DATE: April 10, 1995
CASE NO: 94-STA-24
IN THE MATTER OF
MICHAEL BRYANT,
COMPLAINANT,
v.
BOB EVANS TRANSPORTATION, [1]
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant Michael Bryant alleges that Respondent Bob Evans
Transportation (Bob Evans) violated the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C.A. § 31105 (West 1994). Complainant
alleges that Respondent fired him for refusing to drive with
another driver whom he felt was unsafe. Respondent claims the
driver was safe and that Complainant was fired for "refusing
available work." The findings of fact in the Administrative Law
Judge's (ALJ's) Recommended Decision and Order (R.D. and O.), at
3-15, are supported by substantial evidence on the record as a
whole and therefore are conclusive. 29 C.F.R. §
1978.109(c)(3) (1993). I find that the ALJ erred in finding that
Complainant did not make a prima facie case, but agree
with his ultimate conclusion that the complaint should be
dismissed.
BACKGROUND
Bob Evans engages in interstate trucking operations on a
commercial basis. Respondent's transportation manager is
James Denney. The transportation manager's responsibilities
include scheduling, as well as completing the personnel records
[PAGE 2]
of each new truck driver. [2]
Complainant worked as a full time truck driver for Bob Evans
from August, 1988, until April, 1993. Bryant's regular route was
called the "east coast run," which consisted of a two day round
trip from Bidwell, Ohio, to Laurel, Maryland. There were three
runs scheduled the first week in April, leaving Monday, Wednesday
and Friday. Bryant's regular driving partner, Charles Camden,
was on vacation the week of April 5, 1993. R.D. and O. at 3.
On Monday morning, April 5, 1993, Bryant called Denney to
ask which driver would be working the east coast run with him
later that day. Denney informed Bryant that he had assigned
Sherman "Mike" Kirby to work with Bryant for each of the
scheduled runs that week. At that time Bryant told Denney that
he refused to work with Kirby because Kirby was an unsafe driver.
T. 45-46, 106. R.D. and O. at 3.
The only other time Bryant had driven with Kirby was in
May of 1992. After Bryant drove with Kirby the first time,
Bryant complained to Denney about Kirby's driving abilities.
T. 102-3. R.D. and O. at 3. Bryant told Denney that Kirby was
inexperienced, had trouble judging distances, and had problems
shifting gears while driving through the mountains. T. 30-31.
However, Kirby was not involved in an accident, nor was any
traffic citation issued to him during the time that he was
driving with Bryant. After Bryant made this complaint to Denney,
in May, 1992, Bryant drove with Kirby six additional times for a
total of 3,300 miles. T. 44.
Kirby was hired by Bob Evans in March, 1992, having driven a
truck for another company for approximately six months. At the
time Kirby was hired, he had never been involved in a motor
vehicle accident. Kirby had one traffic citation in March, 1992,
for speeding 66 m.p.h. in a 55 m.p.h. zone. RX 3. [3]
Bryant was the only driver who had ever refused to drive
with Kirby. Although, Ron Burnett, another experienced driver,
testified that he had worked with Kirby and believed Kirby to be
an unsafe driver in icy conditions. Burnett also testified that
once when he was driving with Kirby, he felt Kirby approached an
accident scene at an excessive speed. T. 18-28.
When Denney would not assign a driver other than Kirby to
work the east coast run with him, Bryant requested the week off.
Denney refused to give Bryant the week off on such short notice.
Denney also refused to rearrange the schedule just to accommodate
Bryant's refusal to drive with Kirby. R.D. and O. at 3.
Since Bryant refused to drive with Kirby on April 5, 1993,
Denney assigned Michael Saxon to work the east coast run with
Kirby. Saxon had experience driving a truck for 22 years, but
had been assigned to work in maintenance that day. Saxon drove
the east coast run with Kirby all three times that week and
[PAGE 3]
experienced no difficulties. T. 91.
Bryant went into Denney's office, after Saxon and Kirby had
left for the first east coast run, insisting that he had been
fired. Denney told Bryant he could still have his job with
Bob Evans if he would work with Kirby on Wednesday. Denney even
suggested that Bryant change the normal driving rotation so that
Bryant could drive through all of the mountainous portions of the
route. Denney thought this suggestion would make Bryant feel
safer driving with Kirby. Bryant claimed that such a rotation
would "break up" his Department of Transportation ("DOT") driving
logs. R.D. and O. at 3. Denney did not understand this concern
since neither driver would exceed the ten hour driving limit
imposed by the DOT. R.D. and O. at 3.
