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USDOL/OALJ Reporter
Foley v. J.C.
axxwell, 95-STA-11 (ALJ May 5, 1995)
[Editor's note: ALJ's caption erroneously included Assistant Secretary as Prosecuting Party.
See I>Foley v. J.C. Maxxwell, 95-STA-11 @ 2 n.1 (Sec'y July 3, 1995)]
Date: May 5, 1995
Case No.: 95-STA-11
In the Matter of:
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
Prosecuting Party
and
JOHN T. FOLEY, SR.,
Complainant
v.
J. C. MAXXWELL,
Respondent
Appearances:
On Behalf of the Complainant:
John T. Foley, Pro Se
Medford, Massachusetts 02155-4562
On Behalf of the Respondent:
Arthur J. Palleschi, Esq.
Butterworth & Palleschi
Swampscott, Massachusetts 01907
BEFORE: Joel F. Gardiner, Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case was duly referred to the Office of Administrative
Law Judges for determination under the procedures mandated by the
Surface Transportation Assistance Act, (hereafter the 'Act'), 49
U.S.C. 2301 et seq., On November 9, 1994, the
Regional Solicitor of the United States Department of Labor
notified John T. Foley, Sr.(hereinafter the Complainant) that his
complaint under Section 405 of the Act had been investigated and
found to have no merit. On December 5, 1994, the Complainant
filed timely objections to the Findings of the Office of the
Solicitor.
On December 22, 1994, I issued a Notice of Hearing and Pre-
Hearing Order. On January 3,1995, a hearing on this matter was
[PAGE 2]
held in Boston, Massachusetts. At the hearing all parties were
given the opportunity to present evidence and oral arguments.
The formal nature of the proceedings was again explained to the
Complainant and he was given an opportunity to consider retaining
counsel.[1] The Complainant decided to proceed pro se.
Administrative Law Judge exhibits 1 through 3, Complainant's
exhibits 1 through 10, and J. C. Maxxwell, Inc., (hereinafter the
Respondent) exhibits la and 1b were received into evidence.[2]
(TR 6-8, 10-17) At the hearing February 20, 1995, was set as the
date for receipt of post hearing briefs. On February 16, 1995,
Complainant's brief was filed. It is hereby received as
Complainant's exhibit 11. On February 16, 1995, Respondent filed
a Motion to extend the time for filing of briefs until March 20,
1995. The grounds for the extension request were that the
Respondent had not yet received a copy of the official transcript
and that Respondent's counsel would be on vacation at the time
the transcript was due to be delivered. On February 17,1995, the
time for filing briefs was extended to March 20, 1995 and both
parties were reminded that they must serve a copy of their brief
on the opposing side. Respondent's brief was filed on March
20,1995, and is hereby received as Respondent's exhibit 2. Also
on March 20,1995 the Complainant's father called the Office of
Administrative Judges and stated that the Complainant had
problems with his back and had been unable to serve Respondent
with a copy of his brief. In view of Complainant's pro se
status, a copy of Complainant's brief was forwarded to
Respondent's counsel. On April 5,1995, Respondent filed a Motion
to Strike portions of Claimant's brief. This motion, in sum,
states that in his argument the Claimant refers to facts and
documents not in evidence. Respondent cited no authority in
support of this Motion. In view of Claimant's pro se
status and noting that the brief refers for the most part to
exhibits which are already in evidence and simply restates
Complainant's position, the Motion to Strike is denied.
This Decision and order is based upon an evaluation of the
entire evidentiary record.
FINDINGS OF FACT
1. Complainant is John T. Foley, Sr., with a residential
address in Medford, Massachusetts.
2. Respondent, J.C. Maxxwell, Inc., is engaged in interstate
trucking operations and maintains a place of business in Revere,
assachusetts. In the regular course of this business,
Respondent's employees operate commercial motor vehicles in
interstate commerce principally engaged in the transportation of
refined products of petroleum such as gasoline and jet fuel.
