Earwood v. D.T.X. Corp., 88-STA-21 (Sec'y Mar. 8, 1991)

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Earwood v. D.T.X. Corp., 88-STA-21 (Sec'y Mar. 8, 1991)

U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.

DATE: March 8, 1991
CASE NO. 88-STA-21

IN THE MATTER OF

CAREY EARWOOD,
COMPLAINANT,

D.T.X. CORPORATION,
DART CONTAINER CORPORATION,
RESPONDENT(S).

BEFORE: THE SECRETARY OF LABOR

DECISION AND ORDER OF REMAND

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.

Respondent's drivers are compensated according to mileage driven with the longer trips, for example to Pennsylvania, North Carolina, and Louisiana, being more lucrative than the local Georgia trips. In order to equalize assignments, Respondent schedules drivers based on their mileage history. Drivers who have accumulated high mileage are assigned shorter trips and drivers who have taken short trips receive longer assignments. Drivers who decline assignments for personal reasons or because of illness are penalized in that 450 miles are added to their mileage history for each missed assignment which results in continued less lucrative short assignments.

During the week of July 13, 1987, Complainant accumulated high mileage as the result of a "last minute" Pennsylvania assignment. Because of the "truck swapping" required in making the trip, the keys for Complainant's regularly-assigned vehicle were retained at Respondent's maintenance shop, and Complainant was unable to locate them in time to take his 7:30 a.m. Atlanta assignment on Monday, July 20. Complainant thereafter was unable to complete a later rescheduled assignment to Oakwood, Georgia, because Respondent's shipping department failed to load his truck in time. Complainant was penalized by the addition of 450 miles to his mileage history.

On Tuesday, July 21, Complainant completed a 187-mile assignment to Marietta-Athens, Georgia. Complainant, who was scheduled to make an Atlanta delivery on Wednesday, July 22, refused that assignment late on Tuesday because he was ill. Complainant testified that he believed himself discharged as the result of his refusal. The ALJ found, instead, that Complainant quit voluntarily "rather than continue working under the existing driver dispatch system." R.D. and O. at 10. The finding rests on-Complainant's testimony that he was told merely that he "could" be discharged for refusing the assignment.² John Carney, Respondent's plant manager who spoke to Complainant by telephone on the afternoon of July 21, testified:

A: I told (Complainant) that that was the run that he had to make, according to the scheduling, and that I couldn't go and change it . . . .

Q: Didn't you also tell him he knew what the consequences was (sic) of not making that run?

A: Well, yes, I did tell him that.

T. 501. In light of the unrelenting manner in which Complainant was directed to take the assignment, I find the "consequences" referenced by Mr. Carney to be imposition of the 450-mile penalty and the strong possibility of discharge. It is uncontroverted that the mileage penalty applied to refusals motivated by illness. T. 261-262 (Office Manager Witherington); T. 340, 348 (Dispatcher Wilson); 435 (Carney).

DISCUSSION

STAA Section 405(b) provides:

No person shall discharge, discipline or in any manner discriminate against any

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employee with respect to the employee's compensation, terms, conditions or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health . . . .

49 U.S.C. § 2305(b). Department of Transportation regulations provide that

[n]o driver shall operate a motor vehicle, and a motor carrier shall not require or permit a driver to operate a motor vehicle, while the driver's ability or alertness is so impaired or so likely to become impaired, through fatigue, illness, or any other cause as to make it unsafe for him to begin or continue to operate the motor vehicle.

49 C.F.R. § 392.3.³ Here, Complainant engaged in protected activity when he refused to operate a motor vehicle during a period of impairment due to illness.⁴ Respondent insisted that Complainant accept the assignment. If he persisted in his refusal, (1) he would be penalized by the addition of mileage which thereafter would result in diminished income, and (2) he could be discharged. Accordingly, Respondent discriminated against Complainant with respect to his "compensation, terms, conditions or privileges of employment" in its decision to penalize Complainant and in threatening him with discharge because of his protected activity. The issue, then, is whether the circumstances support a finding of "constructive" discharge, i.e., that Complainant involuntarily quit or was coerced into quitting. Unless such a complainant has been constructively discharged, he would not be eligible for postresignation damages and pay or for an opportunity for reinstatement. Derr v. Gulf Oil Corp., 796 F.2d 340, 343 (10th Cir. 1986).

The adverse consequences flowing from a violative employment decision, e.g., demotion, failure to promote, failure to provide equal pay for equal work, generally are insufficient to substantiate a finding of constructive discharge.⁵ The presence of "aggravating factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981). Whether a constructive discharge has occurred depends on whether working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign. Watson v. Nationwide Ins, Co., 823 F.2d 360, 361-362 (9th Cir. 1987); Goss v. Exxon office Systems Co., 747 F.2d 885, 887-888 (3d Cir. 1984).⁶

