DATE: October 27, 1992
CASE NO. 90-STA-31
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
and
WILLIAM R. LAJOIE,
COMPLAINANT,
v.
ENVIRONMENTAL MANAGEMENT SYSTEMS, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
Before me for review is the [Recommended] Decision and Order
(R.D. and O.) issued on July 1, 1992, by the Administrative Law
Judge (ALJ) in this case, arising under Section 405 (employee
protection provision) of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and its
implementing regulations, 29 C.F.R. Part 1978 (1991). The
Assistant Secretary of Labor for Occupational Safety and Health
argues that Respondent Environmental Management Systems, Inc.
(EMS) unlawfully discharged Complainant William Lajoie for
engaging in protected activity. EMS responds that Lajoie
voluntarily quit his employment and, alternatively, that it would
[PAGE 2]
have discharged him for insubordination. The ALJ has recommended
that the complaint should be dismissed. I disagree.
1. Statement
Incorporated in November 1988, EMS, which maintains offices
in Morrisville, Pennsylvania, and Attleboro, Vermont, transports
asbestos waste from various project sites to landfills throughout
the country. Hearing Transcript (T.) 201. Truck tractor drivers
employed by EMS drop off empty trailers at project sites as well
as pick up trailers which have been filled with waste. T. 203.
Drivers generally work long hours. EMS Vice-President Robert Lee
testified: "As you can see on the daily log reports, a lot of
it's driving time and then there's waiting time. We constantly
have wait-to-load jobs where a driver will sit in the project
site, in his tractor, from six to seven to eleven hours." T.
256. He also testified that "specialty waste" movement and
disposal was
a very time-oriented industry, you have to be
there at a specified time. [I]t's not so
much like a trucking company where you have a
little bit of leeway. [W]e're transporting
specialty waste, and it's . . . very
important to . . . be there and pick it up at
a certain time, so you jump it as it counts.
T. 204. EMS "constantly ha[s] work going on . . . seven days a
week, 24 hours a day." T. 221 (Lee). Drivers routinely store
their tractors at their residences between trips and telephone
the office for assignments. T. 219-221. EMS leases its tractor
trailer equipment, with the leasing companies performing
equipment service, inspection, and repair. T. 204-208, 210-215.
It does not employ its own mechanics, negotiating instead full
service vehicle lease agreements. Id. Lee testified that
he traveled extensively as "basically one of the salespeople"
securing EMS accounts. T. 201-202.
EMS employed Complainant truck driver Lajoie between May and
November 1989. Vice-President Lee testified that Lajoie received
a pay increase in July because "he had done a good job for us.
We had no complaint with his work at that point, and obviously
the raise was . . . expressing that." T. 218-219.
In late 1989, Lajoie discovered that the hookup light at the
rear of his tractor was inoperative, T. 167, and he attempted
unsuccessfully to repair it. T. 184-185. [1] On the evening of
November 7, Lajoie traveled to the Windsor, Connecticut, town
hall, where he dropped off an empty trailer and backed his
tractor up to a loaded trailer to hook up. The parking lot was
"pitch dark" because the town hall had been closed for asbestos
removal, and the lot was not illuminated. Lajoie climbed onto
the I-beams at the rear of the cab. While "feeling [his] way
[PAGE 3]
around . . . trying to find the hookup," he stumbled over one of
the airlines and fell through the opening between the I-beams and
catwalk, bruising his leg. T. 89. Lajoie testified: "I was
very sore. I walked around and tried to shake it off. My leg
was killing me. I could just about walk on it. [A]fter . . . a
while, I decided I was going to try to drive the truck, see if I
could get . . . back home with it." T. 88. The hookup light on
Lajoie's tractor "was designed especially . . . to light up the
hookup area so you can see what you're doing." T. 90 (Lajoie).
