The Complainant filed objections to the
Secretary's findings by way of a letter dated October 13, 1995 and
requested a hearing before an Administrative Law Judge. (Ad. Ex. 2)
A formal hearing was held before the undersigned on April 23, 1996
in St. Louis, Missouri. All parties were afforded full opportunity
to present evidence as provided in the Act and the regulations
issued thereunder.
ISSUE
The sole issue in this case is whether the
Complainant was discriminated against by the Respondent as a result
of having engaged in a protected activity under the STAA.
Based on my observation of the appearance and
demeanor of the witnesses who testified at the hearing and upon a
thorough analysis of the entire record in this case, with due
consideration accorded to the arguments of the parties, applicable
statutory provisions, regulations and relevant case law, I hereby
make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Background:
The Complainant's employment with the Respondent
commenced in July 1989. (Tr. 14) The Respondent is a greater St.
Louis based employment agency that provides professional, skilled
labor to other companies on a contract basis. (Tr. 57) The
Complainant was hired by the Respondent to work as a professional
semi-truck, or tractor-trailer, driver. (Tr. 15) In 1989, the
Respondent contracted the Complainant to drive delivery trucks for
Save-A-Lot food stores. (Tr. 16) During his tenure with Save-A-Lot, the Complainant made
local deliveries. (Tr. 17) At some point
thereafter, the Complainant was contracted to Illinois Central
Railroad (ICG). (Tr. 18) While working for ICG, the Complainant
loaded trailers onto railroad cars. Id. About one year
later, the Complainant was assigned to drive for Purina Mills, now
known as PM Resources. (Tr. 19) The Complainant worked for PM
Resources until September 28, 1994. Id.
While working for PM Resources, the Complainant's
duties included making local deliveries and pick-ups, as well as
moving trailers at the company facilities in Earth City and
Bridgeton, Missouri. (Tr. 21) During this period, the
[Page
4]
Complainant's day-to-day direction and control were provided by PM
Resources' employees Gary Welton and Roy Maddock. (Tr. 58) While
the Respondent paid the Complainant's salary, it maintained no
knowledge or control of the Complainant's daily work activities.
Id. The Complainant's daily driving assignments were issued
to him by either Welton or Maddock without any consultation or
reporting to the Respondent.
The events leading up to the controversy now
before me took place primarily on September 28 and 29, 1994.
During the week of September 26, 1994, the Complainant's co-worker
Carl Clayton was on vacation. (Tr. 69) Clayton's position with PM
Resources required him to complete mostly over-the-road, or out-of-down, driving assignments.
(Tr. 22) Conversely, the Complainant's
assignments were most often local, with both pick-up and delivery
taking place in the greater St. Louis area. (Tr. 21) When one of
the two drivers was on vacation, it was customary for the other
driver to complete the vacationer's assignments. (Tr. 23) The
Complainant testified that he did not like this arrangement and
notified Maddock of his feelings. (Tr. 24) The Complainant told
Maddock that PM Resources should hire casual, or temporary, drivers
to complete Clayton's assignments while he was on vacation. (Tr.
25) Maddock acknowledged that the Complainant periodically
requested the hiring of casual drivers, but that he never
specifically requested that a casual driver be hired to complete
the September 29 delivery to Kansas City which prompted this
complaint. (Tr. 82) The Complainant also acknowledged that he
never specifically requested that PM Resources hire a replacement
driver for the Kansas City delivery prior to his 8:30 p.m.
telephone conversation with Maddock on September 28. (Tr. 38)
On September 26, 1994, the first day of Clayton's
vacation, the Complainant completed a short trip to Highland,
Illinois and then returned to Bridgeton. (Tr. 69) On September 27,
1994, the Complainant delivered a load to Kansas City and then had
an eight hour stop-over in Montgomery City, Missouri. Id.
The Complainant reported to work at approximately 6:00 a.m. on
Wednesday, September 28, 1994 and completed some local deliveries
and yard work. Id. At some point on the morning of
September 28, Maddock informed the Complainant that he would make
a delivery to Kansas City and St. Joseph, Missouri the next
morning. Id. Because the delivery was scheduled to arrive
in Kansas City at 7:00 a.m. on September 29, the Complainant would
have to begin the trip at approximately midnight that same day.
