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USDOL/OALJ Reporter
Allen v. Revco D.S.,
Inc. , 91-STA-9 (Sec'y Sept. 24, 1991)
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON, D.C.
DATE: September 24, 1991
CASE NO. 91-STA-9
IN THE MATTER OF
WAYNE A. ALLEN,
COMPLAINANT,
v.
REVCO D.S., INCORPORATED,1
BEFORE: THE SECRETARY OF LABOR
This case arises under the employee
protection provision of the Surface Transportation Assistance Act
of 1982 (STAA or the Act), 49 U.S.C. app. § 2305 (1988), and
the implementing regulations at 29 C.F.R. Part 1978 (1990). On
June 10, 1991, the District Chief Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R.D. and O.) dismissing
Complainant'" claim that Respondent unlawfully discharged
him from employment in violation of the STAA. The ALJ found that
Complainant failed to prove either that he engaged in protected
conduct or that his discharge was retaliatory, and concluded that
Complainant failed to establish a prima facie case of
discrimination under the STAA. Although the parties are permitted
to file briefs in support of or in opposition to the ALJ's
decision, see 29 C.F.R. § 1978.109(c)(2), no briefs
have been filed before me.
The entire record has been carefully reviewed
and, with the elaborations discussed herein, I accept the ALJ's
relevant factual findings. See 29 C.F.R. §
1978.109(c)(1). I also accept the ALJ's conclusion that the
complaint must be denied, although as explained below, I do not
fully agree with the ALJ's analysis.
On August 8, 1989, Respondent terminated
Complainant from his job as a tractor-trailer relief driver. Just
prior to the specific events giving rise to his discharge,
Complainant was cited by the Department of Transportation (DOT)
for violating its hours-of-service regulations at 49 C.F.R. Part
395 (1990). On July 26, 1989, DOT conducted a routine Compliance
Review of Respondent's terminal in North Augusta, South Carolina,
where Complainant was employed, and of the four violations
reported by DOT, two involved Complainant. Respondent's Exhibit
1. He was cited for driving twelve and one-half hours without
eight hours off, 49 C.F.R. § 395.3(a)(1), and for falsifying
his driving logs to conceal violations of the hours-of service
regulations, 49 C.F.R. § 395.8(e).
Subsequently, Respondent provided classroom
instruction on the DOT hours-of-service regulations and the
proper completion of logs and paperwork to all personnel at the
North Augusta terminal, including Complainant. Transcript (T.) at
7-8, 66. Also, on or about July 28, 1989, Complainant met
individually with his supervisor and dispatcher, Michael
Teffetelle-r, to discuss the problems revealed by the Compliance
Review. Respondent's Exhibit 3.
The specific incidents surrounding
Complainant's termination occurred on August 1 and 2, 1989. On
August 1, Complainant's assignment was to drive from North
Augusta, South Carolina, to Savannah, Georgia, and then back to
North Augusta. At some point on that day, either before
Complainant left for Savannah or after he arrived in Savannah,
see T. at 17, 68-69, Teffeteller contacted Complainant and
gave him an additional assignment -the Asheboro run. Upon
returning to North Augusta, Complainant was to leave immediately
for Asheboro, North Carolina. Respondent asserts that Complainant
was told to take an eight-hour layover when he reached a mileage
limit of 500 miles, probably around Denton, North Carolina.2 On August 2,
Complainant was to finish the trip to Asheboro, make deliveries
there and in several other cities, and eventually stop in
Greensboro, North Carolina, for a 3:00 p.m. pickup before
returning to North Augusta.
It is undisputed that upon receiving the
additional instructions to make the Asheboro run, Complainant
immediately and repeatedly complained to Teffeteller that the run
could not be completed legally. T. at 13, 78. Complainant
insisted that if he took eight hours off, he could not follow the
schedule, and specifically, could not be on time for the 3:00
p.m. Greensboro pickup. It is also undisputed that in response to
Complainant's concerns, Teffeteller insisted that the Asheboro
run could be completed legally. T. at 52.
On the evening of August 1, Complainant did
not arrive in North Augusta from Savannah until 8:30 p.m. After
refueling and changing trucks and trailers, Complainant departed
North Augusta at 9:30 p.m. He made only one stop, at the 44 Truck
Stop, and arrived at Asheboro at 6:15 a.m. on August 2.
Complainant arrived in Greensboro at about 1:00 p.m. that
afternoon. Upon returning to the North Augusta terminal,
Complainant made numerous false entries in his logs, including an
entry reflecting an eight-hour break from 12:00 midnight until
8:00 a.m. on August 2.
