Before me for review is the Recommended Decision and Order (R.D. and
O.) of Administrative Law Judge (ALJ) Robert L. Hillyard in the above-captioned case, which
arises under the employee protection provision of the Surface Transportation Assistance Act of
1982 (STAA), 49 U.S.C. app. § 2305 (1982).
Complainant Juarez, a long haul driver for Respondent, alleges that he
was discharged from his employment for refusing to drive after he had exceeded the maximum
allowable number of driving hours provided in 49 C.F.R. § 395.3 (1987) of the Federal
Motor Carrier Safety Regulations. Respondent contends that it discharged Complainant, a new
hire on a 30 day probationary period, because Complainant had three chargeable accidents during
the first three weeks of his employment, all of which cost the employer money. The ALJ found
that Complainant Juarez failed to establish a prima facie case of discrimination in that he failed
to prove that he had engaged in any activity protected under either section 2305(a) or (b) of the
STAA. Additionally, the ALJ found that, even if Complainant could show that he had engaged
in protected activity, Respondent discharged Complainant for a legitimate management reason.
Accordingly, the ALJ recommended dismissal of the complaint of Complainant
Juarez.
Based on a thorough review of the record, I conclude that the ALJ's
factual findings are supported by substantial evidence on the record as a whole and are
conclusive. 29 C.F.R. § 1978.109(c)(3) (1987). I, therefore, agree with the ALJ that
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Complainant failed to establish: that Respondent compelled him to drive excessive hours; that
Complainant drove an excessive number of hours; and, that Complainant complained to
Respondent about driving excessive hours. Accordingly, I agree with the ALJ that Complainant
has failed to establish a prima facie case of discrimination under either paragraph (a) or
paragraph (b) of Section 2305 of the STAA.1
1Although, in view of this finding, I
do not need to rule on the ALJ's alternative ground that Complainant was discharged for a
legitimate management reason, the record contains substantial evidence to support this
alternative finding.
2The ALJ's statement, R.D and O.
at 9, that Respondent could not have violated subparagraph (a) of Section 2305 because
Complainant filed no complaint nor initiated any proceeding with the Occupational Safety and
Health Administration (OSHA) of this Department during his employment with Respondent
erroneously suggests that the filing of an OSHA complaint is the only conduct protected under
Section 2305(a). See Hufstether v. Roadway Express, Inc., Case No. 85-STA-8, Secretary's Final Decision and order, issued August 21, 1986, slip op. at 24-25,
aff'dsub. nom. Roadway Express v. Brock, 830 F.2d 179
(11th Cir. 1987), holding that complaints to others, including internal complaints to an employer
or a supervisor, are protected under Section 2305(a).
3Complainant does not allege that
his refusal to drive was "because of a reasonable apprehension of serious injury to himself
or the public due to the unsafe condition of the vehicle", which is also protected under
Section 2305(b).
4In considering whether a
violation of Section 2305(a) and (b) had been established, the ALJ stated that "[a]ssuming
arguendo, that Juarez was forced to drive excessive hours during his three weeks at Ready, he
nevertheless has simply failed to produce credible evidence to prove that he 'sought from his
employer, and [was) unable to obtain, correction of the unsafe conditions. I" R. D. and O.
at 7. The requirement that the employee seek correction of the unsafe condition applies only to
Section 2305(b) and only where the refusal to drive is based on a reasonable apprehension of
injury due to the unsafe condition of the vehicle. It does not apply to the refusal to drive in
violation of a Federal safety rule or regulation.