(Tr. 29) Since the Complainant would have to begin his trip
around midnight, Maddock told the Complainant to leave work at
approximately noon on September 28 so that he could rest prior to
the trip. (Tr. 27) Before leaving work, the Complainant prepared
the tractor-trailer for the midnight trip. (Tr. 69)
After leaving work at approximately 1:30 p.m. on
[Page 5]
September 28, the Complainant attended an appointment with an
attorney at approximately 5:00 p.m. (Tr. 32) The Complainant had
made the appointment a couple of weeks prior and, at that time,
notified Maddock of the appointment. Id. However, on
September 28, the Complainant did not inform Maddock that he had an
appointment scheduled for later that day. (Tr. 33) Maddock
testified that while he vaguely remembers the Complainant informing
him of the appointment, he did not realize that the Complainant
planned on meeting with an attorney on September 28. (Tr. 83)
Rather, Maddock testified that he believed that the Complainant
would rest for his midnight trip. (Tr. 71)
At approximately 8:30 p.m. on September 28, the
Complainant telephoned Maddock at his residence and informed him
that he was not rested and, consequently, would be unable to
complete the trip scheduled for midnight. (Tr. 34, 71) Maddock
testified that he was surprised and angry upon hearing the
Complainant's news. (Tr. 71) The Complainant testified that he
told Maddock to get a casual driver to complete the delivery. (Tr.
34) Maddock replied that it was too late to get another driver and
that if the Complainant failed to make the delivery, then the
delivery would not be made on time. (Tr. 71) Nonetheless, the
Complainant refused to take the delivery. Maddock testified that
the Complainant told him that he would quit if he was forced to
make the midnight delivery. Id. The Complainant stated that
Maddock never threatened to discharge him for refusing to complete
the delivery. (Tr. 35) The Complainant testified that he never
spoke to Maddock again after this telephone conversation. (Tr. 39)
Later that evening, the Complainant returned to
the PM Resources facility. (Tr. 89) While there, the Complainant
cleaned out his desk, completed his paperwork, and left the company
keys and credit cards which had been in his possession. Id.
The Complainant testified that Maddock never told him to return
such items, but that he did so on his own volition. Id.
Upon arriving at work the next day, at approximately 7:30 a.m.,
Maddock telephoned Louis Waite, Jr., the regional manager for the
Respondent. (Tr. 80) Maddock relayed to Waite the details of the
Complainant's refusal to drive and apparent resignation. Id.
Waite assigned another driver to PM Resources to replace the
Complainant and complete the Kansas City/St. Joseph's delivery.
(Tr. 81) Maddock later discovered that the Complainant had cleaned
out his desk and returned the company keys and credit cards.
Id.
Waite testified that the Complainant telephoned
him at approximately 10:30 on September 29. (Tr. 59) Waite stated
that the Complainant told him about his refusal to complete the
midnight delivery to Kansas City and that he had quit his
assignment at PM Resources. Id. The Complainant then asked
Waite if he could be reassigned to drive for another company. (Tr.
[Page 6]
64) Waite responded that "it would be a cold day in
hell" before the Complainant would be reassigned by the
Respondent. Id. Waite stated that the Complainant's actions
had disturbed a customer, i.e. PM Resources, and Waite could
not afford to have such a person working for him. Id. Waite
further testified that the Complainant's only complaint about PM
Resources was that they required him to work at too fast a pace.
(Tr. 62)
On the next day, September 30, 1994, Waite
drafted and mailed a letter to the Complainant confirming the
telephone conversation of the previous day and stating that the
Complainant had "voluntarily quit his job with out (sic)
notice." (Com. Ex. 1) The Complainant testified that he did
not quit his job with the Respondent; rather, he relinquished his
assignment with PM Resources, but hoped to be reassigned by the
Respondent to drive for another company. (Tr. 41)
Applicable Law:
Section 405 of the STAA, provides, in pertinent
part:
(b) No person shall discharge, discipline, or in any
manner discriminate against any 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,
or because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of such equipment. The unsafe conditions
causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the cir-
cumstances then confronting the employee, would conclude
that there is a bona fide danger of an accident, injury,
or serious impairment of health, resulting from the
unsafe condition. In order to qualify for protection
under this subsection, the employee must have sought from
the employer, and have been unable to obtain, correction
of the unsafe condition.
To establish a prima facie case of
discriminatory treatment under the STAA, the Complainant must
prove: (1) that he was engaged in an activity protected under the
STAA; and (2) that he was the subject of adverse employment action;
and (3) that a causal link exists between his protected activity
[Page 7]
and the adverse action of his employer. Moon v. Transport
Drivers, Inc. , 836 F.2d 226, 229 (6th Cir. 1987). The
establishment of the prima facie case creates an inference
that the protected activity was the likely reason for the adverse
action. McDonnell Douglas Corp. v. Green , 411 U.S. 792
(1973). At a minimum, the Complainant must present evidence
sufficient to raise an inference of causation. Carroll v. J.B.