On Wednesday, while Kirby and Saxon were on the east coast
run, Bryant went to the office in the afternoon to pick up his
personal belongings. Bryant asked Denney for his paycheck,
profit sharing, and anything else he was entitled to as a result
of his termination. R.D. and O. at 3. Denney told Bryant he
could have his job back if he took the east coast run on
Friday with either Kirby or another part-time driver named
Jenkins. Bryant stated that he would not work with Kirby or
Jenkins. T. 110-12. R.D. and O. at 3. On Friday, April 9,
1993, Bryant did not call or report to work. Bryant was
terminated by Respondent that same day for "refusing available
work." CX 2. T. 111. R.D. and O. at 4.
On or about April 5, 1993, Bryant filed this complaint with
the U.S. Department of Labor ("Department"). The complaint was
investigated and on December 13, 1993, the Department found there
was no violation of the Act. When Complainant's wife,
Carla Bryant, telephoned the Department to inquire about the
results of the investigation, she was told that the findings were
sent by certified mail in December. Mrs. Bryant was also
informed that the findings were never "picked up" at the post
office.
Mrs. Bryant requested another copy of the findings which she
promptly picked up on February 5, 1994. T. 55-56. After
receiving the findings, Mrs. Bryant contacted the Department
regarding the appeal period. Mrs. Bryant was told that the
30-day time limit began to run when the findings were received.
T. 56; ALJX 7; R.D. and O. at 5. Bryant filed his appeal of
those findings on March 4, 1994. R.D. and O. at 5; T. 55, 56;
ALJX 1,7.
DISCUSSIONTimeliness of the Appeal
The regulations pertaining to the filing of an appeal of the
Secretary's findings under the STAA provide that such an appeal
is to be filed "[w]ithin thirty days of the receipt of the
[PAGE 4]
findings." 49 U.S.C.A. § 31105 (b)(2)(B). Bryant produced
credible evidence that he did not receive the findings of the
Secretary until February 5, 1994. Therefore, Complainant's
appeal was timely filed on March 4, 1994, as found by the ALJ.
R.D. and O. at 5.
The Establishment of a Prima Facie Case
STAA cases require Complainant to first present a prima
facie case. In order to establish a prima facie case
the Complainant must show: (1) that he engaged in protected
activity; (2) that his employer took adverse employment action
against him; and (3) that a `causal link' exists between his
protected activity and the employer's adverse action. Yellow
Freight Systems, Inc. v. Reich, 27 F.2d 1133 (6th Cir.
1994); Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th
Cir. 1987).
The first element of a prima facie case is to
determine whether or not Bryant engaged in protected activity.
Bryant claims that refusing to drive with an unsafe driver
qualifies as protected activity under section 405(b) of the STAA.
49 U.S.C.A. § 31105(a)(1)(B)(ii) (West 1994) ("reasonable
apprehension clause"). The ALJ found that refusing to drive with
an unsafe driver was not protected activity under the STAA. R.D.
and O. at 7. I disagree with that finding of the ALJ for the
following reasons.
Under the relevant portions of the STAA, "[a] person may not
discharge an employee or discipline or discriminate against an
employee regarding pay, terms, or privileges of employment
because-
(B) the employee refuses to operate a vehicle because-
(ii) the employee has a reasonable apprehension of
serious injury to the employee or the public because of
the vehicle's unsafe condition."
49 U.S.C.A. § 31105(a)(1)(B)(ii) (West 1994)("reasonable
apprehension clause").
Violations of the reasonable apprehension clause of section
405(b) 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, Sec. Dec., Apr. 30, 1992,
slip op. at 3, and cases cited therein. Therefore, refusing to
drive with a dangerous driver would be protected activity under
the reasonable apprehension clause of section 405(b), if the
refusing driver has a reasonable apprehension of serious injury.
In Bryant's case in chief, two witnesses with considerable
trucking experience, Bryant and Burnett, testified that Kirby was
an unsafe driver under certain conditions. Furthermore, Bryant
[PAGE 5]
had previously complained to Respondent that Kirby was an unsafe
driver. This evidence is sufficient to satisfy the protected
activity element of a STAA claim, if not contradicted and
overcome by other evidence. Assistant Sec'y and Brown v.
Besco Steel Supply, 93-STA-00030, Sec. Dec., Jan. 24, 1995,
slip op. at 5. Therefore, Bryant's allegation that he was in
apprehension of serious injury because Kirby was an unsafe driver
was sufficient to establish a prima facie case that Bryant
engaged in protected activity. Thus, the ALJ erred
in finding that Bryant did not establish a prima facie
case. R.D. and O. at 8.
