DATE: June 12, 1995
CASE NO: 94-STA-44
Jerry J. Williams,
Complainant
v.
Southern Coaches, Inc.
Respondent
Appearances:
Marie A. Mattox, Esquire
For Complainant
Frederick L. Warren, Esquire
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Surface Transportation Assistance Act,
hereinafter the "Act", 49 U.S.C. §31105 (1982); which
prohibits covered employers from discharging or otherwise
discriminating against employees who have engaged in certain
protected activities.
Complainant filed his complaint on January 31, 1994, and on
June 30, 1994, the Occupational Safety and Health Administration
of the U.S. Department of Labor issued its investigative findings
[PAGE 2]
to the effect that the complaint had no merit (ALJ 1).[1]
Complainant requested a hearing on August 4, 1994 (ALJ 2),
and an initial notice of hearing was issued on August 31, 1994
(ALJ 3) upon the August 12, 1994 assignment of this case to the
undersigned. After two continuances (ALJ 5, 9), the matter was
tried on March 23, 24, 1995 in Tallahassee, Florida. Briefs were
filed by May 26, 1995.
THE LAW[2]
49 U.S.C. §31105. Employee protections
(a) Prohibitions. (1) A person may not discharge an
employee, or discipline or discriminate against an
employee regarding pay, terms, or privileges of
employment, because -
(A) the employee, or another person at the
employee's request has filed a complaint or begun
a proceeding related to a violation of a commercial
motor vehicle safety regulations, standard, or order,
or has testified or will testify in such a proceeding;
or
(B) the employee refuses to operate a vehicle
because -
(i) the operation violates a regulation,
standard, or order of the United States related
to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable
apprehension of serious injury to the employee
or the public because of the vehicle's unsafe
condition.
(2) Under paragraph (1)(B)(ii) of this subsection, an
employee's apprehension of serious injury 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.
To qualify for protection, the employee must have sought from the
employer, and been unable to obtain, correction of the unsafe
condition.
COMPLAINANT'S CASE
Complainant argues that Respondent violated both sections
[PAGE 3]
(A) and (B) of the Act in discharging him from its employ on
October 28, 1993. He seeks an award for back wages, compensatory
damages and attorney's fees (Compl' Br., at 24, 25).
Two events form the basis of his case. During an August,
1993 bus driving assignment to Denver, Colorado, Complainant is
alleged to have voiced certain complaints to a customer of
Respondent regarding possible U.S. Department of Transportation
(DOT) hours violations. The making of these complaints, per
Complainant, motivated Respondent to later fire him. Also, per
Complainant, his refusal to take an October 20, 1993 driving
assignment because of his fatigue caused his termination.
THE DEFENSE
Respondent urges that the former of these events had no
bearing upon its decision to terminate Complainant, and that the
latter event, modified to the extent that the job assignment
refusal emanated not from Complainant's fatigue but from
Complainant's preference to tend to a personal matter over the
performance of the job assignment, provided the legitimate, non-
discriminatory, basis for the job termination.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I note first that neither the question of the frequency of
DOT driving hours violations by Respondent's drivers, nor the
question whether Respondent made an appropriate decision, from a
managerial perspective, to fire Complainant, is at issue in this
case. Any such violations may be the proper subject of another
proceeding in a different forum. Further, the effectiveness of
Respondent's personnel decisions, absent any relevant
discriminatory motives, is not a matter to be decided in this
case.
The issue comes down to whether Complainant has established
that Respondent fired him for his expression of safety complaints
and/or for his refusal to operate a vehicle in violation of
United States' safety laws.
Although Complainant proposes a violation of 49 U.S.C.
31105(a)(1)(B)(ii)[3] (Compl. Br. at 15-16, 22-23) there exists
no evidence in this record of any vehicle "...unsafe condition."
Moreover, there is no evidence of the requisite unsuccessful
seeking by Complainant of correction by Respondent of any such
condition. See 49 U.S.C. 31105(a)(2). Thus, a violation of 49
U.S.C. 31105(a)(1)(B)(ii) is not further addressed herein,
[PAGE 4]
although I will address 49 U.S.C. 31105(a)(1)(B)(i),
infra.
To make out a prima facie case under the Act,
Complainant must show that (1) he engaged in protected activity;
(2) Respondent took adverse employment action against him; and
(3) that a causal link exists between his protected activity and
Respondent's adverse action. Where Complainant establishes a
prima facie case, then the burden of production shifts to
Respondent to articulate a legitimate, non-discriminatory reason
for its employment decision. If Respondent does so, then
Complainant bears the burden of persuasion of demonstrating by a
preponderance of the evidence that Respondent discriminated
against him on a forbidden basis. Yellow Freight Systems,
Inc. v. Reich, 27 F.3d 1133, 1138-39 (6th Cir. 1994). If
Complainant proves that a prohibited consideration played a
motivating part in an employment decision, then Respondent may
avoid liability by proving that it would have made the same
decision even if the prohibited consideration had not been a
motivating factor. Yellow Freight, Id., at
1140.
