Date: September 29, 1995
Case No. 94-STA-34
In the Matter of:
JAMES R. MASTERSON
Complainant,
v.
GULLETT SANITATION SERVICES, INC.
Respondent.
APPEARANCES:
James R. Masterson, Pro se
Bethel, Ohio
For the Complainant.
Stephen S. Holmes, Esq.
Cors & Bassett
Cincinnati, Ohio
For the Respondent.
BEFORE: DANIEL J. ROKETENETZ
Administrative Law Judge
DECISION AND ORDER
This case arises under the Surface Transportation
Assistance Act of 1982 [hereinafter referred to as "the Act" or
"STAA"], 49 U.S.C. § 2305, and the regulations promulgated
thereunder at 29 C.F.R. Part 1978. Section 405 of the STAA
provides protection from discrimination to employees who report
violations of commercial motor vehicle safety rules or who refuse
to operate a vehicle when such operation would be in violation of
those rules.
[PAGE 2]
STATEMENT OF THE CASE
The Complainant, James R. Masterson [hereinafter referred to
as "the Complainant"], filed a complaint with the Occupational
Safety and Health Administration, United States Department of
Labor on September 14, 1992, alleging that the Respondent,
Gullett Sanitation Services, Inc. [hereinafter referred to as
"the Respondent"], discriminated against him in violation of
sections 405(a) and (b) of the Act. The Complainant contends
that the Respondent reduced his hours and pay after suspecting
the Complainant of filing a report with the Occupational Safety
and Health Administration [hereinafter referred to as "OSHA"].
The Secretary of Labor, acting through a duly authorized agent,
investigated the complaint and, on April 28, 1994, determined
that the complaint had no merit. (AX 1)[1] The Complainant
filed objections to the Secretary's findings by way of a letter
dated May 23, 1994, and requested a formal hearing before an
Administrative Law Judge.
A formal hearing was conducted on December 6, 1994 in
Cincinnati, Ohio, with both parties being afforded full
opportunity to present evidence and argument. The parties were
also presented the opportunity to submit post-hearing briefs.
ISSUE
1. Whether the Complainant was discriminated against by
the Respondent as a result of having engaged in an activity
protected under the STAA.
Based on my observation of the appearance and demeanor of
the witnesses who testified at the hearing and upon a thorough
analysis of the entire record in this case, with due
consideration accorded to the arguments of the parties,
applicable statutory provisions, regulations and relevant case
law, I hereby make the following:
FINDINGS OF FACT
In February 1989, the Complainant began working as a
tractor/trailer driver for the Respondent, a business located in
Bethel, Ohio and engaged in transporting residential septic
sewage and sewer sludge generated by public and private waste
treatment facilities to approved disposal sites. (Tr. 238) The
Complainant's job consisted of hauling sewer sludge for the City
of Cincinnati and Clermont County, Ohio, both of which had
contracted with the Respondent for such services. (Tr. 239) The
Complainant would haul sewage and sludge from public waste
treatment facilities to incineration facilities. Id.[PAGE 3]
The Complainant repeatedly testified that he usually worked
24 hours a day, seven days a week during his employment tenure
with the Respondent. (Tr. 81) The Complainant testified that he
complained about the hours he worked and that he knew that he was
violating United States Department of Transportation [hereinafter
referred to as "DOT"] regulations, but he never refused to drive
because he was in the process of building a new house and he
needed to maintain his job. Id.
During his tenure with the Respondent, the Complainant
regularly complained to Respondent's President Don Gullett,
Secretary/Treasurer Patricia Gullett, and mechanic John Simmons
about the condition of the truck he was assigned to drive. (Tr.
396) Furthermore, the Complainant testified that, in 1990, he
refused to drive an allegedly unsafe truck and thereafter was not
given any work for three days. (Tr. 30-31) However, in May 1990,
the Complainant again refused to drive an allegedly unsafe truck
and the Respondent permitted the Complainant to drive another
truck. (Tr. 33) The Complainant further testified that the
Respondent never threatened to punish him if and when he refused
to drive a truck he believed to be unsafe. (Tr. 33-34)
The Complainant testified that he made one formal complaint
to a government entity concerning the Respondent while in its
employ. (Tr. 71) The Complainant made a formal complaint with
the Ohio Department of Transportation [hereinafter referred to as
"ODOT"] "probably six months" prior to termination of his
employment with Respondent. Id. The Complainant did not
inform the Gulletts of his complaint nor does he have any reason
to believe that they ever became aware of such complaint. (Tr.
