DATE: April 18, 1990
CASE NO. 89-STA-15

IN THE MATTER OF

WALTER STACK,
   COMPLAINANT,

v.

PRESTON TRUCKING COMPANY,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) issued December 19, 1989, by Administrative Law Judge (ALJ) Ainsworth H. Brown 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).

   Since March, 1978, Complainant Walter C. Stack has been employed by Respondent, Preston Trucking Company, as an over-the-road driver of commercial motor vehicles. Hearing Transcript (T.) 23. Stack alleges here that Respondent has engaged in unlawful harassment by issuing him letters dated August 12, September 7, October 28 and November 2, 1988, and February 1, 1989, critical of his job performance, and that this treatment represents retaliation for his considerable history of filing safety complaints, see, e.g., Exh. CX-2 at 3-4, and for testimony given by him at an October 3, 1988, STAA hearing.

   Because the public record readily documents Stack's history of protected "whistleblowing" activities while employed by Respondent, including filing safety complaints with State and Federal agencies and testifying and participating in safety-related proceedings, Stack has met the initial showing in advancing a prima facie case. The August and September, 1988, letters may well reflect adverse action.¹ The record also affords a basis for inferring causation. An indication of possible improper motive predating these letters is Respondent's April, 1985, directive that Stack's requests for information should be specifically scrutinized because he had proved "troublesome" for Respondent.²

   The remaining three letters followed Stack's testimony of October 3, 1988. The October 28, 1988, letter advised Stack that he was subject to investigation for disciplinary purposes. Although the November 2, 1988, letter advised Stack that discipline was deemed inappropriate, he alleges that, in light of the minor damage involved, he would not have been investigated at all but for his safety-related activities. The February 1, 1989, letter cited Stack for tardiness and unacceptable transit times. These three letters, in the particular circumstances here presented, constitute adverse actions within the meaning of the STAA.³ Because Respondent was aware of Stack's history of protected activity, including his October, 1988, STAA testimony, and these adverse employment actions proximately followed Stack's testimony by less than one month in the first instance and by four months in the second, the causation criterion also is met. Additionally, I credit Stack's testimony that Donald E. Hargett, Respondent's Vice-President, communicated displeasure following the October testimony.⁴ Finally, when compared to letters received by other employees, Stack's February 1, 1989, letter appears irregular.⁵ In light of these specific considerations, I find that Stack has established a prima facie case of unlawful discrimination as to these three letters.

   Accordingly, Respondent must provide a legitimate explanation for its actions. With regard to the October and November, 1988, investigation letters, Respondent explains that issuance of this type of letter following allegations of damage is virtually automatic due to the time constraints imposed under the applicable collective bargaining agreement. See Hargett affidavit, par. 4.⁶ Respondent's proffered reasons for issuing the February 1, 1989, letter are articulated in that letter. They are plausible, and I accept them as meeting Respondent's rebuttal burden. Therefore, Stack must show that these explanations are merely pretext.⁷ Although the record contains no evidence tending to discount Respondent's explanation regarding the bargaining agreement, the February, 1989, letter presents a close question.

   The February 1, 1989, letter treats Stack differently in terms of the tardiness allegations, and the cited freight delays suggest a disproportionate reaction.⁸ That Stack was cited for minor delays may indicate a degree of undeserved criticism and inappropriately close scrutiny. A suggestion of undue surveillance arises from placement of the maintenance request

for his tractor in his personnel file.⁹ However, I do not find these possibilities sufficiently persuasive for Stack to prevail. Stack's delay times are not so much at variance to convince me that the February letter was altogether undeserved. In addition, the tardiness allegations are not disputed, Stack's defense being his mistaken understanding that the bargaining agreement permitted late arrival of up to 30 minutes. T. 42, 61. Accordingly, under a "pretext" analysis, this portion of the complaint regarding the latter three letters is subject to dismissal.

   The ALJ has recommended that I issue Stack a reprimand "to avoid abuse of process." R.D. and O. at 4.¹⁰ Under the applicable regulations, 29 C.F.R. Parts 18 and 1978, any condemnation or punishment is limited to exclusion from a pending or ongoing hearing.¹¹ The provision dictating appropriate conduct provides in relevant part:

(a) All persons appearing in proceedings before an administrative law judge are expected to act with integrity, and in an ethical manner.