Lajoie notified the EMS office manager of his accident later
that evening. The following morning he telephoned Vice-President
Lee to complain. A disagreement ensued with Lee advising Lajoie
that he could "find another position somewhere else" if he was
"not happy with the situation." T. 227 (Lee). Lajoie told Lee
to "eat [expletive deleted]" and hung up the telephone. Lee
proceeded to retrieve the truck tractor which was stored near
Lajoie's residence.
2. Analysis
In STAA proceedings, a complainant must show that he engaged
in protected activity, that he was subjected to adverse action,
and that the respondent was aware of the protected activity when
it took adverse action. A complainant also must present evidence
sufficient to raise the inference that the protected activity was
the likely reason for the adverse action. Roadway Exp., Inc.
v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). STAA
Section 405(a) prohibits an employee's discharge because he has
filed a complaint "relating to a violation of a commercial
motor vehicle safety rule, regulation, standard, or order . . .
." 49 U.S.C. app. § 2305(a) (emphasis added). [2]
Internal complaints, e.g., to an employer, are protected.
Protection is not dependent on actually proving a violation.
Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-
357 (6th Cir. 1992). STAA Section 405(b) provides that "[n]o
person shall discharge . . . an employee . . . for refusing to
operate a vehicle . . . because of the employee's reasonable
apprehension of serious injury to himself or the public due to
the unsafe condition of such equipment." [3] 49 U.S.C. app.
§ 2305(b). A respondent then may rebut a complainant's
prima facie showing by producing evidence that the adverse action
was motivated by a legitimate, nondiscriminatory reason.
It is uncontroverted that the November 8, 1989, telephone
conversation between Lajoie and Vice-President Lee marked the end
of Lajoie's employment. In response to questioning, Lajoie
related the following account:
I explained to [Lee] exactly what happened,
you know, that I fell and that I banged my
[PAGE 4]
leg. His response was to be more careful next time. I told him,
you know, if the hookup light had been working, it might not have
happened. And he just insisted that it was my fault, that I
should have been more careful. I asked him if he, you know, if
he was going to take care of the equipment, and he said, "You're
not going to tell me when I'm going to get the trucks fixed or
how to maintain my trucks." I guess he felt like I was maybe
telling him what to do, I don't know. But he got very upset and
loud and, you know, getting angry with me. . . ." I said to him
that, you know, "If you're going to be operating a trucking
company, you know, and people are getting hurt, you'll have to
maintain the equipment. . . ." He said, "If you're not going to
drive the truck," he said, "you're fired." I said, "Rob, I
didn't say I wasn't going to drive the truck, I just think that,
you know, we have to do something about the truck, you know, to
maintain it." And he just responded, "That's it, you're fired."
T. 94-95.
The ALJ, however, credited Lee's version of the telephone
conversation, R.D. and O. at 25-26, which consisted of the
following responses:
I, basically said to him, "You fell last
night." I said, "Are you all right?" And he
said yes, he was at that point, but then he
was -- he seemed very disturbed. After I
asked him if he was all right, I pre -- I
started to give him his daily schedule for,
for that day. He was real upset. I think he
was real upset at the point where I started
giving him his work schedule for that day.
He was saying, "I'm not, I'm not working
today. I fell last night and hurt my leg.
I'm not going to drive this truck until you
get it maintained or get it serviced." I
said, "Billy, what are you talking about."
Uh, he was mad, he was real mad. He was
raising his voice, which I wasn't too happy
with at that point. I asked him to calm down
and we could probably talk about the
situation. He did not calm down. Uh, well,
-- He was telling me, "You have to get this
truck fixed. There is a lot of things wrong
with it." I said, "What is wrong with the
tractor, Billy? This is the first thing
we're hearing about it." And he proceeded to
go on. He said, "I'm not driving this, this,
you know, tractor until you get it repaired."
I told him to calm down a couple of times.
