This proceeding arises under Section 405 of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app.
§ 2305 (1982).
Complainant, Timothy C. Ertel, alleges that he was
discharged by Respondent, Giroux Brothers Transportation, Inc.
(Giroux Brothers), in violation of STAA Section 405. After a
hearing on Complainant's allegations, Administrative Law Judge
(ALJ) Chester Shatz issued, on October 19, 1988, a Recommended
Decision and Order (R.D. and O.) finding that Complainant had
failed to establish that he had been discharged in violation of
Section 405(b) for refusal to operate a vehicle in violation of
Federal rules, regulations, standards, or orders applicable to
commercial motor vehicle safety or health. Specifically, the ALJ
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found that Complainant was discharged by Respondent's dispatcher
following Complainant's refusal to operate a truck tractor that
had been placed out of service by a Department of Motor Vehicles
inspector prior to its receiving necessary repairs. The ALJ
cited a lack of record evidence that the dispatcher knew about
Complainant's protected refusal as central to his conclusion that
Complainant had failed to establish a prima facie case of
unlawful discrimination under the STAA. The ALJ also cited as
dispositive the absence of "direct" evidence of the causal
relationship between the protected activity and the adverse
action. The ALJ consequently concluded that Complainant was
discharged because he "had words with" the dispatcher concerning
his job performance.
The Associate Solicitor for Occupational Safety and Health,
representing Complainant, argues that Complainant made out a
prima facie case in that he engaged in protected conduct and he
was discharged within hours of that conduct. According to the
Solicitor, Brief of the Associate Solicitor before the Secretary
(Sol. Br.) 7, the "suspiciousness" in timing gives rise to an
inference of causation, thus satisfying Complainant's initial
burden. The Solicitor also argues, Sol. Br. 8, that the
dispatcher's knowledge of Complainant's protected refusal may
be inferred under the "small shop" doctrine applied in actions
arising under Sections 8(a)(1) and (3) of the National Labor
Relations Act, as amended, 29 U.S.C. §§ 158(a)(1) and (3) (1982).
The Solicitor points to circumstantial and direct record evidence
as supporting the likelihood of the dispatcher's knowledge, Sol.
Br. 8-9, positing the theory that the dispatcher gave Complainant
"the 'runaround,' keeping him at the terminal so that he could
pick a fight with complainant and fire him on this pretext."
Sol. Br. 9. The Solicitor views the dispatcher's "blatant
baiting" of Complainant as provocation akin to that resulting in
constructive discharge, Sol. Br. 10, thereby substantiating a
finding that this ground was pretextual. Finally, the Solicitor
argues that the record does not demonstrate independent,
nondiscriminatory reasons for Complainant's discharge.
Respondent argues "that the evidence simply does not support
the claim of improper discharge . . . ." Brief of Respondent
Giroux Brothers Transportation, Inc. in Support of Decision of
Administrative Law Judge (Resp. Br.) 11. Respondent's theory
includes the following four elements:
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Respondent had determined to discharge
Complainant long before this protected
activity. Respondent gave Complainant
a 'second chance' to improve his poor
performance. Respondent felt Complainant's
record had worsened. The supervisor who
fired Complainant was not even aware of
Complainant's protected activity and
legitimately fired Complainant for engaging
in abusive and belligerent language.
Id. Respondent characterizes Complainant's "altercation" with
the dispatcher as "inflammatory" and "insubordinate." Resp. Br.
12. Following the truck stoppages, fines, and delays in customer
deliveries caused by Complainant's "apparent failure to engage
in even a cursory pre-trip inspection," repeated warnings about
accidents and violations of company policy, and the company's
previous decision to discharge Complainant, Respondent "elected
to go ahead and accommodate" Complainant when he "twice
belligerently demand[ed]" that the dispatcher "work him or fire
him." Resp. Br. 12-13.
Upon review of the entire record in this case, I have
concluded that certain of the ALJ's key factual findings are
not supported by substantial evidence and that he employed an
erroneous legal analysis in rendering his recommendation. In
particular, I limit certain credibility findings made by the ALJ
and I reject his finding that Complainant provoked the dispatcher
by "throwing down the gauntlet" and daring the dispatcher to
discharge him. I also conclude that Complainant established a
prima facie case of unlawful discrimination and that Respondent's
legitimate reasons proffered for the discharge were pretext.
Consequently, I do not accept the ALJ's recommended decision.
Rather, for the reasons set forth below, I find that Complainant
established that Respondent violated the STAA.
The events preceding the discharge are largely undisputed.
