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USDOL/OALJ Reporter
Ass't Sec'y & Wilson
v. Bolin Associates, Inc. , 91-STA-4 (Sec'y Dec. 30, 1991)
U.S. DEPARTMENT OF LABOR
FINAL DECISION AND ORDER
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SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: December 30, 1991
CASE NO. 91-STA-4
IN THE MATTER OF
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH,
PROSECUTING PARTY,
AND
JERRY D. WILSON,
COMPLAINANT,
v.
BOLIN ASSOCIATES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
Before me for review is the Recommended Decision and Order (R.D. and O.) of the Administrative Law Judge (ALJ), dated September 6, 1991, in this case which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
After discussing the parties' arguments and the evidence of record, including the testimony adduced at the hearing, the ALJ first found that Complainant established a prima facie case of retaliatory discharge under the STAA. The ALJ further found that while Respondent provided legitimate reasons for the discharge, the evidence also indicates that Respondent had dual motives for the discharge, and Respondent failed to carry its burden to show that Complainant would have been discharged even in the absence of his protected conduct. The ALJ, therefore, recommended that Complainant be awarded back pay with interest. Additionally, the ALJ accepted the Assistant Secretary's argument and added Russell C. Bolin, II, (Bolin), the sole shareholder and chief executive officer of the now defunct
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Respondent corporation, as a party, jointly and severally liable for the award to Complainant.
As permitted by the regulations implementing the STAA, see 29 C.F.R. § 1978.109(c)(2) (1991), the Assistant Secretary and Respondent have filed briefs in response to the ALJ's R.D. and O. Respondent principally argues that the ALJ erred in joining Bolin as a party. Respondent maintains that Bolin is a mere employee of the corporation and cannot be held liable for the acts of the corporation, nor, Respondent continues, is piercing the corporate veil warranted here. Respondent also argues that it would be unjust to add Bolin as a party at this juncture. Finally, Respondent summarily asserts that although it had legitimate reasons to terminate Complainant's employment, the evidence shows that Complainant quit his job.
The Assistant Secretary requests that I uphold the ALJ's findings that Complainant was discharged in violation of the STAA and that Bolin is individually liable for Complainant's damages. The Assistant Secretary contends, however, that Bolin's liability flows from the express language of the STAA, and that it is unnecessary to pierce the corporate veil.
After reviewing the entire record, I find
that the ALJ's credibility determinations and factual
findings are supported by substantial evidence. Accordingly,
those findings are accepted as conclusive. See 29
C.F.R. § 1978.109(c)(3).1 I also agree with the ALJ's conclusions that
Complainant was unlawfully discharged and that Respondent
and/or Bolin, individually, must pay back wages and interest. The
ALJ's conclusions are hereby accepted, except as expressly
modified or embellished below.
I first emphasize that Complainant's refusal
to further move his truck to a parking lot, or to
"cripple" it back to Respondent's office, was protected
activity under the STAA. Because the truck's brakes were
defective, Transcript (T.) at 211, operating the truck would have
violated a federal regulation applicable to commercial motor
vehicle safety. See 49 C.F.R. § 392.7 (1989). Thus,
Complainant's refusal to further move the truck clearly
constituted protected conduct under the first "work
refusal" circumstance of Section 2305(b). LeBlanc v.
Foqleman Truck Lines. Inc., Case No. 89-STA-8, Sec. Dec. and
Order of Remand, Dec. 20, 1989, slip op. at 2-4, aff'd,
No. 90-4114 (5th Cir. Apr. 17, 1991). It is, therefore,
unnecessary to decide whether Complainant also engaged in
protected conduct under the second work refusal circumstance of
Section 2305(b), i.e., the reasonable apprehension"
circumstance.2
The ALJ's remaining conclusions on the merits
of Complainant's claim are wholly consistent with applicable law.
In sum, the final components of a prima facie case are satisfied
by Respondent's admission that it was aware of the protected
activity, T. at 186, and by the near simultaneity of the
protected conduct and the discharge, which raises an inference of
likely causation. See Moon v. Transport Drivers.
Inc., 836 F.2d 226, 229 (6th Cir. 1987). Moreover, I agree
that this discharge resulted from a mixture of legitimate and
illegitimate considerations, and Respondent failed to present any
evidence sufficient to avoid a finding of liability. See
R.D. and O. at 15-18; Price Waterhouse v. Hopkins,
U.S. , 109 S. Ct. 1775, 1787-95 (1989).
