DATE: March 10, 1993
CASE NO. 92-STA-23
IN THE MATTER OF
STEVEN A. PALAZZOLO,
COMPLAINANT,
v.
PST VANS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the November 13, 1992, Recommended
Decision and Order (R. D. and O.) of the Administrative Law Judge
(ALJ) in this case arising under Section 405, the employee
protection provision, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). The
Assistant Secretary and Respondent have filed briefs before me.
The ALJ found that Complainant did not establish a prima
facie case of a statutory violation and recommended dismissal of
the complaint. The ALJ's findings of fact and credibility
determinations are supported by substantial evidence and I adopt
them. Consequently, I agree with and accept his decision,
see 29 C.F.R. § 1978.109(c)(3), with the following
elaboration. The facts are restated to focus the discussion.
1. Facts
Respondent PST Vans, Inc. ("PST") hired Complainant as an
over-the-road truck driver in July 1991. T. 15, 18. While
working in Texas on January 15, 1992, Complainant felt a pain in
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his groin as he hooked up a trailer to the tractor. T. 22-23.
The pain worsened during the day. T. 23. While the truck was
undergoing repairs the next day, Complainant telephoned his
coordinator, [1] Dina Sears, and informed her that he thought he
had a hernia. T. 24. Sears advised that he see a doctor and
told Complainant to telephone PST's workers' compensation office
concerning his condition. T. 24-25. Workers' compensation
manager Sharon Crawshaw told Complainant to see a local doctor.
T. 25-26.
On January 16, Complainant consulted a physician, who
diagnosed an acute infection. [2] T. 27. The physician
prescribed an antibiotic and a narcotic, Talwin-NX. T. 30. The
Talwin prescription was for 15 tablets, with instructions to take
one every four hours as needed for pain. CX 1. The physician
later provided a note that stated Complainant was "unable to
drive for several days due to the pain associated with the
infection." CX 2. Complainant testified that he took only two
Talwin pills per day since they made him drowsy, and continued
taking the pills for eight days until they were gone. T. 30,
90-92.
After receiving the diagnosis, Complainant informed both
Sears and Crawshaw that he had an infection, was on medication,
and would not be able to drive for a couple of days. T. 219-220,
276-278. Crawshaw was unable to get Complainant to read the
prescriptions or a doctor's note over the phone. T. 287. When
Crawshaw asked how many days' worth of medication had been
prescribed, complainant replied "a couple" and stated that the
medication would make him drowsy. Id. Crawshaw assumed
that the physician had prescribed a pain killer and an
antibiotic. Id. [3] PST arranged for a different driver
and tractor to take the load from Texas, and Complainant did not
drive on January 16 or 17. [4] T. 51-52; CX 3.
Complainant testified that when he made a check call to his
coordinator, Sears, on January 18, he said that he was still
feeling ill. T. 43. According to Complainant, Sears told him
that he had to drive or risk losing his new tractor and his job.
T. 43, 47. Complainant reported having a similar conversation
with Sears each day as he checked in by telephone. T. 48-49, 69.
Sears testified that after January 17, Complainant never said he
was ill or too medicated to drive. T. 223.
Complainant telephoned dispatcher Kathryn Millar on
January 18, reported that he was ready to drive, and did not
mention that he was feeling ill or on medication. T. 144-145.
Millar checked with workers' compensation manager Crawshaw to
verify that Complainant was able to drive, and Crawshaw reported
that Complainant was "fine." T. 146. Millar directed
Complainant to drive empty to Oklahoma City to pick up a load for
[PAGE 3]
delivery to Lubbock, Texas, and Complainant did so. T. 145-146.
After Complainant delivered the load in Lubbock on January 20, he
telephoned Millar and asked for another dispatch. T. 147, 153.
Again, according to Millar, Complainant did not say that he was
in pain or on medication. T. 152-153. Complainant testified
that he told Millar that he was not feeling well and was still on
medication. T. 46.
On January 21, Millar told Complainant to drive empty from
Lubbock to Ft. Worth, Texas, where there would be more available
freight. T. 147, 154. When Complainant telephoned PST on
January 22, Millar offered him a coveted long-haul of over 2,000
miles to Oregon. T. 156-157. Complainant testified that he
refused the load in part because he believed that chain laws were
in effect on the route to Oregon and he did not have chains in
the truck. T. 49. Complainant indicated that he referred to his
health when he told Millar, "[i]t's not bad enough I'm driving on
snow now you want me to drive in to the mountains 2,000 miles in
the condition I'm in." T. 49-50. Millar testified that
Complainant told her only that he would not drive where chain
laws were in effect. [5] T. 156-157. Millar made a computer
entry in Complainant's "driver incident history," indicating that
Complainant turned down the load because of the chain laws issue.
[6] RX 4. PST told Complainant to drive the tractor to its
Oklahoma City yard for repairs. T. 54.
Several PST employees testified that the company allows as
much time off as the employee needs when he is too ill to drive.
