DATE: August 31, 1992
CASE NO. 91-STA-41
IN THE MATTER OF
SAMUEL K. GALVIN,
COMPLAINANT,
v.
MUNSON TRANSPORTATION, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the [Recommended] Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ), issued on
May 13, 1992, in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988), and its implementing
regulations, 29 C.F.R. Part 1978 (1991). The parties have not
filed briefs before the Secretary, although permitted by the
regulations. [1] See 29 C.F.R. § 1978.109(c)(2).
Complainant filed a complaint alleging that he was
discharged in violation of the STAA for refusing to drive an
overweight truck. Respondent asserted that Complainant was not
discharged but voluntarily quit, rather than agree to
Respondent's proposal for correcting the overweight problem.
After considering the documentary evidence and the hearing
testimony, and making his credibility determinations, the ALJ
concluded that Complainant failed to establish a prima facie case
of retaliatory discharge. The ALJ found that Complainant failed
to show that he was discharged by Respondent, and hence, did not
establish any adverse action by Respondent.
[PAGE 2]
Under the STAA, I must accept the ALJ's findings of fact,
inferences, and credibility determinations if they are supported
by substantial evidence on the record considered as a whole.
29 C.F.R. § 1978.109(c)(3). Upon review of the record in
this case, I find substantial evidence to support the ALJ's
factual findings, including his credibility determinations. As
discussed below, I agree that this complaint must be dismissed,
but I do not agree entirely with the ALJ's analysis.
FACTS
The ALJ thoroughly presented the evidence and testimony in
his R.D. and O. See ALJ's R.D. and O. at 2-6. The
pertinent facts are as follows. Complainant and his co-driver
were dispatched to the Munson terminal in Woodville, Ohio, on
Saturday morning, September 9, 1989, to pick up a load of glass
which originated in Pennsylvania and had to be driven to Oakland,
California, by Monday morning. Concerned that the load was
overweight, they drove the load approximately eight miles to
Stoney Ridge, Ohio, where it was weighed and found to be
overweight. [2] Complainant immediately called the Munson
dispatcher, Mr. Glasgow, at the main Munson terminal in Monmouth,
Illinois, and notified him of the overweight load and expressed
his concern that it was unsafe to drive through the mountains.
Mr. Glasgow suggested that Complainant bring the truck to
Monmouth to transfer the load from a refrigerated van to a dry
van, which weighed less, in order to correct the overweight
problem. Complainant refused to drive the overweight truck to
Monmouth for correction, because he believed the 240 mile drive
would be unsafe, and he told the dispatcher that if he was forced
to drive the overweight truck out of Woodville he would quit and
go home. Tr. at 23-26, 36.
Complainant's testimony was that at this point he was
instructed to return to Woodville and remove his personal
belongings from the cab of the truck. Tr. at 37, 40-41, 57-58.
Complainant testified that he believed this meant he was
terminated. [3] He did admit at the hearing, however, that
Mr. Glasgow never actually told him he was fired or terminated.
Mr. Glasgow's testimony, which the ALJ found credible, was that
Complainant suggested correcting the overweight load in Woodville
instead of in Monmouth and that the dispatcher agreed, but that
Complainant refused to drive the load to California if it was
transferred to a dry van, instead of the refrigerated van, and
said he would quit first. The proffered reason for Complainant's
refusal to drive a dry van to California was because the majority
of the loads returning from California were produce, which
required a refrigerated van. Tr. at 95-96. Mr. Glasgow then
instructed Complainant to return to Woodville and remove his
personal belongings from the truck, so his co-driver could
[PAGE 3]
continue in the truck on another dispatch, and so that the a
new team could be assigned to handle the trailer loaded for
California. Tr. at 104. Additionally, Glasgow testified that
he told Complainant to call his supervisor, Mr. Seals, on Monday
to discuss the incident, and that he specifically responded "no"
when Complainant inquired if he was terminated.
On September 9, Mr. Glasgow made computer entries of his
conversations with Complainant indicating: that the load must
be transferred to a van, that a van was ready for transfer in
Woodville, that Complainant was "off for attitude adjustment-
can't follow directions," and the last notation read "free Sam
Galvin" which indicated he was removed from the truck for payroll
purposes. Rx-1; Tr. at 105.
Two days after the incident, Mr. Glasgow's "Driver
Termination Notification" reported the September 9 exchange, and
indicated that Complainant "quit." RX-2. This report was given
to Complainant's supervisor, Mr. Seals, to inform him of the
dispatcher's last contact with Complainant. It was written as
an incident report rather than a notice of termination.
Complainant received A $50 Commcheck (advance) from the
dispatcher to get home, and later the same day he obtained
permission from the dispatcher to ride home with another truck
driver going in that direction. Complainant did not contact
Respondent again until December 1989, seeking to be rehired.
Respondent denied him rehire due to a driver's license problem,
and shortly thereafter Complainant filed his complaint.
ANALYSIS
Under the burdens of proof in STAA proceedings, Complainant
must establish a prima facie case, showing that he engaged in
protected activity, that he was subjected 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. Roadway Express,
Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987).
Section 405(b) of the STAA prohibits discriminatory
treatment of employees in either of two "work refusal"
circumstances. First, an employee may not be disciplined 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 . . . ."
49 U.S.C. app. § 2305(b). Second, discipline is prohibited
for refusing 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."
Id. This second ground for refusal carries the further
requirements (1) that the unsafe condition causing the employee's
apprehension
[PAGE 4]
of injury must be such that a reasonable person, under the
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.
