Holland v. Stage Call Corp., 2002-STA-14 (ALJ July 26, 2002)

USDOL/OALJ Reporter

Holland v. Stage Call Corp., 2002-STA-14 (ALJ July 26, 2002)

U.S. Department of Labor

Office of Administrative Law Judges
36 E. 7th Street, Suite 2525
Cincinnati, OH 45202

(513) 684-3252
(513) 684-6108 (FAX)

Issue date: 26Jul2002

Case No: 2002-STA-0014

In the Matter of

JIMMY C. HOLLAND
Complainant

STAGE CALL CORPORATION
Respondent

Appearances:

Paul Taylor, Esq.
TRUCKERS JUSTICE CENTER
Eagan, Minnesota
For the Complainant

Ryan E. Kelly, Esq.
BAUMANN, KELLY, PAYTAS & BERNSTEIN, P.A.
Phoenix, Arizona
For the Respondent

BEFORE: RUDOLF L. JANSEN
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This action arises under the Surface Transportation Assistance Act of 1982 (hereinafter the Act), as amended, 49 U.S.C. Section 31105 and the Regulations found at 29 C.F.R. Part 1978. Section 31105 of the Act provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when the operation would be a violation of these rules.

Complainant Jimmy C. Holland (hereinafter Holland) filed a complaint with the Secretary of Labor, Occupational Safety and Health Administration (hereinafter OSHA) on April 4, 2001, alleging that Respondent, Stage Call Corporation, (hereinafter Stage Call) discharged him in violation of the employee protection provisions of the Act. Following an investigation, the Secretary of Labor served its Findings and Order denying relief. On November 11, 2001, Complainant appealed that finding to this office.

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A formal hearing was commenced on April 17, 2002, in Phoenix, Arizona, where the parties were afforded full opportunity to present evidence¹ and argument. The Findings of Fact and Conclusions of Law which follow are based upon my observation of the appearance and demeanor of the witnesses who testified at the hearing and upon my analysis of the entire record, arguments of the parties, and applicable regulations, statutes and case law. Each exhibit received into evidence has been carefully reviewed. My Pre-hearing Order provided for a Stipulation of Facts to be completed by the parties which has been received into evidence as JX 24.

ISSUES

1. Whether Complainant, Jimmy C. Holland engaged in protected activity within the meaning of 49 U.S.C. § 31105 on January 9 and 10, 2001.
2. Whether Respondent violated 49 U.S.C. § 31105 by discharging, disciplining, or discriminating against Jimmy C. Holland for engaging in protected activity.
3. Whether Respondent would have terminated Jimmy C. Holland in the absence of protected activity.
4. Whether Complainant is entitled to relief under the employee provisions of the Surface Transportation Assistance Act.
5. Whether Respondent is entitled to an offset for mitigation of damages based upon pay received by Holland subsequent to his separation from Respondent.

STIPULATION OF FACTS

1. Complainant Jimmy C. Holland is an individual residing at 14637 South Sage Crest Drive, Bluffdale, UT 84065. From October 29, 1999 to January 10, 2001, Complainant was an "employee" of Respondent as defined in 49 U.S.C. § 31101(2).
2. Respondent is engaged in interstate motor carrier operations and is an employer subject to the Surface Transportation Assistance Act, 49 U.S.C. § 31105.
3. Complainant operated commercial motor vehicles for Respondent having a gross vehicle rating of 10,001 pounds or more on the highways in interstate commerce pursuant to an owner-operator lease agreement.

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4. Complainant was an employee of Respondent as defined at 49 U.S.C. § 31101(2).
5. At all times material, Respondent was an employer as defined at 49 U.S.C. § 31101(3).
6. Respondent is a person within the meaning of 49 U.S.C. § 31105.
7. The United States Department of Labor, Office of Administrative Law Judges, has jurisdiction over the parties and subject matter of this proceeding.
8. Respondent terminated Complainant?s owner-operator agreement on January 10, 2001.
9. On or about April 4, 2001, Complainant timely filed a complaint with the Secretary of Labor alleging that Respondent had discriminated against him and discharged him in violation of the employee protection provisions of the Surface Transportation Assistance Act, 49 U.S.C. § 31105.
10. On November 11, 2001, Complainant, by his attorney, filed timely objections to the Secretary?s Findings and Order.
11. On March 7, 2001, Complainant signed a new owner-operator agreement with Atlas Van Lines. Complainant has operated as a commercial driver owner-operator for Atlas Van Lines from March 7, 2001, to the present.

