Before me for review is the Recommended Decision and order (R.D.
and O.) issued November 9, 1990, by Administrative Law Judge (ALJ) Richard E. Huddleston in
the captioned case, which arises under Section 405 of the Surface Transportation Assistance Act
of 1982 (STAA or the Act), 49 U.S.C. app. § 2305 (1988). The ALJ has recommended
that the instant complaint of unlawful discrimination be dismissed because the Complainant
voluntarily quit his employment rather than having been discharged by Respondent. As
discussed below, I disagree with the ALJ's analysis.
STATEMENT
From 1975 to 1987, Complainant Carey Earwood was employed by
Respondent D.T-X- Corporation, a subsidiary of Dart Container Corporation, as an over-the-road
driver of commercial motor vehicles at Respondent's Lithonia, Georgia, facility. Complainant's
employment ended following his refusal on Tuesday, July 21, 1987, to accept an assignment
scheduled for the following day. Complainant testified that (1) he remained fatigued following
his assignments of the preceding seven-day period which had required that he exceed maximum
permissible driving hours in violation of 49 C.F.R. § 395.3 (1990), (2) he believed that he
had been penalized unfairly for his inability to complete assignments on Monday, July 20, and
(3) he was ill with influenza symptoms, specifically fever, cough, hoarseness, swollen glands,
chest congestion, and muscle aches, and he did not believe that he could operate a commercial
motor vehicle safely. However, he also testified that if he had not been ill, he would not have
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refused the assignment. T. 193, 197. On Wednesday, July 22, Complainant was examined by
his physician who treated him for bronchitis and tracheitis. I find that Complainant's illness
served as the primary motivation for his work refusal, but that all three considerations motivated
him to quit his employment when Respondent insisted that he take the assignment.1 T. 194-195.
1Keith Miller, one of Respondent's
drivers, testified that Respondent's violative scheduling was a source of aggravation and that he
and others had considered quitting because of it. Driver Miller stated: "What you fail to
realize is when you take a man that ain't had no sleep for three or four days, it is easy to get ill . .
. ." Hearing Transcript (T.) 37.
2The record contains contrary
evidence. For example, Edmond Stallworth, a driver for Respondent, testified that on the
morning of July 26, he was informed by Respondent's office manager, John Witherington, that
Complainant had been "terminated" because "he hadn't run his trip . . . . I
asked Mr. Witherington if he knew anything about why and he said that [Complainant] was sick,
but that when you don't pull your run, you're putting your job in jeopardy. T. 81-82, 85, 94, 96-97.
3Protection under the
"when" clause of STAA Section 405(b) requires only that an employee refuse to
operate a vehicle when operation would violate Federal safety rules, regulations, standards, or
orders. Protection under the separate "because" clause is conditioned on the criteria
contained in that clause and in the second and third sentences of Section 405(b). Duff Truck
Line, Inc. v. Brock, No. 87-3324 (6th Cir. 1988) (LEXIS, Genfed library, Court of Appeals
file), aff'gRobinson v. Duff Truck Line, Inc., Case No. 86-STA-3, Sec. Final
Dec. and Order issued March 6, 1987.
4 I reject the ALJ's conclusion that
Complainant acted unreasonably in the timing of his doctor's appointment. R.D. and O. at 10.
Complainant complained of influenza symptoms late on Tuesday, T. 196, and succeeded in
seeing a physician by the following evening. The physician that Complainant saw apparently
absorbed overflow for an established practitioner in Conyers, Georgia, on weekday evenings
between 6:00 p.m. and 10:00 p.m. Plaintiff's Exh. 1.
5The rationale is that public
policy is best served if unlawful discrimination is challenged "within the context of
existing employment relationships" where possible. Clark v. Marsh, 665 F.2d
1168, 1173 (D.C. Cir. 1981), citingBourque v. Powell Electrical Mfg. Co.,
617 F.2d 61, 65 (5th Cir. 1980).
6Circumstances held sufficient to
render resignation involuntary include a pattern of discriminatory treatment and
"locking" an employee into a position from which no relief seemingly can be
obtained. Clark v. Marsh, 655 F.2d at 1174; Satterwhite v. Smith, 744 F.2d
1380, 1382-1383 (9th Cir. 1984). SeeNLRB v. Tennessee Packers, Inc., Frosty
Morn Div., 339 F.2d 203, 204 (6th Cir. 1964). Transfer from a supervisory position to a
"dead-end position requiring [the employee] to do virtually nothing was a form of enforced
idleness both humiliating and detrimental." Hopkins v. Price Waterhouse, 825
F.2d 458, 473 (D.C. Cir. 1987), rev'd on other grounds, 490 U.S. 228 (1989) (constructive
discharge occurred where employee was subjected to what any reasonable senior manager in her
position would have viewed as "career-ending action") . SeeLopez v.
S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987); Parrett v. City of Connersville,
Indiana, 737 F.2d 690 (7th Cir. 1984), cert. denied, 469 U.S. 1145 (1985) ; Lincoln v.
Board of Regents of Univ. System, 697 F.2d 928, 940-941 (11th Cir.) cert. denied, 464
U.S. 826 (1983); Calcote v. Texas Educational Foundation, 578 F.2d 95, 97-98 (5th
Cir. 1978).