[PAGE 5]
And I said, "Billy," I said, "Listen," I said, "You're not going
to speak to me in this, uh, this demeanor, or this manner, so if
you want to discuss this calmly, we'll discuss it calmly. But,
if not, and you're not happy with the situation," I said, "By all
means, you can find another position somewhere else." At that
point, he told me to "eat [expletive deleted]," and hung up the
phone.
T. 225-227.
Thus, according to Lee, Lajoie became upset when Lee failed
to address his complaint about the inoperative hookup light and
resulting accident and turned instead to the daily schedule. Lee
confirmed this construction in later testimony: "I knew about
the incident beforehand from speaking with [the office manager]
. . . . I think [Lajoie] got, basically, upset, maybe I wasn't
sympathetic enough to his fall and started, uh, outlining his
work schedule for the day, and that's when he became very irate."
T. 249. Lee understood Lajoie to be refusing work unless he
addressed the complaint. Lee became unhappy that Lajoie "was
raising his voice" and "asked him to calm down and [they] could
probably talk about the situation." T. 226 (emphasis
added). He stated that Lajoie was not to speak to him as he had,
that he (Lee) would discuss the matter if Lajoie calmed down, but
if Lajoie remained unhappy with the situation, he could find
another job. This construction comports with the ALJ's Finding
of Fact
No. 8, R.D. and O. at 3, which states in relevant part:
Complainant telephoned Respondent, reported
the accident and reported that the hook-up
light needed repair. Respondent told
Complainant to be more careful. Complainant
became angry and told Respondent he would not
drive the truck until it was serviced.
Respondent replied that if Complainant did
not like it, he could work elsewhere.
Cf.NLRB v. Champ Corp., 933 F.2d 688, 692-694 (9th
Cir. 1990) (no set words necessary to constitute discharge; words
or conduct logically leading employee to believe his tenure is
terminated are sufficient; test depends on reasonable inferences
employee could draw from employer's statement or conduct).
Additional record evidence persuades me that Lee was not
willing to address Lajoie's complaint and that he considered
Lajoie discharged if he failed to capitulate. In his view, Lee,
who was "basically one of the salespeople," had contracted away
responsibility for equipment maintenance and repairs. He could
not afford "downtime" in the "very time-oriented industry" of
asbestos waste disposal. T. 210. He previously had discharged
another employee, Dana Clark, for refusing work. Lajoie
testified: "Dana had said that he had a headlight out on his
[PAGE 6]
truck, and [Lee] told him he needed him to pick up this trailer
right away. . . . He told him either you go pick up the trailer
or he was fired . . . . And he terminated Dana on the spot,
because Dana . . . wasn't going to drive the truck with the
headlight out." T. 85-87. This testimony is uncontroverted, the
ALJ did not specifically discredit it, and EMS did not address it
during presentation of its case. Finally, Lee took steps to
retrieve the tractor after the telephone conversation, and he
listed Lajoie as "discharged for misconduct," i.e., "gross
insubordination towards his supervisor" in responding to a claim
for employment benefits. Exh. CX 28. Accordingly, I expressly
reject, as not supported by substantial evidence, 29 C.F.R.
§ 1978.109(c)(3), the ALJ's contrary finding that Lajoie
"voluntarily quit [his] employment for his own personal reasons."
R.D. and O. at 3, 25-26, 28. [4]
I find that Lajoie engaged in protected activity under STAA
Section 405(a) by complaining about the inoperative light and
under the "because" clause of Section 405(b) by refusing work
absent its repair. [5] Lajoie already had experienced an
accident. Although it resulted in a muscle bruise, the potential
for serious injury was present. Lajoie worked long hours and
reasonably could expect again to work in darkness at building
sites closed for asbestos removal. At the time of his discharge,
Lajoie was seeking correction of the unsafe condition. I also
find that EMS engaged in adverse action when Lee discharged
Lajoie, and that the discharge resulted from the telephone
conversation. See T. 230 (Lee "wasn't about to stand for
an employee telling [him] to, basically "eat [expletive
deleted]"); T. 238 (On November 11, Lee explained to police that
Lajoie "was obviously let go at this point, maybe because of the
phone conversation").