3. Respondent is now and at all times material herein,
[PAGE 3]
Complainant has been a person as defined in Section 401(4) of the
Act (49 U.S.C. Section 2301(4)).
4. At all times material herein, Complainant was an employee
in that he was a driver of a commercial vehicle having a gross
vehicle weight of 10,000 pounds or more used on the highways in
interstate commerce to transport gasoline and jet fuel and in
that he was employed by a commercial motor carrier and, in the
course of his employment, directly affected commercial motor
vehicle safety. (49 U.S.C. 2301(2)(A))
5. On December 28, 1992, the Complainant filed a complaint
with the Secretary of Labor alleging that Respondent had
discriminated against him in violation of Section 405 of the Act.
(49 U.S.C. 2305) The complaint was timely filed.
6. The Secretary, acting through his duly authorized agents,
thereafter investigated the above complaint in accordance with
Section 405(c)(2)(A) of the Act. (49 U.S.C. §2305(c)(2)(A))
7. The Complainant was employed by the Respondent from
November of 1990 until December 27, 1992. During this period
Complainant was assigned to deliver fuel oil to Coastal Oil of
New England, Inc. (hereinafter Coastal). Complainant reported
experiencing headaches, vomiting and difficulty eating due to
asphalt fumes at Coastal's terminal. The Complainant told his
employer about these fumes and filed a complaint with the
Occupational Safety and Health Administration (hereinafter OSHA)
sometime in August, 1992.[3]
8. In September, 1992, Complainant was reassigned from the
Coastal terminal. Complainant told his employer he felt this
reassignment was in retaliation for his complaints about the
fumes and that he was going to report the matter to OSHA.
Respondent told the Complainant that the reassignment was due to
Complainant's sensitivity to asphalt fumes and Coastal's request
that the Complainant no longer be assigned to its terminal for
this reason.
9. In the Fall of 1992, Complainant requested time off as his
wife was due to give birth in December, 1992. There were several
discussions concerning this request. During the final discussion
Respondent agreed to give the Complainant "a couple of days of
off".
10. Complainant took December 22 and 23, 1992 off as his wife
was being induced to give birth. Complainant's son was born on
December 23rd. Complainant called Respondent on December 23rd,
[PAGE 4]
and stated that due to complications with the birth he would have
to be out the rest of the week. Respondent replied that because
of an increase in demand for jet fuel it was necessary for
Complainant to come into work the next day or he would not have a
job. Complainant failed to report for work until December 27th
when he called in.
11. Complainant was not discharged by the Respondent in
retaliation for complaints about asphalt fumes adversely
affecting his health or his related complaint to OSHA. It is
more credible that Complainant's discharge was due solely to
legitimate and nondiscriminatory management reasons including his
failure to report for work as directed. It is noted that another
employee was discharged in the same time period f or violating
the same work directive.
12. Consequently, Respondent's discharge of the Complainant
on December 27, 1992 was not the result of engaging in activity
protected under Section 405 of the Act. Accordingly, his
complaint is hereby dismissed.
DISCUSSION
1. Introduction
This case arises under Section 405 of the Surface
Transportation Assistance Act enacted in 1983. This legislation
is intended to promote highway safety by protecting
transportation workers from disciplinary actions related to the
employee's engaging in protected activity. Section 405(a) reads
as follows:
No person shall discharge, discipline, or in any manner
discriminate against any employee with respect to the
employee's compensation, terms, conditions or
privileges of employment because such employee (or
person acting pursuant to a request of the employee)
has filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a
commercial motor vehicle safety rule, regulation,
standard or order, or has testified or is about to
testify in any such proceeding.
Complainant contends that he was discharged in violation of
the Act because he complained about asphalt fumes at one of his
work sites and because he filed a complaint with OSHA.
Respondent contends that Complainant's discharge was due to a
refusal to comply with a direct order to report to work and that
[PAGE 5]
at least one other employee was discharged at the same time for
engaging in the same conduct.
