U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: April 18, 1990
CASE NO. 89-STA-15
IN THE MATTER OF
WALTER STACK,
COMPLAINANT,
v.
PRESTON TRUCKING COMPANY,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
DECISION AND ORDER OF REMAND
Before me for review is the Recommended Decision and Order (R.D.
and O.) issued December 19, 1989, by Administrative Law Judge (ALJ) Ainsworth H. Brown in
the captioned case, which arises under the employee protection provision of the Surface
Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).
Since March, 1978, Complainant Walter C. Stack has been employed
by Respondent, Preston Trucking Company, as an over-the-road driver of commercial motor
vehicles. Hearing Transcript (T.) 23. Stack alleges here that Respondent has engaged in unlawful
harassment by issuing him letters dated August 12, September 7, October 28 and November 2,
1988, and February 1, 1989, critical of his job performance, and that this treatment represents
retaliation for his considerable history of filing safety complaints, see, e.g., Exh. CX-2
at 3-4, and for testimony given by him at an October 3, 1988, STAA hearing.
1They assertedly document that
Stack's employment conditions were altered because he was subjected to special investigation,
and he allegedly was accused of liability despite Respondent's express admission that it
Possessed "no concrete proof that [Stack was] responsible for the damage . . . ." T. 5.
This treatment would be akin to false accusation, unwarranted reprimand, intimidating
comments, and undeserved evaluation that may, under certain circumstances, constitute
recognized forms of adverse action. SeeYartzoff v. Thomas, 809 F.2d 1371,
1375-1376 (9th Cir. 1987), citing B. Schlei, P. Grossman, Employment Discrimination
Law, 554-555 (2d ed. 1983), id. at 227-229 (Cum. Supp. 1989) (Schlei, et al.).
2I recognize that the August and
September, 1988, letters postdate Respondent's April, 1985, directive by several years, thus
possibly diminishing the strength of the inference. However, I note that Stack's whistleblowing
activities continued during that intervening period, and I am unable otherwise to explain why
Respondent would accuse Stack of liability in the face of an admitted dearth of proof.
3While not every communication
between a trucking company and its truck drivers is actionable under the STAA, here the
investigation of Mr. Stack constituted a change in his employment terms, conditions, and
privileges rendering him specially subject to discipline, 49 U.S.C. § 2305(a), and the
February, 1989, letter expressly warned him that he had advanced to a position of imminent
discipline for a further like infraction.
4I reject the ALJ's determination
that Stack was not threatened by Hargett. R.D. and O. at 3-4. The gist of the ALJ's disposition
was that a management representative of Hargett's station, presumably acting in Respondent's
best interests, likely would not invite contention. The record contains significant evidence which
the ALJ apparently declined to consider, specifically Hargett's 1985 written directive to
Respondent's management identifying Stack and another employee as "troublesome for
Preston" and specifying that their requests for information should be subject to particular
scrutiny. See Exh. CX-1 at 7; T. 31-32. Hargett's treatment of Stack hardly appears
prudent in light of Stack's vigorous safety activity, thus disputing ALJ Brown's credibility
premise. I decline to adopt the ALJ's finding because it is not supported by the record in its
entirety. Instead, I find that the threat more likely occurred. Mr. Stack's account is specific, and I
find no basis elsewhere in his testimony for disbelieving it. T. 41-44. Moreover, internal
inconsistencies render other portions of Hargett's testimony questionable. In particular, I find it
unlikely that Hargett would have known about certain of management's responsive measures
regarding Stack without concomitantly knowing why they were initiated. See T. 30-31,
68-72.
5See Schlei, et al. at
231-234 (retaliatory motive may be inferred from evidence that adverse action is at variance with
normal procedure or is disproportionate to offense). The majority of comparison letters were
issued almost immediately following discrete infractions and generally address the individual
circumstances with specificity, thus affording those employees precise notice of the allegations.
In contrast, Stack's February 1, 1989, letter is nonspecific as to multiple allegations of tardiness
and the four delay-of-freight allegations predate the letter by up to two weeks. These
circumstances suggest that Stack's ability to dispute the allegations intentionally may have been
impaired.