Meanwhile, on the morning of August 2,
Teffeteller had telephoned the first delivery stop in Asheboro to
notify them that the relief driver, Complainant, would probably
not be there at the usual 8:30 a.m. delivery time but would be
late. He was informed that Complainant already had made the
delivery two hours before. Teffeteller then brought the situation
to the attention of Allen Opfar, who was the manager of the North
Augusta terminal.
On August 3, 1989, Teffeteller confronted
Complainant and asked him to explain the discrepancies in his
logs. Subsequently, Complainant and Teffeteller met with Opfar,
and Complainant admitted falsifying his logs. Complainant
insisted however, as before, that the run could not be completed
legally. Opfar and Teffeteller disagreed with Complainant, and
Opfar decided to discharge Complainant. Opfar maintains that
Complainant was terminated for falsification of driving logs and
company records.
The ALJ correctly set forth the applicable
burdens of proof and burdens of production in cases arising under
Section 2305 of the STAA. R.D. and O. at 5-6; see
Newkirk v. Cypress Trucking Lines. Inc., Case No. 88-STA-17, Sec. Final Dec. and Order, Feb. 13, 1989, slip op. at 2-3;
McGavock v. Elbar. Inc., Case No. 86STA-5, Sec. Final Dec.
and Order, July 9, 1986, slip op. at 1011. Although I disagree
with the ALJ's finding that Complainant failed to establish a
prima facie case, I agree that Complainant's discharge was not in
violation of the STAA.
The ALJ identified Complainant's claim
as one "not for refusing to operate his vehicle in violation
of the hours of service regulations but for illegally operating
it and for, subsequently, being required to falsify his driver's
logs to conceal the violation." R.D. and O. at 6. The ALJ
concluded that although Complainant voiced concerns to
Teffeteller about whether he could drive the route legally,
Complainant did not refuse to make the trip and, therefore, his
activity was not protected under Section 2305(b) of the STAA. The
ALJ stated, "[t]he Act applies solely to instances where a
driver refuses to make an illegal run, not to situations where he
knowingly drives in direct conflict with the hours of service
regulations." R.D. and O. at 6-7.
The ALJ misconstrued the nature of
Complainant's claim and erred in focusing exclusively on Section
2305(b). Section 2305(a) of the STAA prohibits the discharge of
an employee "because such employee has filed any complaint .
. . relating to a violation of a commercial motor vehicle safety
rule, [or] regulation. . . ." 49 U.S.C. § 2305(a). Any
complaint "related" to a safety violation made by an
employee to his employer constitutes protected activity under
Section 2305(a). See Moon v. Transport Drivers.
Inc., 836 F.2d 226, 228-29 (6th Cir. 1987); Monteer v.
ilky Way Transport Co.. Inc., Case No. 90-STA-9, Sec. Final
Dec. and Order, July 31, 1990, slip op. at 3; Newkirk,
slip op. at 5-6; Davis v. Hill. Inc., Case No. 86-STA-18, Sec. Dec. and Order of Remand, March 19, 1987, slip op.
at 3-6.3
In his formal complaint, Complainant alleges
that he was "[t]erminated for complaining about being
required to falsify logs in order to drive within DOT regulations
concerning hours-of-service." See attachment to
letter dated October 31, 1990, from Fredric W. Deeley to Revco
Warehouse. Both Teffeteller and Opfar acknowledged at the hearing
that Complainant complained to them about whether the Asheboro
assignment was legal, i.e., whether the schedule allowed
enough time for the requisite eighthour layover under 49 C.F.R.
§ 395.3(a). In raising these safety complaints, Complainant
engaged in protected conduct. See also Assistant
Secretary and Moravec v. HO & M Transportation, Inc., Case
No. 90-STA-44, Sec. Dec. and Order of Remand, July 11, 1991, slip
op. at 3, 7-9. Further, in light of the temporal proximity
between Complainant's protected conduct and his discharge, I find
that Complainant has met the final criterion for establishing a
prima facie case. See Newkirk, slip op. at 8.
Nevertheless, I agree with the ALJ that
Respondent had a legitimate business reason to discharge
Complainant, i.e., he falsified his logs, and he has presented no
persuasive evidence that Respondent's decision to discharge him
was more likely motivated by retaliatory animus for his
safety complaints.
The apparent premise of Complainant's
argument is that Respondent required him to violate the hours-of-service regulations in order to be on time for his 3:00 p.m.
pickup in Greensboro, and then discharged him because he
complained about having to falsify his logs to conceal the
violation. The evidence does not support the argument.