2. Procedural History
On December 28, 1992, the Complainant filed a complaint
alleging that he was discharged in violation of Section 110 of
the Occupational Safety and Health Act and Section 405 of the
Surface and Transportation Assistance Act. The United States
Department of Labor conducted an investigation of these
allegations. The Complainant's allegation under Section 110 was
dismissed. Complainant filed an appeal. On September 23, 1994,
the appeal was dismissed by John B. Miles, Jr., Director of
Compliance Programs. Washington, D.C. (ALJX 1) On November
9,1994, Cindy A. Coe, the Acting Regional Administrator, notified
the Complainant that his complaint under Section 405 of the Act
had no merit and was also dismissed. (ALJX 1) On December 5,
1994, Complainant filed a timely objection to the dismissal of
his complaint under Section 405 of the Act. On December 12,
1994, the matter was referred to the Office of Administrative Law
Judges for formal resolution. (ALJX 2)
3. Evidentiary Burden
Complainant bears the initial burden of establishing a
prima facie case of retaliatory conduct. McDaniel v.
Boyd Brothers Transportation, Case No. 86 STA 6 (December
2,1986). He must prove by a preponderance of the evidence that
he engaged in a protected activity, that an adverse employment
action occurred and that there was a causal connection between
the protected activity and the adverse action. Defor v.
Secretary of Labor, 700 F.2d 281 (6th Cir. 1983).
In the event a prima facie case is established, the
Respondent has the burden of proving a legitimate and non-
discriminatory reason for terminating the employee. At this
juncture, Complainant must prove that the alleged non-
discriminatory basis for the termination was merely pretextural.
See Dickerson v. Metropolitan Dade County, 659 F.2d 574
(5th Cir. 1981).
4. Summary of the Evidence
The Complainant was hired by the Respondent in November,
1990 as a truck driver to deliver gasoline, fuel oil and jet
fuel.[4] The Complainant was laid off in the Spring of 1991.
(TR 31) He was recalled in July 1991. His duties were to deliver
gasoline and fuel oil to gas stations and jet fuel to airports.
The Complainant testified he never received a wage increase or
any performance appraisal of any kind and that he had never been
warned or disciplined in any way. (TR 33-35) Throughout his
[PAGE 6]
employment he hauled jet fuel to Logan International Airport in
Boston six or seven times a day. one of the places that the
Complainant picked up jet fuel was Coastal Oil in Chelsea,
assachusetts.
The Complainant testified that the location where he picked
up jet fuel at Coastal was adjacent to a location where other
drivers loaded asphalt. (TR 38) The Complainant felt that the
fumes from the asphalt were making him ill. Beginning in 1991
and continuing into 1992 he complained to his employer.
Respondent's dispatcher told the Complainant that this was just
part of the job. The Complainant also spoke to other employees
about the asphalt fumes. One of the employees mentioned the
Occupational Safety and Health Administration (hereinafter OSHA).
(TR 39-40) The Complainant called OSHA and was told to try to
work things out with his employer. In August 1992 Complainant
testified that he approached John O'Brien, Respondent's
president, in the presence of five or six other employees. Mr.
O'Brien said he would discuss the matter with Coastal. Shortly
thereafter the Complainant became sick on the job and went to
Lawrence Memorial Hospital. He was referred to a neurologist at
ount Auburn Hospital. (TR 43-44) All his medical tests were
negative. (TR 45) Complainant remained out of work for several
weeks. During the time he was out of work Complainant went to
Coastal and asked for additional information on the effects of
asphalt. (TR 45-47) The person the Complainant spoke to at
Coastal asked the Complainant if he had called OSHA.
The day following his visit to Coastal, Complainant was
called by Mr. 0 'Brien and asked if he was trying to sue Coastal.
