U.S. Department of Labor
Office of Administrative Law Judges
Heritage Plaza, Suite 530
111 Veterans Memorial Blvd.
Metairie, LA 70005
DATE: May 20, 1987
CASE NO. 86-STA-18
IN THE MATTER OF
LEON B. DAVIS, JR.,
COMPLAINANT
v.
H. R. HILL, INC.,
RESPONDENT.
Appearances
Leon Davis, Jr., Pro Se
Joe R. Kennedy, Esquire
For the Respondent
BEFORE: C. RICHARD AVERY
Administrative Law Judge
AMENDED RECOMMENDED DECISION AND ORDER
This claim arose under Section 405 of the Surface
Transportation Assistance Act (Act). (Pub. L. 97-424, Title
IV, 49 U.S.C. 2301 et seq.) A hearing was held in regard to
this claim on August 5, 1986, at Muskogee, Oklahoma. The
undersigned issued a Recommended Decision and Order on
November 20, 1986, recommending dismissal of Mr. Davis,
complaint. A copy of that Decision and Order is marked
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Exhibit "A" and made a part hereof. On March 19, 1987, the
Secretary issued a Decision ana Order of Remand which was
received by the office of Administrative Law Judges on March
24, 1987. A copy of that Decision and Order is marked Exhibit
"B" and made a part hereof. Subsequently, the record was
reopened for the parties to file briefs in support of their
positions; however, except for a letter of appreciation to the
Secretary of Labor from the Claimant dated April 9, 1987,
neither of the parties submitted briefs.
The Secretary's Remand Order
In my original recommended decision I found Mr. Davis'
actions of complaining about the conditions of vehicles which
he was assigned to drive did not come within the purview of
Section 2305(a) of the Act which prohibits discrimination,
discipline or discharge of an employee by his employer in
retaliation for the employee's having ". . . filed any
complaint or instituted . . . any proceeding relating to a
violation of a commercial motor vehicle safety rule or
has testified or is about to testify in any such proceeding."
Section 2305(a). It was my impression that the language of
the regulation, particularly the words "filed", "instituted "
and "proceeding" indicated that an employee must take some
formal action in order to fall within this section. In his
Order of Remand, the Secretary determined essentially that the
policy underlying the Acts (to promote safety on the highways)
supports a construction of this section which includes
internal complaints voiced by an employee to his employer.
Having found that Mr. Davis had lodged such complaints to his
employer, the Secretary instructed me to reconsider whether
this portion of the Act had been violated.
In my original recommended decision, I found that Section
2305(b) was implicated by Mr. Davis' refusal to drive two
vehicles which he reasonably believed to begin an unsafe
condition. However, I concluded that although Mr. Davis had
reasonably refused to drive two vehicles which he was offered,
he was discharged because he failed to deliver the load on
time, and his discharge could have been avoided had he
accepted two other vehicles which I found he had unreasonably
refused. In his Order of Remand, the Secretary determined
that because Mr. Davis' discharge was motivated in part by
protected activity, the burden of proof shifted to the
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to Employer to show that the discharge would have taken place
even in the absence of the protected activity. The Secretary
instructed me to reconsider this issue in accordance with this
reallocation of the burdens and presentation of proof.
Findings of Fact and Conclusions of Law
In this case, Mr. Davis alleged that he was discharged
for making internal complaints regarding the condition of
trucks to which he was assigned. The Secretary determined
that Mr. Davis did in fact make a number of complaints
relating to the violation of motor vehicle safety standards,
and because the Secretary has declared such conduct to be
protected activity under Section 2305(a), I will examine the
record to determine whether the fact that Mr. Davis made those
complaints played any role in the Employer's1 decision to
discharge Mr. Davis.
1Throughout this decision,
"Employer" and "Respondent"
will be used interchangeably to refer to H. R. Hill, Inc.
Further, the actions of Eugene Hill are considered to be those
of the Employer.