Mr. Ertel was hired by Gary Giroux, the Giroux Brothers terminal
manager, and began work on October 12, 1987, as a Class One
driver of tractor-trailers for purposes of making freight pickups
and deliveries in the nine-state Northeastern region of the
United States serviced by Giroux Brothers. Prior to this
employment Ertel obtained eight weeks of training as a truck
driver. He had no prior experience as a Class One driver.
Transcript (T.) 5-7, 27, 141-143. Consistent with company
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policy, Ertel's initial 30 days of employment constituted a
probationary period during which time he received wages of $10.00
per hour with no fringe benefits. After completion of the
probationary period, Ertel was to have become eligible for
increased wages of $11.15 per hour and entry onto the company's
insurance plan.1 Ertel worked full time for
Giroux Brothers
until his discharge on November 17, 1987.
1Ertel's probationary period concluded
on November 11, 1987.
Ertel testified that he understood the Girouxs to agree to giving
him the raise at that time. T. 25-26. Gary Giroux testified that
he determined to continue Ertel in a probationary status at $10.00
per hour until at least January, 1988. T. 157-158.
2The sole means of detecting
leaking fuel injectors on the truck
tractors is to examine the engine. T. 176. The Giroux Brothers
mechanics were responsible for checking the engines at night. T.
48.
3Both accounts of this incident,
Ertel's, T.39-41; Exh. RX-3,
p.1, and Gary Giroux's as he recounted what was related to him by
the customer, T. 150-155, support the reasonableness of Ertel's
asserted belief that he had not hit the UPS trailer.
4Ertel testified that although the
directional signal was
operational when he checked it at the garage, it apparently ceased
working thereafter, and he was cited for it. However, it again was
operating when Jimmy Giroux arrived at the out-of-service vehicle
location, and it did not require repair. T. 49-50. Gary Giroux
testified that he was aware of this occurrence and could not
explain it. T. 163-164.
5The ALJ accepted Gary Giroux's
testimony, T. 167, that he and
Jimmy made "some but not all" of the required repairs before
removing the out-of-service sticker. R. D. and O. at 4, Finding
No. 9. Ertel testified that no repairs were made. T. 66. That
no further repairs were possible at the tractor's roadside location
is buttressed by the fact that the Goddhall's mechanic had been
unable to make the majority of the required repairs at roadside.
6Ertel's version was that on either
Wednesday, November 11, or
Thursday, November 12, he had mentioned to the Girouxs that his
1130 days were up and they said that okay, your raise will be in
next week's pay." T. 25-26.
7Credibility findings that
"rest explicitly on an evaluation of
the demeanor of the witnesses" may be accorded exceptional weight
by a reviewing court. NLRB v. Cutting. Inc., 701 F.2d 659, 663
(7th Cir. 1983). These "demeanor" findings are in contrast to
credibility findings based on aspects of testimony itself, e.g.,
internal inconsistency, inherent improbability, important
discrepancies, impeachment, witness self-interest. All factual
findings, including credibility findings, must be supported by
substantial evidence in the record as a whole. Where a
factfinder's "theory of credibility is based on inadequate reasons
or no reasons at all, his findings cannot be upheld." Id. at 667.
All relevant, probative, and available record evidence must be
explicitly weighed by the factfinder who must make explicit
statements as to what portions of the evidence he has accepted or
rejected. Dobrowolsky v. Califano, 606 F.2d 403, 409-410 (3rd Cir.
1979). A full explanation of why specific evidence was rejected
is imperative, since a factfinder "cannot reject evidence for no
reason or for the wrong reason." Cotter v. Harris, 642 F.2d 700,
706-707 (3rd Cir. 1981).
8Confronted with a similar
finding, i.e., that the individual
did not impress the judge "as being a candid witness," the court
in NLRB v. Cutting Inc., 701 F.2d at 666, held:
Given its context and the overall reliance on
inferences drawn from the substance of the
testimony, we do not believe the statement
about the witnesses' lack of candor is the
kind of explicit, demeanor-based credibility
finding entitled to exceptional weight under
Kopack v. NLRB, 668 F.2d 482 (7th Cir.
1982) . . . . An ALJ may not make his
credibility findings unassailable by simply
invoking "the right incantation" to the
witnesses' demeanor. Id. at 953-54 (citation
omitted].
See Dorf v. Bowen, 794 F.2d 896, 901-902 (3rd Cir. 1986) (judge's
wholesale discounting of testimony, especially in light of other
record evidence which supported it, required reversal); Kent v.
Schweiker, 710 F.2d 110, 116 (3rd Cir. 1983) (conclusory wholesale
rejection of testimony did not meet substantial evidence test).
9Gary Giroux's testimony is
frequently disingenuous. An
example is his version of the telephone conversation with Ertel.