The Complainant said he was not. The Complainant asked O'Brien
if he had called OSHA. O'Brien said he had not and told
Complainant that he did not have a contract with Coastal and that
Coastal was 50% of Respondent's business. O'Brien stated,
according to the Complainant, that if the Coastal contract was
lost Respondent would have to lay off five or six drivers. (TR
48-49) Respondent had a total of 17 employees, 3 of whom worked
in the office and 14 were drivers. (TR 135)
The Complainant returned to work with a note from his
doctor. Upon his return the Complainant was told that he would
be assigned to deliver gasoline and would no longer go to
Coastal. Other employees were apparently angered by the
Complainant's actions and threatened to harm him if he continued.
(TR 50-51) The complainant had no further contact with any other
government agencies prior to his discharge. (TR 52-54)
According to the Complainant, in September or October 1992,
he approached John and Cynthia 0'Brien and asked for one week of
unpaid sick leave for the birth of his child and was told "no
problem". (TR 56-57) The Complainant told the O'Brien's that his
[PAGE 7]
wife was due to give birth on December 13th. The Claimant
testified he mentioned this request for time off on several other
occasions but was unsure of the dates of these conversations and
described them as general conversations about babies. (TR 57) On
December 16, 1992, the Claimant had another conversation with Mr.
O'Brien. The Claimant told Mr. O'Brien that his wife was going
to be induced on December 22. (TR 58) The Claimant then said "I
can have the rest of the week off, right?' or something to that
effect. (TR 58, line 25 -59, line 1) When asked to be as specific
as possible, the Claimant testified he said "I'm going to need
the week off or something like that." (TR 60, lines 3-4) Claimant
added he may have said "Can I have the week off." (TR 60, line 9)
r. O'Brien responded "to the effect that we'll play it by ear or
we'll see what happens." (TR 60, lines 16-17) On December 21st,
the day before his wife was to be induced, the Claimant testified
he did not have any conversation with Mr. O'Brien or the
dispatcher as to how long he would be out of work. (TR 61-62)
Claimant's wife was induced on December 22 and was in labor for
over 24 hours Claimant's son was born around 7:00 A.M. on
December 23rd. (TR 62)
On December 23rd, the Claimant called Respondent's place of
business around 4:00 or 5:00 p.m. and told the person who was
doing the dispatching that he would be out for the rest of the
week. (TR 63-64) According to the Claimant Mr. O'Brien called the
Claimant at the hospital, and said 'congratulations, you no
longer have a job if you don't come in the rest of the week" (TR
64, lines 19-20) Mr. O'Brien added "I'm sick of you and the
drivers and your excuses" (TR 65, lines 2-3) Claimant testified
he was unable to explain that it had been a difficult birth and
that his son was having projectile vomiting because Mr. O'Brien
hung up on him abruptly. The Claimant also testified that he
would have been unable to report to work because he had not slept
in 36 hours. (TR 64-65)[5] Claimant's wife and son remained in
the hospital for two days and were discharged on the afternoon of
December 25th, Christmas Day. On December 26th, the Claimant
remained at home with his wife and son. Claimant did not call
the Respondent on the 26th because he "had the time off". (TR 67,
lines 21-22) Claimant's next contact with the Respondent was
Sunday, December 27th. During a conversation with Mr. O'Brien,
Claimant testified he was told "I'm sick of you OSHA drivers and
your excuses." (TR 67, lines 7-8)
The Respondent's version of Complainant's termination is
that the Complainant was given only two days off, one for the day
of the birth and the day following. John O'Brien, Respondent's
vice president, testified that on or about December 16, 1992, the
Complainant asked f or a week of f because his wife was having a
baby. Mr. O'Brien responded that the holiday season was one of
[PAGE 8]
the busiest times of the year, that the Claimant could not have a
week off but that he could have the day of the baby's birth and
the day following. (TR 136-137,152) Respondent submitted the
dispatcher's log in support of its version of the conversation.
(RX 1A and B, TR 140-141) Mr. O'Brien stated the sole reason that
Complainant was fired was his failure to report for work on
December 24, 1992.