Complainant admits that he was never told to
drive illegally, rather, he was specifically told to take an
eight-hour break on the trip to Asheboro. T. at 53; cf. T.
at 51. Furthermore, I do not find that Respondent scheduled the
August 1 and 2 assignment so that it implicitly required
Complainant to violate the law. All the evidence regarding the
feasibility of the assignment has been carefully reviewed, and
while I find that the schedule was demanding, it contains no
discrepancy that convinces me that the schedule contemplated, or
was intentionally designed to force, a violation of law.4 To the contrary, I
infer from the evidence as a whole, as the ALJ did, that Opfar
and Teffeteller believed the schedule could be run legally and
believed that Complainant illegally and unnecessarily falsified
his logs to cover up a self-imposed violation. It is Respondent's
subjective perception of the circumstances which is the critical
focus of the inquiry here. See Monteer v. Casey's
General Stores, Inc., Case No. 88-SWD-1, Sec. Final Dec. and
Order, Feb. 27, 1991, slip op. at 8.5
Additionally, as the ALJ explained,
Complainant had been cited recently by DOT for engaging in the
same type of illegal driving as he admits here. Respondent had
made explicit efforts to educate Complainant and to abate this
conduct. It is unreasonable to infer that Respondent promptly
contradicted and defeated its efforts and required Complainant to
violate the law.
Teffeteller's testimony that he telephoned to
inform the Asheboro store that Complainant would be late in
arriving is compelling evidence that Respondent did not require
or expect Complainant to violate the law and thus, dispels
Complainant's theory of retaliation. Complainant presented no
evidence to dispute this testimony.
Finally, although Complainant asserted that
he had been treated dissimilarly from another employee who failed
to take an eight-hour layover and who was suspended but not
fired, the ALJ properly distinguished the situation. Unlike
Complainant, that employee had no prior incidents of illegal
trips, did not falsify his logs, and promptly advised Respondent
of his error.
Accordingly, the complaint IS DENIED.
SO ORDERED
LYNN MARTIN
Washington, D.C.
1The caption is
hereby corrected. See Complainant's Exhibit 6.
2Although the
parties and the ALJ have referred generally to a DOT 500 mile
rule, neither has cited authority for the rule. The record
suggests that the rule may be Respondent's adaptation of the
regulation at 49 C.F.R. § 395.3(a), which is applicable
here, and which requires that a driver take eight hours off after
either driving 10 hours or being on duty 15 hours.
3A complaint
related to a safety violation is protected under Section 2305(a)
even if the complaint is ultimately determined to be meritless.
See Stack v. Preston Trucking Co., Case No. 86STA-22, Sec. Final Dec. and Order, Feb. 26, 1987, slip op. at 3;
see also Aurich v. Consolidated Edison Co., Case
No. 86-CAA-2, Sec. Remand Order, April 23, 1987, slip op. at 4;
cf. Boone v. TFE. Inc., Case No. 90-STA-7, Sec. Final Dec.
and Order, July 17, 1991, slip op. at 5-7; Robinson v. Duff
Truck Line. Inc., Case No. 86-STA-3, Sec. Final Dec. and
Order, March 6, 1987, slip op. at 12 n.7, aff'd, Duff
Truck Line. Inc. v. Brock, No. 87-3324 (6th Cir. 1988)
(LEXIS, Genfed Library, Court of Appeals file) concerning Section
2305(b).
4Two of
Respondent's experienced drivers corroborated the feasibility of
the schedule for the Asheboro run as it was originally set forth
by Respondent, see T. at 94-97, 111, 118, 120, 131, 113,
131, whereas Complainant exaggerated the driving time required,
see T. at 55. See also R.D. and O. at 7. Even if Teffeteller
mistakenly anticipated that Complainant would return from
Savannah at 8:00 p.m. rather than 8:30 p.m. on August 1, see
T. at 20, 116, this discrepancy is not sufficient to convince
me that he expected Complainant to violate the law in order to
make the Asheboro run. To the contrary, Teffeteller expected
Complainant to be behind schedule. Additionally, Complainant
presented no evidence to support his assertion that it takes an
hour and one-half or two hours to prepare to depart the terminal
after the Savannah run. T. at 49. Teffeteller testified that the
preparation takes 15 minutes, although "you can make it last
an hour. n T. at 94.
5Complainant's
evidence that he was helpful and well-liked by the store managers
is irrelevant to the inquiry.
RESPONDENT.
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Secretary of Labor