Turning to the ALJ's ruling allowing an
amendment to include Bolin, individually, as a party, I initially
add that the regulation at 29 C.F.R. § 18.5(e) (1991)
provides, in pertinent part, that the ALJ may allow appropriate
amendments upon such conditions as are necessary to avoid
prejudicing the public interest and the rights of the parties,
where the amendment is reasonably within the scope of the
original complaint. I find that the amendment to add Bolin
as a party was reasonably within the scope of the original
complaint, which specifically challenged Bolin's individual
employment decision. Further, inasmuch as Bolin received notice
from the outset of this case and participated in the
investigation and all proceedings, the amendment is proper and is
consistent with cases arising under the Fed. R. Civ. P. 15, to
the extent that that rule is applicable pursuant to 29 C.F.R.
§ 18.1(a). See, e.g., Barkins v.
International Inns Inc., 825 F.2d 905, 907 (5th Cir. 1987);
Itell Capital Corp. v. Cups Coal Co.. Inc., 707 F.2d 1253,
1258 (llth Cir. 1983); Serrano v. Collazo Torres , 650 F.
Supp. 722, 725-29 (D.P.R. 1986).
I agree with the Assistant Secretary that
Bolin, as the person who discharged Complainant, is liable under
the express language of Section 2305, and that it is
unnecessary to employ the doctrine of piercing the corporate
veil. Thus, I do not accept the ALJ's conclusion that the
doctrine is appropriate here. I note, however, that the ALJ
properly pointed out that the express language of the STAA
permits individual liability. R.D. and O. at 4. The statute
provides that "[n]o person shall discharge"
(emphasis added) an employee for conduct protected by the STAA,
and defines a person as "one or more individuals. . .
." 49 U.S.C. §§ 2305(a), (b); 2301(4). Not only is
this approach permitting individual liability consistent with
that taken under Section ll(c) of the Occupational Safety and
Health Act of 1970, 29 U.S.C. § 660(c) (1988), an analogous
employee protection provision, but the approach also finds
support in other substantive law areas with similar statutory
language, i.e., Section 107 of the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended, 42 U.S.C. § 9607 (1988). See
Donovan v. Diolomat Envelope. Inc., 587 F. Supp. 1417,
1425 (E.D.N.Y. 1984), aff'd, 760 F.2d 253 (2d Cir. 1985)
(unpublished); Kelley v. Thomas Solvent Co., 727 F. Supp.
1532, 1541-45 (W.D. Mich. 1989).
Finally, I accept the ALJ's assessment of
damages as it is supported by the record and in accordance with
applicable law. See qenerally Assistant
Secretary of Labor and Polewsky v. B & L Lines, Inc.,
Case No. 90-STA-0021, Sec. Dec. and Order, Dec. 11, 1990, slip
op. at 4-6, and Sec. Final Dec. and Order, May 29, 1991 at 3-5,
appeal dismissed per stipulation, No. 91-4111 (2d Cir.
9/13/91); Hufstetler v. Roadway Express. Inc., Case No.
85-STA-8, Sec. Final Dec. and Order, Aug. 21, 1986, slip op. at
59, aff'd sub nom. Roadway Express. Inc. v. Brock,
830 F.2d 179 (llth Cir. 1987).
I accept the ALJ's R.D. and O. as modified
and elaborated herein, and expressly adopt his order, R.D. and O.
at 18. I add, however, that the assessment of interest includes
prejudgment interest. Hufstetler, slip op. at 58.
SO ORDERED.
LYNN MARTIN
Washington, D.C.
1I specifically
note that the ALJ's finding that Complainant was discharged by
Respondent is fully explained and supported. While Respondent has
proffered conflicting evidence on this issue, I am most persuaded
by its letter, written May 16, 1990, in which it admits firing
Complainant. See Complainant's Exhibit 7. The incident in
question occurred on April 28, 1990.
2Although the
ALJ found that Complainant's refusal was additionally protected
under the "reasonable apprehension" circumstance, he
did not discuss whether Complainant proved that he sought, and
was unable to obtain, correction of the unsafe condition, as is
required for protection under that ground. See generally
Hadley v. Southeast Cooperative Service Co., Case No. 86-STA-24, Sec. Final Dec. and Order, June 28, 1991, slip op. at 3-4.
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Secretary of Labor
