DATE: December 1, 1995
CASE NO.: 95-STA-21
In the Matter of:
RON OLSON
Complainant
v.
MISSOULA READY MIX
Respondent
Ron Olson
Apartment 9
1900 South Third West
Missoula, Montana 59801
Pro Se Claimant
Jeremy G. Thane, Esquire
Worden, Thane & Haines, P.C.
111 N. Higgins Avenue
P.O. Box 4747
Missoula, Montana 59806
For the Respondent
Before: ALEXANDER KARST, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
Ron Olson brings this action against his former employer,
Missoula Ready Mix (hereinafter "MRM"), under the whistleblower
protection provision of Section 405 of the Surface Transportation
Assistance Act of 1982, 49 U.S.C. §31105 (hereinafter "STAA"
or "the Act").
MRM is in the business of supplying ready mix cement
products to building contractors in the Missoula area. During
all times relevant here, Frank Thomas was its owner and
President, John Young its manager, and Dennis Emens its
dispatcher. TR 231, 281. MRM had a collective bargaining
agreement with the Teamsters Local #2, which provided that MRM
could not discharge a driver without just cause and at least one
warning letter, but that the "[i]ssuance of three (3) notices
[warning letters] within a one (1) year period may be considered
sufficient cause for dismissal." RX 1, p. 8.
[PAGE 2]
MRM hired Mr. Olson, a Teamster, as a cement truck driver on
June 2, 1993. He received three warning letters within one year,
and was terminated at the end of October 1994. Mr. Olson alleges
that MRM unlawfully terminated his employment in retaliation for
his protected "whistleblowing" actions. The Department of
Labor's Wage and Hour Division conducted an investigation and
found that although Mr. Olson engaged in protected activities, he
would have been discharged even in the absence of these
activities, and therefore denied his claim. Acting pro se,
Mr. Olson appealed that decision here. He prays for an award
of back pay, compensatory damages, and an order requiring MRM to
abate its violations and reinstate him to his former position
with the same pay, terms and privileges of employment.
Mr. Olson testified that throughout his employment with MRM,
he made numerous oral and written complaints about mechanical
defects in the company trucks. TR 16-17, 723; CX 5, p. 7.
Specifically, on October 6, 1994, Mr. Olson advised the company
dispatcher that truck 09, which was assigned to him, had steering
problems. TR 17. He asked that he be allowed to have the truck
looked at by a mechanic, but, according to Olson, either Emens or
Young told him over the radio: "Look. This is the last truck we
have left for you to drive. You either drive it or go home." TR
18. Thereupon Olson drove the truck to a Montana weight
inspection station where he asked for an inspection. An
inspector "redtagged" it for being unsafe, and it was towed from
the site. CX 5, pp. 1, 10. Olson testified that later that
evening he made a written report about the truck's steering
problems and left copies for the dispatcher and the mechanic. TR
73, 165-66; CX 5, p. 3. But on the following day, according to
Olson, he was again assigned truck 09, which he refused to drive.
TR 85. MRM concedes that truck 09 was "red-tagged" on October 6,
and was driven briefly by a mechanic the next day before the
mechanic became aware of the red tag.
On October 11, 1994, Olson also informed MRM's insurance
company that MRM was forcing him to drive unsafe trucks. TR 42;
CX 5, p. 9. On October 12, 1994, he made a written complaint to
MRM's mechanic about another truck. TR 75; CX 5, p. 4. On
October 20, 1994, he advised the Montana Department of
Transportation and OSHA that MRM required him to drive unsafe
equipment. TR 75-76.
Olson alleges that in retaliation for his above described
protected activities, MRM discriminated against him by:
(1) terminating his employment without good cause;
(2) assigning him jobs which should have been given to less
senior employees;
(3) forcing him to drive a larger number of different trucks
[PAGE 3]
than other employees with his seniority were required to drive
(TR 79, 113, 470); and
(4) giving him only three days to obtain a Montana State
drivers' license, but giving another employee a week (TR 159).
MRM contends that Mr. Olson was properly fired pursuant to
the union contract because he received three warning letters.
