DATE: November 29, 1993
CASE NO. 93-STA-31
IN THE MATTER OF
GREGORY A. DUTILE,
COMPLAINANT,
v.
TIGHE TRUCKING, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER
Before me for review is the August 12, 1993, [Recommended]
Decision and Order (R.D. and O.) [1] 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 ALJ
found that Respondent Tighe Trucking, Inc. (Tighe) violated the
STAA when it discharged Complainant Gregory Dutile for refusing
to drive an unsafe vehicle. Although permitted by 29 C.F.R.
§ 1978.109(c)(2) (1992), the parties did not file briefs
before me.
The ALJ did not separately state findings of facts. His
credibility findings, R.D. and O. at 13, are supported by the
record evidence and I adopt them. Although I agree with the
ALJ's ultimate conclusion, I write to clarify the application of
the law to the facts.
I. Facts
Complainant Gregory Dutile began working as a truck driver
for Respondent Tighe Trucking, Inc. (Tighe) on August 7, 1989.
R.D. and O. at 3. On December 11, 1992, Dutile observed that the
roof of the cab he was driving, unit 36, had rusted through and
[PAGE 2]
become loose. R.D. and O. at 3; T. 19, 31. Dutile was able to
lift up the roof of the cab with his hand. T. 31. Dutile
reported the damage and for two weeks the cab remained at Tighe's
Winchester, Massachusetts terminal awaiting repair. T. 19-20,
32. Two Tighe employees spent one hour making an initial repair
so that the cab could be used to make two short deliveries.
T. 89.
Other Tighe employees who drove unit 36 after the initial
repair did not report any safety defects. T. 34. When assigned
to drive unit 36 on December 24, 1992, Dutile did not find any
vehicle inspection reports indicating the condition of the cab
when it was driven the day before. Id. Dutile found that
the roof had been repaired with a small patch at one corner. T.
16. Considering the repair inadequate, Dutile feared that the
roof could detach and the windshield could fall in on him and
consequently he believed that the cab was unsafe to drive.
T. 17.
When Dutile informed Tighe Vice President Paul O'Shea that
he refused to drive the cab because it was unsafe, O'Shea spoke
with the shop foreman, who said that it was safe to drive.
T. 54. Dutile persisted in refusing to drive unit 36 and O'Shea
told Dutile that he had no other work for him and therefore
Dutile was voluntarily quitting his job. T. 21, 56.
At the request of Tighe managers, maintenance mechanic Paul
Lipsett, who occasionally made non-engine repairs to cabs, gave a
written statement about the condition of unit 36 on December 24.
T. 48; CX 3. Lipsett stated that unit 36's roof was rotted, that
more work could have been done to repair the roof (other than the
small patch at one corner), that the rotted roof would crush
easily in an accident, and that he would not drive the truck in
its condition after the initial repair. Id. See also T.
45-46, 49. At the hearing, Lipsett reiterated that he considered
the vehicle unsafe to drive. T. 50.
Tighe's lead mechanic, Albert Boutwell, testified that after
the initial repair, two additional repairs were done on unit 36.
Two months after Dutile's refusal to drive, unit 36 received 15
hours of body work, CX 4, resulting in a large patch at the roof
line across the entire back of the cab. See CX 1 and 2
(photographs). Lipsett testified that an inked-in outline on one
of the photographs showed the approximate location of the much
smaller patch that was present on unit 36 on December 24.
T. 46-47; CX 1.
Dutile telephoned O'Shea to try to resolve the issue and
return to work, but was unsuccessful. T. 35. O'Shea told him
that he had voluntarily quit when he refused to drive on
December 24. Id. Dutile filed this complaint alleging
that he was fired for refusing to drive an unsafe vehicle.
[PAGE 3]
II. Analysis
Under the STAA, it is unlawful to discriminate against 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 [the] equipment"
("because clause"). 49 U.S.C. § 2305(b). The test for such
protection is stated in the statutory language:
The unsafe conditions causing the employee's
apprehension of injury must be of such nature
that a reasonable person, under the same
circumstances then confronting the employee,
would conclude that there is a bona fide
danger of accident, injury, or serious
impairment of health, resulting from the
unsafe condition.
Id. The provision further requires that the employee must
have sought from his employer, and have been unable to obtain,
correction of the unsafe condition. Id.
In order to establish a prima facie case of a STAA
violation, 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 the respondent was aware of
the protected activity when it took the adverse action. Asst.
Sec. and Zessin v. ASAP Express, Inc., Case No. 92-
STA-0033, Dec. and Order, Jan. 19, 1993, slip op. at 6.
Complainant must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Id.
To determine whether Dutile engaged in an activity protected
under the "because clause," the first issue is to ascertain
whether Dutile's refusal to drive was reasonable under the
circumstances. On December 11, the roof of the cab was rusted
through, or "rotted," on three sides, and Dutile could push the
roof up off the rest of the cab. Consequently, he refused to
drive it and Tighe took the cab out of service. Dutile next was
asked to drive unit 36 after a small patch had been added at the
rear left roof line of the cab. Dutile believed that the patch
was not an adequate repair and he feared that the roof could have
detached and allowed the windshield to crash in on him while he
drove.
Maintenance repairman Lipsett corroborated Dutile's view of
the safety of the cab after the minor patch had been added.
