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Lowe v. Pennsylvania Lee
Trucking, Inc., 95-STA-25 (ALJ July 21, 1995)
DATE: JULY 21, 1995
CASE NO.: 95-STA-25
In the Matter of
JACK M. LOWE,
Complainant,
v.
PENNY LEE TRUCKING, INC.,
Respondent.
Appearances:
JACK M. LOWE
2126 254th Street NW
Stanwood, Washington 98292
In Pro Se
WILLIAM W. KATES, ESQ.
Associate Regional Solicitor
U.S. Department of Labor
1111 Third Avenue, Suite 945
Seattle, Washington 98101-3212
For the Assistant Secretary of Labor
for Occupational Safety and Health
BRADFORD N. CATTLE, ESQ.
Anderson Hunter
P.O. Box 5397
Everett, Washington 98206
For Respondent
Before: EDWARD C. BURCH
Administrative Law Judge
[PAGE 2]
ORDER OF DISMISSAL
This proceeding is brought pursuant to the provisions of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.
App. § 31105 ("the Act"), and the regulations in 29 C.F.R.
Part 1978. In accordance with Section 405 of the STAA,
Complainant, Jack Lowe, filed a complaint with the Secretary of
Labor alleging that Respondent, Penny Lee Trucking, Inc.,
discriminatorily discharged him for refusing to continue to drive
under circumstances violative of both federal and state
restrictions. Following an investigation, the Regional
Administrator for the United States Department of Labor concluded
that Complainant was discharged because he refused to operate his
vehicle in contravention of regulations applicable to commercial
motor vehicle safety; his refusal to continue driving qualifies
as protected activity under Section 405 of the Act; and
Respondent's discharge of him violated Section 405 of the Act.
The Regional Administrator awarded Complainant back pay for the
five work days that he was unemployed following his discharge at
a daily rate of $124.70, which represents his average daily
earnings prior to his dismissal.
On March 17, 1995, Respondent filed timely objections to the
Regional Administrator's findings and requested a hearing
pursuant to Section 31105(2)(B) of the Act. Complainant,
contending that his award was insufficient, also filed timely
objections to the Regional Administrator's findings on March 20,
1995. A formal hearing was held before the undersigned
administrative law judge on May 23, 1995, in Seattle,
Washington.[1]
After reviewing the evidence and the record as a whole, I
find that Complainant's dismissal did not violate Section 405 of
the Act. Rather, the facts in this case, discussed infra,
support the conclusion that Respondent's discharge of Complainant
was based upon legitimate concerns and was not motivated, in
whole or in part, by his refusal to operate his vehicle in
contravention of regulations applicable to commercial motor
vehicle safety.[2]
Findings of Fact and Conclusions of Law
Respondent, Penny Lee Trucking, Inc., is engaged in
intrastate trucking operations and maintains a place of business
in Everett, Washington. TR4. In the regular course of this
business, Respondent hires out its commercial motor vehicles and
drivers in the Puget Sound area principally to transport cargo
[PAGE 3]
and other materials to various construction projects. Id.
Respondent is now, and at all relevant times was, a person as
defined in Section 401(4) of the Act. 49 U.S.C. §
31101(3)(A).
On or about September 2, 1994, Respondent hired Complainant,
Jack M. Lowe, as a driver of a commercial motor vehicle having a
gross vehicle weight rating of 10,000 or more pounds used on
highways in intrastate commerce to transport cargo. TR5. At all
relevant times, Complainant was employed by a commercial motor
carrier and in the course of his employment directly affected
commercial motor vehicle safety. 49 U.S.C. § 31101(2)(A).
Claimant testified that on September 13, 1994, he arrived at
Respondent's equipment yard at 6:00 a.m. and was assigned to
drive a fifth wheel tractor truck with an end dump trailer for
KLB Construction. TR10. He and a mechanic then spent about 30-
40 minutes hooking up the trailer and making sure the truck was
in proper running order. TR12. Complainant then left for the
job site, which was about 40 miles away, but because of heavy
traffic did not arrive there until between 7:40 and 7:50 a.m..