Hunt Transportation , 91-STA-17 (Sec'y June 23, 1992).
Once the prima facie case is established,
the burden of production shifts to the Respondent to present
evidence sufficient to rebut the inference of discrimination. To
rebut this inference, the employer must articulate a legitimate,
nondiscriminatory reason for its employment decision. Id. ,
supra . A credibility assessment of the nondiscriminatory
reason espoused by the employer is not appropriate; rather, the
Respondent must simply present evidence of any legitimate reason
for the adverse employment action taken against the Complainant.
St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).
If the employer successfully presents evidence of
a nondiscriminatory reason for the adverse employment action, the
Complainant must then prove, by a preponderance of the evidence,
that the legitimate reason proffered by the employer is a mere
pretext for discrimination. Moon , supra ; See
also Texas Dep't of Community Affairs v. Burdine , 450
U.S. 248, 253 (1981). In proving that the asserted reason is
pretextual, the employee must do more than simply show that the
proffered reason was not the true reason for the adverse employment
action. The employee must prove both that the asserted reason is
false and that discrimination was the true reason for the adverse
action. Hicks , supra , at 2752-56.
In addition, under the employee protection
provision of the STAA, a joint employer may be held vicariously
liable, even in the absence of knowing participation, for the
discriminatory act of another. Cook v. Guardian Lubricants,
Inc. , 95-STA-43 (Sec'y May 1, 1996). In cases involving
leasing of drivers to a separate business entity that shares
employment responsibilities with the Respondent employer, the two
entities are deemed joint employers for determining liability under
the STAA. Id. Therefore, even though Consolidated Personnel
is the named Respondent, it may be held responsible for not only
its actions, but also the actions of PM Resources under the theory
of joint employer liability.
Protected Activity:
Under Section 405 of the STAA, protected activity
[Page 8]
may consist of complaints or actions with agencies of federal or
state governments, or it may be the result of purely internal
activities, such as complainants to management relating to a
violation of a commercial motor vehicle safety rule, regulation,
standard, or order. 49 U.S.C. § 2305; See also Reed
v. National Minerals Corp. , 91-STA-34 (Sec'y Decision, July 24,
1992); Davis v. H.R. Hill Inc. , 86-STA-18 (Sec'y Decision,
March 18, 1987). Additionally, a driver's refusal to drive during
conditions which the driver considers to present a bona fide danger
of injury constitutes a protected activity under the Act. 49
U.S.C. § 2305(b). However, the Act offers protection only if
a reasonable person, under the circumstances then confronting the
employee, would conclude that there is a bona fide danger of an
accident, injury or serious impairment of health resulting from the
unsafe condition. Yellow Freight Systems, Inc. v. Reich , 38
F.3d 76 (2nd Cir. 1994).
The Complainant testified that he refused to
report to work at midnight on September 29, 1994 because a
previously scheduled appointment for earlier that day had prevented
him from resting. Thus, without sufficient rest, the Complainant
believed it would be unsafe for him to make the midnight delivery
to Kansas City, approximately a five and one-half hour drive from
St. Louis. The Respondent argued that the Complainant was released
from duty at noon on September 28, 1994 so that he could have
approximately twelve hours of free time to prepare, i.e.
rest, for the midnight drive.
An employee engages in protected activity when he
refuses to operate a commercial motor vehicle where such operation
would constitute a violation of a commercial motor vehicle safety
or health rule or regulation, including Department of
Transportation (D.O.T.) hours of service regulations. Greathouse
v. Greyhound Lines, Inc. , 92-STA-18 (Sec'y Aug. 31, 1992). To
qualify for such protection, an employee must have sought from his
employer, and been unable to obtain, correction of the unsafe
conditions causing him apprehension of injury to himself or to the
public. Refusal to work because of fatigue or in adhering to hours
of service regulations constitutes protected activity under the
Act. Brown v. Besco Steel Supply , 93-STA-30 (Sec'y Jan. 24,
1995); Self v. Carolina Freight Carriers Corp. , 91-STA-25
(Sec'y Aug. 6, 1992).
Upon review of the record, I find that D.O.T.
hours of service regulations played no part in the Complainant's
refusal drive on September 29, 1994. Prior to the scheduled
midnight drive, the Complainant had been given the previous twelve
hours off from work. Nonetheless, the Complainant alleged that he
would not be able to complete the drive because he had not slept
since the previous evening. The Complainant informed his superior,
[Page 9]
Roy Maddock, that a previously scheduled appointment with an
attorney on the afternoon of September 28, 1994 had prevented him
from acquiring the rest necessary to enable him to complete the
midnight delivery.
