Before me for review is the Recommended Decision and Order
(R.D. and O.) issued August 1, 1989, by Administrative Law Judge
(ALJ) E. Earl Thomas in the 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 Thomas E. Moyer, a driver of commercial motor
vehicles, is appearing pro se. He alleges that he was discharged
by Respondent Yellow Freight Systems, Inc. (Yellow Freight or
Respondent), in contravention of STAA Section 2305, in that
grounds for his discharge included (1) his refusal to continue to
work when ill and (2) his giving testimony in a grievance
proceeding contrary to Yellow Freight's interests. Yellow
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Freight counters that it discharged Complainant based on his
overall work record, including multiple infractions of company
policy, and that any refusal to work due to illness was not a
factor in its discharge decision. The ALJ recommended that the
complaint be dismissed because, in his view, the Complainant had
failed to establish a prima facie case of unlawful
discrimination. Neither party has filed any brief in support of
or in opposition to the ALJ's R.D. and O. as permitted in the
applicable regulations. 29 C.F.R. § 1978.109 (c) (2) (1988).
Based on a thorough review of the record, I disagree with
the ALJ's conclusion that Complainant has not established a prima
facie case.
As a preliminary matter, a threshold determination by the
ALJ requires brief comment. After conducting an investigation in
this case, the Assistant Secretary for Occupational Safety and
Health found the instant discrimination complaint to be untimely.
The Assistant Secretary reasoned that the period between
Complainant's suspension resulting from the February 29, 1988,
incident during which the Complainant became ill and the filing
of the complaint following his November, 1988, discharge exceeded
the STAA 180-day filing limitation. The ALJ rejected this
timeliness finding,1 and I agree generally
with his approach.
1The Assistant Secretary's
investigation findings become final
only in the absence of timely objection. 29 C.F.R.
§ 1978.105 (b) (2). A hearing in the matter, which may be obtained
by filing an objection to the Assistant Secretary's findings or
preliminary order, is conducted de novo by an ALJ, 29 C.F.R.
§ 1978.106 (a), and the ALJ's factual findings are conclusive if
supported by substantial evidence on the record considered as a
whole. 29 C.F.R. § 1978.109 (c) (3). Thus, the investigation
findings of the Assistant Secretary have effect only if
unchallenged. In the event that a hearing is requested, they are
not accorded weight in any decision in the case. Holloway and
Murray v. Lewis Grocer Co., No. 87-STA-16, Decision and Order
issued January 25, 1988, slip op. at 2 n.2, aff'd in relevantpart 874 F.2d 1008 (5th Cir. 1989).
2It is uncontroverted that
disciplinary action was
inappropriate in two of the four instances. One purported
infraction occurred while Complainant was on vacation leave which
had been pre-approved by the company. Another occurred when
Complainant had been excused to testify in a grievance
proceeding. See, e.g., Exhs. C-10, C-12.
3These burdens derive from
models articulated and applied in
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981),
and Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977). See Roadway Exp., Inc. v. Brock, 830 F.2d
179, 181 n.6 (11th Cir. 1987).
4The employer "need not
persuade the court that it was actually motivated by the proffered reasons." Texas
Dept. Of Community Affairs v. Burdine, 450 U.S. at 245. However, the evidence must be
sufficient to raise a genuine issue of fact as to whether the employer discriminated against the
employee. "The explanation provided must be legally sufficient to justify a judgment for
the [employer]." Id. At 255.
5Yellow Freight employs
"road" and "city" drivers, both of
which operate commercial motor vehicles as defined under
49 U.S.C. app. § 2301 (1).
6Yellow Freight's Terminal
operations Manager testified that
if an employee "reports off from work" for in excess of 72 hours,
he is required to furnish a doctor's slip upon returning to work.
If the employee continually "reports off" without excuse, "we
will sit him down and have a counseling session and find
out why he's not coming to work. There might be some other
problems. . . . For instance, drug abuse, alcohol abuse, family
problems." T. 139.
7The co-worker objected to the
timing of his discharge in that
some of the hearings accorded him regarding its propriety took
place when he was ill and unable to testify competently. T. 52,
54-55. Additionally, some question exists as to whether the
discharge procedure complied with the "warning notice"
requirements of the bargaining agreement. See Exhs. R-1, R-2,
Article 46. However, I note that an addendum to Article 46
provides that in certain circumstances an employee who fails to
report to work for three consecutive days is considered to have
quit his job.
8While drivers may be called upon
to load or unload the freight
being transported, to keep records associated with pickups and
deliveries, and to inspect their vehicles prior to departing the
terminal, see Exhs. R-5, R-24, these "nondriving" duties are
strictly ancillary to vehicle operation.
9I reject any suggestion that
Respondent directed the co-worker
to appear in order to receive counseling. See n.6, supra. The
contractual "presumed quit" following a 72-hour absence, see n.7,
supra, which apparently took effect here, belies this suggestion.
10I express no view as to
whether Complainant's claim that he
was improperly discharged because of his grievance hearing
testimony would be cognizable under Sections 7 and 8 (a) of the
National Labor Relations Act, 29 U.S.C. §§ 157, 158 (a) (1982), or
whether such an action would be appropriate.
11Respondent's Terminal
operations Manager testified that he
reviews employee files every two to four weeks to determine
whether to "mete . . . out . . . corrective discipline." T. 126,
136-137. Since Complainant's third incident of unavailability
occurred in July, 1988, the October incident would have triggered
the November review.