U.S. Department of Labor Office of Administrative Law Judges
7 Parkway Center
875 Greentree Road, Room 290
Pittsburgh, PA 15220
(412) 644-5754
ISSUE DATE: JANUARY 22, 1999
CASE NO.: 1998-STA-2
In the Matter of
MICHAEL MADONIA,
Complainant,
v.
DOMINICK'S FINER FOODS, INC.
and MAVO LEASING, INC.,
Respondents.
RECOMMENDED ORDER GRANTING BACK PAY
A Recommended Decision and Order was issued in this case on October 5,
1998, finding that the Respondents violated the Surface Transportation Assistance Act. The
parties were ordered to submit evidence concerning the amount of back pay to which the
Complainant is entitled by November 13, 1998. Respondent Dominick's Finer Foods, Inc.
("Dominick's'), did not submit any evidence of earnings, indicating that Mavo Leasing, Inc.
("Mavo"), maintained exclusive control of the amount of compensation and other
benefits received by Union members, including the Complainant and Dominick's would abide by
the information of earnings provided by Mavo.
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Dominick's did request that the Complainant not be awarded back pay,
arguing that he caused his own loss of income by not demonstrating his compliance with the
settlement agreement. Dominick's contends that Mavo would have reinstated the Complainant
had it been able to verify that the Complainant complied with his doctors' orders. In the
alternative, Dominick's argues that the Complainant be awarded limited back pay from the period
of August 25, 1997 to November 13, 1997. Dominick's argues that its liability for back pay
should cease on November 13, 1997 because the Complainant refused the opportunity to obtain a
second psychiatric evaluation which foreclosed Mavo from determining whether he was fit to
drive a commercial vehicle and made an offer of reinstatement impossible.
It was determined in the Recommended Decision and Order that
Dominick's and Mavo violated the Surface Transportation Assistance Act. An award of back pay
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under the Act is not a matter of discretion but is mandated once it is determined that an employer
has violated the Act. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan.
6, 1992). I also found that a dual motive existed for firing the Complainant but the Respondents
did not establish that they would have fired him regardless of the safety complaints. Dominick's
is essentially challenging findings of fact and conclusions of law from the Recommended
Decision and Order. Therefore, the basis for Dominick's argument that there be no back pay or
limited back pay was effectively considered and rejected.
1 Complainant was ordered to be reinstated
but an appeal is pending and the Complainant has not been reinstated. Where an employer is found to have violated
STAA and the Complainant is found to be entitled to an offer of reinstatement to his or her former position and to
back pay, the employer's liability for back pay continues until such time as the employer reinstates the complainant
or makes him a bona fide offer of reinstatement. Polewsky v. B & L Lines Inc., 90-STA-21 (Sec'y May
29, 1991).