Cynthia 0'Brien also testified in support of Respondent's
position. She stated that she and her husband discussed the fact
that on December 23rd the Complainant had said he would not come
to work for the rest of the week. The O'Brien's felt they were
running out of drivers. They decided to terminate the
Complainant for his refusal to report for work as directed. (TR
167-168) She testified that she remembered very clearly that the
Complainant had only been given two days off. (TR 169-170)
Respondent had two other employees who requested time off
around the Christmas season in 1992. Bob Smith requested to take
December 24th and 25th off. His request was granted but he was
told that if he did not report for work on December 26th he would
be fired. (TR 141) Although Smith traveled to Florida during
these two days, he did report as scheduled on the 26th. Bob
Tucker also requested a week off around Christmas. This request
was refused. Tucker then requested to have Christmas Day,
December 25, 1992 off. This request was also denied and when
Tucker failed to report for work on the night of December 25th,
he was terminated. (TR 143) Further, John O'Brien testified that
he and his dispatcher both drove fuel delivery trucks on the
weekend of December 26th and 27th due to the necessity to make
fuel deliveries and the shortage of drivers. (TR 155)
Complainant also testified to the effect that since his
discharge by Respondent, he has been unable to find employment as
a truck driver, and that he felt Respondent was responsible for
this by giving out poor references and in effect 'blackballing'
him. Claimant called his father, Alfred J. Foley, to testify in
support of this assertion. Alfred Foley testified that
approximately six months prior to the hearing, he called
Respondent's place of business and spoke to Cynthia O'Brien.
Without identifying himself, he asked for a reference for John
Foley. Mrs. O'Brien said he was "a very energetic, ambitious
employee and I had no problems with him." (TR 120, lines 4-5) She
said if a written request was sent in she would be only too glad
to add more. On cross examination, Alfred Foley opined that this
recommendation was "questionable" because "phone calls can be
recorded" but "letters can be hidden forever for whatever the
information is." (TR 125, lines 16-18)
Findings of Fact and Conclusions of Law
[PAGE 9]
This case presents the usual credibility problems encountered in
"Whistleblower" cases. The testimony and exhibits offered by the
parties has been summarized supra. In effect the crux of
the case comes down to the amount of time Claimant was authorized
to take off for the birth of his son. I find and conclude that
the Respondent's version of this sequence of events is more
credible.
In essence, the Claimant asserts that he was granted an
entire week of f and that he merely called in on December 23rd to
tell Respondent the good news that his son had been born.
Respondent, on the other hand, takes the position that Claimant
was clearly told that he could only have two days off, that this
was reiterated on December 23rd and that when Complainant failed
to comply with a direct order necessitated by business demands,
he was terminated. Claimant's version is weakened by his
testimony that on December 16th he spoke to John O'Brien and was
told that it only took a day or two to have a baby and that they
would see what happens, play it by ear. Further, if Claimant had
been granted a week off, there was no reason to call in on
December 23rd, except to convey the good news. If on the other
hand, Claimant had only been given two days as Respondent
asserts, Claimant would need to call in to get additional time
off. I credit Respondent's version for the following reasons.
First, in his brief Complainant states:
"My wife and son were experiencing medical problems,
and I called from the hospital on December 23rd the
day my wife gave birth, to see if I could obtain
added time off." (Emphasis supplied) (CX 11, page 2)
Second, it is apparent from the record that Respondent had a
pressing need to have all of its employees working as much as
possible during the busy Christmas season. This is shown by the
facts that both John O'Brien and his dispatcher drove delivery
trucks on the weekend after Christmas. Two other employees,
Smith and Tucker both requested time off and both were told that
the Respondent was very busy. Tucker was told to come in on
Christmas night and was terminated when he failed to do so.
Smith was told that, like the Complainant he could have only two
days off and that if he failed to report on the third day he
would be fired. This was done even though Respondent was aware
that Smith was traveling to Florida. These f acts persuade me
that the Respondent was f aced with business considerations which
required that all employees work or take very limited time off.
