DATE: June 5, 1995
CASE NO: 94-STA-37
IN THE MATTER
ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,
and
JOHN DEAN,
COMPLAINANT,
v.
TRIAD TRANSPORTATION AND CLIFFORD WILLEY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Complainant John Dean alleges that Respondents Triad
Transportation and Clifford Willey (Triad or Respondents)
violated the employee protection provision of the Surface
Transportation Assistance Act of 1982, 49 U.S.C.A. 31105 (West
1994) (STAA) by firing him for refusal to violate Department of
Transportation (DOT) regulations. Respondent denies that it
asked Dean to violate DOT regulations. The findings of fact in
the Administrative Law Judge's (ALJ) R. D. and O., at 2-5, 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
agree with the recommendation of the ALJ and find that Triad
violated the STAA when it discharged Dean.
BACKGROUND
Dean began working for Triad as a trainee in December, 1988.
After two months Dean was hired as a regular full time truck
driver and worked as such until he was discharged on December 17,
1993. R. D. and O. at 1. Under the STAA, it is unlawful to
discharge an employee who refuses to operate a vehicle because
"the operation violates a regulation, standard, or order of the
United States related to commercial motor vehicle safety or
health." 49 U.S.C.A. 31105(a)(1)(B)(i) (West 1994). The DOT
regulation which Dean claims he was asked to violate states that
drivers are prohibited from driving when they have "been on duty
70 hours in any period of 8 consecutive days if the employing
motor carrier operates motor vehicles every day of the week."
49 C.F.R. 395.3 (b)(2)(1992). Respondent is a motor carrier
which operates motor vehicles every day of the week.
DISCUSSION
Under the burdens of proof and production in "whistleblower"
proceedings, Complainant must first make a prima facie
showing that protected activity motivated Respondent's decision
to take an adverse employment action. Respondent may rebut this
showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason. Complainant
must then establish that the reason proffered by Respondent was
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); West v. Systems Applications
International, Case No. 94-CAA-15, Sec. Dec.,
April 19, 1995, slip op. at 5; Thomas v. Arizona Public
Service Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993,
slip op. at 20.
In order to establish a prima facie case, a
Complainant must show that: (1) he engaged in protected conduct;
(2) the employer was aware of that conduct; and (3) the employer
took some adverse action against him. Carroll v. Bechtel
Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 14, 1995,
slip op. at 9, citing Dartey v. Zack Co. of Chicago, Case
No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8 (both
under analogous provisions of the Energy Reorganization Act).
Additionally, the Complainant must present evidence sufficient to
raise the inference that the protected activity was the likely
reason for the adverse action. Id. See also Mackowiak v.
University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th
Cir. 1984); McCuistion v. TVA, Case No. 89-ERA-6, Sec.
Dec., Nov. 13, 1991, slip op. at 5-6.
The first issue is to determine whether or not Dean engaged
in protected activity. The relevant eight day period began in
North Rose, New York on December 9, 1993, and ended in
Fultonville, New York on December 16, 1993. T. 56. The parties
stipulated that Dean worked seventy hours during those eight
days, but Respondent denies that Dean was asked to exceed seventy
hours. T. 56-57, R. D. and O. at 3, CX 3. Dean would have
violated DOT regulations if he had driven any further than
Fultonville on December 16, 1993.
Dean was responsible for keeping his own logs, and regularly
(two times per day) informing the dispatcher of his location and
available hours. The dispatcher told the drivers when and where
to drive. T. 27, 66. In December, 1993 the dispatcher for Triad
was Michael Morrison.
On December 14, 1993, Dean called Morrison from Albany, New
York to receive his next assignment. Morrison told Dean to pick
up a load in Syracuse, New York at 7:30 a.m. the next day for
delivery in Portland, Maine by midnight. R. D. and O. at 2.
Dean told Morrison that he would exceed seventy hours if he were
to load and drive to Portland. Morrison responded by telling
Dean to "do the best you can." R. D. and O. at 2.
At 7:30 a.m. on December 15, Dean arrived in Syracuse and
began loading his truck with the goods for Portland. At
approximately 10:00 a.m. Dean telephoned Morrison to see if he
had found another driver to cover the load to Portland.
R. D. and O. at 2. Morrison reminded Dean the load was due at
midnight, and Dean reminded Morrison that he did not have enough
hours to drive to Portland after he was finished loading the
truck. Morrison told Dean to finish loading the truck and call
back. During the phone calls Morrison was belligerent and threated
to assign Dean less lucrative trips and fine him $200.00 per day
for each day that Dean was late with the truck. During Dean's
last call on December 15, he told Morrison that he could not
drive further than Fultonville, New York and would wait there (at
Exit 28 of the New York Throughway) for a relief driver.
