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USDOL/OALJ Reporter
Issue date: 05Feb2002
RECOMMENDED DECISION AND ORDER
[Page 2]ISSUE
SUMMARY OF THE EVIDENCE
FINDINGS OF FACT AND CONCLUSIONS OF LAW
[Page 3]
[Page 4]RECOMMENDED ORDER
Peters v. Hal Industries, 2002-STA-2 (ALJ Feb. 5, 2002)
| U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 |  |
CASE NO: 2002-STA-2
In the Matter of:
JOHN ALLEN PETERS
Complainant
v.
HAL INDUSTRIES
Respondent
John Allen Peters
Pro se
Connie Conley
For the Respondent
This case arises from a complaint filed under the employee protection provisions of the Surface Transportation Assistance Act (STA), 49 U.S.C. § 31105 and its implementing regulations at 29 C.F.R. § 1978. On or about August 21, 2000, John Allen Peters (complainant) filed a complaint with the United States Department of Labor which was investigated by the Occupational Safety and Health Administration and found to have no merit by the Regional Administrator. Complainant requested a hearing before an administrative law judge and a formal hearing was held before the undersigned in Atlanta, Georgia on December 11, 2001. At the hearing, complainant's exhibits (CX) 1 and 2 and respondent's exhibit (RX) 1 were admitted into evidence.
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Did respondent discharge complainant from his employment in retaliation for protected activity in violation of the STA?
Complainant was born on August 23, 1953 and began working for respondent on April 29, 1994. (TR 7) Respondent operates as a trash hauler and complainant drove a truck transporting garbage. (TR 7) Connie Conley is the respondent's manager and has the responsibility for hiring and firing employees, dispatching trucks, and safety training. (TR 36) On June 19, 2000, complainant was driving a truck which broke down and prevented him from completing his route. (TR 9) Ms. Conley told complainant that he would be able to drive a leased truck the following day, but when he arrived for work at 4:30 a.m. on June 20, 2000, he found a note from Ms. Conley in his route book assigning him Truck No. 540, the smallest and oldest truck in respondent's fleet. (TR 10) Complainant testified that when he "pre-tripped" the truck, he noted that it had slick tires, a front tire low on air, bad brakes, bad steering, and a broken dumpster lock. (TR 10) He then called Ms. Conley at home and asked for sick leave and she told him that he wasn't sick. (TR 21-22, 49) Complainant stated that he then told her that he was not driving that "unsafe piece of junk" although Ms. Conley denies that he made that statement. (TR 19, 22, 70) However, he did not mention any defects in the truck to Ms. Conley. TR 19, 54. Ms. Conley informed complainant that if he refused to drive the truck he was fired. (TR 19) He went home and she fired him the next day, providing him with a termination letter that he refused to sign. (TR 22, 55)
Complainant introduced a number of Driver's Vehicle Inspection Reports relating to safety defects in Truck No. 106, the most recent of which is from February 2000. (CX 1) Ms. Conley testified that she had never seen these reports, although complainant may have mentioned certain truck defects to her or her husband, Butch, who was respondent's mechanic. (TR 56-57) Respondent offered a series of Employee Warning Notices issued about complainant's conduct. (See RX 1) These notices related to incidents when complainant allegedly became upset over the method that his wages were paid, use of rude language over the radio after his truck broke down, failure to notify the manager of his absence due to illness, failure to fill out a vehicle condition report, not wearing his uniform, and use of vulgar language in front of a customer. (TR 39-46) Complainant was never shown these warning letters. (TR 63) Ms. Conley maintains that complainant was a good employee but that he had an attitude problem. (TR 72-73) She denies assigning complainant Truck No. 540 to retaliate against him for failing to finish his route the previous day. (TR 73)
Section 31105 of the STA provides:
(a)(1) A person may not discharge an employee, or discipline or discriminate against any employee regarding pay, terms, or privileges of employment, because-(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to the violation of a commercial motor carrier safety regulation, standard, or order, or has testified or will testify in such a proceeding; or(B) the employee refuses to operate a vehicle because-
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
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To prevail on an STA complaint, a complainant must establish that the respondent took adverse employment action against him because he was engaged in activity protected under the STA. A complainant must initially show that it was likely that the adverse action was motivated by a protected complaint or work refusal. The respondent may rebut such showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action. See Roadway Exp. v. Brock, 830 F. 2d 179, 181 n.6 (11th Cir. 1987). However, where the case is fully tried on its merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence to attempt to show that the complainant was subjected to an adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to determine if complainant presented a prima facie case. Instead the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998).
Complainant engaged in protected activity when he submitted reports of vehicle defects to his employer, but the most recent of these vehicle reports was four months before his discharge. These complaints are too remote in time to raise the inference that they were the reason for his dismissal. Moreover, there is some question whether Ms. Conley even knew of these vehicle reports. The incident that gave rise to complainant's discharge was his refusal to drive Truck No. 540, but the evidence show that his refusal was based on his expectation that he was going to be assigned a different truck that was larger and newer. Complainant did not inform Ms. Conley of the vehicle's defects but merely claimed, without explanation, that he was sick. In light of his anger regarding this assignment and his feeling that Ms. Conley was retaliating against him, I find Ms. Conley's testimony credible that complainant did not state that the truck was "an unsafe piece of junk". Assuming arguendo that complainant made such a statement, it was very vague and did not sufficiently communicate any safety defects to have motivated respondent to fire him. See Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y January 27, 1992). Instead, the evidence indicates that respondent dismissed complainant because of insubordination for his unjustified refusal to drive the truck assigned to him. His refusal confirmed Ms. Conley's impression that complainant had an "attitude problem". Complainant has failed to prove by a preponderance of the evidence that he was dismissed because of his protected activity. There has been no violation of the STA and the complaint will be dismissed.
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IT IS ORDERED that the complaint of John Allen Peters under the Surface Transportation Assistance Act is hereby DISMISSED.
DANIEL L. LELAND
Administrative Law Judge
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).