73) Furthermore, the Complainant never contacted the Public
Utilities Commission of Ohio [hereinafter referred to as "PUCO"]
or the Federal Interstate Commerce Commission [hereinafter
referred to as "ICC"] prior to the termination of his employment
with the Respondent. (Tr. 74-75)
On July 1, 1992, in the course of his employment with the
Respondent, the Complainant collapsed beside his truck, allegedly
due to waste fume inhalation. After receiving a telephone call
from a waste treatment facility employee informing them that the
Complainant had recently been there and was not feeling nor
looking well, Mr. and Mrs. Gullett found the Complainant lying on
the ground beside his truck, which was parked in a park. (Tr.
241) The Complainant was taken to the hospital where he was
treated and released. Thereafter, the Complainant returned to
work after completing and passing a return-to-work physical
examination on July 22, 1992. (RX A)
[PAGE 4]
The facts at the heart of the Complainant's cause of action
occurred in September, 1992. On Wednesday, September 2, 1992 the
Complainant failed to report to work and remained absent through
Friday, September 4, 1992. (Tr. 109) The Complainant failed to
inform the Respondent of these absences in advance, as required
by company policy. (CX 2) Upon the Complainant's return to work
on Tuesday, September 8, 1992, Respondent's President Dan Gullett
requested a written medical excuse for the Complainant's
unannounced and unexcused absence. (Tr. 324)
On the next day, Wednesday, September 9, 1992, the
Complainant resumed his normal route. That evening, the Gulletts
received a telephone call from another employee, Mickey Bailess,
who informed them that he and the Complainant had been stopped by
a PUCO official for an inspection. (Tr. 242) The Gulletts
immediately traveled to the scene of the inspection at which the
PUCO inspector informed them that the Complainant's medical card
had expired and, as a result, he was unable to legally operate a
commercial motor vehicle. (Tr. 242-243) The PUCO inspector also
found a crack in the rear tail piece on the Complainant's truck
and, consequently, put the truck out of service. (Tr. 395) The
Gulletts then arranged for the Complainant's truck to be towed
back to the Respondent's place of business. Id. Pursuant
to the PUCO inspector's order, the Complainant was released from
duty because he was unable to drive legally without an updated
medical card. (Tr. 338) The Complainant thereafter
arranged for transportation home. (Tr. 339)
The parties disagree about the events surrounding the
September 9, 1992 PUCO inspection of the Complainant's truck.
The Complainant testified that Mrs. Gullett threatened him at the
scene of the inspection and made a slashing motion across her
neck which the Complainant interpreted to indicate that he was
fired. (Tr. 42-43) The Complainant further testified that Mrs.
Gullett accused him of arranging the PUCO inspection, which the
Complainant immediately denied. Id. Conversely, the
Respondent contends that the Complainant was not discharged on
September 9, 1992. Mrs. Gullett admitted that she asked the
Complainant at the scene whether he had contacted the PUCO
officials for an inspection, but that she never gave any
indication to the Complainant that he was fired.[2] (Tr. 338)
Mrs. Gullett testified that she asked the Complainant if he
arranged the PUCO stop and inspection because the location where
the Complainant was stopped was not on his normal route; thus,
the Gulletts were curious as to why the Complainant was at that
location when the stop and inspection took place. (Tr. 337)
[PAGE 5]
Two days later, on September 11, 1992, the Respondent mailed
the Complainant a notice of suspension indicating that he would
not be permitted to work until certain conditions were satisfied.
(Tr. 339; RX D) Such conditions included securing a medical
certification, submitting a valid medical excuse for the
September 2-4 absences, and in the future, abiding by the uniform
procedures for all employees, which were explained in detail in
the letter. Id. Once the Complainant fulfilled these
obligations, he would be permitted to return to work. Id.