A. THE AUGUST, 1993 INCIDENT
The "complaint" section of the Act, 49 U.S.C.
§31105(a)(1)(A), prohibits discharging an employee because
"the employee...has filed a complainant or begun a proceeding
related to a violation of a commercial motor vehicle safety
regulation, standard, or order, or has testified or will testify
in such a proceeding." This Section protects employees' safety
complaints to managers. Yellow Freight Systems, Inc. v.
Reich, supra (6th Cir. 1994); Yellow Freight
Systems, Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).
The record indicates that Complainant brought to
Respondent's[4] attention certain of his concerns relative to a
potential hours of service violation in connection with the
Denver, Colorado itinerary (Tr. 55). I find, therefore, that
Complainant, to this extent, engaged in activity protected under
the Act. Complainant has also established his termination (Tr.
79-80; CX 9), and, by inference, a possible causal link between
same and his expression of safety concerns as noted above.
Specifically, Complainant established that the customer (Ms.
McCorguodale, the tour director on the Denver trip) communicated
her dissatisfaction to Adams relative to having to cancel part of
the tour because of the service hours problems raised by
Complainant (Tr. 55-57; 227-228). Inferentially at least,
Complainant has pointed to a possible improper motive for
Respondent to fire him, i.e., possible loss of, or interference
with, a business relationship. Thus, I find Complainant has
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proven a prima facie case under the Act.
On the other hand, I find that Respondent has established,
on this record, that this incident was not the reason for
Complainant's termination. In the first place, the termination
(in October, 1993) was not in proximity in time to the event
(August, 1993), see, e.g., Toland v. Werner, Case. No. 93-
STA-22 (11/16/93) where the inference of causation was
established where complainant was discharged on the same day of
the event. No reason was advanced why Complainant was not fired
closer to the time of the event, especially in light of Adams'
admission that he was upset that Complainant raised the service
hours problem prematurely, in his view (Tr. 227-228). Moreover,
all other drivers who worked for Respondent[5] and testified
herein on behalf of Complainant, noted that they had raised to
Adams potential service hours violations without retaliation (Tr.
176-177; 189-190; 212). No reason has been advance why
Respondent would treat Complainant differently, i.e., more
harshly, than these other drivers (all of whom were considered by
Complainant to be friends).
THE OCTOBER, 1993 INCIDENT
After returning from a trip at 6:30 p.m. on the evening of
October 19, 1993, Complainant found that his personal vehicle was
malfunctioning. He was scheduled to begin another trip the next
morning. Complainant then drove his car to his mother's home,
called Adams at 8:30 p.m. and asked to be relieved of the next
morning's assignment in order to have time to get his personal
vehicle repaired. Mr. Adams secured a replacement driver, and
asked Complainant to return the travel documents for this
driver's use. When Complaint returned these documents to Adams
at 10:30 p.m., per Complainant, Adams casually[6] mentioned that
Complainant could have used the company car to accommodate his
needs in order to take on the next day's assignment, to which
Complainant responded that he would be too tired to make that
run. Respondent's letter, which on its face terminates
Complainant because of his failure to take the noted work
assignment, was received by Complainant on October 29, 1993 (Tr.
64-80; CX 9). It is this incident that Complainant insists was a
ruse or pretext for the actual reason (the Denver event,
supra) for his termination (Compl' Br. 19, 22, 23).[7]
Now, Adams testified that after he left work for the day on
October 19, 1993, he got Complainant's telephone call at 8:30
p.m. and at that time suggested that Complainant use the company
car to accommodate his disabled personal vehicle problem and get
his car fixed after the next day's run. After Complainant
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refused this offer, Adams secured the replacement driver and met
Complainant, as arranged, to collect the travel documents. When
this meeting was arranged telephonically, Adams again suggested
Complainant's use of the company car, but Complainant again
turned this offer down. When they met, Adams registered his
displeasure with Complainant's nearly last minute cancellation
of the next morning's run, and advised that such behavior
"...really puts your [Complainant's] job on the line" (Tr. 228-
232).
I find, on this record, that Complainant has failed to prove
that the subject incident was a pretext for the proposed actual
reason for his termination, i.e., the Denver event. Further, I
find that the evidence falls short of establishing that
Respondent fired Complainant in violation of 49 U.S.C.
31105(a)(1)(B)(i).[8]
The termination letter (CX 9) lends credence to Respondent's
position that the termination occurred because Complainant was
"...aware of the options...offered...", i.e., use of the company
car to accommodate Complainant's personal vehicle problem for
purposes of taking the run, and that he "...refused [Adams']
suggestions and left [Respondent] in a very tight predicament."
