DATE: November 21, 1989
CASE NO. 89-STA-7

IN THE MATTER OF

THOMAS E. MOYER,
    COMPLAINANT,

    v.

YELLOW FREIGHT SYSTEMS, INC.,
    RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

    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

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.

    Under Complainant's theory, the February 29 incident prompted immediate retaliation in the form of a suspension as well as contributing to grounds for the ultimate discriminatory discharge. The ALJ held that while the limitation period had run in which to challenge the suspension, the limitation period pertaining to the discharge had not. Accordingly, if Complainant's February 29 activity had entered into Respondent's motivation in discharging him, then it properly constituted part of Complainant's present, timely claim. The idea that a given activity necessarily should motivate only a single adverse action is logically defective. Rather, the February 29 incident could have taken on "fresh significance," R.D. and O. at 13, as a motivation for the November discharge, thus commencing a separate limitation period. See generally, Delaware State College v. Ricks, 449 U.S. 250 (1980); Stoller v. Marsh, 682 F.2d 971 (D.C. Cir. 1982), cert. denied, 460 U.S. 1037 (1983). I adopt the ALJ's analysis on this point to the extent stated. I do not view the recent Supreme Court decision in Lorance v. AT&T Technologies, Inc., 109 S. Ct. 2261 (1989), as applying under the

    As found by the ALJ largely in reliance on Complainant's testimony which he credited, R.D. and O. at 7, the facts show that on February 29, 1988, Complainant became ill after his vehicle broke down on the highway, that he was returned to Yellow Freight's terminal by another driver who happened to be passing and stopped to assist, and that he was required to report to Yellow Freight's mechanics to relate the breakdown location and other details before being transported to the hospital. R.D. and O. at 4. Thereafter, Complainant was suspended for failing to follow instructions when he initially picked up the truck and freight at the beginning of the assignment and for abandoning the vehicle at the side of the highway after becoming ill. R.D. and O. at 7. Between June and October, 1988, Yellow Freight issued Complainant four warning letters for violating company policy pertaining to driver availability and weekend absenteeism. R.D. and O. at 7-8. Complainant makes issue with the appropriateness of the discipline.² Following testimony

    The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar, Inc., Case No. 86-STA-5, Final Decision and order issued July 9, 1986, slip op. at 10-11.³ In order to establish a prima facie case, a complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that his employer was aware of his protected activity when it took the adverse action. After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason.⁴ The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

    Notwithstanding Yellow Freight's treatment of Complainant following the February 29 breakdown that borders on unconscionable, see, e.g., T. 121-123, the STAA does not appear to protect the activity involved, and I agree with the ALJ that Complainant cannot prevail on this basis. However, Complainant's October 5 testimony, offered in a grievance proceeding on behalf of a co-worker, is protected activity, and I conclude that under the instant facts, a violation of STAA Section 2305 (a) occurred.

    Observing only that the case record disclosed "scant details" regarding the co-worker's grievance proceeding, the ALJ concluded that Complainant had failed to establish any protected activity. R.D. and O. at 16. To the contrary, an examination of the record reveals details sufficient for a finding that Complainant testified in a "proceeding relating to a violation of

a commercial motor vehicle safety rule, regulation, standard, or order . . . ." The record shows that the co-worker was a truck driver⁵ for Yellow Freight. T.47. While ill and taking medication, he received a "72-hour letter" from Respondent advising him that unless he "appeared" at Respondent's offices within that time frame he would be removed from the company payroll.⁶ T. 50-51. The co-worker, who did not appear and was discharged, grieved the company's action, and Complainant testified at this proceeding.⁷ Complainant's testimony was that he personally was involved in assisting the co-worker during his illness and could attest to his incapacity.

    The pertinent inquiry, for purposes of Complainant's claim under STAA Section 2305 (a), is whether his testimony was offered in a proceeding relating to a safety violation. Davis v. H.R. Hill Inc., No. 86-STA-18, Decision and Order of Remand issued March 19, 1987, slip op. at 5-6 (complaints to employer relating to commercial motor vehicle safety concerns protected although complainant may not cite to particular regulatory standards); Nix v. Nehi RC Bottling Co., Inc., No. 84-STA-1, Final Decision and order issued July 13, 1984, slip op. at 8-9 (protection extends to making complaint raising violation of vehicle safety rule, regulation, standard, or order; protection is not limited to violation of Federal law). Cf. Aurich v. Consolidated Edison Co. of New York, Inc., No. 86-CAA-2, Remand Order issued April 23, 1987, slip op. at 4-5 (particular antidiscrimination statute alleged to have been violated need not in fact be applicable so long as the complaint concerns any requirements under the statute). The proceeding need only be "related toll a safety violation. The violation need not comprise the only or even the predominant subject of the proceeding. Here, the co-worker testified that during the 72-hour period in question he "was bedfast" on "serious" medication due to "back problems." T. 46, 50, 54. He believed that the medication and illness impaired his ability to work. T. 46-55. As a driver for Respondent his primary duty was the operation of commercial motor vehicles.⁸ Respondent directed the co-worker to report to work,⁹ vehicle operation in violation of 49 C.F.R. § 392.3 being the anticipated work assignment. The record is devoid of any evidence, and

Respondent has not argued, that it intended to assign the co- worker nondriving duties. I deem the co-worker's grievance proceeding, wherein he challenged being discharged when too ill and impaired to report, to be sufficiently related to a safety violation to afford Complainant protection for his testimony about the co-worker's health.¹⁰

    The remaining requisites for establishing a prima facie case also are met. Complainant suffered adverse employment action ill the form of discharge within five weeks of his giving testimony. The proximate timing of the protected Activity vis-a-vis the adverse action tends to support an inference of causation. Ertel v. Giroux Brothers Transportation, Inc., No. 88-STA-24, Final Decision and Order issued February 16, 1989, slip op. at 25 and n.14. The inference additionally is supported by the unrefuted threat of discharge communicated by Complainant's supervisor, Yellow Freight's Regional Line Haul Operations Manager, if Complainant testified on his co-worker's behalf.

    Respondent offered, as a legitimate, nondiscriminatory reason for its action, Complainant's "overall work record," including four written warnings, issued to Complainant between June and October, 1988, for purported infractions of company policy. See n.2, supra. These warnings were issued allegedly due to Complainant's unavailability when Respondent's dispatcher attempted to contact him and his unavailability for a weekend job assignment. See Exhs. C-10 through C-13.

    Respondent's proffered reason is not persuasive. Even had all four warning letters been deserved, Respondent admits that it never previously had discharged any driver for receiving four such warnings. T. 117-119. Moveover, the fourth letter charged Complainant with unavailability on October 5, 1988, the date of his co-worker's grievance hearing. complainant previously had obtained Respondent's permission to attend the proceeding for purposes of testifying. Under Respondent's factual theory, this incident of unavailability triggered review of Complainant's work record leading to his discharge.¹¹

    This final warning letter, issued because Complainant was unavailable for work while engaging in protected activity, would appear in itself to constitute unlawful adverse employment action. In any event, the supervisor's threat of discharge in retaliation for giving testimony is compelling evidence of

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 relevant part 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.