In such a situation it is very unlikely that on December 16th,
Respondent would grant the Complainant a week off. Moreover,
assuming arguendo that Respondent had told Complainant
that he
[PAGE 10]
had the week off, if this approval were withdrawn and Complainant
was explicitly directed to report on December 23rd, as
Complainant agrees he was, I would not find that Complainant
would be privileged to disregard this directive merely because he
had engaged in protected activity.
Finally, the Complainant's testimony was at times
inconsistent and at variance with common experience. on the topic
of how much time he was granted for the birth of his child,
Complainant initially testified that he was given a week off and
that there was " no problem". (TR 56-57) This apparently was
followed by several conversations with John 0 1 Brien wherein the
upcoming birth was generally discussed and the Complainant was
still under the impression that he had been granted a full week
off. (TR 57) However, the Complainant for some reason felt
another conversation was necessary. On December 16, 1992, the
Complainant again spoke with John O'Brien about his leave. The
Complainant first testified that he told John O'Brien that his
wife was going to be induced on December n. He then said : 'I
can have the rest of the week off, right?' (TR 58-59) Complainant
testified he said "something to this effect.' (TR 59, line 1)
When pressed for the exact content of the conversation,
Complainant testified he said "I'm going to need the week off or
something like that," or "can I have the week off?" (TR 60, lines
3-4,9) Mr. O'Brien's response, according to the Complainant, was
that it only takes a couple of days or three to have a baby. The
conversation ended with Mr. O'Brien saying something to the
effect that "we'll play it by ear or we'll see what happens". (TR
60, lines 16-17) Thus, there appears to have been at least some
uncertainty, even in the Complainant's mind, -at the beginning of
this conversation as to whether he had been granted an entire
week off. By the end of the conversation, it was clear that he
had not been given a week, or if he had, this approval had been
withdrawn. This would explain why, as stated in his brief,
Complainant called Respondent on December 23rd. Complainant was
indeed calling to ask for additional time off. As a final note,
even if Complainant still thought after the December 16th
conversation that he was still authorized to take a week off, any
misunderstanding was clarified on December 23rd when Complainant
was specifically directed to report on December 24th or be
terminated. Yet the Complainant testified that he did not call
in on December 25th when his wife and child were released from
the hospital or on December 26th because Respondent had given him
the entire week off. I find this testimony to be inconsistent
and confusing at best and less credible than Respondent's version
of these events. Finally, while Complainant as a new father,
certainly would want to remain in the hospital with his wife and
baby, he testified that he had to do this as he was the only one
[PAGE 11]
who could assist with the baby's care upon discharge from the
hospital. This seems at odds with his testimony that both he and
his wife had family members in nearby towns. (TR 85-90) It would
seem that some assistance from the family would be available to
help care for a new baby especially during the Christmas season.
Complainant's explanation for this is that "They have lives of
their own. They work and make a living, too". (TR 91, lines 4-5)
Based on the above, I find that the Complainant did engage
in protected activity by complaining about potentially harmful
working conditions caused by the asphalt fumes and by his
informal complaint filed with the occupational Health and Safety
Administration. I further find that Respondent was aware of
these activities. Claimant suffered an adverse personnel action
when he was terminated in December 1992.[6] Although the matter
is not free from doubt, I conclude that the Complainant has made
a sufficient showing to establish a causal connection between his
protected activity and the adverse personnel action.
Accordingly, I find that the Complainant has established a
prima facie case and that the burden now shifts to the
Respondent to establish a legitimate and non-discriminatory
reason for terminating the employee. In order to prevail
Complainant, on the other hand, must prove that the alleged non-
discriminatory reason for the discharge was a mere pretext and
that "but for" the protected activity the Complainant would not
have been discharged.
