In sum, substantial evidence supports the ALJ's finding that Hunt established a legitimate, nondiscriminatory reason for terminating Chapman's employment, and well established legal precedent and analysis supports the ALJ's conclusion that Hunt did not violate the STAA.
Conclusion
We have reviewed the record and find that substantial evidence on the record as a whole supports the ALJ's factual findings and that they are therefore conclusive. 29
[Page 8]
C.F.R. § 1978.109(c)(3). Additionally, the ALJ correctly applied the relevant law. Accordingly, we ADOPT the findings of fact and conclusions of law in the attached ALJ's R. D. & O. and DENY Chapman's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 Tr. 10, 18-22.
2 Id. at 17-18.
3 Id. at 180-81.
4 See, e.g., Respondent's Exhibit (RX) 11 at 269-70, 275, 277, 284, 287, 325-26, 329, 333-34, 349, 369, 371-72, 379, 388, 398-99 and 400.
5 R. D. & O. at 6.
6 Tr. 69-71.
7 Id. at 68-70.
8 Id. at 66-67, 72. Chapman also testified that he contacted OSHA in June 2003 "after Hunt told him that he had an excessive ‘idle percentage,' which is the amount of time that the truck is idling." R. D. & O. at 4.
9 Tr. 76-77. Beecher did not remove the service failure caused by inclement weather because Chapman failed to notify his fleet manager that he would be late because of the weather. Id. at 70; R. D. & O. at 2.
10 RX 9 at 19-20, 27.
11 Id. at 28; R. D. & O. at 9.
12 Tr. 191.
13 Id. at 183-84.
14 Id.
15 Id. at 149, 199-200; RX 16. One of Hunt's fleet managers also attended but did not participate. Tr. 199-200.
16 Id. at 200.
17 Id.
18 R. D. & O. at 4.
19 Id. at 10.
20 Id.
21 Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
22 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995).
23 Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
24 5 U.S.C.A. § 557(b) (West 1996).
25 See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
26 49 U.S.C.A. § 31105(a)(1).
27 49 U.S.C.A. § 31105(a)(1)(A).
28 BSP Trans, Inc., 160 F.3d at 45 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Eash v. Roadway Express, ARB No. 04-036, ALJ No. 1998-STA-28, slip op. at 5 (ARB Sept. 30, 2005); Densieski v. La Corte Farm Equip., ARB No. 03-145, ALJ No. 2003-STA-30, slip op. at 4 (ARB Oct. 20, 2004).
29 Feltner v. Century Trucking, Ltd., ARB No. 03-118, ALJ Nos. 03-STA-1, 03-STA-2, slip op. at 4-5 (ARB Oct. 27, 2004); Densienski, slip op. at 4. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 513 (1993); Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Poll v. R.J. Vyhnalek Trucking, ARB No. 99-110, ALJ No. 96-STA-35, slip op. at 5-6 (ARB June 28, 2002).
30 Calhoun v. United Parcel Serv., ARB No. 00-026, ALJ No. 99-STA-7, slip op. at 5 (ARB Nov. 27, 2002).
31 St. Mary's Honor Ctr., 509 U.S. at 502; Densieski, slip op. at 4; Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 98-143, ALJ No. 97-ERA-38, slip op. at 8 (ARB July 31, 2002); Poll, slip op. at 5.
32 R. D. & O. at 8. The ALJ found that Chapman did not threaten to contact OSHA during his May 15, 2003 conversations with Beecher or Shank and that, if he did contact OSHA in June 2003, Beecher was not aware of any of Chapman's alleged communications with OSHA before she fired him. Id. at 7.
33 See, e.g., Tr. 80-82 ("She fired me because I did not adhere to their company policy of running over anything that's in the road … And she says I violated company policy and what would I do in the future? I said, ‘I'd do the same thing in the future, the same damn thing' is what I told her."), 82 ("I have a license. She does not. I have experience. She does not. So therefore, what I chose to do was the right thing.). See also R. D. & O. at 10 (Chapman demonstrated an "attitude of nearly total resistance to any safety instructions on the grounds that his own experience as a licensed truck driver should trump the safety policies of Hunt ….").
34 Id. at 9 ("The information from Mr. Chapman's OBC shows that he was in the area at the time these complaints were lodged and casts doubt on his claim that he was the victim of dishonest or mistaken motorists …. I find that Ms. Beecher's testimony regarding Hunt's procedure was credible and consistent with the evidence in the OBC communications.").
35 See, e.g., Johnson v. Rocket City Drywall, ARB No. 05-131, ALJ No. 2005-STA-24, slip op. at 5 (ARB Jan. 31, 2007) (citing Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10, slip op. at 4-5 (ARB Dec. 30, 2004)).
36 See Complainant's Brief at 8 ("[I]t is clearly evident that Judge Karst exhibited previous knowledge of the case on trial; by questioning was leading the Complainant during testimony; defamed Complainant's character; and exhibited a biased and prejudiced attitude towards the Complainant." [sic]).
37 See, e.g., Dale v. Step 1 Stairworks, Inc., ARB No. 04-003, ALJ No. 2002-STA-30, slip op. at 7 (ARB Mar. 31, 2005) (citing Griffith v. Wackenhut Corp., ARB No. 98-067, ALJ No. 97-ERA-52, slip op. at 10 n.5 (ARB Feb. 29, 2000)). Nevertheless, although the ALJ has some duty to assist pro se litigants, he also has a duty of impartiality. A judge must refrain from becoming an advocate for the pro se litigant. See, e.g., United States v. Trapnell, 512 F.2d 10, 12 (9th Cir. 1975) (per curiam) ("The trial judge is charged with the responsibility of conducting the trial as impartially and fairly as possible.")