Both sides focused on the propriety of the three warning letters
issued to Mr. Olson, especially the third, which was given to Mr.
Olson on October 21, 1994. This last letter alleged that Mr.
Olson harassed MRM's only female employee, the company secretary,
Pam Wagner. It said that because this was his third warning
letter within a year, Mr. Olson was suspended for ten days, after
which he would be terminated "unless [he could] provide
sufficient evidence to provide otherwise." [sic] RX 4. MRM
terminated Mr. 01son at the expiration of the ten day suspension.
Olson denies ever harassing Pam Wagner, and charges that MRM
invented the harassing incident to create a pretext for
dismissing him. He also contends that his two prior warning
letters were given to him solely on account of some "bad blood"
between himself and Young. TR 110.
The law applicable to this case is summarized in Dartey
v. Zack Company of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1993)
slip op. at 7-9:
[T]he employee must initially present a prima facie
case consisting of a showing that he engaged in
protected conduct, that the employer was aware of that
conduct and that the employer took some adverse action
against him. In addition, as part of his prima facie
case, "the plaintiff must present evidence sufficient
to raise the inference that . . . protected activity
was the likely reason for the adverse action." Cohen
v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982).
. . . If the employee establishes a prima facie case,
the employer has the burden of producing evidence to
rebut the presumption of disparate treatment by
presenting evidence that the alleged disparate
treatment was motivated by legitimate,
nondiscriminatory reasons. Significantly, the employer
bears only a burden of producing evidence at this
point; the ultimate burden of persuasion of the
existence of intentional discrimination rests with the
employee.... If the employer successfully rebuts the
employee's prima facie case, the employee still has
"the opportunity to demonstrate that the proffered
reason was not the true reason for the employment
decision. . . . [The
[PAGE 4]
employee] may succeed in this either directly by persuading the
court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer's proffered
explanation is unworthy of credence." . . . Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981) at 256.
The trier of fact may then conclude that the employer's proffered
reason for its conduct is a pretext and rule that the employee
has proved actionable retaliation for protected activity.
Conversely, the trier of fact may conclude that the employer was
not motivated, in whole or in part, by the employee's protected
conduct and rule that the employee has failed to establish his
case by a preponderance of the evidence. Id. at 254-265.
Finally, the trier of fact may decide that the employer was
motivated by both prohibited and legitimate reasons, i.e., that
the employer had 'dual motives.'
... [I]f the trier of fact reaches the latter
conclusion, that the employee has proven by a
preponderance of the evidence that the protected
conduct was a motivating factor in the employer's
action, the employer in order to avoid liability, has
the burden of proof or persuasion to show by a
preponderance of the evidence that it would have
reached the same decision even in the absence of the
protected conduct. (Citations omitted.)
An employee's safety complaints are protected, even if there
is no showing that the complaints were meritorious. Yellow
Freight Systems, Inc. v. Martin, 954 F.2d 353, 356-57 (6th
Cir. 1992); Allen v. Revco D.D., Inc., 91-STA-9 (Sec'y
Sept. 24, 1991). Moreover, the types of safety complaints
protected under the STAA include both internal complaints and
complaints to law enforcement agencies. Doyle v. Rich
Transport, Inc., 93-STA-17 (Sec'y April 1, 1994); Davis v.
H.R. Hill, Inc., 86-STA-18 (Sec'y March 18, 1987).
The evidence presented by Mr. Olson clearly establishes a
prima facie case that (1) he engaged in protected
activities when he complained to MRM employees, Montana State
transportation inspectors, and other state and federal agencies
about the unsafe condition of MRM's trucks; (2) most, if not all,
of Mr. Olson's protected activities were known to MRM management;
and (3) MRM took an adverse action against him by terminating his
employment.
The threshold question is whether Mr. Olson produced
sufficient evidence to raise a prima facie inference that
his protected activities were a likely reason for his
termination. Mr. Olson's argument that his protected activities
caused his termination rests largely on his own testimony and
that of Dan
[PAGE 5]
Doogan, the union steward. Mr. Doogan believes that Mr. Olson
was fired in part because of his protected activities because he
thinks the incident with Pam Wagner was too trivial to trigger a
warning letter and bring about Olson's termination. TR 175-76,
196-97.