The Secretary previously has addressed the doctrine of constructive discharge in Perez v. Guthmiller Trucking Co., Inc., No. 87-STA-13, Final Dec. and Order, December 7, 1988, slip op. at 24-27; Taylor v. Hampton Recreation and Hampton Manpower Services, No. 82-CETA-198, Dec. and Order, April 24, 1987, slip op. at 7-9; and Hollis v. Double DD Truck Lines, Inc., No. 84STA-13, Final Dec. and Order, March 18, 1985, slip op. at 8-9, employing in those cases an objective standard adopted under antidiscrimination legislation. See Simpson. v. Federal Mine Safety & Health Rev. Com'n, 842 F.2d 453, 461-463 and nn.8,9 (D.C. Cir. 1988). In Taylor v. Hampton Recreation, the Secretary concluded that the employee's resignation was coerced

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where he had endured a pattern of abuse by his immediate supervisor, the supervisor repeatedly had refused to provide him with guaranteed job training, the confrontations and threats of imminent discharge adversely affected the employee's health, and upper management had manifested insensitivity and a marked lack of response to the employee's grievances and requests for assistance.

As the ALJ noted, R.D. and O. at 10, Respondent's history of hours violations and records falsification is "reprehensible." Drivers uniformly and routinely exceeded maximum permissible on duty and driving hours, falsifying their logs to conceal the practice. Management scheduled assignments that necessitated violation. T. 18-19, 42-43, 47-48, 51-52, 55, 69, 79, 86-87, 102-103, 130-131, 309-310 and 323-324 (Witherington), 374-376 (Dispatcher Wilson). If a driver's log disclosed violations, management summoned the driver to the plant offices and directed him to falsify his log. T. 19-20, 48, 52, 78-79, 87-88, 103, 134-136, 300 (Witherington); Plaintiff's Exh. 4. On one occasion, management threatened to withhold Complainant's paycheck until he completed the falsifications. T. 317, 323-325; Plaintiff's Exh. 4. Respondent states that it was cited for these practices and that it now intends to comply. T. 297-299, 305-306, 310-311. However, complainant exceeded the 60-hour ceiling imposed under 49 C.F.R. § 395.3(b)(1) by five hours during the preceding week of July 13, 1987, and Respondent's scheduling was responsible for the violation. T. 150-152.

Complainant regularly complained about the scheduling and coerced falsification. T. 40-41, 53-54, 123, 126-127, 514-515. These considerations influenced him in his July 21 conversations with Messrs. Carney and Witherington. Complainant testified:

I was sick and I told Mr. Carney that I wasn't going to run illegal no more. I wasn't going to do what I done the previous week and come back and put up with the mess that they (gave) me the next week. . . . [Mr. Witherington] said if you don't go, you can be fired . . . I was upset and when he said that I couldn't be off sick, it made me even more upset. . . . I was tired. I'd had run 2800 miles the week prior. 65 - 5 hours in violation . . . . More than that actually because I didn't put down all my waiting time and I was just fed up . . . . I had done everything in my power for them to quit it . . . . He said I could be fired if I didn't pull (the run). He told me the bills would be put in my box and I would be expected to pull it.

T. 154-155, 229. See T. 194. Respondent provoked Complainant by insisting that he tolerate the system, and Complainant felt frustration at his inability to correct it. Complainant consistently had petitioned Respondent to let the drivers "run legal" and left the job convinced that "it was never going to get any better." T. 160.

Operation of a tractor-trailer in Complainant's condition would have been unpleasant and unsafe. Cf. Ford v. Alfaro, 785 F.2d 835, 841-842 (9th Cir. 1986) (perceived threat of bodily harm constituted constructive discharge under antidiscrimination provision of Fair Labor Standards Act, 29 U.S. C. § 215 (a) (3) (1988)). Moreover, the prospect of continued employment under a system that precipitated hours and logging violations and encouraged employees to drive when ill similarly was unattractive. I find that this pervasive coercion to violate Department of Transportation regulations was intolerable. In view of the totality of the circumstances, a reasonable person in Complainant's position would have felt compelled to quit.

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Complainant does not seek reinstatement. T. 168-169. Because Complainant was constructively discharged, he is entitled to recover back pay with interest, compensatory damages, and costs and expenses reasonably incurred by Complainant in the bringing of the complaint. 49 U.S.C. app. § 2305(c) (2) (B) ; 29 C.F.R. S 1978.109(a); Hufstetler v. Roadway Express, Inc., No. 85-STA-8, Sec. Final Dec. and Order, August 21, 1986, slip op. at 56-57, aff'd sub nom. Roadway Exp., Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). The back pay award shall comprise Complainant's reasonably projected compensation had he remained employed by Respondent less any compensation received as the result of substitute interim employment. The period for computing back pay shall run from July 22, 1987, to the date that Complainant gained comparable employment with Jet Corr. See Nelson v. Walker Freight Lines, Inc. dba Package Express, No. 87-STA-24, Sec. Dec. and Order of Remand, January 15, 1988, slip op. at 6 n.3. Complainant also claims damages involving pension and bonus expectations. Accordingly, this case IS REMANDED for the assessment of monetary recovery and costs. It is anticipated that the ALJ will elicit expeditiously any further submissions and that a recommendation will be forthcoming within 90 days of the date of this order.

SO ORDERED.

Lynn Martin
Secretary of Labor

Washington, D.C.

[ENDNOTES]

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'g Robinson 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), citing Bourque 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). See NLRB 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") . See Lopez 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).