I find and conclude that Complainant's discharge was for
good cause and did not violate any provision of the Act. As
discussed supra I credit Respondent's version of the
Christmas leave issue. Complainant was given two days of f for
the birth of his child. Complainant tried to get an extension of
this time for what he believed were valid reasons. Although,
Complainant certainly presents a sympathetic case of requesting
extra leave at the time of the birth of his first child and the
Christmas season, this alone will not suffice to show a
violation. Respondent has established strong business reasons
for needing the Complainant to report for work. The Respondent
had a large number of deliveries which required that employees
and both John O'Brien and his dispatcher to work over the weekend
following Christmas. Of even greater significance is the
treatment of other employees. Neither Smith nor Tucker had been
engaged in protected activity and yet both were given extremely
limited time off during this period. Indeed it could be argued
that Tucker was treated more harshly than the Complainant in that
he was terminated for failing to report for a single shift on
Christmas night even though he had previously requested the
entire week off.
In these circumstances, I find that Respondent has come
[PAGE 12]
forth with a substantial non-discriminatory, business
justification for The Complainant's termination. The Complainant
has been unable to carry his burden of showing that but for the
protected activity he would not have been terminated. I also
note that the Complainant's post-discharge evidence does not add
to, and in fact detracts from the strength of his case.
Respondent's telephone conversation with the Complainant's father
seems to be the best possible recommendation that Respondent
could give in the circumstances. These statements do not appear
to be those of an employer who harbored any animosity toward a
former employee because of his protected activity. I reject the
notion that Respondent was making favorable statements orally
because telephone conversations could be recorded but was
prepared to put unfavorable comments in writing. common
experience tells us that the reverse is far more likely.
In summary, I find and conclude that the Complainant was
terminated for his failure to report for work as directed on
December 24, 1992, and not because he had engaged in any activity
protected under the Act. The reason for discharge was legitimate
and non-discriminatory and not merely pretextural.
ORDER
Accordingly, it is ORDERED that the complaint filed herein
by John T. Foley, Sr., shall be, and the same hereby is,
DISMISSED.
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
Ave., NW, Washington, DC 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. See 55 Fed. Reg. 13250 (1990)[7]
JOEL F. GARDINER
Administrative Law Judge
[ENDNOTES]
[1] Prior to the commencement of the hearing, Complainant was
advised that the hearing was a formal proceeding and that he had
the right to be represented by legal counsel.
[2]
"ALJX" refers to the Administrative Law Judge's exhibits, "CX"
refers to the Claimant's exhibits, "RX" refers to the
Respondent's exhibits, and "TR" refers to the official transcript
of this proceeding.
[3]
This informal OSHA complaint was filed against Coastal Oil, not
the Respondent. This complaint was apparently resolved in the
Fall of 1992 when Coastal agreed to repair a faulty ventilation
system at the dock where the asphalt fumes were emitted. (TR 80-
83)
[4]
At the time of his hiring Complainant was told that the
Respondent did not pay for sick or personal days and, at least
for the first several years, he would only be entitled to one
week of paid vacation per year. (TR 77-78) Claimant had a one
week paid vacation in 1992 and chose to take it in July.
[5]
Claimant had this conversation at 4:00 or 5:00 P.M., and would
not normally have reported for work until the following 4:00 or
5:00 A.M. Although this time period would have given the
Claimant sufficient time to sleep, he stated he had to remain at
the hospital to be trained in how to take care of his son's
projectile vomiting. (TR 65-66)
[6]
During his testimony Complainant also made reference to his
belief that he had suffered an adverse personnel action when he
was removed from the Coastal delivery route. I find no merit in
this assertion. Although privileged to complain about
conditions, i.e. the asphalt fumes which he felt were
unhealthy, it is clear from the record that the Complainant was
the only employee who either complained or suffered an adverse
impact from working at Coastal. Complainant testified that he
was unable to work at Coastal without becoming ill and that this
situation was getting progressively worse. Respondent's action
in reassigning claimant to a different terminal would seem to be
a reasonable way to resolve the situation. Moreover, Coastal, an
important customer of Respondent requested that this action be
taken. I find no adverse personnel action in these
circumstances.
[7]
A Final order will be issued by the Secretary within 120 days of
the issuance of this Recommended Decision and order. The parties
may file briefs with the Secretary in support of their respective
positions within thirty days or the time allowed by the
Secretary. 29 C.F.R. §1978.109 (b) and (c).
