DOL Home > OALJ > Whistleblower > Atkins v. The Salvation Army, 2000-STA-19 (ALJ Mar. 23, 2000) |
Atkins v. The Salvation Army, 2000-STA-19 (ALJ Mar. 23, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 | ![]() |
DATE: March 23, 2000
CASE NUMBER: 2000-STA-00019
In the Matter of
JOHN H. ATKINS
Complainant,
v.
THE SALVATION ARMY,
Respondent.
Appearances:
John H. Atkins
Salem, Oregon
In Pro Se
Captain Samuel N. Southard, I
non-attorney representative
Seattle, Washington
for Respondent
This proceeding arises under the provisions of Section 405 of the Surface Transportation Assistance Act, 49 U.S.C. § 31105 (hereinafter referred to as "the Act" or "the STAA").1
On July 26, 1998, Complainant, John H. Atkins, filed a complaint, under the "whistleblower" protection provisions of the STAA, against Respondent, The Salvation Army ("SA") with the Secretary of Labor. Complainant alleged that Respondent had constructively discharged him for reporting safety violations to management. The Occupational
Safety and Health Administration ("OSHA") conducted an investigation; thereafter, the Secretary of Labor, through her agent, the Regional Administrator for OSHA, issued findings on August 30,1999, finding that Complainant's claim lacked merit. On September 10, 1999, Complainant requested a hearing before an Administrative Law Judge. A formal hearing was held in Seattle, Washington, on March 7, 2000. Both parties were present. Complainant appeared in pro se, and Respondent was represented by a member of its corps, Captain Southard. The following exhibits were admitted into evidence: Complainant's Exhibits ("CX") 1 and 2; and Respondent's Exhibits ("RX") 1,2 3, 4,3 5, 6, and 7. In addition, Administrative Law Judge's Exhibits ("ALJX") 1, 2, and 3 were admitted into the record. The parties called witnesses, offered documentary evidence and submitted oral arguments. The parties did not submit post-trial briefs. This Court took the matter under submission.
After reviewing all of the evidence, I find that Complainant was not constructively discharged because he reported safety violations.
The parties stipulate, TR-4-6,4 and I accept that:
The unresolved issue in this proceeding is:
TR-8-9.
Complainant was employed as a truck driver by SA from May 19, 1999, to
July 14, 1999. Complainant's duties consisted primarily of driving a truck in the Seattle region of
Washington, as well as loading and unloading the truck. Complainant punched out and walked off
the job stating he was quitting on July 14, 1999. TR-34-35.
The SA has a fleet of twenty-four trucks. TR-88. Each driver is assigned the
same truck every day and only changes to another if his truck is "deadlined" or put out
of service for repair or maintenance. TR-76. The driver inspects his truck each day and turns in a
report to the transportation supervisor, TR-63, 113, Colberg Rushing,5 who testified as a witness at the hearing in this
case. If the truck needs work which affects safety, such as brake repair, it is deadlined. TR-58. The
trucks receive regular maintenance, consisting of brake adjustment, oil change, and greasing. In
order to keep track of the maintenance schedule, the SA has a large chalkboard with all the trucks
listed and their status. TR-101-102. SA uses outside mechanics to service the trucks, except for
very simple repairs such as changing light bulbs which is done by a maintenance person employed
by the SA. TR-86-87.
On July 13, 1999, Complainant stayed late to help Rushing. Complainant
testified that he informed Rushing then, as well as on several other occasions, that he would need
to leave early, i.e., by 2:00 pm, on July 14, 1999, to attend a medical appointment. Rushing told him
he would be given the time. Complainant had driven truck 263 for the first time on July 13, 1999.
Although he believed that the brakes were malfunctioning, he did not tell Rushing that evening. TR-
79.