I find credible and rational Adams' testimony relative to
the potential hardship brought upon his business activities by
Complainant's behavior on the night of October 19, 1993 (Tr. 276-
284). That Complainant apparently waited two hours after the
finish of his October 19, 1993 run (from 6:30 p.m. to 8:30 p.m.)
before he telephoned Adams, does not speak well of his
intentions. That Complainant knew in advance on October 18, 1993
that he had been assigned two back to back runs on October 19 and
20 (Tr. 277; 279), does not speak well of his claimed "fatigue."
That most of the other drivers were aware of the existence and
business use of the company car[9] (Tr. 254-5; 258-9; 251), does
not speak well of Complainant's claimed ignorance thereof.
I am compelled to find on this evidence that Complainant
refused to take the October 20, 1993 assignment for the reason
that he preferred to attend to the matter of getting his personal
vehicle repaired. He declined, in my view, at his peril, Adams'
offer of the company car to accommodate his problem with his
personal vehicle.
As for the alleged violation of 49 U.S.C.
§31105(a)(1)(B)(i)[10] , the record reveals that there
existed no potential violation of DOT service hours rules in
connection with
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the October 20, 1993 trip (Tr. 282-284). I do not credit
Complainant's testimony that he was too tired or fatigued to make
the October 20, 1993 run. What is established is that he
concerned himself, at the risk of his job, with the personal
matter of getting his vehicle repaired immediately, while he
might have put that matter on hold until he fulfilled the job
obligations he had already committed to.
It is noted that Complainant also suggests that Respondent,
immediately after the Denver incident, reduced the driving
assignments to Complainant, and that this fact is some evidence
of the alleged discriminatory termination (Compl' Br. at 7, 8,
16, 21). Even if I were to accept this proposition[11] , the
evidence shows that Complainant himself restricted the volume of
work he wished to be assigned (Tr. 100, 101; 249; 261, 276), and
that the period between late Summer and early Fall was a slower
business period for Respondent resulting in less work for
everyone (Tr. 101; 233-242).
CONCLUSION
I find that Complainant has failed to establish that
Respondent's termination of him violated either 49 U.S.C.
§31105(a)(1)(A) or (B), and that Respondent has established
a valid non-discriminatory reason for terminating Complainant.
There is no doubt that the subject termination caused
substantial difficulty for all involved (Tr. 80; 85; 143-145,
281). Respondent, indeed, may even be said to have overreacted
in its decision to terminate Complainant. As noted, however,
Respondent's decision is its to make so long as such decision
does not stray beyond the borders of the law proscribing
discriminatory action based on an employee's expression of safety
concerns or an employee's refusal to violate safety rules. No
such violation has been shown here.
ORDER
On the basis of the foregoing, I recommend this matter be
DISMISSED.
RALPH A. ROMANO
Administrative Law Judge
[PAGE 8]
[ENDNOTES]
[1] References to the record are: "ALJ" - Administrative Law
Judge exhibits; "CX" - Complainant's exhibits; "RX" -
Respondent's exhibits; "Tr" - transcript of trial.
[2] While all parties allude to 49 U.S.C. §2305, the
Surface Transportation Assistance Act was renumbered and changed
(without impact on the issues in the within matter) on July 5,
1994, Pub. L. 103-272, Sec. 1(e), 108 Stat. 990, to 49 U.S.C.
31105.
[3] The parallel to 49 U.S.C. 2305(b).
[4] Via its operations manager and co-owner, John D. Adams (Tr.
220).
[5] Excepting John Ellis, who suggested otherwise (Tr. 150-152).
[6] An "...off the cuff remark..." (Tr. 74).
[7] As noted, Complainant also asserts that his termination
due to his failure to take the job assignment for fatigue
reasons, itself violates the Act.
[8] As noted, the record is devoid of any evidence of a
violation of 49 U.S.C. 31105 (a)(1)(B)(ii), but I will assume
Complainant has advanced a violation of 49 U.S.C.
31105(a)(1)(B)(i) (see Compl' Br. at 23).
[9] Or left Respondent before the car was put into service (Tr.
256; 257-8).
[10] To be protected under this subsection, the Complainant must
show that operating the vehicle would have caused an actual
violation of a motor carrier safety regulation; it is not
sufficient that the driver had a reasonable belief about a
violation. Yellow Freight Sys., Inc. v. Reich, 38 F. 3d
76 (2d Cir. 1994); Yellow Freight Sys., Inc. Martin, 983
F.2d 1195, 1199 (2d Cir. 1993); Robinson v. Duff Truck Line,
Inc., Case No. 86-STA-3, Final Dec. and Order, Mar. 6, 1987,
slip op. at 12-13, aff'd sub nom.Duff Truck Line, Inc.
v. Brock, No. 87-3324 (6th Cir. June 24, 1988).
[11] And I do not, as such action by Respondent would more
suggest a discrete, separate, discriminatory act rather than some
evidence tending to establish the discriminatory termination as
claimed here.
