Ass't Sec'y & Curless v. Thomas Sysco Food Services, 91-STA-12 (Sec'y Sept. 3, 1991)

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Ass't Sec'y & Curless v. Thomas Sysco Food Services, 91-STA-12 (Sec'y Sept. 3, 1991)

U.S. DEPARTMENT OF LABOR

SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: September 3, 1991
CASE NO. 91-STA-12

IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,

AND

MICHAEL R. CURLESS,
COMPLAINANT,

THOMAS SYSCO FOOD SERVICE,
RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

FINAL DECISION AND ORDER

Before me for review is the [Recommended] Decision and Order (R.D. and O.) issued on May 7, 1991, by Administrative Law Judge (ALJ) Bernard J. Gilday, Jr., in the captioned case, which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).

The facts are not in dispute. In May 1988, Complainant was hired by Respondent as a driver of commercial motor vehicles. Hearing Transcript (T.) 64-67. While unloading a delivery on the afternoon of December 11, 1989, Complainant experienced severe chest pain, dizziness, and difficulty breathing. T. 69. Paramedics transported Complainant to a hospital emergency room, where he was monitored, administered medication, including Valium,¹ and released three to four hours later. T. 69-71. Hospital personnel instructed Complainant not to drive, drink alcohol, or operate machinery; to rest for 24 hours; and to consult a cardiologist for follow-up monitoring. T. 80. The

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brother of Respondent's transportation supervisor traveled to the hospital after retrieving Complainant's truck and was advised of Complainant's condition. Upon being released from the hospital, Complainant telephoned the supervisor, explaining that he would be absent from work the following day, December 12, because of his condition, the effects of the medication, and the hospital instructions, and that he intended to see a cardiologist on December 12. T. 48, 79-82. On December 13, Complainant returned to work and drove his route assignments. T. 93-94. Respondent issued Complainant a "verbal warning" in written form for his unexcused absence on December 12. That warning has been removed from Complainant's personnel file pursuant to Respondent's absenteeism policy and cannot now result in disciplinary action.² T. 136-137; R.D. and O. at 6.

Under Respondent's attendance policy, employees are permitted certain absences for which no disciplinary action may be imposed. Absence for earned vacation, funeral attendance, jury duty, an employee's birthday, and military duty is not subject to discipline. In addition, an employee is permitted four days each year of "personal" leave. Once an employee has used his four personal days, any unexcused absence, regardless of the reason, constitutes an "incident." If an employee accumulates more than three incidents within his rolling year, he is issued a verbal warning.³ Perfect attendance for five months following the most recent incident results in elimination of any record of the earliest incident within the rolling year. See T. 173-178, 191. Complainant received the verbal warning at issue because he previously had used his four personal days, and his December 12, 1989, absence constituted the fourth outstanding incident in his rolling year.

Complainant thereafter filed a complaint of unlawful discrimination under the STAA. Complainant claimed that he should not have been disciplined for his absence since he had been "DOT unqualified" to perform his route assignments on December 12, i.e., he would have violated Department of Transportation (DOT) regulations by reporting for work. See 49 C.F.R. §§ 392.3, 392.4 (l990). Those regulations, inter alia, prohibit the operation of commercial motor vehicles by drivers who are ill or impaired by the

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use of medication. After investigation, the Assistant Secretary for Occupational Safety and Health found (1) that Complainant had refused to operate a motor vehicle on December 12, 1989, when such operation would have violated DOT regulations, (2) that Complainant's work refusal constituted protected activity under the STAA, and (3) that Respondent's "verbal warning" issued to Complainant for engaging in protected activity violated the STAA. Accordingly, the Assistant Secretary ordered Respondent to expunge from Complainant's personnel records any adverse reference to his December 12 absence and to exclude from its absenteeism policy any consequence attributable to activity protected under the STAA. Respondent contested the Assistant Secretary's findings and requested a hearing. The ALJ has recommended that the complaint be dismissed.