(b) The [ALJ] may exclude parties, participants, and their representatives for refusal to comply with directions, continued use of dilatory tactics, refusal to adhere to reasonable standards of orderly and ethical conduct, failure to act in good faith, or violation of the prohibition against ex parte communications. The [ALJ] shall state in the record the cause for suspending or barring an attorney or other representative from participation in a particular proceeding. Any attorney or other representative so suspended or barred may appeal to the Chief Judge but no proceeding shall be delayed or suspended pending disposition of the appeal; provided, however, that the [ALJ] shall suspend the proceeding for a reasonable time for the purpose of enabling the party to obtain another attorney or representative.

29 C.F.R. § 18.36.¹²

   Resort to Fed. R. Civ. P. 11 appears inappropriate.¹³ The Federal Rules of Civil Procedure are not incorporated under Part 1978, although they apply "in any situation not provided for or controlled" by the Part 18 rules, or by any statute, executive order or regulation. 29 C.F.R. ~ 18.1(a). See also 29 C.F.R.§ 18.29(a)(8). Inasmuch as regulatory section 18.36 addresses conduct (e.g., filing complaints, otherwise "appearing" by filing other papers) that is dilatory, unethical, unreasonable, and in bad faith, the situation addressed by Rule 11 is "provided for" or "controlled."¹⁴

¹They assertedly document that Stack's employment conditions were altered because he was subjected to special investigation, and he allegedly was accused of liability despite Respondent's express admission that it Possessed "no concrete proof that [Stack was] responsible for the damage . . . ." T. 5. This treatment would be akin to false accusation, unwarranted reprimand, intimidating comments, and undeserved evaluation that may, under certain circumstances, constitute recognized forms of adverse action. See Yartzoff v. Thomas, 809 F.2d 1371, 1375-1376 (9th Cir. 1987), citing B. Schlei, P. Grossman, Employment Discrimination Law, 554-555 (2d ed. 1983), id. at 227-229 (Cum. Supp. 1989) (Schlei, et al.).

²I recognize that the August and September, 1988, letters postdate Respondent's April, 1985, directive by several years, thus possibly diminishing the strength of the inference. However, I note that Stack's whistleblowing activities continued during that intervening period, and I am unable otherwise to explain why Respondent would accuse Stack of liability in the face of an admitted dearth of proof.

³While not every communication between a trucking company and its truck drivers is actionable under the STAA, here the investigation of Mr. Stack constituted a change in his employment terms, conditions, and privileges rendering him specially subject to discipline, 49 U.S.C. § 2305(a), and the February, 1989, letter expressly warned him that he had advanced to a position of imminent discipline for a further like infraction.

⁴I reject the ALJ's determination that Stack was not threatened by Hargett. R.D. and O. at 3-4. The gist of the ALJ's disposition was that a management representative of Hargett's station, presumably acting in Respondent's best interests, likely would not invite contention. The record contains significant evidence which the ALJ apparently declined to consider, specifically Hargett's 1985 written directive to Respondent's management identifying Stack and another employee as "troublesome for Preston" and specifying that their requests for information should be subject to particular scrutiny. See Exh. CX-1 at 7; T. 31-32. Hargett's treatment of Stack hardly appears prudent in light of Stack's vigorous safety activity, thus disputing ALJ Brown's credibility premise. I decline to adopt the ALJ's finding because it is not supported by the record in its entirety. Instead, I find that the threat more likely occurred. Mr. Stack's account is specific, and I find no basis elsewhere in his testimony for disbelieving it. T. 41-44. Moreover, internal inconsistencies render other portions of Hargett's testimony questionable. In particular, I find it unlikely that Hargett would have known about certain of management's responsive measures regarding Stack without concomitantly knowing why they were initiated. See T. 30-31, 68-72.