Pursuant to the Respondent's letter of September 11, the
Complainant completed a physical examination at Mercy Medical
Center, which was paid for by the Respondent. (Tr. 111; RX F)
The Complainant's successful completion of both the physical
examination and a drug test enabled him to again legally operate
a commercial motor vehicle. Also, in accord with Respondent's
request, the Complainant arranged for a medical excuse to be sent
to the Respondent explaining his absences earlier that month. (RX
E)
Here again, the testimony of the parties conflicts. Mr.
Gullett testified that after the Complainant fulfilled his
obligations he was asked to return to work. (Tr. 252) Mr. and
Mrs. Gullett, as well as two additional witnesses, testified to
being present when Mrs. Gullett telephoned the Complainant on
September 28, 1992 and requested that he return to work the next
day. (Tr. 252, 344-46, 398, 412) Conversely, the Complainant
testified that he never received any such telephone call. (Tr.
364) Thereafter, on September 29, 1992, the Complainant failed
to report to work. Mrs. Gullett testified that she again
telephoned the Complainant to ascertain why he failed to report
to work. According to Mrs. Gullett, the Complainant informed her
that he quit pursuant to the advice of his attorney. (Tr. 347)
The Complainant stated that he informed Mrs. Gullett that he
could not return to work until October 30, 1992 on the advice of
his physician, and that Mrs. Gullett informed him that he may not
have a job at that time. (See AX 1) Toward the end of
the conversation, Mrs. Gullett requested that the Complainant
return his uniform, credit card and keys which were owned by the
Respondent. Id. The items were later returned to the
Gulletts' home. Id.
Subsequently, the Complainant filed a claim for worker's
compensation with the State of Ohio regarding the July 1, 1992
incident when he collapsed allegedly due to waste fume
inhalation. (RX I) The Complainant's claim was eventually denied
by the Industrial Commission which found that the Complainant did
not sustain an injury nor contract an occupational disease in the
course of his employment. (RX J) Additionally, the Complainant
[PAGE 6]
filed a claim for unemployment benefits with the State of Ohio.
The Unemployment Commission denied the Complainant's claim after
finding that he voluntary quit his employment without a real,
substantial and compelling reason, and therefore was not entitled
to benefits. (RX H)
I find that testimony of Respondent's owners, Daniel and
Patricia Gullett, to be credible. I likewise find the testimony
of witnesses John Simmons and Doren Kyer to be credible.
Conversely, I find the testimony of the Complainant, James
Masterson, and his wife, Tina Masterson, to be disoriented and
questionable at best. Additionally, I find the testimony of
Cindy Rose to be inherently incredible. Finally, the testimony
of the Complainant's remaining witnesses, while credible, does
not establish any probative evidence useful in the determination
of this case.
CONCLUSIONS OF LAWApplicable Law
Section 405 of the STAA, provides, in pertinent part:
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[:]
(a) because such employee . . . has filed any complaint
or instituted or caused to be instituted any proceeding
relating to a violation of a commercial motor vehicle
safety rule, regulation, standard, or order, or has
testified or is about to testify in any such proceeding
[or]
(b) for refusing to operate a vehicle when such operation
constitutes a violation of any Federal rules, regula-
tions, 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. The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a
reasonable person, under the circumstances then confront-
ing the employee, would conclude that there is a bona
fide danger of an accident, injury, or serious impairment
of health, resulting from the unsafe condition. In order
to qualify for protection under this subsection, the
[PAGE 7]
employee must have sought from the employer, and have been
unable to obtain, correction of the unsafe condition.
49 U.S.C. § 2305 (Supp. 1994)
Jurisdiction
In opening argument and post-hearing brief, the Respondent
contends that the determination of this matter does not fall
within the jurisdiction of the Department of Labor. (See
Tr. 229-30; Post Hearing Brief of Respondent, at 6) The
Respondent argues that, because the Complainant did not cross
interstate lines while engaging in his employment with the
Respondent, the Respondent does not meet the definition of
employer[3] under the STAA and is not within the Act's
jurisdiction. However, it is not necessary to cross state lines
to be within the ambit of Congress' power to regulate interstate
commerce. Congress' power extends to intrastate commerce which
exerts a substantial effect on interstate commerce. Taylor v.
