanations to be reasonable or credible, I hold that Respondent
has not successfully rebutted Complainant's prima facie case.
Accordingly, I find that Respondent illegally discharged
Complainant on June 17, 1993 in violation of Section 2305(b) of
the STA.
Under 49 U.S.C. §2305(c)(2)(B), Complainant is entitled
to reinstatement, compensation, including back pay, and
compensatory damages. In addition, Complainant is entitled to
all costs and expenses as well as the payment of all reasonably
incurred attorney's fees.
Complainant does not seek reinstatement but does seek
payment of his lost earnings in the amount of $12,708.43 and
payment of all reasonably incurred legal fees. Complainant has
attempted to mitigate his damages by working intermittently since
his termination by Respondent. Accordingly, Complainant has
deducted the amount that he has earned from the total lost
earnings sought. See Complainant's post hearing brief, p. 6-7.
I find Complainant entitled to lost earnings in the amount
of $12, 708.43 and to all reasonably incurred legal fees.
RECOMMENDED ORDER
As Complainant has established a violation against him by
Employer under the STA, it is therefore ORDERED that:
[PAGE 7]
1. Employer shall pay Complainant compensation in the form
of lost earnings in the amount of $12,708.43.
2. Employer shall pay all of Complainant's attorney fees
that were reasonably incurred in the preparation and litigation
of this case.
DANIEL L. LELAND
Administrative Law Judge
[ENDNOTES]
[1] The following abbreviations have been used in this opinion:
TR = hearing transcript, CX = Complainant's exhibit, and RX=
Respondent's exhibit.
[2] Mrs. Eberhardt testified that Respondent has had recent
compliance problems with the Department of Transportation. TR
57. In fact, a letter dated September 16, 1993, from Arnold T.
Johnsen, State Director, Office of Motor Carriers, states that
instances of noncompliance were discovered and an enforcement
action against Respondent is pending. CX B.