TR14. He began working with a KLB trackhoe operator at about
8:00 a.m., who picked up debris and loaded it into Complainant's
dump truck. TR15. Once his truck was filled, Complainant drove
it to the dump site, which was about 20 miles away. TR16. After
dumping the debris, he returned to the job site, where his truck
was again loaded with debris. According to Complainant, he made
two more trips to the dump site and then moved on with the KLB
trackhoe operator to another excavation site and another dump
site. TR17. At about 4:30 p.m. Complainant made his final dump
at the second dump site and then returned to Respondent's
equipment yard at 5:50 p.m.. TR19-20. Complainant stated that
he then contacted Penny Gutschmidt, the head of Penny Lee
Trucking, Inc., and was told by her that he was scheduled to work
for KLB Construction that night and had to report at the
designated job site at 7:30 p.m.. TR21. Complainant's testimony
indicates that at the time Ms. Gutschmidt dispatched him for the
night shift, he had spent 10 of the 12 preceding hours
driving.[3]
Complainant resumed working at 7:00 p.m., when he drove a
different truck with a dump trailer and an additional "pup
trailer" to the job site at the Everett stockpile, which was
about 2-3 miles from Respondent's equipment yard. TR27. He then
"stood by" and waited for his truck to be loaded with crushed
rock. According to Complainant, he began having problems with
his equipment when he could not get the yoke that connects the
main trailer to the pup trailer to extend. Eventually, he drove
his loaded truck from the stockpile without the yoke extended to
[PAGE 4]
the second job site, which was on a highway where shoulder paving
was being done. TR28. Complainant testified that he then had
difficulty dumping his load of crushed rock because the hydraulic
system that raises up the dump box on the pup tailer initially
would not operate. TR30. He explained that he finally got it to
work after he jiggled the electrical connection between the truck
and trailer. TR31. He then disconnected the pup tailer to
unload the main trailer that was connected to the truck.
Complainant stated that when he tried to unload the main trailer,
the interior cab light and dashboard lights in the truck went
out. He then turned on his four-way flashers, which only
resulted in the headlights flashing on and off. TR31.
Complainant then dumped the crushed rock from the main trailer,
but had difficulty reconnecting the pup tailer because there was
no utility light working at the end of the main trailer and no
lighting on the highway to help him back his truck into position.
TR32. He stated that he finally got another driver with a
flashlight to help him and by 9:30 p.m. finished hooking the pup
trailer back up. Id. At that point, he decided to stop
working because he believed his equipment problems and fatigue
made him unable to perform his job safely. TR36. Complainant
stated that he then went to the person who was in charge for KLB
Construction and told him that he was having problems with his
equipment and was going to take his truck back to Respondent's
equipment yard. TR35. According to him, the person from KLB
Construction told him that it would be okay if he could not
return with another truck. TR36. Complainant stated that when
he returned to Respondent's equipment yard at 9:45 p.m., it was
closed. TR37. He unlocked the gate, parked his truck in the
yard, left the keys under the floormat and left, locking the gate
behind him. TR37-38. Complainant admitted that he had a radio
in his truck but did not contact the more senior driver for
Respondent, who was also at the job site. TR66. According to
him, he did not attempt to contact Ms. Gutschmidt because he did
not have her home phone number. TR39;TR74.
The next morning, Complainant phoned Ms. Gutschmidt and told
her what had occurred during his night shift, explaining to her
that he stopped working because he believed he could not do his
job safely. TR40. According to him, Ms. Gutschmidt told him
that he should have known he was too tired to work the night
shift and should not have accepted the dispatch. She also told
him that he should have phoned her or a mechanic and given them a
chance to fix the problems or find another driver before leaving
his shift and leaving Respondent's customer short one truck.
TR40. Ms. Gutschmidt then discharged Complainant, explaining to
him that she could not have employees act in the manner that he
[PAGE 5]
did. TR41.
Both Complainant and Ms. Gutschmidt testified that his
employment with Respondent was conditioned upon his job
performance. TR11. Complainant, however, stated that he was
hired as a permanent employee, while Ms. Gutschmidt testified
that he was hired on a temporary basis for night work. She
explained that she had given him day work between September 2,
1994, and September 13, 1994, because the night job she had hired
him for had been delayed and he had indicated that he needed the
work. TR82. Ms. Gutschmidt stated that she dispatched him for
day work on September 13, 1994, because she did not believe the
night work would begin on that date and the day shift was
supposed to be of short duration, so that if Complainant was
needed to work that night he would have adequate time between the
two shifts to rest. TR84. When she was notified later that day
that drivers would be needed that evening, she was told the night
shift would only last about 2 hours. Id. According to
s. Gutschmidt, she radioed Complainant and offered him work on
the night shift, which he accepted. TR85. She stated that when
he returned from his day shift to the office she again asked him
if he wanted to work that night, assuring him that she could get
another driver if he did not want to. Id. Claimant,
however, told her that he was fine and wanted to work that night.