J.K. Trucking, 88-STA-4 (Sec'y Oct. 31, 1988) Additionally,
the United States Supreme Court long ago adopted an extremely
broad definition of "interstate commerce" which continues to the
present. See e.g.United States v. Darby, 312 U.S.
100 (1941); Edwards v. California, 314 U.S. 160 (1941).
Furthermore, the Respondent admitted, through counsel, that
its employees travel on Interstate 471 through Kentucky and Ohio
in the course of their employment although all other activity is
conducted within Ohio's boundaries, including all work performed
by the Complainant. (Tr. 230) The United States Court of
Appeals for the Ninth Circuit has held that operators performing
work on interstate highways are engaged in interstate commerce
for purposes of the Fair Labor Standards Act. Brennan v.
Keyser, 507 F.2d 472, 474-75 (9th Cir. 1974, cert.
denied, 420 U.S. 1004 (1975).
Therefore, because applicable precedent requires an
extremely broad interpretation of "interstate commerce" and the
fact that evidence was produced showing that Respondent's
employees, at the very least, traveled on interstate roadways, I
refuse to dismiss this case for lack of jurisdiction, and
consequently, I will decide the Complainant's cause of action on
its merits.
Prima Facie Case
Initially I note that while I granted the Complainant,
acting pro se, leeway with regard to matters of procedure,
the burden to be placed upon him of proving the elements
necessary to sustain his claim of discrimination under the STAA
may not be lessened due to
[PAGE 8]
his pro se status. Flener v. H.K. Cupp, Inc., 90-
STA-42 (Sec'y Oct. 10, 1991).
To establish a prima facie case of discriminatory
treatment under the STAA, the Complainant must prove: (1) that he
was engaged in an activity protected under the STAA; (2) that he
was the subject of adverse employment action; and, (3) that a
causal link exists between his protected activity and the adverse
action of his employer. Moon v. Transport Drivers, Inc.,
836 F.2d 226, 229 (6th Cir. 1987). The establishment of the
prima facie case creates an inference that the protected
activity was the likely reason for the adverse action.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
(1) Protected Activity
Under Section 405 of the STAA, protected activity may
consist of complaints or actions with agencies of federal or
state governments, or it may be the result of purely internal
activities, such as complainants to management, relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order. 49 U.S.C. § 2305; See alsoReed v. National Minerals Corp., 91-STA-34 (Sec'y
Decision, July 24, 1992); Davis v. H.R. Hill Inc.,
86-STA-18 (Sec'y Decision, March 18, 1987).
The Complainant testified that he made a formal complaint
with ODOT approximately six months prior the termination of his
employment with the Respondent on September 9, 1992. As stated,
a formal complaint to a government agency constitutes a protected
activity under STAA. 29 U.S.C. § 2905(a); Reed,
supra. The Complainant need not prove the merit of his
reported violation to receive protection under the whistleblower
provision of the STAA. Yellow Freight Systems, Inc. v.
Martin, 954 F.2d 353, 356-57 (6th Cir. 1992). A complaint is
protected under the STAA section 405(a) even if the alleged
violation complained about ultimately is determined to be
meritless. Hernandez v. Guardian Purchasing Co., 91-STA-31
(Sec'y June 4, 1992) Thus, I find that the Complainant's contact
with ODOT regarding safety concerns constitutes a protected
activity under the STAA.
The evidence also clearly indicates that the Complainant
regularly complained to his superiors, i.e., the Gulletts,
about the safety of various vehicles to which he was assigned to
drive. Additionally, the Complainant testified that he often
refused to operate a vehicle because of safety concerns.