The Secretary previously has considered labor relations
precedent in addressing intemperate language and impulsive
behavior associated with the exercise of STAA rights.
Kenneway v. Matlack, Inc., Case No. 88-STA-20, Sec. Dec.,
June 15, 1989, slip op. at 6-7, 10-13; Ertel v. Giroux
Brothers Transportation Co., Case No. 88-STA-24, Sec. Dec.,
Feb. 16, 1989, slip op. at 20-21, 30-31. Cf.Dunham v.
Brock, 794 F.2d 1037 (5th Cir. 1986) (employee protection
provision of Energy Reorganization Act). The "well settled"
standard employed under the National Labor Relations Act requires
balancing the right of the employer to maintain shop discipline
and the "heavily protected" right of employees to bargain
effectively: to fall outside statutory protection, an employee's
conduct actually must be "indefensible under the circumstances."
NLRB v. Southwestern Bell Telephone Co., 694 F.2d 974,
976-977 (5th Cir. 1982). SeeReef Industries, Inc. v.
NLRB, 952 F.2d 830, 836-838 (5th Cir. 1991) (satirical
[PAGE 7]
letter and tee-shirt were not so offensive as to lose protection
"when not fraught with malice, obscene, violent, extreme, or
wholly unjustified"); NLRB v. Lummus Industries, Inc., 679
F.2d 229, 233-235 (11th Cir. 1982) ("allegedly false and
defamatory statements" made in context of concerted activity
"will be protected unless they are made with knowledge of their
falsity or with reckless disregard for their truth or falsity").
Moreover, "an employer may not rely on employee conduct that it
has unlawfully provoked as a basis for disciplining an employee."
NLRB v. Southwestern Bell Telephone Co., 694 F.2d at 978-
979. SeeNLRB v. Steinerfilm, Inc., 669 F.2d 845,
851-852 (1st Cir. 1982), citingTrustees of Boston
University v. NLRB, 548 F.2d 391, 392-393 (1st Cir. 1977)
("insubordination was an excusable, if a regrettable and
undesirable, reaction to the unjustified warning . . . received
just minutes before," and the discharge therefore was improper).
Although under Title VII of the Civil Rights Act of 1964,
opposition to unlawful employment practices is protected,
"certain forms of 'opposition' conduct, including illegal acts or
unreasonably hostile or aggressive conduct, may provide a
legitimate, independent and nondiscriminatory basis for
sanctions." EEOC v. Crown Zellerbach Corp., 720 F.2d
1008, 1012 (9th Cir. 1983). Stated differently, the form of
opposition may remove Title VII protections. Id. at 1015
and nn. 4, 5, citingRosser v. Laborers' Intern. Union
of North America, 616 F.2d 221, 223 (5th Cir.), cert.
denied, 449 U.S. 886 (1980); Silver v. KCA, Inc., 586
F.2d 138, 141 (9th Cir. 1978). SeeJennings v. Tinley
Park Comm. Consol Sch. Dist. 146, 864 F.2d 1368, 1372 (7th
Cir. 1988) (decision to discipline employee "whose conduct is
unreasonable, even though borne out of legitimate protest, does
not violate Title VII"). Examples include (1) conduct
interfering with employee work performance, e.g.,
hostility to supervisors, militant demands, loud and
insubordinate behavior in work areas, participation in
destructive, noisy demonstrations during work hours, and (2)
conduct interfering with an employer's interest in maintaining
the confidentiality of employee records, e.g.,
surreptitious copying of confidential documents.