As a result, I find that the Complainant has
failed to establish that he engaged in a protected activity. The
Complainant's refusal to drive was not caused by the Respondent's
insistence on him violating D.O.T. hours of service regulations or
otherwise requiring excessive performance. Rather, the Respondent
complied with D.O.T. regulations by providing the Complainant with
eight hours off from work prior to the scheduled midnight drive.
Moreover, the Complainant did not notify the Respondent of his
refusal to drive until 8:30 p.m. on September 28, even though he
knew that he would not be able to rest that afternoon when he was
assigned the job on the morning of September 28. The Complainant
testified that he had previously scheduled the appointment with the
attorney for the afternoon of September 28 and planned on keeping
the appointment even though PM Resources had given him the
afternoon off to rest for the midnight drive. Furthermore, even
though the Complainant knew he had an appointment for that
afternoon, he did not inform Maddock of such appointment until
after the fact.
With the exception of telling Maddock during the
8:30 p.m. telephone conversation to hire a casual driver to
complete the Kansas City/St. Joseph's delivery, the Complainant
never objected to the delivery scheduled for midnight, nor did he
seek correction of the potentially unsafe condition. On September
28, 1994, PM Resources' other driver, Carl Clayton, had been on
vacation for two days. During this period, the Complainant
completed Clayton's over-the-road assignments without complaint.
While the testimony indicates that the Complainant had, in the
past, requested hiring the casual drivers, he did not specifically
request a replacement for the September 29 delivery. Additionally,
while the Complainant may have given notice to Maddock of his
afternoon appointment on September 28, he did so weeks in advance
and never notified Maddock of the appointment again. Thus, PM
Resources was without notice that the Complainant believed that his
completing the midnight trip on September 29 would be problematic.
I find that it is unreasonable to hold Maddock
responsible for remembering the Complainant's appointment on
September 28, especially when the Complainant had ample opportunity
to inform Maddock on the day of the appointment, whereby PM
Resources would have been put on notice of the potential conflict
with the Complainant completing the midnight delivery. Rather, the
Complainant waited until 8:30 p.m. on September 28, only three and
one-half hours prior to the scheduled commencement of the midnight
delivery, to inform PM Resources of his inability to drive. I find
that such a refusal to drive, when the Complainant had been
[Page 10]
provided the necessary eight hour resting period, does not
constitute protected activity under the Act. See, e.g. ,
Palinkas v. United Parcel Service , 95-STA-30 (ALJ Dec. 13,
1995) (complainant's work refusal based on alleged emotional
problems does not constitute protected activity)
Consequently, I find that neither the documentary
evidence nor testimony from witnesses establish that the
Complainant sought corrections of unsafe driving conditions at PM
Resources.2 I find
that the record indicates that the Complainant's refusal to drive
was not based on safety concerns but rather the Complainant's
personal desire not to complete the midnight delivery to Kansas
City. As a result of the lack of supporting evidence, I find that
the Complainant has not established by a preponderance of the
evidence that he engaged in protected activity under subsection (b)
of Section 2305 of the Act.
As the Complainant has failed to prove that he
engaged in protected activity under the Act, he has failed to
establish an essential element of his prima facie case.
Consequently, his complaint must be dismissed. Even assuming,
arguendo , that the Complainant's actions constituted
protected activity, his complaint against the Respondent would
nonetheless fail for the reasons discussed below.
Rebuttal of the Prima Facie Case:
The Secretary has ruled that once a case has been
tried on the merits, the question of whether a prima facie
case was presented is not particularly useful in the analysis.
White v. Maverick Transportation, Inc. , 94-STA-11 (Sec'y
Feb. 21, 1996); See also Carroll v. U.S. Dept. of
Labor , 78 F.3d 352 (8th Cir. 1996)(circuit court approved
Secretary's analysis). Thus, the key issue to be resolved is
whether the adverse employment action taken against the Complainant
was based upon legitimate, nondiscriminatory reasons, or rather,
founded in discrimination. If the Complainant cannot prevail on
this ultimate question of liability, it does not matter whether a
prima facie case is presented. White , supra .