Mr. Olson attaches much significance to a conversation
between Frank Thomas and Dan Doogan, the union steward at MRM, on
October 7, 1994. Thomas said that he may have to shut down his
operation for a couple of weeks in order to repair equipment, and
Doogan attempted to dissuade him from doing so as it would put a
lot of people out of work. TR 138, 140. During the course of
that conversation, Thomas asked, "Well, what do you do with a
whistleblower?," to which Doogan replied, "Well, you could fire
him." TR 140, 24546. Doogan testified that his statement was made
in jest, and both Doogan and Thomas said that Thomas replied
"Well, I know I can't do that." Id. I accept that the
conversation occurred, but I do not find that it sheds
significant light on whether. Mr. Olson was fired for
whistleblowing or for other reasons. However, having considered
the testimony of Mr. Olson, Mr. Doogan and all the other
evidence, I conclude that Mr. Olson has also presented sufficient
evidence to raise a prima facie inference that his
protected activities were a probable reason for his termination.
Thus I proceed to consider whether MRM rebutted Mr. Olson's
prima facie showing.
MRM presented a number of its drivers and other employees
who testified about Mr. Olson's general shortcomings as an
employee. There was credible testimony that: (1) MRM's customers
regularly requested that Mr. Olson not return to their jobs and
complained that he was irresponsible, contrary, and difficult to
work with (TR 247); (2) Olson's fellow drivers complained that
they did not like to follow him to job sites and have to face
irate customers; (3) Olson was considered by his colleagues to be
a dangerous driver; and (4) that Olson often got lost on his way
to job sites (TR 403-04). Even union steward Doogan
characterized Mr. Olson as a below average employee. TR 175.
Although Mr. Olson conceded that some customers asked that
he not be sent to their jobs again, he testified that none of the
complaints against him were justified. TR 127. He argues that
the fact that he worked for MRM nine months without a warning
letter shows that his work was satisfactory. He points to one
particular customer, who was generally hard to please, who did
like his work. TR 219-20.
Thomas and Young testified that during his first nine months
of employment, Mr. Olson received verbal cautions because warning
letters were usually not given until verbal warnings proved
ineffective. See TR 274-75, 282, 317-19. A driver named
Pellett
[PAGE 6]
testified that although Young was patient with Olson for a long
time, Olson's job performance just kept getting worse. Mr.
Pellett struck me as particularly credible witness. TR 459-60.
This record leaves no doubt, and I find, that MRM viewed Mr.
Olson as an inadequate and troublesome employee throughout most
of his sixteen months of employment. Apparently, his fellow
drivers, including his union steward, concurred in much of MRM's
view of Mr. Olson. However, a finding that Mr. Olson was an
unsatisfactory employee does not resolve the ultimate issues
presented here. Mr. Olson's allegation that he was terminated
not because he was an inadequate driver, but for other
illegitimate and discriminatory reasons, must be considered.
Thus the role of the warning letters which led to the firing must
be addressed.
Mr. Olson does not contend that the first two warning
letters were given to him because he "blew the whistle," but he
charges that they were motivated by "bad blood" between him and
Young. The first letter was issued ostensibly because on April
1, 1994, Mr. Olson called an important MRM customer a "dumb
asshole." RX 2. Mr. Olson contends that he was referring to
himself and not the customer. Thomas testified that Olson was
given a letter for this episode because oral admonitions after
previous similar incidents had no effect. TR 236-37.
The second warning letter was given to Mr. Olson on April 5,
1995 after he took a day off without permission. RX 3. Mr. Olson
appears to concede that he did not have proper permission to take
the day off, but attempts to excuse himself by saying that he
told the dispatcher that he had to leave on account of an
"emergency." The emergency turned out to be a scheduled
appointment with a state agency in the Montana capital some
distance away.
Mr. Olson testified that both April warning letters were
issued to him because Mr. Young, the manager, was mad at him
because a man named Britt, the husband of Mr. Young's deceased
ex-mother-in-law, made some unfounded allegations of misconduct
against him. Mr. Young testified credibly that he is not in
contact with Mr. Britt, does not like him, and that
recriminations between Olson and Britt played no role in the
decision to issue the warning letters to Mr. Olson.