In contrast, sending a letter to a significant customer of
the employer which criticized its decision to present the
employer with an affirmative action award "had absolutely no
effect upon the [employees'] job performance or upon the
workplace environment" and thus constituted "perfectly
appropriate," protected expression. EEOC v. Crown Zellerbach
Corp., 720 F.2d at 1015, 1016. Similarly, an employee who
surreptitiously tape-recorded conversations with his superiors to
gather evidence in support of his discrimination claim was held
protected under the Age Discrimination in Employment Act
[PAGE 8]
prohibition (29 U.S.C. 623(d)(1988)) against discharge for
"oppos[ing] any practice made unlawful by this section" or
"participat[ing] in any manner in an investigation, proceeding,
or litigation under this chapter." Heller v. Champion Intern.
Corp., 891 F.2d 432, 436 (2d Cir. 1989) (emphasis omitted).
SeeGrant v. Hazelett Strip-Casting Corp., 880 F.2d
1564, 1569-1570 (2d Cir. 1989) (employee protected in drafting
memorandum documenting employer company's discriminatory
practices, presenting it to company president for approval, and
using signed memorandum in subsequent legal action against
company); Wrighten v. Metropolitan Hospitals, Inc., 726
F.2d 1346, 1355-1357 (9th Cir. 1984) (Title VII protections
extended to black nurse who, after unsuccessful meetings with
hospital administrators, finally convened press conference to
advocate the need for improved patient care). [6]
Under the reasoning employed in the above cases, and
particularly in the STAA Kenneway and Ertel cases,
Lajoie's spontaneous intemperate reaction to his unlawful
discharge, communicated privately over the telephone, neither
removes statutory protection nor provides EMS with a legitimate,
nondiscriminatory motivation.
I am aware that bona fide discriminatees who engage in post-
discrimination misconduct can forfeit their entitlement to being
made whole. See, e.g., Alumbaugh Coal Corp. v.
NLRB, 635 F.2d 1380, 1385-1386 (8th Cir. 1980). Under such a
theory, Lajoie's conduct affecting Lee's retrieval of the tractor
arguably could become germane. STAA Section 405(c)(2)(B)
provides, however, that if the Secretary of Labor determines that
a violation has occurred, the Secretary "shall order"
reinstatement together with back pay and compensatory damages.
49 U.S.C. app. § 2305(c)(2)(B). Accordingly, the statutory
language may proscribe remedial limitation. In any event, the instant
record does not support a finding of post-discrimination misconduct.
Under the terms of his employment, Lajoie stored his
assigned tractor near his residence between trips. [7]
According to Lajoie, after Lee discharged him on the morning of
November 8, he communicated "that he would be by to pick up the
truck that day" but never showed up. T. 97-99. Late on the
following day Lee telephoned that he would be by on November 10.
On either November 10 or 11, Lee and his brother arrived. A
confrontation ensued, with the Lees demanding the tractor and
Lajoie demanding his paycheck. Lajoie had the police called and
subsequently gave Lee the tractor keys. T. 101-104.
According to Lee's version, which the ALJ credited, Lajoie
was difficult to reach because he used a recording device on his
telephone. T. 229-230. Lee and his sales manager drove to
Lajoie's residence at noon on November 8, rang the doorbell,
[PAGE 9]
and received no response. T. 231. On November 10 or 11,
EMS personnel reached Lajoie to arrange a meeting, and on
November 11, Lee and his brother confronted Lajoie. T. 233-235.
I find that while EMS may have encountered difficulty in
retrieving the tractor, it was related more to its own storage
arrangement than to any deliberate evasion by Lajoie. Following
his discharge, Lajoie was not authorized to return the tractor by
driving it to an EMS facility. See T. 232 (On November 8,
Lee "did not want [Lajoie], at that point, driving the tractor").
He thus was subject to EMS efforts at coordination. Lajoie may
have departed briefly and missed Lee's visit at noon on November
8 inadvertently, since he apparently was not given an arrival
time. Similarly, he may not have returned telephone calls from
other EMS office personnel, knowing that Lee previously had
arranged to stop by. Accordingly, I reject the ALJ's finding
that Lajoie "held Respondent hostage by taking and refusing to
return" the tractor. R.D. and O. at 26.
