DATE: August 5, 1994
CASE NO. 94-STA-20
IN THE MATTER OF
VINCE WEBB,
COMPLAINANT,
v.
HICKORY SPRINGS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
This case arises under Section 405 of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.
§ 2305 (1988). Before me for review is the [Recommended]
Decision and Order (R.D. and O.) issued on April 22, 1994, by the
Administrative Law Judge (ALJ). For the reasons set forth below,
I agree with the ALJ's recommendation that Complainant's
complaint should be dismissed. [1]
Facts
The facts are largely uncontroverted. For a period of about
six months prior to his December 8, 1993, discharge, Complainant
Vince Webb was employed by Respondent Hickory Springs, Inc., as
an operator of commercial motor vehicles. Webb was assigned to
Respondent's Sacramento, California, facility where Respondent
maintains a warehouse and distribution dock. [2]
On November 30, 1993, Webb departed Sacramento at 5:00 a.m.
destined ultimately for Sparks, Nevada. Upon arriving in Sparks
at about 6:00 p.m., Webb proceeded to a repair facility where his
entry required making a wide right turn using a portion of the
left (inside) lane. As Webb executed the turn, a passenger
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vehicle, proceeding in the right (outside) lane, hit the right
side of his truck. Although the damage to the truck was slight,
the passenger vehicle sustained serious damage, and the occupants
were transported to a hospital for examination. After the
accident was cleared, Webb arranged for the truck to be repaired
and logged off duty from between 7:00 p.m. on November 30 and
3:30 a.m. on December 1. Although the repairs to the truck were
completed by 11:30 p.m. on November 30, Webb remained off duty
for a full eight hours in order to comply with Department of
Transportation (DOT) regulations implemented to prevent operator
fatigue. Because he was upset about the accident, Webb was
unable to sleep during this period.
Webb thereafter departed Sparks for Respondent's facility in
Sacramento, arriving at 6:45 a.m. on December 1. Further repairs
to the truck occupied Webb until 8:30 a.m. at which time Vic
Almaraz, Respondent's plant supervisor, directed him to report to
a contractor clinic for drug screening required by DOT regulation
to be performed within 24 hours of the accident. Almaraz also
directed Webb to return after the screening so that he could
complete several local deliveries. Although denying Webb's
request that he be permitted "to get a couple hours sleep,"
Hearing Transcript (T.) 67, before continuing, Almaraz agreed
that Webb could return home to shower before reporting to the
clinic. Webb returned home, showered, and inadvertently fell
asleep. Between 1:30 p.m. and 2:00 p.m., nearly five and one
half hours after departing, Webb telephoned Respondent's facility
and spoke to Service Center Manager Heinz "Hap" Patterson.
Already irritated because of Webb's lengthy absence, Patterson
became irate when he learned that Webb had not yet reported for
the drug screening. Webb then concluded the conversation by
hanging up on Patterson.
After reporting to the clinic for a 3:15 p.m. screening,
Webb finally returned to Respondent's facility where he was
issued a three-day suspension for insubordination. [3] On
December 7, the clinic's medical review officer determined Webb's
drug screening sample to be positive for amphetamines and
methamphetamines. Webb attributes the positive result to his
having ingested over-the-counter cold medication containing
ephedrine. Webb was discharged on December 8.
Analysis
To prevail on a STAA complaint, a complainant must establish
that the respondent took adverse employment action against him
because he engaged in an activity protected under Section 405. A
complainant initially must show that it was likely that the
adverse action was motivated by a protected complaint or work
refusal. [4] The respondent may rebut such a showing by
producing
[PAGE 3]
evidence that the adverse action was motivated by a legitimate,
nondiscriminatory reason. The complainant then must prove that
the proffered reason was not the true reason for the adverse
action and that the complainant's protected activity was the
reason for the action. St. Mary's Honor Center v. Hicks,
125 L. Ed. 2d 407, 416 (1993); Roadway Exp., Inc. v.
Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987).
STAA Section 405(a) prohibits discrimination because an
employee has filed a complaint "relating to a violation of a
commercial motor vehicle safety rule, regulation, standard, or
order . . . ." 49 U.S.C. app § 2305(a). Internal
complaints, e.g., to an employer, are protected.
Protection is not dependent on actually proving a violation.
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-
357 (6th Cir. 1992). STAA Section 405(b) provides that "[n]o
person shall discharge . . . an employee . . . 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, or because of the
employee's reasonable apprehension of serious injury to himself
or the public due to the unsafe condition of such equipment." [5]
49 U.S.C app. § 2305(b).
DOT regulation 392.3 provides:
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.
Here, Webb alleges that Respondent unlawfully suspended him
because (1) he complained about being assigned to complete local
deliveries on December 1 when too fatigued to operate his vehicle
safely and (2) he effectively refused this assignment by
inadvertently falling asleep. It is uncontroverted that Webb had
remained awake for an extended period, which reasonably would
have caused extreme fatigue. The facts that Webb proved unable
to avoid falling asleep and that Respondent's telephone calls to
his home failed to awaken him also support Webb's contention that
he was fatigued. I find that Webb's complaint about his fatigue
and his refusal to operate a commercial motor vehicle while
fatigued constitute activities which are protected under STAA
Section 405. Examination of the record, however, reveals that
these activities did not motivate Respondent to suspend Webb.