Morrison confirmed that Dean told him he was out of hours
after the truck was loaded and that Morrison relayed this
information directly to Willey. T. 74. The afternoon of
December 16, Clifford Willey, the President of Triad, and another
driver, Francis Perrault, met Dean in Fultonville. R. D. and O.
at 3. Perrault thought he recalled Willey asking Dean if he
would drive the load and I credit his testimony. R. D. and O. at
5. Dean continued to refuse to drive because he was out of
hours. R. D. and O. at 5. Perrault then drove Dean's truck to
Portland and Willey drove Dean back to headquarters.
Dean engaged in protected activity when he refused to drive
in violation of the DOT regulations, when both Morrison and
Willey asked him to do so. Dean showed that Respondents were
aware of his protected activity when he credibly testified
regarding the number of times he told Morrison he was out of
hours and because Morrison admitted relaying such information to
Willey.
Willey discharged Dean on December 17, 1993, and
contemporaneously wrote a note which reads, "John [Dean] was let
go because of a refusal to deliver load - he did not tell Mike
[Morrison] that he was out of hours on his log." CX 1. Thus,
Willey admitted that the reason for Dean's discharge was his
refusal to drive.
At the hearing, Respondents proffered several additional
reasons for discharging Dean based upon his: appearance;
inability to do paperwork properly; hanging around the office and
offering unsolicited advice to other employees; and requesting
raises and vacation time. T. 48 et seq. In summary,
Willey testified that Dean's work had gone downhill to the point
that Dean was no longer an asset to the company. R. D. and O. at
5. Dean has proven that the reasons given by Willey at the
hearing for the discharge are pretextual because they conflict
with Willey's own note that Dean was "let go because he refused
to deliver load...." CX 1. Willey noted that the reason for
Dean's refusal to drive was not communicated to the dispatcher.
But, Morrison admitted that Dean informed him of the fact that he
was out of hours.
Further, on or about September 10, 1993, only about three
months before Dean's discharge, Willey wrote a letter to Dean
assessing his job performance. CX 2. In that letter Willey
complimented Dean's excellent record with regard to on-time pick
up and delivery, lack of unnecessary freight damage or claims,
greatly improved compliance with paperwork procedures, and
exhibited concern for the maintenance and care of his vehicle.
Willey stated that Dean still needed to work on his personal
appearance, unnecessary use of the company photocopier and giving
unsolicited advice to other drivers. However, in summary Willey
concluded that Dean had done a good job over the past years.
CX 2. Willey further admitted that Dean received no formal
performance complaints between September 10 and the time of his
discharge. Additionally, Morrison testified that Dean was his
best driver because he got the job done. T.78. It is not
credible that approximately three months before Dean's discharge,
Respondents were satisfied with Dean's job performance and then,
without any noted incidents, Dean was discharged for
unsatisfactory job performance.
Based upon all of the evidence I find that Respondents were
"motivated to discharge Complainant by his refusal to violate the
seventy hour limit to deliver the load," R. D. and O. at 6-7,
which is a violation of the STAA.
CONCLUSION
Therefore, I find that Triad Transportation and Clifford
Willey violated the STAA by discharging Dean on December 17,
1993.
It is hereby ORDERED that Repondent shall:
1. Pay back wages to John Dean at the rate of $541.38 per
week, up to and including the time that he is reinstated or is
made a bona fide offer of reinstatement. Such back pay
shall be reduced by any earnings that Dean may have received in
the interim;
2. Pay John Dean pre-judgment interest on all of his back
wages, which shall be computed in accordance with 26 U.S.C.
§ 6621 (1988).
3. Pay to Complainant the cost and expenses involved in
bringing this complaint, including a reasonable attorney's fee.
The costs involved in submitting pleadings or documents that have
not been accepted as part of the record should not be included.
49 U.S.C.A. § 31105 (West 1994).
Counsel for Complainant is given 20 days from the date of
this order to submit to the Secretary any petition for costs,
expenses and fees incurred in bringing this complaint.
Respondent thereafter may respond to any petition within 40 days
of the date of the order. Thomas v. Arizona Public Service
Co., Case No. 89-ERA-19, Sec. Dec. September 17, 1993, slip
op. at 29. All petitions shall be submitted to: Office of
Administrative Appeals, United States Department of Labor, Room
S-4309, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