Complainant started work every day at 7:30 a.m. TR-27. At the beginning of
work on July 14, 1999, the drivers (also known as "production assistants") had their
weekly meeting, which lasted about an hour. TR-30. The drivers then returned to their trucks to
unload them with the help of the residents of the SA who performed helper work as part of their
"work therapy." Each driver had one assigned helper. At this time, Complainant
informed Rushing that he could not drive truck 263 because the brakes were malfunctioning and he
could hear metal-to-metal when using them. TR-31-32. Complainant testified that Rushing tried
to talk him into taking truck 263 anyway, TR-32, whereas Rushing testified that he assigned
Complainant another truck, 248. TR-70. Captain Aalders, who was in charge of supervising the
dock that day, testified that he intervened when he heard Complainant speaking loudly and
belligerently to Rushing, TR-117; Complainant told Aalders that the brakes were bad on truck 263
and Aalders asked Rushing whether Complainant was going to take 263, or get another truck to
which Rushing replied that it had "already been taken care of," i.e., Complainant had
been assigned 248. Complainant admits that he was not made to drive truck 263, and that he was
assigned truck 248. TR-45. Complainant testified that truck 248 was also unsafe as the horn did not
work and the brakes slipped when he backed the truck into the dock. TR-32.
Complainant claims he told Rushing that 248 was also unsafe, TR-49, whereas Rushing denies
Complainant made that complaint. Complainant admits he did not file a written report regarding
248, whereas he did regarding 263.
Once Complainant began unloading truck 248, with the assistance of two
helpers (Rushing had assigned an extra helper), TR-70-71, Rushing took 263 out to test drive it and
found nothing wrong with the brakes. TR-70. When he returned, he saw Complainant standing on
248's truck bed and he did not appear to be actively unloading the truck. TR-70-71. Meanwhile, all
of the other drivers had finished unloading their trucks and had been sent out on their routes.
Rushing stated to Complainant that it was going to be hard for Complainant to leave early because
he was so far behind, Id., and that he (Rushing) had found no metal-to-metal when he test-
drove truck 263. Complainant reacted by walking off the job. Complainant testified that he told
Rushing he was quitting because of harassment, and filing a complaint because of unsafe trucks.
Rushing testified that Complainant stated as he walked off the job that he knew a truck when it was
metal-to-metal and he wasn't going to take "this harassment." Rushing asked
Complainant who was harassing him, to which Complainant replied that he had an A license and he
had a job. TR-70. Rushing attempted to persuade Complainant not to quit, but to no avail.
Complainant had left Captain Southard a safety complaint about truck 263 (see
RX-1) before he left. Captain Southard, in charge of the operation, was not at his desk at the time
the complaint was left but returned around 10:00 a.m., saw the complaint, and immediately had truck
263 attended to by the SA's mechanic, who found nothing wrong with the brakes but did adjust them.
CX-1.
Rushing testified that if Complainant had told him truck 263 needed attention
the evening before, instead of the morning of July 14, 1999, Rushing would have assigned
Complainant another truck that morning and Complainant would not have been delayed by having
to unload a second truck (248). TR-79.
The employee protection provisions of the STAA provide that:
49 U.S.C. § 31105(a)(1).
STAA burdens of proof and production are derived from Title VII cases, in
particular, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and its progeny.
See Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12 (1st Cir. 1998);
Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987); Kenneway v. Matlack,
Inc., 88-STA-20 (Sec'y June 15, 1989). To establish a prima facie case, complainant
must show that 1) he engaged in protected activity under the STAA; 2) he was subject to an adverse
employment action; and, 3) there was a causal link between his protected activity and the adverse
action of his employer.6 See Moon,
836 F.2d at 229; See also, Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S.CT. 1089, 67 L.Ed.2d 207 (1981); Wrighten v. Metropolitan Hospitals, Inc., 726
F.2d 1346 (9th Cir. 1984). Once the complainant has established a prima facie case, the
burden of production shifts to the respondent which must articulate a legitimate, non-retaliatory
reason for the adverse action. Gunther v. County of Washington, 623 F.2d 1303, 1314 (9th
Cir. 1979), aff'd, 452 U.S. 161, 101 S.Ct. 352, 66 L.Ed.2d 313 (1981). The respondent need
not prove the absence of retaliatory motive; it must simply produce evidence sufficient to dispel the
inference of retaliation raised by the complainant. Furnco Construction Corp. v. Waters,
438 U.S. 567, 577-78, 98 S.Ct. 2943, 2949-50, 57 L.Ed.2d 957 (1978). Once the respondent meets
its burden, the rebuttable presumption created by the complainant's prima facie showing
"drops from the case." Texas Department of Community Affairs v.
Burdine, 450 U.S. 248, 255, n.10, 101 S.Ct. 1089, 1095, n.10, 67 L.Ed.2d 207 (1981) and the
issue of whether the complainant has made a prima facie case is no longer useful.