Sacramento Services Center Manager Patterson made the
[PAGE 4]
disciplinary decision after consulting with Respondent's West
Coast Human Resources Manager Jim Packer. Packer was located in
Los Angeles, California, and was involved only by telephone. On
the morning of December 1, Patterson arrived at Respondent's
Sacramento facility at 6:40 a.m. -- about five minutes before
Webb returned from Sparks, Nevada. Their conversation was brief,
pertained mostly to Webb's November 30 accident and the necessity
for additional truck repairs, and concluded by 7:00 a.m. when
Webb departed to arrange for the repairs. Webb did not complain
to Patterson about fatigue at that time. T. 62-63 (Webb), T. 94
(Patterson). By the time Webb returned at 8:30 a.m., Patterson
had departed to meet a vendor, and Webb spoke only to Supervisor
Almaraz, mentioning his fatigue when Almaraz directed him to
report to the clinic for the drug screening. T. 128-129
(Almaraz). Patterson returned between 9:30 a.m. and 10:00 a.m.
and did not speak to Webb until the heated 2:00 p.m. telephone
conversation after which Patterson decided to issue the
suspension. In fact, Patterson first heard about Webb's fatigue
when Webb returned from the clinic at 4:00 p.m., well after he
had made his decision. Accordingly, because Patterson was
unaware of Webb's "complaint" to Almaraz about being fatigued, it
could not have motivated him to issue the suspension. Webb thus
failed to make a prima facie showing of unlawful discrimination
under STAA Section 405(a). See n.4, supra.
Webb's work refusal presents a closer question. Patterson
testified that Webb's act of "hanging up on [him]" was central to
his decision "to write [Webb] up for insubordination," T. 101,
and Webb conceded that he "did hang up on [Patterson] that day"
and that Patterson "was very mad about that." T. 41. Patterson
also was motivated by Webb's "failure to follow a direct order,"
T. 101, which presumably included his failure to report to the
clinic for drug screening (unprotected activity) and his failure
to return so that he could complete local deliveries which would
have required him to operate a vehicle when fatigued (protected
activity). Thus, the evidence suggests a causal nexus between
Webb's protected activity and his suspension.
My review of the record persuades me, however, that with
regard to the work order, Patterson was concerned exclusively
with Webb's failure to report to the clinic. The suspension
itself reads:
You are hereby notified in writing that your conduct is
not in keeping with the established work rules of this
company. REASONS: INSUBORDINATION, sent for post
accident drug screen at 8:30 a.m. Still hasn't showed
at 1:30. Called in at that time. Hung up on Plant
Manager thereby jeopardizing his job. 3 day
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suspension.
Exh. I. Accordingly, Patterson's documented reasons are limited
to Webb's failure to report to the clinic and the manner in which
Webb curtailed their telephone conversation. This documentation
comports with Patterson's and Manager Packer's testimony that
they suspended Webb for these reasons. Patterson legitimately
focused on Webb's failure to report to the clinic. At the time
that Webb telephoned, nearly twenty hours had elapsed since the
accident, and little time remained for Webb (and Respondent) to
comply with DOT regulations. Finally, Webb's failure to make the
local deliveries had ceased to cause concern at the time that
Patterson issued the suspension. Patterson testified: "The
local runs by that time actually had been taken care of. Other
arrangements had been made by then." T. 102. These
considerations bolster the ALJ's credibility finding that
Patterson testified truthfully when he denied retaliating because
Webb had refused to complete the deliveries. While Webb made a
prima facie showing of unlawful discrimination under STAA Section
405(b), Respondent rebutted that showing by producing evidence of
legitimate, nondiscriminatory reasons for the suspension, and
Webb then failed to prove that these reasons were pretextual and
that his protected activity was, instead, the reason for his
suspension.
Accordingly, Complainant's complaint IS DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] I do not agree with the ALJ's findings regarding
Complainant's protected activity, and I do not agree completely
with his findings regarding Complainant's prima facie case. R.D.
and O. at 5-6. I do agree, however, that Complainant should not
prevail.
[2] Respondent fabricates polyurethene foam and distributes
rebound carpet pad.
[3] Upon his return from Sparks, Nevada, Webb had been issued a
warning for the November 30 accident -- his fifth accident in six
weeks.
[4] In order to make this "prima facie" showing, a complainant
must show that he engaged in protected activity, that he was
subjected to adverse action, and that the respondent knew about
the protected activity when it took the adverse action. A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action. Causation may be established by showing that
the respondent was aware of the protected activity and that
adverse action followed closely thereafter. Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).
[5] Protection under the second criterion also requires that
"[t]he 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" and
that "the employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe condition."