Internal company complaints are considered protected activity
under the STAA. Davis v. H.R. Hill, Inc., 86-STA-18
(Sec'y March 18, 1987), slip op. at 3-4. Also, section 405(b)
of the STAA prohibits discriminatory
[PAGE 9]
treatment in response to an employee's refusal to operate a
vehicle "because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of such equipment." 49 U.S.C. § 2305(b). This
ground for refusal carries further requirements. The Complainant
must prove (1) that the unsafe condition causing his apprehension
of injury must be such that a reasonable person, under the same
circumstances, would perceive a bona fide hazard and (2) that the
employee must have sought from his employer, and have been unable
to obtain, correction of the unsafe condition. Reed,
supra.
The Complainant testified that the Respondent never
threatened to punish him for refusing to operate an allegedly
unsafe vehicle, but rather allowed the Complainant to operate
another truck which he considered to be safe. Thus, the
Complainant cannot satisfy the second element described above
because the Respondent acceded to the Complainant's wishes
regarding his safety concerns. Where the Respondent substitutes
another vehicle upon the complaints of a driver, a claim of
discrimination is not supported. Mace v. Ona Delivery Systems,
Inc., 91-STA-10 (Sec'y Jan. 27, 1992). Therefore, neither
the Complainant's internal complaints regarding safety nor his
occasional work refusals constitute protected activities because
the Respondent immediately corrected the bases for the
Complainant's concerns.
The Complainant further testified that he often complained
about the excessive hours he was required to work. However, the
only evidence of the Complainant's work being in excess of the
prescribed amounts in the STAA is the Complainant's highly
suspect testimony that he worked 24 hours per day during 95% of
his employment tenure with the Respondent. On the basis of this
testimony alone, the Complainant failed to prove a protected
activity regarding complaints about his hours of employment.
However, the record clearly indicates that the Complainant
contacted ODOT prior to the termination of his employment. As
such activity is protected under the STAA, I find that the
Complainant has satisfied the first element of his prima
facie case under the employee protection provisions of the
Act.
(2) Adverse Employment Action
The Complainant contends that he was discharged on September
9, 1992, and that such discharge constitutes an adverse
employment action under the Act. Unfortunately for the
Complainant, the record does not support his contention that he
was discharged.
[PAGE 10]
On September 9, 1992, while engaged in his employment with
the Respondent, the Complainant was subjected to a stop and
inspection by a PUCO official. Subsequently, the Respondent's
owners traveled to the scene of the inspection at which they
engaged in a heated exchange with the Complainant. The
Complainant alleged that during this exchange he was discharged
from employment by the Respondent. The Respondent denies this
allegation and contends that the Complainant was never discharged
but rather voluntarily quit his employment on September 29, 1992.
As stated above, acts subsequent to September 9, 1992 do not
support the Complainant's contention. Although the Complainant
claimed to have been fired on September 9, 1992 by the
Respondent, he testified that he received a letter dated
September 11, 1992 stating that he was suspended from employment
until he fulfilled certain obligations. The Complainant further
testified that he was not surprised to receive this notice of
suspension, even though he believed to have been discharged two
days earlier. Furthermore, pursuant to the terms of the
September 11 letter, the Complainant completed a physical
examination at the hospital selected by the Respondent and for
which the Respondent stated it would pay. Additionally, again
following the instructions of the September 11 letter, the
Complainant arranged for a medical excuse to be mailed to the
Respondent explaining his absence from work from September
2 through September 4, 1992. The bulk of the evidence further
indicates that upon receipt of the results of the physical
examination and an excuse for his prior absences, the Respondent
lifted the Complainant's suspension and requested that he return
to work on September 29, 1992. Therefore, I find that the
preponderance of the evidence does not support the Complainant's
contention that he was discharged on September 9, 1992.
Nonetheless, the Respondent does not dispute that the
Complainant was suspended on September 9, 1992 nor that such
suspension constitutes an adverse employment action under the
Act. Also, a question remains as to whether the Complainant
voluntarily quit his employment on September 29, 1992 or was
discharged at that time. The only relevant evidence on this
matter is the conflicting testimony of Mrs. Gullett and the
Complainant concerning their telephone conversation on that date.
Giving the Complainant the benefit of doubt, I will consider the
September 29, 1992 termination of his employment with the
Respondent to constitute an adverse employment action under the
STAA.