Lipsett stated that the repair could have been done better, the
roof could have crushed easily in a crash, and consequently he
did not consider the truck safe to drive. A repair ticket dated
two months after the initial repair indicates that additional
[PAGE 4]
body work comprising 15 hours of labor occurred about two months
after the initial repair. CX 4. The later and much more
extensive repair at the roof line likely demonstrates that the
initial repair was not adequate. [2] SeeZessin,
slip op. at 12 (amount of effort it took to clean the windshield
and repair the mirrors of a cab undermines employer's contention that driver
could have corrected the problems himself).
Violations of the "because clause" involve more than engine
defects, failed brakes, and other problems with the mechanical
parts of a motor vehicle. For example, forcing an ill or
fatigued driver to drive may constitute a violation. Smith v.
Specialized Transportation Services, Case No. 91-STA-0022,
Final Dec. and Order, Apr. 30, 1992, slip op. at 3 and cases
there cited. In Asst. Sec. and Lajoie v. Environmental
Management Systems, Inc., Case No. 90-STA-31, Final Dec. and
Order, Oct. 17, 1992, slip op. at 3, 9, the Secretary found that
an inoperative "hook-up light" at the rear of a cab was an unsafe
condition because of the potential for serious injury when the
driver reasonably could expect to work in darkness. A greasy
coating on a cab's windshield and mirrors was found to be an
unsafe condition in Zessin.
I find that a significant deterioration of the integrity of
the body of a truck's cab likewise may constitute an unsafe
condition, since in a crash the body likely would offer less
protection to the driver. See CX 4 (Lipsett statement).
In addition, a portion of the cab's body that has rusted through
could possibly become detached from the rest of the cab while in
operation, thereby posing a danger to the driver or to others who
might be struck by portions of the cab.
On the basis of the record evidence, I agree with the ALJ
that Dutile acted reasonably in refusing to drive the cab on
December 24 because of its unsafe condition. R.D. and O. at 3.
I find that Dutile had a reasonable apprehension of injury to
himself and to others because of the condition of the cab.
Another requirement for a prima facie case under the
"because clause" is that the employee seek correction of the
unsafe condition from his employer before refusing work. 49
U.S.C. app. § 2305(b); Zessin, slip op. at 11.
Dutile's refusal to drive unit 36 on December 24 because its
condition was unsafe constituted an attempt to get Tighe to do
more substantial repairs. Although Tighe eventually performed
the more extensive repairs, it did so after it fired Dutile for
refusing to drive. Thus, I find that Dutile attempted, and
during his employment was unable, to obtain an adequate repair
that made unit 36 safe to drive. SeeZessin, slip op. at 11, 14 (violation of "because
clause" found where manager walked away when employee raised
issue of safety defects, thereby effectively preventing the
[PAGE 5]
employee from seeking correction of unsafe condition).
It is undisputed that Dutile lost his job because he refused
to drive unit 36 on December 24, 1992. Tighe Vice President
O'Shea testified that when Dutile stated he would not drive the
assigned cab that day because he considered it unsafe, T. 54,
O'Shea informed Dutile that he was "voluntarily quitting [his]
job." T. 56. Dutile thereafter tried to resolve the issue with
O'Shea, who said that Dutile had voluntarily quit when he refused
to drive. The record shows that Dutile did not quit, but rather
that Tighe discharged him. Thus, I find that Tighe took adverse
action against Dutile.
The record clearly shows that Tighe was aware of Dutile's
safety based refusal to drive when it discharged him. Since
Dutile's refusal was the stated reason for his termination,
Dutile has established causation. I therefore find that Dutile
established a prima facie case of a violation of the "because
clause."
Once a complainant establishes a prima facie case, the
respondent has the burden of offering a legitimate reason for
taking the adverse action. Asst. Sec. and Killcrease v. S & S
Sand and Gravel, Inc., Case No. 92-STA-30, Final Dec. and
Order, Feb. 5, 1993, slip op. at 7. Tighe did not offer any
legitimate reason for the discharge and thus has failed to
defend. Accordingly, I find that Tighe violated the STAA when it
discharged Dutile for refusing to drive unit 36 on December 24.
Dutile has waived reinstatement. T. 29. Under the statute,
he is entitled to an award of back pay with interest. 49 U.S.C.
app. § 2305(c)(2)(B). I agree with and adopt the ALJ's
calculation of back pay and the requirement that Tighe expunge
Dutile's employment record. R.D. and O. at 15-16.
ORDER
1. Respondent shall pay Complainant back pay at the rate of
$634.90 per week, beginning on December 24, 1992, and continuing
until payment of the award, with interest thereon calculated
pursuant to 26 U.S.C. § 6621 (1988). [3]
2. Respondent shall immediately expunge from Complainant's
personnel records all derogatory or negative information relating
to Complainant's employment with Respondent and his termination
on December 24, 1992. Respondent also shall refrain from
reference to this incident when providing employment references
concerning Complainant.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
[PAGE 6]
Washington, D.C.
[ENDNOTES]
[1] As corrected on August 18, 1993.
[2] Photographs taken after the second repair show a
rectangular metal patch connected by numerous rivets along the
entire rear roof line of the cab. CX 1 and 2.
[3] The ALJ's order provided that "[t]he entire amount of the
back pay award and the appropriate interest, shall be issued
by the Secretary of Labor as part of the final order herein."
However, since back pay continues to accrue until the date of
payment, I have not calculated the exact amount.