T. 193 (Millar); 225 (Sears); 318-319 (Donner). The witnesses
acknowledged that if the employee needed more than 48 hours off,
the company might assign a new driver to the ill driver's tractor
so as to keep its expensive equipment in use. T. 193-194, 225,
319. Witnesses indicated that such a loss of the tractor might
only be temporary until the ill driver returned to work. T. 194,
278. Another employee explained that PST, rather than the
driver, pays for renting chains when chain laws are in effect.
T. 391.
Millar reported Complainant's refusal of the Oregon load to
the terminal manager, Terry Minnis, T. 181, who decided to fire
Complainant because of his refusal to drive where chain laws were
in effect, and his poor attitude. T. 321. Minnis informed
Complainant that he was fired. T. 56. The next day, Complainant
twice telephoned a PST driver relations employee, Dan Donner, to
ask for rescission of his discharge. T. 324-325. During the
course of the second conversation, Complainant threatened harm to
Donner and two other PST employees. T. 326. The threat was
recorded in the driver incident history. RX 4.
PST reported to the Michigan Employment Security Commission
that Complainant was fired for refusing to drive where chain laws
[PAGE 4]
were in effect. CX 11.
2. Analysis
The STAA protects an employee from discharge 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 ["when clause"].
49 U.S.C. app. § 2305(b) (1988). In addition, an employer
may not discharge an employee 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 ["because clause"]. [7]
Under the burden of proof in proceedings under the employee
protection provision, in order to establish a prima facie case,
the complainant must show by a preponderance of the evidence 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. Auman v. Inter
Coastal Trucking, Case No. 91-STA-00032, Final Dec. and
Order, July 24, 1992, slip op at 2 (STAA case); Dartey v. Zack
Co. of Chicago, Case No. 82-ERA-2, Dec. and Final Ord., Apr.
25, 1983, slip op. at 7-9 (case under analogous provision of
Energy Reorganization Act of 1974), 42 U.S.C. § 5851
(1988)). Complainant also must present evidence sufficient to
raise the inference that the protected activity was the likely
reason for the adverse action.
Complainant established by a preponderance of the evidence
that he was still taking a narcotic, Talwin-NX, when he refused
to drive to Oregon. I agree with the ALJ's analysis that one
reason Complainant refused the Oregon trip was his pain and
drowsiness due to medication, and that he did not want to drive
in violation of the law. [8] Complainant's refusal to drive
based in part on avoiding a violation of Federal safety
regulations was protected activity under the "when clause."
SeeAss't Secretary and Killcrease v. S & S Sand &
Gravel, Case No. 92-STA-30, Final Dec. and Order, Feb. 5,
1993, slip op. at 14 (refusal to drive when too ill to operate
vehicle safely is protected activity under STAA).
The Assistant Secretary contends (Ass't Sec. Br. at 15 n.17)
that refusing to drive because there were no chains in the
vehicle also constituted protected activity. I disagree because
I have found no federal safety regulation that requires keeping
chains in a commercial motor vehicle. Moreover, a witness
testified without contradiction that PST assumed the cost of
renting chains and Complainant could have obtained them if
weather conditions so required.
There is no dispute that Complainant suffered adverse action
when he was discharged.
Concerning whether PST was aware of Complainant's protected
[PAGE 5]
activity, there is contradictory testimony about whether
Complainant told PST personnel on January 22 that his pain or
"condition" made it unsafe for him to operate a vehicle.
Complainant and his girlfriend testified that he did so. T. 50,
120. However, PST employees Sears and Millar said Complainant
did not mention pain or medication when he telephoned on
January 22.
Sears' and Millar's testimony is buttressed by that of
workers' compensation manager Crawshaw, who testified that
Complainant said on January 16 that he needed only "a couple" of
days off due to medication for an infection. T. 276. [9]
Crawshaw testified that Complainant was evasive about the name of
the medications prescribed for him and she assumed that he would
be taking a pain killer. T. 287. Complainant did not give
Crawshaw any indication that the pain and the resulting need to
take a narcotic medication might continue beyond "a couple" of
days.
Brent Martin, PST's Human Resources Director, stated that
drivers sometimes acted so as to preserve their right to drive a
newer, and thus more favored, tractor. T. 376-377. Complainant
admitted that he did not want to lose his new truck to a
different driver, T. 48, and his income varied with the number of
miles he drove. T. 200. It seems likely that Complainant did
not want PST to know that he was still in pain and taking a
narcotic medication after January 17 because he wanted to
continue to drive the favored tractor and he needed to drive to
earn sufficient income.
PST's witnesses gave ample testimony that PST would not
knowingly dispatch a driver who said he was too ill or in pain to
drive, or fire him for refusing to drive due to illness. T. 166,
192, 225, 318. Martin revealed that PST would not risk
the financial loss should one of its trucks be involved in an
accident because of driver illness or drowsiness.
T. 382-383. [10]
The evidence thus supports the ALJ's decision to credit the
testimony of PST's witnesses over that of Complainant and his
girlfriend, and find that Complainant did not inform PST that he
was too medicated and in pain to drive safely on January 22.