The most cogent testimony about the two April warning
letters came from union steward Doogan who testified at the
behest of Mr. Olson. He said, in effect, that the two incidents
which were the subject of the April warning letters were not
trivial, and were the typical incidents which would lead to the
issuance of warning letters under the union contract. TR 200.
He said he advised Mr. Olson that a third letter within a year
could result in his termination. Because he is a union official
[PAGE 7]
whose duty it was to protect Mr. Olson from oppression by his
employer, and because he was clearly sympathetic to Mr. - Olson's
cause, I found his testimony that there was no impropriety in the
issuance of the April letters very telling.
In as much as there is no allegation that the April letters
were discriminatory acts of the employer in retaliation for Mr.
Olson's "blowing the whistle" some months later, their propriety
under the terms of the union contract need not be addressed in
this proceeding. But if, arguendo, their propriety were
an issue here, I would have to conclude that they were legitimate
and not pretextual. If the infractions described in the letters
did not occur, or were too trivial for a letter, as Mr. Olson
contends, then Mr. Olson's recourse was through his union.[1]
In this proceeding I feel compelled to take the first two
letters, issued long before the red tagging of truck 09, at their
face value. And I credit the testimony of the union steward that
the incidents were a proper and customary basis for issuing
warning letters.
The third and critical warning letter was issued about six
months after the first two, and about two weeks after Mr. Olson
had truck 09 red tagged by a Montana inspector. It advised Mr.
Olson that the firm secretary and only female employee, Pam
Wagner, complained about a recent and a previous incident which
she viewed as harassment by Mr. Olson. The letter did not
describe either incident. RX 4.
The event which allegedly led to the third warning letter
appears to have occurred as follows. Mr. Olson, who had been on
sick leave, came to the company office on October 19, 1994, with
a note from his doctor releasing him back to work. TR 350, 397-
98. He was told that as he did not have a current Montana State
drivers' license, he had to get one before he could return to
work. TR 350, 398, 411. When Olson brought in his new license a
few hours later, at approximately 2:30 p.m., only Wagner, Emens
and Olson were in the building. TR 365, 381, 416. Ms. Wagner
testified that she made a photocopy of the license and went to
the restroom near the dispatch office where Olson was sitting on
the counter talking to Emens. TR 350-51, 400. She said that
Olson saw her go into the restroom. See TR 400; 351-52;
CX 6, p. 2. A couple of minutes later, Olson began jiggling the
knob on the toilet door. TR 352, 400. Although Wagner hollered
that she was in the restroom, Olson continued to jiggle the knob.
TR 352. When Wagner came out, Olson left without using the
restroom. TR 352. Wagner testified that although she was inside
the restroom with the door closed, she surmised that Olson was
doing the jiggling because he and Emens were the only other
people in the office, and she could hear Emens working on the
computer. TR 362, 381. Although Emens was not in line of sight
of the toilet
[PAGE 8]
door, he testified he was within 5 feet of it and could hear all
that was going on. TR 419. He generally confirmed the events
described by Ms. Wagner, and said that she appeared to be shaken
when she came out of the restroom, and that she seemed genuinely
concerned for her safety. TR 418, 422, 428.
Wagner testified that she was very upset by this episode
because she perceived Olson to be a physical threat to her. She
said that Olson had twice before jiggled the knob while she was
in the restroom. TR 353, 401. Wagner testified that the first
time she was merely annoyed, but that she subsequently became
increasingly concerned. See TR 362-63, 440, 442-43. She
testified that this situation had never happened with anyone else
at the office, as the door to the restroom was left open unless
it was occupied.[2] TR 363, 383. Wagner believes that because
Mr. Olson did not use the toilet after she came out, these
incidents were not innocent, but were in fact Mr. Olson's
attempts to get into the restroom with her. TR 363, 367-68, 418,
441-43. Wagner testified that Olson was "snoopy" and "sneaky,"
and that she was "uncomfortable" being alone with him. She
testified that she did not dare to tell Olson to stop harassing
her because she was afraid that he might "blow-up." TR 369, 387,
393-94.