ORDER
1. Respondent Environmental Management Systems, Inc., shall
offer Complainant reinstatement to his former or a comparable
position and tenure.
2. Respondent shall pay Complainant back pay and benefits
from November 8, 1992, until the date of reinstatement (or
declination of offer), less interim earnings, with interest
calculated pursuant to 26 U.S.C. § 6621 (1988).
SO ORDERED.
LYNN MARTIN
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] Although Lajoie replaced the bulb, the light remained
inoperative, and the Rhode Island Mack dealership that he
then consulted refused to repair the light because "it wasn't
covered, it would have to go back to the dealership in
[Pennsylvania] for that."
[2] EMS suggests that Section 405(a) may not have been involved
in the case prior to the administrative hearing. Resp. Br. at 9.
To the contrary, Lajoie's initial complaint alleged that he had
been "fired for complaining about [an] unsafe truck." Exh. CX 7.
After investigation, the Assistant Secretary found that Lajoie's
complaint about a defective hookup light constituted protected
activity and that he had been discharged in retaliation for his
complaint in violation of Section 405. Id.
[3] Protection under this criterion also requires that "[t]he
unsafe conditions causing the employee's apprehension of injury
must be of such nature that a reasonable person, under the
circumstances then confronting the employee, would conclude that
there is a bona fide danger of an accident, injury, or serious
impairment of health, resulting from the unsafe condition" and
that "the employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe condition."
[4] All factual findings, including credibility findings, must
be supported by substantial evidence in the record as a whole.
NLRB v. Cutting, Inc., 701 F.2d 659, 663, 667 (7th Cir.
1983). All record evidence must be 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 (3d Cir. 1979). SeeDorf v.
Bowen, 794 F.2d 896, 901-902 (3d 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 (3d Cir. 1983) (conclusory
wholesale rejection of testimony did not meet substantial
evidence test).
[5] I do not reach the issue of protected activity under the
"when" clause of Section 405(b), which prohibits discrimination
"for refusing to operate a vehicle when such operation
constitutes a violation of any Federal rules, regulations,
standards, or orders applicable to commercial motor vehicle
safety or health . . . ."
[6] CompareJennings v. Tinley Park Comm. Consol Sch.
Dist. 146, 864 F.2d at 1374-1375 (employee relinquished Title
VII protections by sandbagging supervisor; "employee may not use
legitimate opposition . . . to embarrass a supervisor or thwart
his ability to perform his job"; an employer may discipline an
employee for her "deliberate decision to disrupt the work
environment, including her superior's standing with his own
superiors"); Jones v. Flagship Intern., 793 F.2d 714, 727-
729 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987)
(employer prerogative to run business must be balanced against
employee right to express grievances and promote own welfare; an
employee charged with representing her company in equal
employment matters was not protected in soliciting others to join
in her discrimination claim and in "her expressed intent to serve
at the vanguard of a class action suit"); Hochstadt v.
Worcester Foundation for Experimental Biology, 545 F.2d 222,
230-234 (1st Cir. 1976) (employee actions, albeit associated with
protected objective, fell outside Title VII when, over a
prolonged period, she interrupted staff meetings, circulated
rumors, commissioned a covert affirmative action study, invited a
newspaper reporter to examine confidential salary information,
misused secretarial and copying services, incurred a large
personal bill on the employer's telephone, received reprimands
for poor work performance, and caused other employees to leave
the company).
[7] Lajoie testified: "Environmental Management Systems was an
office in Attleboro on a street that had no room for a tractor.
They didn't have a yard, per se, to park the tractor. So I was
to take the tractor and be responsible for it." T. 49. Because
Lajoie was prohibited by ordinance from parking the tractor in
front of his residence overnight, he arranged for parking at a
nearby train station. T. 52.