Although I disagree with the ALJ's conclusion that
Complainant failed to establish a prima facie case, I agree that
Complainant ultimately failed to carry his burden of establishing
adverse action in violation of the STAA. It is undisputed that
Complainant refused to drive an overweight truck on September 9,
1989, and communicated to Respondent that his refusal was based
on the potential violation of federal regulations and a safety
concern for himself and the public. The parties further agree
that Complainant refused Respondent's proposal for correcting the
overweight problem, because it required Complainant to drive 240
miles with the overweight load. [4] I find this evidence
sufficient to establish that Complainant engaged in protected conduct under Section 2305(b), and that Respondent was aware of
the protected conduct.
Based on this record, and taking into account the ALJ's
credibility determinations, I further find that Complainant has
sufficiently alleged adverse action by Respondent, to establish
that element of a prima facie case. Although there is
conflicting testimonial evidence on the issue of discharge,
Complainant has sufficiently demonstrated adverse action by
showing that following his refusal to drive the overweight truck,
he was instructed to remove his belongings from the assigned
truck, he could not complete the assigned job, he did not return
to work for Respondent thereafter, and he was denied rehire in
December. Even Respondent's computerized record of the
September 9 communications between Complainant and the dispatcher
corroborates this portion of Complainant's description of the
incident, as does the testimony of Respondent's witnesses. For
the purpose of making a prima facie case, this evidence is
sufficient to support Complainant's allegation of discharge,
despite Respondent's characterization of it as a voluntary quit.
Additionally, causation is shown in that Complainant's removal
from the truck immediately followed his refusal to drive.
SeeCouty v. Dole, 886 F.2d 147, 148 (8th Cir.
1989). Accordingly, contrary to the ALJ's analysis, I find that
Complainant established the elements of a prima facie case of
discriminatory discharge in violation of Section 2305(b), for
refusing to drive an overweight truck.
Once a prima facie case is established, the burden of
production shifts to respondent to present evidence that the
alleged adverse action was motivated by legitimate,
nondiscriminatory reasons. If so produced, then complainant,
as the party bearing the ultimate burden of persuasion of
[PAGE 5]
retaliation, has the opportunity to show that respondent's
proffered reason was not the true reason for the adverse action,
but a pretext.
Respondent disputes Complainant's allegation that he was
discharged for refusing to drive an overweight truck. Respondent
asserts that Complainant voluntarily quit his job because he
refused to drive a dry van to California. Alternatively,
Respondent contends that even if any adverse action against
Complainant were found, it was motivated by Complainant's refusal
to accept reasonable accommodation of the overweight problem.
The ALJ specifically credited the testimony of Respondent's two
witnesses, Mr. Glasgow, the dispatcher, and Mr. Connell, the
Director of Compliance. The dispatcher and Mr. Connell testified
that the dispatcher did not have the authority to discharge
Complainant, and that only Mr. Seals, Complainant's supervisor
had this authority and Complainant did not contact his supervisor
after the September 9 incident. The testimony that Complainant
was removed from the truck when he refused to follow instructions
on correcting the overweight problem is supported by the
documentary evidence submitted by Respondent. Moreover, to the
extent that the parties' versions of the incident differ, the ALJ
reasonably questions Complainant's credibility because of his
contradictory statements concerning whether or not the dispatcher
told him he was fired.
In this case, even were I to find that Respondent took
adverse action against Complainant by telling him to get his
things out of the truck, this record taken as a whole would not
show that Respondent's adverse action was in retaliation for
protected conduct. Rather the record shows that Complainant
refused to follow instructions concerning a reasonable correction
of the overweight load, and accordingly, Respondent legitimately
replaced him for that work assignment. Such replacement for a
specific assignment would not be a protected work refusal under
the STAA, and Complainant has presented no evidence to dispute
Respondent's version of the incident. Accordingly, because
Complainant has failed to present sufficient evidence to carry
his ultimate burden of establishing that Respondent took adverse
action against him in retaliation for refusing to drive an
overweight truck, this complaint must be dismissed. [5]
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The parties did file post-hearing briefs before the ALJ
however, and I have considered the arguments raised by the
parties therein. I have also considered the fact that
Complainant appeared prose throughout these
proceedings.
[2] The parties agree that company policy is that it is the
drivers' responsibility to check truck weight and inform the
company of overweight loads.
[3] The ALJ correctly found that Complainant contradicted
himself in his testimony about whether the dispatcher told him he
was "terminated" during this conversation, and accordingly, the
ALJ found the "majority of Galvin's testimony to have been
credible" but stated "I must question his credibility
throughout." R.D.and O. at 4. Nevertheless, the ALJ accepted
Complainant's testimony that he interpreted Glasgow's order to
clean out his truck as a termination notice. R.D. and O. at 3.
[4] The parties have presented conflicting testimony on what
happened after Complainant rejected Respondent's initial proposal
for correcting the overweight. However, Complainant's testimony
that he sought correction of the problem, that Respondent's
initial suggestion was for him to drive 240 miles for correction,
and that Complainant rejected this suggestion, is undisputed.
[5] I agree with the ALJ's conclusion that Respondent's actions
in this case do not amount to a constructive discharge, under the
prior decisions on that issue. SeegenerallyEarwood v. D.T.X. Corp., Case No. 88-STA-21, Sec. Dec. and
Ord. of Remand, March 8, 1991, slip op. at 5-10.
