This case arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982), which
prohibits covered employers from discriminating against employees who have engaged in certain
protected activities.
On January 16, 1986, the Complainant, Walter C. Stack, filed a Section
405 complaint with the Secretary of Labor alleging that his employer, the Preston Trucking
Company, Respondent in this matter, had given him a three-day disciplinary suspension from
work on January 6, 1986 for "unneccessarily delaying a load and equipment" on
December 30, 1985. Complainant's Ex. 3. Complainant had previously received a formal
warning from his employer for the same type of offense on December 17, 1985.
In his complaint Complainant alleged that Respondent had
suspended him in retaliation for his having filed several complaints against the Respondent with
the Department of Transportation (DOT) and the Occupational Safety and Health Administration
(OSHA) between 1981 and 1985 concerning safety problems and regulatory violations.
On December 22, 1985, Complainant Stack wrote to Mr. Charles Foster,
the Driver Coordinator-Central Dispatch at Preston Trucking Company, charging, among other
things, that Respondent's required trip schedule times could be met only by exceeding the speed
limits, and that he intended to report this allegation to the Department of Transportation.
Complainant's Ex. 4. The letter shows that a copy was sent to DOT. Id.
[Page 2]
On June 11, 1986, OSHA responded to the Complaint, stating that
Respondent's three day suspension of Complainant did not violate Section 405 of the Act.
Complainant requested a hearing which was held before Administrative Law Judge (ALJ) Arthur
C. White. In a Recommended Decision and Order (D. and O.) issued on October 30, 1986, the
ALJ found that all of Complainant's complaints prior to the January 6, 1986 three-day suspension
had either been resolved or dismissed and thus concluded that the Complainant had not been
engaged in protected activity. He that the Respondent did not issue found
"consequently..... that the Respondent did not issue the suspension in retaliation for
Complainant's having filed the [January 13, 19861 safety complaint." D. and O. at 5.
The ALJ went further, stating that "[e]ven if the Complainant
had engaged in protected activity, which I did not find, his complaint would fail because the
Respondent has advanced legitimate, nondiscriminatory reasons for the Complainant's
suspension", D. and O. at 7, and he recommended that the complaint be dismissed.
Id. This decision is now before me for review.
The record in this case has been fully examined to determine whether it
contains substantial evidence to support the ALJ's findings of fact and whether the ALJ's
decision is in accordance with law. This is the standard of review under the newly promulgated
regulations effective December 22, 1986, implementing Section 2305 of the STAA. 51 Fed.
Reg. 42,091 (1986) (to be codified at 29 C.F.R. Part 1978). See §
1978.109(c)(3).
Based on this review, I find that the record does not support the ALJ's
conclusion that the Complainant was not engaged in protected activity prior to his suspension.
The fact that Complainant's safety complaints filed with the DOT and OSHA between 1981 and
1985 had been subsequently considered and either "resolved or dismissed", D. and
O. at 5, does not transform them into non-protected conduct, nor eliminate the possibility of
subsequent retaliatory action by the employer. Further, Complainant Stack had filed another
safety related'complaint with his employer on December 22, 1985, alleging that he was being
required to violate legal speed limits and stating that he intended to so notify the DOT.
Complainant's Ex. 4. Apparently Complainant sent a copy of that letter to DOT. Id. I
find, therefore, that Complainant was engaged in a protected activity when he was notified on
January 6, 1986, of his three-day suspension.
Because the ALJ found no protected conduct, however, he did not
proceed to consider the third point which Complainant must establish to meet his initial burden,
i.e. that participation in protected activity was a substantial motivating factor in the
adverse employment decision. SeeDean Dartey v. Zack Companyof
Chicago, Case No. 82-ERA-2, Decision of the Secretary, slip op. at 6-9. As recognized in
Dartey, "as part of his prima facie case, 'the plaintiff must present evidence
sufficient to protected activity was the likely raise the inference that . . . protected activity was
the likely reason for the adverse action.' Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th
Cir. 1982). . . " Id. at 7-8.
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Neither Complainant's testimony, the testimony of other witnesses nor the
documentary evidence in the record, present evidence sufficient to raise the [necessary]
inference.' Id. Indeed, Complainant's testimony concentrated on excusing his delayed delivery on
the trip at issue but he proffered no evidence to demonstrate that the discipline he received was
retaliation motivated because of his protected activity.
As the ALJ noted, the uncontested evidence submitted by Respondent
was that other drivers driving the same vintage tractors as Complainant drove met the trip time
requirements at approximately the same times on the dates that Complainant failed to do so.
Complainant's expressed concerns about the mechanical condition of his tractor and tires were
not supported by the inspection and repair service records produced by the Respondent. The
progressive disciplinary procedure Respondent followed for Complainant was consistent with the
provisions of the collective bargaining agreement covering Complainant's employment. These
findings are fully supported by the record.
The record in this case simply does not contain sufficient evidence to
establish a prima facie case that retaliation for engaging in protected conduct played any role in
the imposition of the three-day suspension.
Moreover, even if this record were deemed sufficient to establish
discriminatory motivation by Respondent, the record evidence, as summarized above and as
recounted by the ALJ, D. and O. at 5-7, fully supports a finding that Respondent had a
legitimate, non-discriminatory business reason for the discipline imposed. Complainant has not
shown that Respondent's reasons were pretextual.
Accordingly, I find that the complaint of Walter C. Stack, pursuant to the
Surface Transportation Assistance Act of 1982, should be DISMISSED.