Id.
Ms. Gutschmidt testified that she did not know that Claimant
had any problems during the night shift until about 7:00 a.m. the
next morning, when Ron Nelson from KLB Construction phoned her to
complain about Complainant leaving the job site. TR88;TR99. She
next received a phone call from Complainant's wife, who was
looking for him. TR89. Finally, Ms. Gutschmidt received the
phone call from Complainant, discussed supra, in which he
explained to her what had transpired the night before and was
fired.
Ms. Gutschmidt testified that Complainant was not discharged
for refusing to work in excess of the maximum hours allowed by
law or for refusing to drive a defective vehicle. TR92. Rather,
Complainant was discharged because he walked off the job and did
not follow Respondent's company policy, which requires a driver
to notify his supervisor of any equipment problems.[4] TR92.
The other employee on duty that night, Rob Nance, was the lead
driver and Complainant's supervisor for that job. TR98.
Complainant not only failed to notify Mr. Nance, who had a radio
in his truck and a cellular telephone, that he was having
equipment problems but also left the job site without informing
him. TR92. Ms. Gutschmidt stated that if Complainant had
properly notified Mr. Nance of the problems he was having, Mr.
Nance could have
[PAGE 6]
corrected the situation by either paging a mechanic or replacing
the truck. Mr. Nance could also have arranged for a replacement
driver. TR92. According to her, Complainant's failure to
properly notify his supervisor or anyone else at Penny Lee
Trucking, Inc., resulted in KLB Construction, one of Respondent's
best customers, being dissatisfied with Respondent's services.
TR99.
Section 405(a) of the STAA prohibits an employee's discharge
because he has refused to operate a vehicle because "the
operation violates a regulation, standard, or order of the United
States related to commercial motor vehicle safety or health . .
.." 4 U.S.C. § 31105. Protection is not dependent on
actually proving a violation. Yellow Freight System, Inc. v.
artin, 954 F.2d 353, 356-357 (6th Cir. 1992).
In a case arising under Section 405(a), the employee has the
initial burden of establishing a prima facie case of retaliatory
discharge. Once a prima facie case is established, one which
raises an inference that protected activity was the likely reason
for the adverse action, the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for
its employment decision. If the employer is successful in
rebutting the inference of retaliation, the burden shifts to the
employee to rebut the employer's showing by proving by a
preponderance of the evidence that the employer's articulated
reason was pretextual and was not the true reason for the adverse
action. Moon v. Transport Drivers, Inc., 836 F.2d 226
(6th Cir. 1987). The trier of fact then may conclude that the
employer's proffered evidence is pretextual and that the employee
has proved retaliation, or the trier of fact may conclude that
the employer was not motivated, in whole or in part, by the
protected conduct, and find that the employee has failed to prove
retaliation. If, however, the trier of the fact concludes that
the employer was motivated by both a prohibited and a legitimate
reason (dual motives), the employer escapes liability only by
establishing that it would have reached the same decision even in
the absence of the protected conduct. Moravec v. HC & M
Transportation, Inc., 90-STA-44 (Sec'y Jan. 6,
1992)(citations omitted).
To establish a prima facie case of retaliatory discharge,
the employee must prove:
(1) that he or she engaged in a protected activity;
(2) that he or she was subject to adverse employment
action, and;
[PAGE 7]
(3) that there was a causal link between his or her
protected activity and the adverse action of the employer.
Ibid.
In establishing a prima facie case an employee need only
raise the inference that his engaging in protected activities
caused the adverse action. Showing that the employer was aware
of the protected conduct and that the adverse personnel action
followed closely thereafter is sufficient to establish the
element of causation for purposes of establishing a prima facie
case. Ertel v. Giroux Brothers Transportation, Inc., 88-
STA-24 (Sec'y Feb. 16, 1989); See also Couty v.
Dole, 886 F.2d 147 (8th Cir. 1989) (temporal proximity is
sufficient as a matter of law to establish the final element in a
prima facie case of retaliatory discharge); accord
Donovan v. Stafford Construction Co., 732 F.2d 954, 960
(D.C. Cir. 1984).