FINDINGS OF FACT

Testifying at the hearing was Complainant, Jimmy C. Holland, and Mike Conner, Director of Operations for Stage Call. I found both witnesses credible except as indicated below.

Holland is a truck driver holding a Utah commercial drivers license with endorsements for hauling double trailers, triple trailers, and hazardous materials. (Tr. 23) Complainant signed an owner-operator "Vehicle Lease Agreement" with Stage Call Corporation on October 29, 1999, to haul equipment used in the entertainment industry. (JX 01, Tr. 24-26)

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After spending the night in Dixon, California, Holland picked up and inspected a trailer. (Tr. 40) Holland was instructed by Stage Call Dispatcher Andy Ramero to arrive at Moscone Convention Center in San Francisco, California on January 9, 2001, at 2:00 p.m. (JX 07, Tr. 37-38) Holland was given the name of an individual to contact upon his arrival. (Tr. 38)

He arrived at the Moscone Convention Center marshaling yard² at approximately 1:00 p.m., an hour ahead of schedule, and attempted to make contact with Robert Lockhart, the contact given to him by Stage Call. (JX 07, Tr. 39) After repeated attempts to make contact with Mr. Lockhart, Holland telephoned Stage Call. Andy Ramero informed him of a new pick-up location, time, and contact name. (Tr. 41) The amended pick-up time was 6:00 p.m., so Holland "hung out" in the marshaling yard for four hours. At approximately 6:00 p.m., he proceeded to the convention center.

His truck was loaded by a crew from 8:00 p.m. to 9:30 p.m. (Tr. 42-43) Holland then secured his load, shut his doors, inspected his vehicle, and began driving out of the city, heading for Entertainment Lighting Services (hereinafter "ELS") in North Hollywood, California. (Tr. 43) At about 10:00 p.m., he entered onto California State Route 101. Complainant knew where he was going, having driven the route more than a hundred times before.

Holland planned to take Highway 101 out of the San Francisco Bay Area to State Highway 152, and then to Interstate 5 to North Hollywood. (Tr. 44) On Highway 152, Holland stopped for a two-hour nap. (Tr. 247) He then resumed traveling on Highway 152, when, between 11:00 p.m. and 1:00 a.m., he noticed that the lights illuminating the instrument panel on his truck stopped working. (Tr. 46) Complainant looked in his rear view mirrors and noticed that his clearance lights³ were also out. (Tr. 46) Holland traveled less than a mile without lights, then the clearance lights and dash lights "popped back on." (Tr. 47, 111)

Shortly after getting onto Interstate 5, the lights went out again, and he immediately pulled into a rest area. (Tr. 47) While at the rest area, Holland changed the breaker that controlled the dash and clearance lights and used the restroom. (Tr. 48, 113) After spending fifteen to twenty minutes at the rest stop, Complainant resumed traveling down Interstate 5, encountering occasional light fog. (Tr. 48-49)

Just south of Buttonwillow, California, he encountered thicker fog, and then his lights went out again. (Tr. 49) Holland pulled his truck over on the dirt shoulder of the highway to fix his lights. While on the shoulder of the highway, he discovered that the wiring controlling the clearance lights had come in contact with the drive shaft on his truck and had been damaged. (Tr. 53) Holland spent the next two hours rewiring the damaged portions directly to the battery in his truck. (Tr. 53, 118)

During these repairs, Holland got battery acid on his hands, which was transferred to his forehead. (Tr. 54) Upon completing the repairs, he noticed that his cellular phone had no signal, preventing him from calling Respondent to inform them he was going to be late. (Tr. 55) Holland had no water in his truck with which to clean off the battery acid, which was now beginning to burn him. (Tr. 137) Complainant then drove his truck forty-five minutes to an hour to the Wheeler Ridge, California Petro Station. (Tr. 55) Once Holland was on the road, and the acid on his face started getting into his eyes, he stopped looking at his phone for a signal, his focus was on getting to a location where he could clean up. (Tr. 119)