Therefore, I find that the Complainant has satisfied the
second requirement of the prima facie case by showing that
an adverse employment action was taken against him.
[PAGE 11]
(3) Causation
In order to prevail in his claim, the Complainant must
prove, by a preponderance of the evidence, that the
above-mentioned protected activity of contacting OSHA and the
resulting adverse employment action taken against him are
connected by a causal link. In other words, the Complainant must
present evidence sufficient to raise an inference of causation.
Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June
23, 1992). The Secretary has declared that, in establishing the
causal link between the protected activity and the adverse
action, proof of the employer's knowledge of the employee's
protected activity is sufficient. SeeOsborn v.
Cavalier Homes, 89-STA-10 (Sec'y July 17, 1991); Zessin v.
ASAP Express, Inc., 92-STA-0033 (Sec'y Jan. 19, 1993).
The record indicates that two adverse employment actions
were taken against the Complainant by the Respondent. I will
discuss the possible causal link between each of these adverse
employment actions and the Complainant's protected activity.
Suspension of September 11, 1992
The Complainant will succeed on his claim if he can prove
that the September 11, 1992 suspension was motivated by
discriminatory intent. The facts indicate that the Complainant
was relieved of duty after the PUCO inspection of his vehicle on
the evening of September 9, 1992. The PUCO official discovered
that the Complainant did not have a valid medical card, as
required for commercial motor vehicle operators under federal
law. See 49 C.F.R. § 391.41. The PUCO official
informed the Respondent's owners that the Complainant was
prohibited under federal law from operating a commercial motor
vehicle until he secured a valid medical card. Consequently, the
Respondent's owners relieved the Complainant from his duty and
thereafter suspended him on September 11, 1992 until he received
a valid medical card. There is no evidence that the suspension
of the Complainant was based on the Respondent's allegation that
the Complainant contacted PUCO. The Respondent offered credible
testimony which indicated that the only reason the Complainant
was asked if he arranged the PUCO inspection was because he was
curiously off his normal route at the time of the inspection.
The Complainant offered no credible evidence that his suspension
was based on his involvement in the PUCO inspection other than
his failure to produce a valid medical card. Thus, the evidence
fails to indicate that a causal link existed between the
suspension of the Complainant and his prior engagement in
protected activities. If the Respondent had not suspended the
Complainant
[PAGE 12]
from driving until he received a valid medical card, any future
employment of the Complainant without such card would have been
in violation of the STAA. Therefore, the Respondent had no
choice under the STAA but to suspend the Complainant pending a
physical examination.
Furthermore, the Complainant presented no evidence that the
Respondent was aware of his formal complaint to ODOT prior to the
September 9 incident. In fact, the Complainant testified that he
believed that the Respondent was not aware of his contact with
ODOT. Therefore, the Complainant failed to raise an inference of
causation by presenting evidence of the Respondent's knowledge of
his protected activity of reporting safety concerns to the
government. Therefore, the Complainant has failed to present
evidence of a causal link between his suspension of September 9,
1992 and his protected activities.
Termination of Employment of September 29, 1992
The question of whether the Complainant was fired or volun-
tarily quit on September 29, 1992 is a more debatable issue. The
bulk of the testimony indicated that the Respondent requested
that the Complainant return to work on Tuesday, September 29,
1992. The Complainant had complied with the terms of the
September 11, 1992 letter of suspension and therefore was
eligible to return. Four witnesses testified to hearing Mrs.
Gullett request that the Complainant report to work on the
morning of September 29, 1992. The Complainant failed to report
to work on that day. Thereafter, the Complainant either quit or
was fired, and was asked to return company property which he
possessed. Even viewing the situation in the light most
favorable to the Complainant, i.e., that he was fired on
September 29, 1992, the Complainant nonetheless failed to present
any conclusive evidence of a causal link between his protected
activities and the termination of his employment on September 29,
1992. The evidence supports only the conclusion that if, in
fact, the Complainant was fired on September 29, 1992, it was
directly the result of his failure to report to work on that day
and not because of his protected activities in the past. Thus,
the Complainant's failure to report to work, as admitted by the
Complainant, gave the Respondent legitimate cause to discharge
the Complainant at that time. Therefore, the Complainant has
failed to prove the existence of a causal link between the
termination of his employment with the Respondent his protected
activity.