6The supporting documentation
for this attestation is not highly probative. The six "accident investigation" letters in
support of the affidavit postdate Stack's letters by a minimum of three and one-half months,
arguably demonstrating routine issuance well after Stack's receipt and his consequent complaint.
7Pretext is suggested by
undeserved criticism or evaluation, harassment and close scrutiny, or a series of adverse
employment decisions. Yartzoff v. Thomas, 809 F.2d 1377. Schlei, et al.,observe that
surveillance "strongly suggests the possibility of a search for a pretextual basis for
discipline, which in turn suggests that subsequent discipline was for purposes of
retaliation." Employment Discrimination Law at 559.
8After Respondent factored in
permissible break periods, it charged Stack with late delivery of nine-tenths of an hour, six-tenths
of an hour (twice), and four-tenths of an hour. Respondent cited other employees for delays of
1.5, 1.6, and 1.0 hours, the smallest delay being 51 minutes. None of these other employees
received a citation for delays occurring during winter months. Stack's delays occurred in January
between terminals in the Northeastern United States and were due in part to inclement weather
and hazardous road conditions. See T. 31-41. Thus, they may well have been
"unavoidable."
9I find it irregular to include a
maintenance request and response in a personnel file unless the employer was engaged in
organizing a case against an employee. T. 71-72. Inasmuch as the results of the requested tests
apparently were communicated to Stack, see T. 32-33, this documentation may have
been retained in anticipation of further action against Stack.
10Respondent urges that Stack
should be warned that continued transgression may bring financial liability for hearing expenses.
I am not persuaded that I possess authority under the STAA to assess litigation expenses against
complainants. STAA Section 2305(c)(2)(B) authorizes me to assess back pay, compensatory
damages, and litigation costs and expenses against discriminators who have violated subsection
(a) or (b). Had Congress anticipated that, under an employee protection statute, financial liability
might run against employees who believe themselves subject to unlawful discrimination, I
believe it would have made explicit provision. In ruling that monetary sanctions under Fed. R.
Civ. P. 11 are not available in its proceedings, the Federal Mine Safety and Health Review
Commission found persuasive the silence of the enabling legislation and of the Commission's
procedural rules on the subject. Rushton Mining Co., 1989 O.S.H. Dec. (CCH) par.
28,530.
11Adjudicative bodies,
including administrative agencies, are empowered to discipline persons appearing before them by
virtue of their statutory authority to order their proceedings. However, they must have exercised
their "legislative" authority and have promulgated specific disciplinary rules.
SeeTouche Ross & Co. v. Securities & Exch. Com'n, 609 F.2d 570, 581 (2d
Cir. 1979); 5 U.S.C. § 558 (administrative agencies authorized to impose sanctions,
provided sanctions are "within jurisdiction delegated to the agency and as authorized by
law"). For a discussion of various forms of reprimand and sanction, see generally 4 J.
Stein, G. Mitchell, B. Mezines, Administrative Law, par. 42.03[2] (1989).
12Section 18.34(g)(3) which
empowers an ALJ to deny "the privilege of appearing" to any person upon specified
findings is expressly inapplicable to persons appearing on their own behalves.
13Federal Rule 11 requires
representative counsel and unrepresented parties to sign all court filings, thereby certifying
that the signer has read the pleading, motion, or other paper; that to the best
of the signer's knowledge, information, and belief formed after reasonable inquiry it is
well grounded in fact and is warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and that it is not interposed for any
improper purpose, such as to harass or to cause unnecessary delay or needless increase in
the cost of litigation.
14Such conduct by a party
could result in that party's exclusion from hearing. This did not transpire in the instant case,
however. Rather than summarily finding Mr. Stack's complaint frivolous or improper and
excluding him, the ALJ heard certain of the parties' evidence and recommended dismissal of the
complaint based on Mr. Stack's failure of proof. Accordingly, the propriety of a reprimand or
sanction in the form of exclusion is not before me, and the STAA and implementing regulatory
Parts, 18 and 1978, do not approve any other course proposed.