Preflight therefore is not entitled to attorney's fees and costs.
[Page 10]
Conclusion
Worku has not presented sufficient evidence to create a genuine issue of fact that he engaged in STAA-protected activity. Accordingly, we GRANT Preflight Parking's Motion for Summary Decision, DENY the Complaint, and DENY Preflight Parking's request for attorney's fees and costs.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 The STAA has been amended since the Complainant filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). We need not decide here whether the amendments are applicable to this complaint because even if the amendments applied to this complaint, they are not implicated by the summary judgment issue presented here and thus, would not affect our decision.
2 Worku appears pro se and, according to the record, English may not be his native language. We will therefore interpret his pleadings to raise the strongest arguments suggested therein. See, e.g., Coates v. Southeast Milk, Inc., ARB No. 05-050, ALJ No. 2004-STA-060, slip op. at 8-9 (ARB July 31, 2007).
3 Response to Preflight Parking Company Motion for Summary Decision (Response), ¶ 4.
4 November 24, 2006 Letter from Worku to the ALJ, as attached to Response (Nov. 24, 2006 Letter), at pages 1-2. Bus #12 also had a broken radio, but Worku was able to use a hand held radio instead. Id. at 1.
5 Id. at 2.
6 Deposition of Eshete K. Worku (Worku Dep.) at 117.
7 Nov. 24, 2006 Letter at 2.
8 The Response contains allegations of racial discrimination, national origin discrimination, and sexual harassment. These allegations are not within the scope of the STAA.
9 The ALJ issued a ruling in this case on November 13, 2006, which he rescinded following Worku's submission of the Response.
10 R. D. & O. at 6.
11 Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(c)(1).
12 29 C.F.R. § 18.40 (2006).
13 Fed. R. Civ. P. 56(c); 29 C.F.R. § 18.40(d); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
15 Celotex, 477 U.S. at 322; Anderson, 477 U.S. at 248.
16 Id. at 255.
17 Celotex, 477 U.S. at 322.
18 29 C.F.R. § 18.40(c); see Anderson, 477 U.S. at 252.
19 Ridgley v. C. J. Dannemiller, ARB No. 05-063, ALJ No. 2004-STA-053, slip op. at 5 (ARB May 24, 2007).
20 Celotex, 477 U.S. at 323.
21 Coates, slip op. at 9, citing Canterbury v. Administrator, ARB No. 03-135, ALJ No. 2002-SCA-011, slip op. at 3-4 (ARB Dec. 29, 2004).
22 See Case Activity Worksheet ("Complaint was ‘verbalized' on 3/25/06").
23 See Motion, Exhibit C (Jenkins Statement) ("He explained to me that the instrument panel would not show which gear he was in … . He told me he was not going to drive unit 12 because he needed ‘the proper tools for the job … . He again refused to drive or punch out."); Exhibit D (Dunson Statement) ("Eshete told me that he did not want to use this unit because of the little red indicator that shows the unit is in park, reverse, neutral, and drive was broken … .").
24 See Response, ¶¶ 2-6 ("I asked my supervisor Mr. Dunson to switch to another safe bus in order to perform my duty safely and professionally. However, Mr. Dunson ignores my request and told me to keep driving unsafe bus and I refused to drive the unsafe bus … . I refused to drive unsafe bus … . Bus #12 gear shift indicator was an old problem, it was broke sometime in 2003. I did report the problem during that time. Since then gear indicator was broken. For the past 3 years I kept reporting no action was taken … . I did refuse to drive bus #12 because the bus mechanically was not safe.").
25 See Nov. 26, 2006 Letter at 1-2 ("I did explain to the shift manager that the bus is not mechanically in a driving condition … . The shift manager told me to drive the bus number 12 which I had previously reported has problems to drive. I tried to explain to him by saying for customers safety and my safety this bus need to be repair in order to operate properly. … I choice to go home instead of operating the bus with lots of mechanical problem … they simply expelled me from my job for revealing the problem about the bus number 12 … .").
26 49 U.S.C.A. § 31105(a)(1)(A).
27 See Memorandum of Law In Support of Motion for Summary Decision (Memorandum) at 4.
28 Memorandum at 4, citing Preflight Parking's Statement of Undisputed Material Facts in Support of Its Motion for Summary Decision, ¶ 26 (which, in turn, cites Exhibit B, "Annual Vehicle Inspection Report, dated January 24, 2006).
29 See, e.g., Luckie v. United Parcel Serv., Inc., ARB Nos. 05-026, 054, ALJ No. 2003-STA-039, slip op. at 13 (ARB June 29, 2007).
30 49 U.S.C.A. § 31105(a)(1)(B)(i).
31 49 U.S.C.A. § 31105(a)(1)(B)(ii).
32 49 U.S.C.A. § 31105(a)(2).
33 Memorandum at 6.
34 Id., citing Worku Dep. 115.
35 Response, ¶ 6.
36 See Worku Dep., Ex. 31 (March 2, 2006 Pre-Trip Inspection Report).
37 49 U.S.C.A. § 31105(b)(3)(B) (allowing assessment of "costs" (including reasonable attorney's fees) against respondent that complainant incurred in bringing complaint). See Somerson v. Mail Contractors of America, ARB No. 03-055, ALJ No. 2002-STA-044, slip op. at 9 (ARB Nov. 25, 2003) (citing Abrams v. Roadway Express, Inc., No. 1984-STA-002, slip op. at 1-2 (Sec'y May 23, 1985)).