ANALYSIS

1. Mootness

Respondent argues, and the ALJ has recommended, that the complaint should be dismissed because no actual "case or controversy" now remains after the "verbal warning was eliminated from [Complainant's] personnel file, it may never be used against him and he cannot . . . be disciplined because he did not report for work on December 12, 1989." R.D. and O. at 8. I disagree. "Administrative [proceedings are] not bound by the constitutional requirement of a 'case or controversy' that limits the authority of article III courts to rule on moot issues." Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447, 451 (l0th Cir. 1983); Tennessee Gas Pipeline Co. v. Federal Power Com'n, 606 F.2d 1373, 1379-1380 (D.C. Cir. 1979). Rather, "[an] agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty." 5 U.S.C. § 554(e) (emphasis added). Of course, in exercising its discretion, an agency properly is guided by policies underlying the article III case-or-controversy requirement. A further pertinent concern is the institutional role of-the adjudicatory body.⁴

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In the article III context, jurisdiction on the ground that a dispute is "capable of repetition, yet evading review" commonly vests where (1) the challenged action is too short in duration to be litigated fully prior to its expiration and (2) there is a reasonable expectation that the action complained of will be repeated. Honig v. Doe, 484 U.S. 305, 318-320, 333 (1988). Where the action has ceased for the moment but there is a reasonable expectation that it will recur, a controversy between the parties continues to exist and article III is not violated. 6A J. Moore, J. Lucas & G. Grotheer, Moore's Federal Practice, par. 57.13 (2d ed. 1991). See Leonardson v. City of East Lansing, 896 F.2d 190, 194 (6th Cir. 1990); Shrader v. Granninqer, 870 F.2d 874, 877-878 (2d Cir. 1989); LaDuke v. Nelson, 762 F.2d 1318, 1322-1326 (9th Cir. 1985); Lynch v. Baxley, 744 F.2d 1452, 1455-1457 (11th Cir. l984).

I find these circumstances present in the instant case. Respondent's "rolling year" time frame ensures that any given "incident" will remain on a work history for no longer than a one-year period. In the event of employee "good behavior," the duration may be as short as five months. Here, the incident challenged by Complainant disappeared, as a function of the rolling year time frame, a full two and one half months before the administrative hearing. The challenged verbal warning thus expired far short of full litigation.

Moreover, the action reasonably may be expected to recur. Respondent uniformly implements a policy that penalizes employees, like Complainant, who refuse work, when to accept the assignment would violate DOT regulations. After investigation, the Assistant Secretary found that a violation of the STAA had occurred and issued an appropriate order. It reasonably can be expected that Respondent will be subject to similar proceedings in the future. See Brock v. Roadway Express Inc., 481 U.S. 252, 258 (1987) (controversy between trucking company and Labor Secretary, regarding constitutionality of Secretary's procedures prior to ordering complainant employee's preliminary reinstatement, comes within "capable of repetition, yet evading review" exception to actual case-and-controversy requirement; appeal not mooted by Secretary's issuance of final

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reinstatement order).

2. The Merits

Under the burdens of proof and production in STAA proceedings, Complainant first must make a prima facie showing that statutorily-protected activity motivated Respondent's decision to take adverse employment action. In particular, Complainant must show that he engaged in protected activity, that he was subject to adverse action, and that Respondent was aware of the protected activity when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. See Roadway Exp. Inc. v. Brock, 830 F.2d 179, 181 n.6 (llth Cir. 1987). Under the STAA, an employee is protected if he "refuse[es] to operate a vehicle when such operation constitutes a violation of any Federal . . . regulations . . . applicable to commercial motor vehicle safety . . . ." 49 U.S.C. app. § 2305(b).

Complainant made a prima facie showing. Complainant is employed as a driver of commercial motor vehicles. From Monday through Wednesday of each workweek, he drives local runs in the Cincinnati, Ohio area. On Thursdays and Fridays, he drives the long distance run between Cincinnati and Michigan. T. 66-69. On Tuesday, December 12, he was assigned to drive locally. He refused that assignment because he had been instructed to rest for 24 hours following the onset of debilitating physical symptoms and because he had been given tranquilizing medication. Operation of a commercial motor vehicle is prohibited "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." 49 C.F.R. § 392.3. Drivers also are prohibited from being "on duty" while under the influence of certain enumerated drugs and substances, e.g., amphetamines, narcotic drugs, and "[a]ny other substance, to a degree which renders the driver incapable of safely operating a motor vehicle." 49 C.F.R. § 392.4(a)(4). See 49 C.F.R. § 395.2 defining on duty time to include driving time. The hospital's directive that Complainant should not drive and that he should rest for 24 hours and consult a cardiologist for follow-up monitoring is compelling evidence of Complainant's incapacity. I find that Complainant would have violated the above

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regulations had he reported to work on December 12 and that his refusal to work constituted protected activity.