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Upon arriving at the Wheeler Ridge Petro Station, he got out of his truck, and went to the shower to clean up. (Tr. 56) He returned to his truck to call Respondent, but before he could call, Steve Maples, a manager at Stage Call, phoned Holland and informed him that he was late and then hung up. (Tr. 56) Holland proceeded to North Hollywood, arriving at ELS between 10:00 a.m. and 11:00 a.m. (Tr. 59, RX 01)

Complainant asserts that he arrived at ELS at 10:10 a.m. and that he believed North Hollywood was only 45-50 miles from Wheeler Ridge⁴ . (Tr. 123) Rodney Cavins, Technical Director of ELS, stated in his affidavit that Holland arrived at ELS at approximately 11:00 a.m. (RX 01) Based upon the maps provided, testimony regarding the hilly terrain and speed limits on Interstate 5, I discredit Complainant's testimony on this one point and find that he arrived at ELS at approximately 11:00 a.m.

Upon arrival at ELS, he testified that he was apologetic to Rodney Cavins. (Tr. 60-61) Respondent submitted an affidavit from Rodney Cavins contending that Holland was unapologetic. (RX 01) I find Complainant's demeanor and testimony on this issue fully credible. Holland testified that he was neither aware of nor intended to "laugh off" Mr. Cavins. (Tr. 65) Mr. Cavins' affidavit appears to be contradictory to Holland's testimony, but without cross examination or further explanation of precisely how Complainant acted I accord Mr. Holland's testimony more weight and find that he was apologetic to Mr. Cavins.

Also testifying was Mike Conner (hereinafter "Conner"), Director of Operations for Stage Call Corporation since 1992. (Tr. 165) Conner testified that he began driving trucks in 1980, and began working for Respondent in 1989. His responsibilities as Director of Operations included supervising dispatch, making sure freight arrives, some sales, and providing dispatch with run information. (Tr. 165-166)

Conner testified that Holland was "a likeable guy" and that he and Complainant had previous discussions about the importance of timely deliveries, but no prior instances of discipline. (Tr. 168-173) He also explained the importance of timely deliveries in the industry which Respondent operates. (Tr. 167)

On January 10, 2001, Conner discussed the termination of Holland's contract with Andy Ramero, Gary Peterson, and Steve Maples. (Tr. 176) The final decision to terminate was made unanimously between Maples and Conner. (Tr. 180) Conner testified that the decision to terminate Holland's contract was a result of his late delivery to ELS and his failure to notify Respondent of his lateness. (Tr. 181-182) At the prompting of Stage Call owner, Tom Duncan, Holland sent a letter to Conner explaining the reasons for his service failure and failure to call. (Tr. 188) Conner testified that by the time he received the letter, he had already made up his mind that reinstatement was "not even on the table." (Tr. 186)

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Conner nevertheless investigated Holland's story. His investigation revealed the existence of numerous places for Holland to have stopped to telephone the company between Buttonwillow and Wheeler Ridge. He had never physically been to any of the locations, nor could he confirm the presence of a functional payphone at any of the locations. (Tr. 192, 215-216) Conner also reviewed AT&T's regional brochure showing blanket cellular phone coverage over the areas traveled by Holland, assuming that "dead spots" without a signal would only be for a few miles. (Tr. 192, JX 17) He also pulled weather reports for several counties in California, to determine the presence of fog, as alleged by Holland. (Tr. 211-212) The weather reports demonstrated that Kerns County California had not experienced fog in the last ten years, and that Merced County California had experienced fog only twice in a decade. (JX 11, 12) The final piece of Conner's investigation involved a call to the trailer leasing company to inquire about trailer repairs. The leasing company had no record of repairs made to the trailer used by Holland. (Tr. 193) He acknowledged that, after hearing Holland's testimony, that the problem would have been with the truck, not the trailer. Conner never looked at Holland's logs or talked with Holland as part of his investigation. (Tr. 232)

CONCLUSIONS OF LAW

Holland complained that Stage Call had discharged him, in violation of Section 405(b) of the Act, for stopping to repair his truck, which ultimately made him late for his delivery. 49 U.S.C. § 31105 provides in pertinent part:

A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because�
(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.