As discussed in detail above, the Complainant
refused to complete his driving assignment just three and one-half
hours before its scheduled commencement. Thus, the Complainant's
actions left PM Resources with no alternative but to cancel the
scheduled delivery and reschedule it with another driver. The
Complainant's actions in this regard cannot be overlooked. Even if
the Complainant's work refusal constituted a protected activity,
his delay in notifying his superiors of this refusal was
unreasonable. The Complainant testified that he knew of his
appointment for the afternoon of September 28 and that he would be
unable to rest in preparation for the midnight trip. Nonetheless,
[Page 11]
at the time he was given the assignment, on the morning of
September 28, the Complainant failed to notify his superiors of the
conflict. Rather, his actions indicated to PM Resources that he
would complete the scheduled delivery. While at work on the
morning of September 28, the Complainant prepared the truck and
trailer for the delivery. (Tr. 69) When Maddock asked the
Complainant if he needed directions for the trip, the Complainant
informed him that the delivery would not be a problem. (Tr. 75)
Subsequently, after the close of business and after the possibility
of finding a replacement driver for the midnight trip, the
Complainant notified Maddock of his inability to complete the
delivery.
Thus, based on the Complainant's unprofessional
behavior in failing to timely notify his superiors of his inability
to complete the delivery, PM Resources presented a legitimate,
nondiscriminatory reason to terminate its employment relationship
with the Complainant.3
Furthermore, the Respondent also presented legitimate business
reasons for refusing to reassign the Complainant to another
position. The Complainant's unprofessional behavior angered one of the Respondent's clients
and caused the client to
miss a scheduled delivery. Quite understandably, the Respondent,
in acting in its own best business interests, chose not to reassign
the Complainant to another company and risk a repeat of his past
unprofessional behavior. Thus, the record clearly establishes
legitimate, nondiscriminatory reasons for the termination of the
Complainant's employment with both PM Resources and Consolidated
Personnel. Moreover, the record is void of any evidence which
would establish that the Respondent's proffered reasons are a mere
pretext for discrimination.
Conclusion
Based on the foregoing, I find that the Com-
plainant has failed to prove by a preponderance of the evidence
that the Respondent violated the employee protection provision of
the STAA. Accordingly,
ORDER
IT IS ORDERED that the complaint of
Don Jones for relief under the Act be DISMISSED.
DANIEL J. ROKETENETZ
Administrative Law Judge
[Page 12]
NOTICE
This Decision and Order and the administrative file in this matter
will be forwarded for final decision to the Administrative Review
Board, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Ave., NW, Washington, DC 20210. See
61 Fed. Reg. 19978 and 19982 (1996).
The parties may file with the Secretary briefs in support of or in
opposition to the administrative law judge's decision and order
within thirty days of the issuance of that decision unless the
Secretary, upon notice to the parties, establishes a different
briefing schedule.
[ENDNOTES]
1 In this Decision and Order,
"Ad. Ex." refers to Administrative exhibits, "Com. Ex." refers to
Complainant's exhibits, "Res. Ex." refers to Respondent's exhibits, and
"Tr."
refers to the transcript of the hearing.
2 The Complainant also testified
about his safety complaints regarding a truck he often was assigned to drive during his tenure at
PM
Resources. (Tr. 45) Through its agent Roy Maddock, PM Resources acknowledged the poor
condition of the truck in question as well as the Complainant's earlier complaints. (Tr. 73)
However,
Maddock stated that the truck was a "yard dog" and was only used for work at the
company facility or for local deliveries. Id. Furthermore, this truck was not scheduled
for
the September 29 trip to Kansas City, and the Complainant testified that the truck scheduled for
the
Kansas City trip was "a nice truck." (Tr. 51)
Consequently, I find that while the Complainant's complaints about the
condition of the "yard truck" could potentially rise to the status of protected activity
under the Act, in this case, such complaints do not constitute protected activity. I base this
finding
on the facts of the case including, but not limited to, the following: 1) the allegedly unsafe truck
was
only used as a "yard truck" and not for over-the-road use; 2) despite his complaints,
the
Complainant never refused to drive the "yard truck" and he drove the truck on
September 28, 1994, his last day working for PM Resources; and 3) the controversy surrounding
the
September 29 trip to Kansas City did not involve the "yard truck" in any way.
Furthermore, even if the Complainant's complaints about the "yard
truck" are considered protected activity, such complaints nevertheless fail to sustain a
successful cause of action under the STAA. As aforementioned, the "yard truck"
played
no part in the events of September 28 and 29 which led to the termination of the Complainant's
employment with the Respondent. Such being the case, absolutely no casual link exists between
the
Complainant's complaints about the "yard truck" and any actions taken against him
by
the Respondent.
3 In actuality, the record indicates
that PM Resources did not terminate the employment relationship. Rather, the Complainant
testified
that, in the early morning hours of September 29, 1994, he cleaned out his desk and returned
company items to PM Resources. The Complainant testified that he was not asked to return
these
items, which included keys and company credit cards. The Complainant testified that returning
these
items and cleaning out his desk were his "idea." (Tr. 89)