Wagner said the next morning she complained about the
incident to Young, who asked for written statements from her and
Emens. TR 429-30. Wagner said she was not aware that Olson had
two prior warning letters, nor that he would be discharged as a
result of her complaint. TR 388, 392. Wagner's statement is
dated October 19, 1994, and she wrote that the episode took place
the previous day, which would have been the 18th, when Olson was
admittedly out of town. Wagner explained that although her
complaint letter was dated October 19, she actually typed it on
the word processor in the early morning of October 20, before
Young asked her to put her complaint in writing. She said that
when she printed it out, it was typed with the previous day's
date. See TR 291, 276, 378. She testified that on
October 20 she was doing the October 19 billings, and that the
word processor printed her complaint letter with the previous
day's date, like the bills. Young confirmed that Ms. Wagner
often gets the dates on letters mixed up because of the practice
of dating the bills one day before they are printed out. TR 327,
364; CX 6, p. 2.
Emens' statement about the toilet episode also bears an
inaccurate date. He testified that he wrote it on October 20,
but his memorandum is dated October 25, 1995. TR 432-33; ALJ 1.
Olson concedes that he came to the MRM office at
approximately 12:00 p.m. on the afternoon of October 19, 1994 to
turn in a slip from his doctor. TR 156-57. He contends however
that he was not there at 2:30 p.m. because he spent the afternoon
[PAGE 9]
at the Social Security Office and at the Department of Motor
Vehicles getting his license, and that he did not leave the DMV
until 4:30 p.m. TR 157, 372, 424. This seems to imply that he
did not come back to the company office on October 19.
While the discrepancies in dating the Wagner and Emens'
memoranda show some sloppiness, to my mind, they do not suggest a
conspiracy between these employees and management to concoct an
episode. If anything, the admitted sloppiness suggests
credibility, for if the parties were conspiring to make up a
story they presumably would have coordinated their paper work
better. I credit the testimony of Ms. Wagner that she made her
complaint against Olson freely and voluntarily, and that MRM
management did not solicit or instigate it, nor instruct her to
do so. TR 384, 392. Having weighed the testimony of Wagner and
Emens, and the denials of Mr. Olson which appeared half-hearted,
and having considered Mr. Olson's demeanor and assessed his
credibility, I find that the incident occurred pretty much as
described by Ms. Wagner.
The troubling question about the third warning letter is
whether the toilet incidents that prompted the letter were too
trivial for a formal warning letter, and whether they were
elevated to greater importance to create a pretext for firing Mr.
Olson. On balance, it appears to me that the deliberate
annoyance of a fellow employee which can be interpreted as
threatening or as an invasion of privacy, and which occurred more
than once, especially when directed against the only female in an
otherwise all male environment, is not trivial. It seems no more
trivial than missing a days' work without permission. Moreover,
in the last analysis, whether the incident was grave enough to
have warranted a warning letter is a question to be determined
between the union and MRM under their,labor contract. And this
issue appears to be the subject of a pending union grievance
proceeding. TR 244.
The basic question here is whether the termination of Mr.
Olson's employment was motivated in whole or in part by his
safety complaints about the condition of MRM's trucks, or whether
the harassment complaint of Ms. Wagner was a mere pretext.
MRM's explanation appears to be that, on the advice of
counsel, the company treated the Wagner toilet episode as a
serious incident which warranted a formal warning letter because
Mr. Olson's conduct could have been construed as sexual
harassment. Frank Thomas testified that he took Wagner's
complaint very seriously because Wagner was upset by it, and
because it was his understanding that failure to respond to an
allegation of such harassment could expose his firm to liability.
TR 241-42; 277-78. And there is a plausible argument to be made
that under all the circumstances, Mr. Olson's conduct could be
[PAGE 10]
viewed as sexual harassment of Ms. Wagner. Harris v. Forklift
Systems, Inc. 114 S.Ct. 367 (1993); 29 CFR § 1604.11(3).