⁵See Schlei, et al. at 231-234 (retaliatory motive may be inferred from evidence that adverse action is at variance with normal procedure or is disproportionate to offense). The majority of comparison letters were issued almost immediately following discrete infractions and generally address the individual circumstances with specificity, thus affording those employees precise notice of the allegations. In contrast, Stack's February 1, 1989, letter is nonspecific as to multiple allegations of tardiness and the four delay-of-freight allegations predate the letter by up to two weeks. These circumstances suggest that Stack's ability to dispute the allegations intentionally may have been impaired.

⁶The supporting documentation for this attestation is not highly probative. The six "accident investigation" letters in support of the affidavit postdate Stack's letters by a minimum of three and one-half months, arguably demonstrating routine issuance well after Stack's receipt and his consequent complaint.

⁷Pretext is suggested by undeserved criticism or evaluation, harassment and close scrutiny, or a series of adverse employment decisions. Yartzoff v. Thomas, 809 F.2d 1377. Schlei, et al.,observe that surveillance "strongly suggests the possibility of a search for a pretextual basis for discipline, which in turn suggests that subsequent discipline was for purposes of retaliation." Employment Discrimination Law at 559.

⁸After Respondent factored in permissible break periods, it charged Stack with late delivery of nine-tenths of an hour, six-tenths of an hour (twice), and four-tenths of an hour. Respondent cited other employees for delays of 1.5, 1.6, and 1.0 hours, the smallest delay being 51 minutes. None of these other employees received a citation for delays occurring during winter months. Stack's delays occurred in January between terminals in the Northeastern United States and were due in part to inclement weather and hazardous road conditions. See T. 31-41. Thus, they may well have been "unavoidable."

⁹I find it irregular to include a maintenance request and response in a personnel file unless the employer was engaged in organizing a case against an employee. T. 71-72. Inasmuch as the results of the requested tests apparently were communicated to Stack, see T. 32-33, this documentation may have been retained in anticipation of further action against Stack.

¹⁰Respondent urges that Stack should be warned that continued transgression may bring financial liability for hearing expenses. I am not persuaded that I possess authority under the STAA to assess litigation expenses against complainants. STAA Section 2305(c)(2)(B) authorizes me to assess back pay, compensatory damages, and litigation costs and expenses against discriminators who have violated subsection (a) or (b). Had Congress anticipated that, under an employee protection statute, financial liability might run against employees who believe themselves subject to unlawful discrimination, I believe it would have made explicit provision. In ruling that monetary sanctions under Fed. R. Civ. P. 11 are not available in its proceedings, the Federal Mine Safety and Health Review Commission found persuasive the silence of the enabling legislation and of the Commission's procedural rules on the subject. Rushton Mining Co., 1989 O.S.H. Dec. (CCH) par. 28,530.

¹¹Adjudicative bodies, including administrative agencies, are empowered to discipline persons appearing before them by virtue of their statutory authority to order their proceedings. However, they must have exercised their "legislative" authority and have promulgated specific disciplinary rules. See Touche Ross & Co. v. Securities & Exch. Com'n, 609 F.2d 570, 581 (2d Cir. 1979); 5 U.S.C. § 558 (administrative agencies authorized to impose sanctions, provided sanctions are "within jurisdiction delegated to the agency and as authorized by law"). For a discussion of various forms of reprimand and sanction, see generally 4 J. Stein, G. Mitchell, B. Mezines, Administrative Law, par. 42.03[2] (1989).

¹²Section 18.34(g)(3) which empowers an ALJ to deny "the privilege of appearing" to any person upon specified findings is expressly inapplicable to persons appearing on their own behalves.

¹³Federal Rule 11 requires representative counsel and unrepresented parties to sign all court filings, thereby certifying

that the signer has read the pleading, motion, or other paper; that to the best of the signer's knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

¹⁴Such conduct by a party could result in that party's exclusion from hearing. This did not transpire in the instant case, however. Rather than summarily finding Mr. Stack's complaint frivolous or improper and excluding him, the ALJ heard certain of the parties' evidence and recommended dismissal of the complaint based on Mr. Stack's failure of proof. Accordingly, the propriety of a reprimand or sanction in the form of exclusion is not before me, and the STAA and implementing regulatory Parts, 18 and 1978, do not approve any other course proposed.