Prima Facie Case

To establish a prima facie case of discriminatory treatment under the Act, the Complainant must prove: (1) that he was engaged in an activity protected under the Act; (2) that he was the subject of adverse employment action; and (3) that a causal link exists between his protected activity and the adverse action of his employer. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). The establishment of the prima facie case creates an inference that the protected activity was the likely reason for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At a minimum, the Complainant must present evidence sufficient to raise an inference of causation. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992).

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Once the prima facie case is established, the burden of production shifts to the Respondent to present evidence sufficient to rebut the inference of discrimination. To rebut this inference, the employer must articulate a legitimate, nondiscriminatory reason for its employment decision. Carroll, supra. A credibility assessment of the nondiscriminatory reason espoused by the employer is not appropriate; rather, the Respondent must simply present evidence of any legitimate reason for the adverse employment action taken against the Complainant. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

If the employer successfully presents evidence of a nondiscriminatory reason for the adverse employment action, the Complainant must then prove, by a preponderance of the evidence, that the legitimate reason proffered by the employer is a mere pretext for discrimination. Moon, supra; See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In proving that the asserted reason is pretextual, the employee must do more than simply show that the proffered reason was not the true reason for the adverse employment action. The employee must prove both that the asserted reason is false and that discrimination was the true reason for the adverse action. Hicks, supra, at 2752-56.

Protected Activity

Under Section 405(b) of the Act, protected activity may consist of a driver's refusal to operate a vehicle when the operation violates the law, or because the employee has a reasonable apprehension of serious injury due to an unsafe condition. 49 U.S.C. § 31105(b). However, the Act offers protection only if 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. Yellow Freight Systems, Inc. v. Reich, 38 F.3d 76 (2nd Cir. 1994).

Holland testified that his lights stopped working at night in foggy conditions. Even assuming the absence of fog, as indicated by Conner's investigation, driving a tractor-trailer at night, in mountainous terrain, with no lights clearly creates a bona fide danger of an accident, injury or serious impairment of health. Conner confirmed that pulling off the road was the right thing to do. (Tr. 219) The delay taken by Holland in repairing his lights is protected activity as defined in § 405(b)(ii).

Furthermore, the operation of a truck with inoperable lights would violate 49 C.F.R. § 393.9, requiring all lamps be operable at all times, including clearance lights indicated in 49 C.F.R. § 393.11. The delays caused by Holland's repair to his lights also constitute protected activities under § 405(b)(i).

Adverse Employment Action

Any employment action by an employer which is unfavorable to the employee's compensation, terms, conditions, or privileges of employment constitutes an adverse action. Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar. 9. 1990). It is stipulated that Holland was an employee of Stage Call as defined at 49 U.S.C.A. § 31101(2). (JX 24 at ¶ 4) It is undisputed that Holland's owner-operator lease was terminated by Stage Call. (JX 24 at ¶ 8) This termination constitutes adverse employment action. See Western Truck Manpower Inc. v. U.S. Dept. of Labor, 12 F.3d 151 (9th Cir. 1993).

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Complainant mentioned on brief, but did not argue or cite supportive authority, that Stage Call's refusal to reinstate him also constituted adverse employment action. A refusal to rehire⁵ an employee may, in some circumstances, be considered a separate and distinct adverse employment action. See Hardin v. Washington, 16 Fed. Appx. 779 (9th Cir. 2001). However, such a refusal to rehire may also be deemed an ongoing action stemming from the termination. See E.E.O.C. v. United Parcel Service, Inc., 249 F.3d 557 (6th Cir. 2001)(Claimant resigned employment due to Employer promise of rehire at another location, turning voluntary resignation into an involuntary job loss upon refusal to rehire); Lowery v. Hazelwood School Dist., 244 F.3d 654 (8th Cir. 2001)(Refusal to rehire because Complainant had just been terminated for poor performance).