The remaining elements of a prima facie showing also are present. Respondent unquestionably knew about Complainant's protected activity, T. 48, 72-73, 79-81, 148-150, 193-194, when it took the adverse actions of classifying Complainant's absence as an "incident" and issuing him a "verbal warning." Under Respondent's absenteeism policy, both actions advance an employee on the disciplinary track and thus are "adverse."⁵ It is uncontroverted that Respondent disciplined Complainant because he refused to report to work and to perform his driving assignments on December 12.

Respondent may rebut Complainant's prima facie showing by articulating a legitimate motivation for the adverse action. Here, Respondent argues that it disciplined Complainant because he "allowed himself to run afoul of its [absenteeism] policy." Resp. Br. at 6. This articulation does not suffice. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981) (rebutting evidence must raise genuine issue of fact; explanation must be legally sufficient to justify judgment for defending party). Complainant "ran afoul" of Respondent's policy because

he engaged in protected activity. A "legitimate" motivation is by definition a legal one. Webster's New World Dictionary 772 (3d College ed.). Respondent's resolve to punish employees who refuse to violate DOT regulations is not a "legitimate" motivation.

Independent statutory rights "cannot be abridged by contract or otherwise waived . . . ." Barrantine v. Arkansas-Best Freight Systems Inc., 450 U.S. 728, 740 (1981). Moreover, congressionally granted rights take precedence over conflicting provision in a bargained employment arrangement. See id. at 740-741. Accordingly, Complainant does not forfeit his STAA protection as a condition of his employment under Respondent's work rules.

Respondent having failed to rebut Complainant's prima facie showing, Complainant has prevailed on

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the merits of his complaint.

3. The Arbitration

In finding that "Complainant failed to rebut the presumption of no discrimination arising from the resolution of Complainant's grievance in Respondent's favor," R.D. and O. at 8, the ALJ applied an erroneous standard. See 29 C.F.R. § 1978.113 (l990); Barrentine v. Arkansas-Best Freight Systems, Inc., 450 U.S. at 742-746; Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-59 (1974); Roadway Express, Inc. v. Brock, 830 F.2d at 181-182; Consolidation Coal Co. v. Marshall, 663 F.2d 1211, 1218-1219 (3d Cir. 1981). The limited record evidence on this issue in this case does not support deferral to the outcome of the arbitration.

Accordingly, I find that Respondent violated STAA Section 2305 in taking adverse employment action against Complainant for refusing to operate a commercial motor vehicle, when such operation would have violated Federal motor vehicle safety regulations. Respondent is ordered to restore Complainant's work history to eliminate any effects attributable to the "incident/verbal warning" at issue.

SO ORDERED.

LYNN MARTIN
Secretary of Labor

Washington, D.C.

[ENDNOTES]

¹The paramedics also had administered Valium en route to the hospital. T. 70-72, Exh. GX-6. Valium is a tranquilizer which can cause drowsiness. The Valium was administered to decrease Complainant's rapid heart rate.

²Respondent utilizes a "rolling year" time frame for determining whether an employee's absence will result in disciplinary action. For example, Respondent here considered

Complainant's attendance during the period from the December 12, 1989, absence retroactive to December 12, 1988. Accordingly, as of December 12, 1990, the December 12, 1989, incident dropped from inclusion in Complainant's rolling year work history.

³Discipline is progressive. Four incidents will elicit a verbal warning; five incidents -- a written warning; six incidents -- a written warning and a one-day suspension without pay; seven incidents -- a written warning and a three-day suspension without pay; eight incidents -- discharge.

⁴Increasing certainty as to what activities are protected should encourage employees in safety endeavors, a particular object in enacting the STAA. Congress determined

that noncompliance with applicable state and federal safety regulations in the transportation industry is sufficiently widespread to warrant enactment of specific protective legislation encouraging employees to report violations. "Random inspections by Federal and State law enforcement officials in various parts of the country uniformly found widespread violations of safety regulations," and [Section 2305] was designed to assist in combating the "increasing number of deaths, injuries, and property damage due to commercial motor vehicle accidents."

Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987), citing remarks of Sen. Danforth and summary of proposed statute.

⁵"[D]iscipline suggests punishment intended to control or to establish habits of self control", Webster's New World Dictionary 1091 (3d College ed.), which comports with the testimony of Respondent's President/Chief Executive Officer that the absenteeism policy is "corrective in nature." T. 175. By declaring the initial three absences "incidents" and recording them as such in an employee's work history, Respondent effectively warns the employee that he is progressing toward a "verbal" warning.