The other elements of a prima facie case were
satisfied by Bryant. He was fired for refusing to drive with
Kirby (see the discussion below under "The Ultimate Burden of
Persuasion" heading). Since Bryant was fired within days of his
first refusal to drive with Kirby, the causal element of a
prima facie case is established by virtue of the temporal
proximity between the protected activity and the adverse action.
Zessin v. ASAP Express, Inc., Case No. 92-STA-33, Sec.
Dec., January 19, 1993, slip op. at 13; Bergeron v.
Aulenback Transp., Inc., 91-STA-38, Sec. Dec., June 4, 1992,
slip op. at 3.
The Ultimate Burden of Persuasion
Since Bryant established a prima facie case, the
burden of production shifts to Respondent to articulate
legitimate, non-discriminatory reasons for discharging Bryant.
If Respondent produces such evidence, the Complainant must prove
by a preponderance of the evidence that the stated grounds for
discharge were pretextual. At all times, Complainant has the
burden of establishing that the real reason for his discharge was
discriminatory. St. Mary's Honor Center v. Hicks,
113 S.Ct. 2742 (1993).
Respondent makes two arguments. First, Respondent claims
that Bryant was not discharged for refusing to drive with Kirby,
but rather that he was discharged for "refusing available work."
Secondly, Respondent argues that Bryant was not engaged in
protected activity because Kirby was a safe driver and that
Bryant's claim to the contrary was not reasonable.
First, I will address the issue of Bryant's discharge.
Respondent claims that Bryant was discharged for "refusing
available work." It was only when Bryant did not call or come to
work on Friday, April 9, 1993, that Bob Evans filled out Bryant's
termination papers. However, Bryant had made it clear to
Respondent on Monday that he would not drive with Kirby at
anytime that week. Further, Denney testified that Bryant was
offered his jobback if he would change his mind
and drive with Kirby. If Bryant had not been discharged, he
would not need Respondent to give him his job back. It is
not credible that Bob Evans only discharged Bryant because he did
not come to work or
[PAGE 6]
call in on Friday, April 9. Therefore, I find that Bob Evans
discharged Bryant for refusing to drive with Kirby. [4]
As previously discussed, refusing to drive with an unsafe
driver is protected activity under the reasonable apprehension
clause of section 405(b), if Bryant's belief was reasonable.
Bryant presented evidence that Kirby was an unsafe driver.
Respondent then presented the testimony of other drivers who
found Kirby's driving satisfactory. One of these drivers was
Saxon, who testified that Kirby was a safe driver throughout all
three east coast runs in April, 1993. Bryant himself drove with
Kirby six times after making his initial complaint to Respondent
in May, 1992. There were no additional complaints by Bryant
about Kirby's driving at that time.
Bryant may have had a good faith belief that Kirby was an
unsafe driver. But, Bryant's good faith belief alone is not
sufficient to prove a violation under the reasonable apprehension
clause of section 405(b). Brame v. Consolidated
Freightways, Case No. 90-STA-20, Sec. Dec., June 17, 1992,
slip op. at 3. A section 405(b) violation must be based upon
more than a subjective good faith belief. 49 U.S.C.A. §
31105(a)(1)(B)(ii) (West 1994). It must be objectively
reasonable. Further, Bryant introduced no evidence to show that
Jenkins, the other driver he refused to work with, was an unsafe
driver.
After considering all of the evidence, I find that Bryant's
refusal to drive with Kirby was not based upon "a reasonable
apprehension of serious injury. . ."
Accordingly, the decision of the ALJ is accepted and it is
hereby ORDERED that the complaint be DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The caption in the Recommended Decision and Order issued by
the Administrative Law Judge identified Respondent as "Helena
Truck Lines, Inc." This was an inadvertent error for which the
ALJ filed an Order Recommending Correction to Caption on or about
March 27, 1995. The Respondent in this case is and always has
been Bob Evans Transportation, therefore the caption shall be
corrected forthwith.
[2] Completing the personnel records involves such matters as
taxes, drug testing, previous experience, verifying commercial
licenses and previous traffic violations, and conducting the
necessary examinations such as a physical exam, road test and
written driver's test. T. 99-101. R.D. and O. at 2-3.
[3] References in this decision to ALJX, CX and RX pertain to
the exhibits of the ALJ, Complainant, and Respondent,
respectively.
[4] Even if I were to find otherwise, the reasonableness of
Bryant's actions would still be the key issue to be resolved.
The clear reason for Bryant's refusing available work was his
belief that Kirby was an unsafe driver.