Finally, I find that the Complainant has failed to present
sufficient evidence of a causal link between his protected
activities and either of the adverse employment actions taken
[PAGE 13]
against him. Consequently, the Complainant has failed to satisfy
the required elements of his prima facie case for
discrimination under the STAA.
Rebuttal of the Prima Facie Case
Assuming arguendo that the Complainant satisfied his
prima facie case, I nonetheless find that the evidence
presented by the Respondent successfully rebuts the inference of
discrimination. To rebut this inference, the employer must
articulate a legitimate, nondiscriminatory reason for its employ-
ment decision. Carroll, supra. A credibility
assessment of the nondiscriminatory reason espoused by the
employer is not appropriate; rather, the Respondent must simply
present evidence of any legitimate reason for the adverse
employment action taken against the Complainant. St. Mary's
Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
Concerning the September 11, 1992 suspension, the Respondent
was informed by the PUCO inspector that the Complainant's medical
card was outdated and he was prohibited from operating a
commercial motor vehicle under the STAA. Thus, as a result, the
Complainant was relieved from duty and suspended until he
completed a physical examination and received an updated medical
card. Regarding the September 29, 1992 termination of the
Complainant's employment, assuming he was fired, the Respondent
nonetheless had legitimate business reasons for taking such
action because the Complainant failed to report to work as
instructed. Therefore, the Respondent successfully rebutted the
inference of discrimination relating to any and all possible
adverse employment actions taken against the Complainant.
Pretext
If the employer successfully presents evidence of a nondis-
criminatory reason for the adverse employment action, the
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reasons proffered by the employer are mere
pretexts for discrimination. Moon, supra; See
alsoTexas Dep't of Community Affairs v. Burdine, 450
U.S. 248, 253 (1981). In proving that the asserted reason is
pretextual, the employee must do more than simply show that the
proffered reason was not the true reason for the adverse
employment action. The employee must prove both that the
asserted reason is false and that discrimination was the true
reason for the adverse action. St. Mary's, supra,
at 2752-56. For reasons discussed above, the Complainant failed
to prove that either the suspension of September 11, 1992 or the
termination of his employment on September 29, 1992 was motivated
by discrimination.
[PAGE 14]
In conclusion, I find that the Complainant has failed to
prove, by a preponderance of the evidence, a causal link between
his protected activities and any adverse employment action taken
against him by the Respondent. Therefore,
ORDER
IT IS ORDERED that the complaint of James R. Masterson be
DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
NOTICE
This Recommended Decision and Order and the administrative file
in this matter will be forwarded for review by the Secretary of
Labor to the Office of Administrative Appeals, U.S. Department of
Labor, Room S-4309, Frances Perkins Building, 200 Constitution
Ave., NW, Washington, DC 20210. The Office of Administrative
Appeals has the responsibility to advise and assist the Secretary
in the preparation and issuance of final decisions in employee
protection cases adjudicated under the regulations at 29 C.F.R.
Parts 24 and 1978. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1]
In this Recommended Decision and Order, "AX" refers to
Administrative exhibits, "RX" refers to Respondent's exhibits,
"CX" refers to Complainant's exhibits, and "Tr." refers to the
transcript of the hearing.
[2] Mrs. Gullett testified that the slashing movements she made
across her neck which the Complainant believed to indicate that
he was fired were simply acts associated with her nervous habit
of playing with her necklace. (Tr. 338) Although this aspect of
her testimony stains credulity I find the remainder of Mrs.
Gullett's testimony to be credible and the record as a whole
contains no conclusive evidence that the Complainant was fired at
the site of the PUCO inspection on September 9, 1992 by Mr. or
Mrs. Gullett.
[3] The STAA defines "employer" as "any person engaged in a
business affecting commerce who owns or leases a commercial
vehicle in connection with that business. . . " 49 U.S.C. §
2301.