The applicable regulations of the Washington Utility and
Transportation Commission prohibit drivers in dump truck
operations, who are exclusively in intrastate commerce, from
driving more than 12 hours following 8 consecutive hours off
duty. WAC 480-12-190. Moreover, the record indicates that at
the time he returned his truck to Respondent's equipment yard at
9:45 p.m., Complainant had spent nearly 12 hours driving since
that morning. I therefore find that Complainant was engaging in
protected activity when he stopped working on the night of
September 13, 1994, and that he has established the first two
elements, discussed supra, for a prima facie case of
retaliatory discharge. I further find that the proximity in time
between Complainant's stopping work and his discharge (the next
morning) along with Ms. Gutschmidt's awareness that Complainant
stopped working because he was fatigued, support an
inference that his refusal to work in excess of the
maximum hours allowed resulted in his termination.
Respondent, however, has successfully rebutted any inference
of retaliation by showing that it had a legitimate motive in
discharging Complainant. The record and Ms. Gutschmidt's
credible testimony show that Complainant was not fired because he
was fatigued or refused to drive in violation of motor vehicle
safety regulations. Rather, he was discharged for violating
company policy by walking off the job without notifying his
supervisor or anyone else at Penny Lee Trucking, Inc., which
caused Respondent's largest customer to be dissatisfied with its
services.
[PAGE 8]
In an attempt to show that his discharge was actually
retaliatory, Complainant relies on the fact that he was
subsequently hired as a driver by KLB Construction to show that
his walking off the job did not result in any problems between
Penny Lee Trucking, Inc., and KLB Construction and that Ms.
Gutschmidt's stated reason for discharging him is merely
pretextual. I am not, however, persuaded.
First, the superintendent at KLB Construction, William
Grady, testified at a deposition on June 6, 1995, that he was not
aware that Complainant had worked for Respondent in the past.
According to him, Complainant provided a list of prior employers
as part of his job application, which did not include Penny Lee
Trucking, Inc.. Deposition of William Grady at pg. 9. Moreover,
there is substantial evidence that Ms. Gutschmidt's decision to
discharge Complainant was not motivated, in whole or in part, by
his refusal to operate his vehicle in violation of the maximum
hours allowed by the regulations of the Washington Utility and
Transportation Commission. Rather, substantial evidence and the
record as a whole compel the conclusion that Complainant was
discharged because he walked off the job in violation of
legitimate company policy. Complainant has failed to prove that
the legitimate reason offered by Respondent was not the true
reason for his discharge.
I therefore find and conclude that Respondent's discharge of
Complainant did not violate Section 405 of the Act. Accordingly,
it is recommended that the Regional Administrator's assessment
against Respondent be set aside and Complainant's complaint be
DISMISSED.
Edward C. Burch
Administrative Law Judge
NOTICE
This 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., 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. See 55 Fed. Reg. 13250 (1990).
[ENDNOTES]
[1] At the close of the hearing the record was held open for
the deposition of a witness, Bill Grady; a stipulation
summarizing Complainant's employment following his discharge by
Respondent; and briefs from the parties addressing the
applicability of the STAA in the present case. TR110-11.
[2] The following abbreviations are used in referring to the
record: TR: Transcript of hearing on May 23, 1995; CX:
Complainant's Exhibits; RX: Respondent's Exhibits.
[3] According to Complainant, the only time between 6:00 a.m.
and 5:50 p.m. not spent driving were the 30-40 minutes spent
hooking up his equipment; the 10 minutes between arriving at the
KLB job site and beginning work; and about 40-60 minutes spent
during the day "standing by." TR22. Thus, ten out of the nearly
twelve hours he was on duty during the day of September 13, 1994,
were spent driving.
[4] Ms. Gutschmidt explained that the safety policy manual of
Penny Lee Trucking, Inc., which sets out the procedures for
drivers to follow when their equipment malfunctions, is read by
all new employees. TR94. Moreover, the record shows that
Complainant read and signed copies of Respondent's "policy
checklist," "radio procedures" and "pre-employment safety
checklist" on September 2, 1994, which respectively state that he
has read and understands Respondent's safety policies; that he
will radio Respondent in the event his truck breaks down; and
that he will report all unsafe conditions or situations that
are potentially hazardous to the supervisor (emphasis added).
RX1;RX2;RX3.
