U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
ARB CASE NO. 98-064
ALJ CASE NO. 97-STA-9
DATE: May 5, 1998
In the Matter of:
JOSEPH B. BYRD,
COMPLAINANT,
v.
CONSOLIDATED MOTOR FREIGHT,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
FINAL DECISION AND ORDER
This case arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A. §31105 (West 1996). Joseph
B. Byrd (Byrd) alleged that his employer, Consolidated Motor Freight (CF), violated the STAA
when it disciplined and discharged him. In a Recommended Decision and Order (R. D. and O.),
the Administrative Law Judge (ALJ) found that Byrd did not establish a STAA violation and
recommended dismissal of the complaint. The ALJ's findings of fact, R. D. and O. at 2-12, are
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supported by substantial evidence on the record as a whole, and therefore are conclusive. 29
C.F.R. §1978.109(c)(3). We also accept the ALJ's credibility determinations and
recommendation to dismiss the complaint.
BACKGROUND
Byrd began work as a truck driver for CF in 1986, based at a terminal near
Atlanta, Georgia. T. 21. In 1995 he wrote a letter to CF management to complain that a motel
in which he stayed on a Memphis run was so noisy that he was unable to rest. RX 3. He asked
not to be required to stay at that motel on future trips. Id. Byrd made the same
complaint to the United States Department of Transportation (DOT). T. 50-51.
Beginning in October 1995, CF required Byrd and others to drive
"sleeper runs," in which the truck was operated continuously as one driver slept on
a mattress in the back of the tractor while a second driver drove. T. 26. On several sleeper runs,
Byrd was unable to sleep in the tractor because of the vibrations. As a result, he was so tired
while driving that he pulled over to nap. T. 27-28. Byrd was not disciplined for stopping to nap
during his driving shifts. T. 50 (Baton Rouge trip), 52-54 (Memphis trip), 70 (April 26-27, 1996
trip).
On a sleeper run from Atlanta to Columbia, South Carolina in 1996, Byrd
was so tired that he found he had drifted from the right to the left lane without knowing why. T.
34. Upon returning from that trip, he informed his dispatcher that he would not take any more
sleeper runs because they violated a motor carrier regulation that forbids driving when the driver
is so fatigued that it is a danger to himself and to others. T. 35. In March 1996, Byrd sent a letter
to the Federal Highway Administration complaining that sleeper runs are dangerous and violated
the DOT's regulations. RX 8.
Byrd took medication for high blood pressure, which was monitored by his
personal physician and a physician employed by CF to perform physical examinations of drivers.
T. 38-42.
Between January 15 and August 6, 1996, Byrd was absent from work 75
days. For example, he missed work from February 5 to 8 because of burst water pipes at his
home, T. 54, and from February 26 to 28 because he claimed fatigue after working 44 hours in
the previous eight days. T. 55. Byrd was absent from work for one week beginning March 25,
when he broke his eyeglasses in anger after being told to take a sleeper run or else quit his job.
T. 61. Byrd claimed that it took seven days to obtain and adjust to his new eyeglasses, which had
the same prescription as the broken glasses. T. 64. Byrd received a warning letter about this
absence. RX 9.
In April 1996 Byrd missed work from the sixth to the tenth because he was
ill, although there is no indication he visited a doctor during that time. T. 65. He missed work
from April 14 to April 24 to have his teeth pulled. T. 69.
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On May 1, 1996, CF denied Byrd's request for earned time off. Byrd
nevertheless placed himself on the "sick board," claiming high blood pressure. T.
197. Byrd told a secretary that he would call in to work after visiting the doctor, but he never
called that day. T. 198. Group operations manager Jerry Ard issued Byrd a final warning letter
for his May 1 absence. RX 13. On May 8, CF received a note from Byrd's personal physician
indicating that he had high blood pressure on May 1 and 2 and releasing Byrd to work on May 3.
T. 198; RX 49 at 91. Byrd had not returned to work on May 3, 4, 5, or 6, however. T. 199.
Ard telephoned Byrd on May 6 and requested that he see the company
physician, Dr. Combs, and then report to Ard. T. 200. Combs released Byrd to work on May
6. T. 201; RX 15. Byrd did not see Ard or report to work that day or the next and did not
remove himself from the sick board. T. 201-202. Ard issued an intent to suspend Byrd for one
day because of his absence on May 6. RX 16. Ard next issued a discharge letter to Byrd on May
8 because of excessive absenteeism. T. 203; RX 17. The union contract provided, and CF
advised, that Byrd could continue driving while he pursued a grievance concerning his discharge.
The same day, Byrd made a run to Memphis with an overnight rest of 11
3/4 hours. He claimed fatigue on May 9 and CF gave him an additional eight hours' rest. T. 87,
203-204. Byrd did not place himself on the driver board after the additional rest, however. Ard
considered Byrd's failure to return to work unreasonable in light of the fact that he had been off
the previous week and had been permitted two eight hour rest periods after the Memphis run. T.
204. Consequently, Ard issued another discharge letter on May 10.1RX 20. Byrd
remained off work due to illness from May 9 through June 6 but did not see a physician during
that time. T. 89.
1 CF issued the additional
discharge letter to preserve its rights while Byrd grieved the earlier discharge. CF and the union,
which represented Byrd, ultimately settled the grievances concerning the May 8 and 10 discharges,
which were reduced to suspensions. CX 3; RX 21.
2 Although the
"pretext" analysis permits a shifting of the burden of production, the ultimate burden of
persuasion remains with the complainant throughout the proceeding. Once a respondent produces
evidence sufficient to rebut the "presumed" retaliation raised by a prima facie
case, the inference "simply drops out of the picture," and "the trier of fact proceeds
to decide the ultimate question." St. Mary's Honor Center, 509 U.S. at 510-511.
See Carroll v. United States Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996) (whether the
complainant previously established a prima facie case becomes irrelevant once the
respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).