Respondent asserts that it terminated Holland's lease for five reasons: failure to notify dispatch that he was going to be late; failure to notify dispatch of delivery time changes; rude behavior towards ELS; prior verbal warnings; and Holland was late and his proffered reasons did not make sense. (Tr. 20-21) Conner testified that the original termination was based solely on the late delivery with no contact to dispatch. (Tr. 181, 236) Through discussions with Mr. Cavins and investigations into the events of January 9-10, Conner discovered the delivery time change, Holland's interaction with Mr. Cavins, and time gaps in Holland's explanation. Conner testified that by the time he received Holland's letter of explanation, reinstatement was "not even on the table, as far as I was concerned." (Tr. 186) I find that Stage Call's refusal to reinstate Holland was not a separate and distinct adverse employment action, but was simply a continuation of his termination. Accordingly, Respondent's refusal to rehire Holland is not a separate adverse employment action under the Act.

Causal Connection

Complainant must demonstrate that a "causal link" exists between his protected activity and Respondent's adverse employment action. Yellow Freight System, Inc. v. Reich, No. 93-3488 (6th Cir. 1994). In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary held that the Complainant's initial burden in establishing a prima facie case is not onerous. The causal connection component may be established by showing that the employer was aware of the protected conduct and that the adverse personnel action followed closely thereafter. Id; Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993), citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). Certainly, the proximity in time between a protected activity and an adverse employment action may give rise to an inference of a causal connection. Moon supra, citing Burrus v. United Telephone Co., 683 F.2d 339, 342 (10th Cir.), cert. denied, 459 U.S. 1071, 103 S.Ct. 491, 74 L.Ed.2d 633 (1982)); Miller v. Fairchild Industries, Inc., 797 F.2d 727, 731-32 (9th Cir.1986); Donnellon v. Fruehauf Corp., 794 F.2d 598, 601 (11th Cir.1986); Mitchell v. Baldrige, 759 F.2d 80, 86 & n. 6 (D.C. Cir.1985). In this case, however, the temporal proximity can give rise to no such inference of causal nexus between the protected activity and Holland's initial termination.

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The decision to terminate Holland's contract was arrived at by Steve Maples, Gary Peterson, and Mike Conner. (Tr. 176) This decision was made before any of these parties had any knowledge regarding protected activity engaged in by Holland. Holland testified that on January 10, 2001, he was told of his lease termination by Andy Ramero before he told Mr. Ramero about his mechanical difficulties. (Tr. 130) Holland was also unable to inform Mr. Maples of his mechanical problems because Maples hung up on Holland after informing him that he was late. (Tr. 57) Without knowledge of the protected activity engaged in by Holland, Respondent could not possibly have based its decision on the protected activity. Without the necessary causal nexus, Holland has failed to establish a prima facie case of discriminatory termination for his protected activities.

Conclusion

Jimmy C. Holland engaged in protected activity by refusing to drive his truck with inoperable lights. This protected activity caused him to arrive at his destination late. Holland was unable to communicate with Stage Call while he was repairing the lights. Before Holland could communicate his protected activity to Respondent, his employment was terminated. Respondent was unaware of Holland's protected activities at the time he was terminated. Respondent could not have discriminated against Holland for his protected activity, because they did not know about his protected activity. Holland was not disciplined, discriminated against, or discharged for doing any activities protected by the Act.

RECOMMENDED ORDER

I recommend that Jimmy C. Holland's claim for reinstatement, money damages, and attorney fees be DENIED.

Rudolf L. Jansen
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, 200 Constitution Avenue, NW, Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ In this decision, "JX" refers to Joint Exhibits, "ALJX" refers to the Administrative Law Judge Exhibits, "CX" refers to Complainant Exhibits, "RX" refers to Respondent Exhibits and "Tr." to the Transcript of the hearing.

² A "marshaling yard" is a location outside a venue where trucks are prepared for loading.

³ "Clearance lights" are marker lights on the front and back of a tractor-trailer combination. The lights are positioned one on each side of the vertical centerline, as far apart and as high as practicable on the vehicle to indicate overall height and width of the vehicle. See 49 C.F.R. § 393.11.

⁴ Joint Exhibit 27 demonstrates that by adding distances indicated between interstate exits, traveling 45-50 miles on Interstate 5 would put Holland just south of the Los Padres National Forest, far north of the Los Angeles and North Hollywood areas.

⁵ Reinstatement is defined as restoration to a proper condition. Webster's Third New International Dictionary (1986). There is no distinction pointed out by the parties between "reinstatement" and "rehiring." Therefore, I use the terms interchangeably.