In view of the recent publicity given to sexual harassment cases,
I cannot conclude that MRM's concern about the incident and the
company's possible legal exposure were unreasonable or misguided.
Nor is there any indication, other than Mr. Olson's suspicions,
which would suggest that conduct was undertaken in bad faith to
oppress Mr. Olson. As previously noted, to rebut Mr. Olson's
prima facie showing of probable discrimination, MRM bears
only a burden of producing evidence that its third letter, and
the Olson firing based on it, were motivated by legitimate,
nondiscriminatory reasons. MRM has done that.
Mr. Olson's case rests on little more than his suspicions,
some sloppy dating of statements, and a conversation between the
employer and a union steward of dubious relevance, to show that
the third letter and his termination were motivated by his
blowing the whistle. He has not persuaded me that MRM's
proffered explanation is unworthy of credence, and that the
reasons given by MRM were not the true reasons for its decision
to terminate him. Since Mr. Olson has the ultimate burden of
persuasion that MRM discriminated against him, I feel compelled
to conclude that Mr. Olson has not met his burden of showing that
one of the reasons for the third letter was MRM's desire to
retaliate for his safety complaints.
Because MRM says that it fired Mr. Olson not because of the
Wagner incident alone, but because he was deemed an incompetent
and troublesome employee who received three legitimate warning
letters, two of which preceded the truck 09 incident, this case
may be said to raise the issue of whether Mr. Olson was fired for
both legitimate, non-discriminatory reasons (i.e. the first two
warning letters), and the discriminatory third warning letter (if
Mr. Olson's argument is accepted). If, arguendo, the evidence in
this case were to be so viewed, I am satisfied that MRM has shown
by clear and convincing evidence that given its dissatisfaction
with the quality of Mr. Olson's work, it would have followed the
same course in the absence of his truck safety complaints.
Accordingly, I find that Olson's termination was not
motivated, even in part, by his protected activities and that MRM
did not violate any provisions of the Act.
In regard to Mr. Olson's other allegations of
discrimination, he has presented virtually no evidence that
employees with less seniority am his were given job priority over
him, and that MRM switched trucks on him too often. Jessy
Pellett, another driver, credibly testified that it is not
uncommon for drivers such as Olson to drive five or six different
trucks. TR 469. Mr. Olson's own self serving statements struck
me as less credible, and not sufficient to carry his burden of
[PAGE 11]
proof.
Finally, I find no merit in Mr. Olson's rather frivolous
charge that he was treated disparately when he received only
three days to obtain a Montana State drivers' license, while
another employee received a week. Young explained that he gave
Olson only three days because Olson had a current Wisconsin
license, and could obtain a Montana license without a full
driving test. TR 296. The other driver was given a week because
he had to take a full driver's test which required an
appointment. That three days was sufficient is shown by the fact
that Olson obtained his license on the same day that he received
the letter. Moreover, it appears that the other driver was not
paid for the days he had time off to get his license. TR 451,
454. Based on the foregoing, I find no discriminatory disparity
in MRM's treatment of Mr. Olson.[3]
RECOMMENDED ORDER
It is recommended that the complaint of Ron Olson against
Missoula Ready Mix under Section 405 of the Surface
Transportation Assistance Act be dismissed.
ALEXANDER KARST
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U.S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. S= 55 Fed. Reg.
13250 (1990).
[ENDNOTES]
[1] While it is not entirely clear from the record, it appears
that Mr. Olson did bring a grievance about all three letters.
There is some indication that the grievance on the first two
letters was resolved against Mr. Olson. See TR 244, 245,
252-53
[2] Mr. Olson testified that the door to the restroom was kept
closed most of the time. Wagner, Doogan, Young and Emens
testified that the door was left open when the restroom was not
in use. TR 90, 182, 222, 292, 300-01, 401-02.
[3] While Mr. Olson did not allege it, because he is pro se I
have considered the possibility that Young required Olson to
obtain a new license for some discriminatory reason. However, I
have concluded that the timing of this letter was coincidental
and that he was simply performing an administrative function in
requiring Olson to obtain a Montana license. TR 320; CX I 1.