R.D. and O. at 13. Although I have considered the Assistant
Secretary's arguments that Complainant's testimony is reliable
and that logic supports an inference contrary to that drawn by
the ALJ, I find no compelling reason to overturn the ALJ's
credibility determinations.
After a thorough review of the entire record, I find that
Complainant did not establish by a preponderance of the evidence
that PST was aware on January 22 that he refused to drive in part
due to pain and medication. [11] Rather, the evidence
convincingly
[PAGE 6]
demonstrated that PST knew only that Complainant was refusing to
drive where chain laws were in effect, which is not protected
activity under the STAA. Complainant therefore has failed to
establish a prima facie case of a violation of the "when clause."
SeeWallace v. M & G Convoy, Inc., Case No.
90-STA-40, Final Dec. and Order, July 8, 1992, slip op. at 3-4
(no prima facie case where driver did not inform employer that he
was on medication and unable to drive safely and driver was
discharged for failing to report to work following recuperation
from injuries).
Concerning the "because clause" of STAA section 405(b),
49 U.S.C. app. § 2305(b), a complainant may establish a
violation when the unsafe condition at issue is caused by "[t]he
physical condition of a driver that could affect safe operation
of the equipment." Self v. Carolina Freight Carriers
Corp., Case No. 89-STA-9, Final Dec. and Order, Jan. 12,
1990, slip op. at 9. Complainant established that a reasonable
person under the same circumstances would conclude that there was
a bona fide danger of an accident or injury from driving a motor
vehicle while taking a narcotic medication for pain. However,
Complainant did not show by a preponderance of the evidence that
he sought a correction of the unsafe condition, which in this
case would entail informing PST that he was not able to drive the
truck safely due to pain and medication. Hence Complainant did
not state a prima facie case of a violation of the "because
clause."
Accordingly, the complaint is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The coordinator took the drivers' daily "check calls," took
care of any problems such as late deliveries, ensured that the
driver had an adequate number of loads, and that the driver got
time off at home. T. 216.
[2] The infection had spread from the bladder to the
epididymis, causing swelling and pain in the testicles. T. 27;
CX 2.
[3] Complainant stated, however, that he told both Sears and
Crawshaw that the doctor had prescribed a narcotic. T. 40, 89.
[4] PST "repowered" the Texas load, by sending a different
driver and tractor to haul the trailer to its Colorado
destination. Complainant's tractor remained with him in Texas
while he was ill.
[5] Witness Dan Donner, who worked in PST's driver relations
office, testified that Complainant told Donner that he refused
the load due to chain laws and did not state that he had been
ill. T. 329.
[6] The driver incident history consisted of computer entries
made by PST personnel of which Complainant was unaware. Prior to
Complainant's refusal of the Oregon load, the entries listed
three incidents in July 1991 in which Complainant exhibited a
poor attitude toward PST, his running our of hours without
advance notice and assignment to retraining on driver logs in
August 1991, and a minor accident in October 1991. RX 4.
[7] The "because clause" further requires, 49 U.S.C. app.
§ 2305(b):
The unsafe conditions causing the employee's
apprehension of injury must be of such nature that a
reasonable person, under the circumstances then
confronting 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 employee must have sought from his
employer, and have been unable to obtain, correction of
the unsafe condition.
[8] Federal motor carrier regulations provide in relevant part
that:
No driver shall operate a motor vehicle, and a motor
carrier shall not require or permit a driver to 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.
49 C.F.R. § 392.3 (1992). In addition, 49 C.F.R. §
392.4 provides:
(a) No driver shall be on duty and possess, be under
the influence of, or use, any of the following drugs or
other substances:
* * *
(3) A narcotic drug or any derivative thereof; or
(4) Any other substance, to a degree which renders the
driver incapable of safely operating a motor vehicle.
[9] Crawshaw stated that Complainant would not read her a
physician's note. T. 287. Complainant testified that the
original note the physician provided stated that Complainant
needed five to seven days off from driving, but that Complainant
lost the original note when he relinquished the truck. T. 35,
40. The doctor's note that is in evidence, written a month after
the treatment, states that Complainant needed "several days" off
due to pain, CX 2, and Complainant said the existing note
accurately reflected the doctor's advice. T. 35.
Both the existing doctor's note and the dispensing advice on
the bottle of Talwin tablets support Crawshaw's testimony that
Complainant requested only "a couple" of days off on January 16.
Complainant phoned Crawshaw immediately after visiting the
physician, and therefore prior to knowing what effect the Talwin
would have on him and how many tablets he would need to take
per day to diminish the pain caused by the infection. Had
Complainant taken the maximum dosage of six tablets per day,
see CX 1, he would have finished the 15 tablets in two and
a half days.
[10] Martin testified that the deductible on PST's
insurance policy could be as high as $750,000 per incident, and
that a $750,000 loss would eliminate any profit in the month in
which it occurred. T. 381-382.
[11] That Complainant admittedly told PST about the medical
basis for refusing the Oregon trip after he was discharged
does not alter my finding that at the time of discharge, PST was
not aware of the medical basis.