He testified: "All I said to him was just, 'Tim, we're coming down
to fix the truck, I'm going to send my mechanic out of the shop
here and he's going to come fix the truck, will you drive it back
to the shop,' and he said, 'No, I'm not driving it.' I said, 'Tim,
I'm sending a mechanic down to fix the truck, are you going to--'
'No, it's unsafe, I'm not driving it' . . . . it T. 168. To the
contrary, substantial record evidence establishes that Ertel
refused to operate the tractor in response to Jimmy Giroux's
telephone instruction to remove the out-of-service sticker and
return to the garage. Findings Nos. 8 and 9, R. D. and O. at 4.
Ertel did not refuse, as Gary Giroux testified, in response to a
seemingly more reasonable request that he operate the tractor after
a mechanic had repaired it.
10According to Ertel, the
improper brake adjustment cited later
that morning during the Connecticut State inspection was "minor,"
difficult to detect visually. T. 55. Ertel also testified
that whereas the mechanics at Giroux Brothers generally would
repair brake and directional lights, they would not take the time
to repair identification lights which are not safety-related. T.
56.
11Mike Ames was not called to
testify at the hearing. Respondent
declined to take his post-hearing deposition for inclusion in the
administrative record, despite a grant of permission to do so by
the ALJ. R.D. and O. at 1.
12I am not required to, and I do
not, resolve the question
whether Ames was instructed to provoke Ertel to supply a colorable
basis for his discharge. However, I agree with the Associate
Solicitor to the following limited extent: Ertel's account of the
exchange suggests that Ames may have been advised of the decision
and may have been instructed to detain Ertel without giving him any
further work assignments so that Gary Giroux could discharge him
on his return from illegally retrieving the tractor. This
construction would explain why Ames reportedly represented to Ertel
that there were no other tractors available for him to drive that
afternoon, T. 67-68, when according to Giroux's testimony other
trucks had been available. T. 173. It also would explain why
Ames, possibly in anger, pronounced Ertel discharged when he
clearly lacked the authority to discharge employees.
13Ertel had not worked during
the intervening weekend. His
performance on Monday, November 16 was satisfactory. T. 164.
14Complainant's prima facie
case requires a showing sufficient
to support an inference of unlawful discrimination. This initial
burden is not onerous. Texas Dept. of Community Affairs v.
Burdine, 450 U.S. at 253. The causal connection component may be
established by showing that the employer was aware of the protected
conduct and that the adverse personnel action followed closely
thereafter. Mitchell v. Baldridge, 759 F.2d 80, 86 and n.6 (D.C.
Cir. 1985) ; Burrus v. United Telephone Co. of Kansas, Inc., 683
F.2d 339, 343 (10th Cir. 1982), cert. denied, 459 U.S. 1071 (1982).
Here, where Ertel's discharge almost immediately followed his
protected conduct, the case for retaliatory motivation is strong.
15The instant circumstances
differ significantly from those
presented in Moon v. Transport Drivers, Inc., 836 F.2d 226, 229
(6th Cir. 1987). There, the court noted that "temporal proximity
alone will not support an inference in the face of compelling
evidence that (the employer) encouraged safety complaints," where
the employee's protected conduct was such a complaint. Here, the
Giroux brothers did not encourage safety-based refusals as
evidenced by their illegal operation of the tractor, a fact
strengthening the case for retaliatory motive.
16In concluding that the
evidence is sufficient to support an
inference of causation, it is not necessary for me to determine
whether the small shop doctrine is applicable as urged by the
Associate Solicitor. That doctrine enables the NLRB "to infer
employer knowledge of union or pre-union activities where the
number of employees in the workplace is small." D & D Distribution
Co. v. NLRB, 801 F.2d 636, 641 (3rd Cir. 1986). It presumes that
management at a small facility likely notices union conversations
and activities because of its close working relationship with the
plant labor force.
17Respondent's argument in its
brief before me is slightly
different. That argument is that Giroux was unhappy with Ertel's
job performance, specifically with his slow pace and the two
accidents that he had experienced. Accordingly, Giroux continued
Ertel's probationary period past the initial 30 days of his
employment. Giroux continued to be unhappy due to the shutdown
on November 13 which he attributed to an inadequate pre-trip
inspection. Ertel's purported "sudden and unprovoked outburst
towards Ames," however, was "the final straw" which precipitated
Ertel's discharge. Resp. Br. 18. Although Respondent's brief
cites the alleged insubordination as the operative motivation for
the discharge, I also examine the "inadequate pre-trip inspection"
rationale and the "stoppage" rationale relating to both the
November 13 and 17 incidents as operative motivations since Gary
Giroux's testimony cites them as such. T. 170-171.