"The [trier of fact] has before it all the evidence it needs to determine whether 'the defendant
intentionally discriminated against the plaintiff.'" USPS Bd. of Governors v. Aikens,
460 U.S. 711, 715 (1983) (quoting Burdine, 450 U.S. at 253, 101 S.Ct. at 1089). Regardless
of the form of the evidentiary analysis, the ultimate burden of persuasion that the respondent engaged
in unlawful reprisal remains at all times with the complainant. Burdine, 450 U.S. at 253,
101 S.Ct. 1089 at 1094, 67 L.Ed.2d 207 (1981).
While a pro se complainant may be held to a lesser standard than legal
counsel in procedural matters, the burden of proving the elements necessary to sustain a claim of
discrimination is no less. See Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10,
1991). The Complainant here is unable to carry his burden to show by the preponderant evidence
that the Respondent engaged in unlawful reprisal.
In the case at issue, the Respondent did not terminate the Complainant;
Complainant alleges that as a direct result of his complaint about and refusal to drive truck 263, and
his similar complaint about truck 248, he was constructively discharged, i.e., he was forced to resign
his position due to harassment and intolerable working conditions. Constructive discharge occurs
when, "looking at the totality of circumstances, 'a reasonable person in [the employee's]
position would have felt that he was forced to quit because of intolerable and discriminatory working
conditions.'" Thomas v. Douglas, 877 F.2d 1428, 1434 (9th Cir. 1989), quoting
Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987) (brackets in original)
(quoting Satterwhite v. Smith, 744 F.2d 1380, 1381 (9th Cir. 1984)). Whether conditions
were so intolerable and discriminatory as to justify a reasonable employee's resignation is a factual
question. Thomas, 877 F.2d at 1434. To establish constructive discharge, a complainant
must at least show some "'aggravating factors,' such as a 'continuous pattern of discriminatory
treatment.'" Id. quoting Watson, 823 F.2d at 361 (quoting Satterwhite,
744 F.2d at 1382).
Protected Activity
The Complainant is able to establish the first element of a prima facie
case; he is able to establish that he engaged in activity protected by the STAA. Both complaints
to government agencies and internal safety complaints to managers constitute protected activity
under the STAA. See Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995). A complaint
need not explicitly mention a commercial motor vehicle safety standard to be protected under the
STAA's whistleblower provision. The STAA requires only that the complaint "relate"
to a violation of a commercial motor vehicle safety standard. See Nix v. Nehi-RC Bottling
Company, Inc., 84-STA-1 (Sec'y July 13, 1984). Protection under the whistleblower provision
of the STAA is not dependent on actually proving a violation (See Yellow Freight System, Inc.
v. Martin, 954. F.2d 353, 356-57 (6th Cir. 1992); Lajoie v. Environmental Management
Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992); but see, Nolan v. AC Express, 92-STA-
37 (Sec'y Jan.17, 1995)(complainant must show an actual violation for a refusal to drive under
Section 31105(a)(1)(B)(i))). Rather, a complainant need only show that he reasonably believed he
was complaining about a safety hazard. See Schuler v. M & P Contracting, Inc.,
94-STA- 14 (Sec'y Dec. 15, 1994). It is undisputed that the Complainant in the instant case at least
complained that truck 263 was unsafe. The evidence is less certain regarding Complainant's
complaint about truck 248. However, the complaint about and refusal to drive 263 alone constitutes
protected activity under the STAA.
Harassment
However, Complainant is unable to show that anyone at SA harassed him or
discriminated against him because he engaged in protected activity. When Complainant alleged that
truck 263 had malfunctioning brakes, he was assigned truck 248. Complainant alleges he also
complained about 248, whereas the SA witnesses testified that he did not. Assuming he complained
about both 263 and 248, Complainant has failed to show that management took any adverse
employment action against him, nor has he offered any specific evidence of harassment other than
to simply allege that it occurred. Complainant himself testified that he simply accused Rushing of
harassing him. One can surmise that Complainant is arguing that the harassment consisted of: (1)
Rushing disagreeing with Complainant about the state of 263's brakes; (2) Rushing telling
Complainant that he was not working at a pace which would allow him to leave early; and, (3)
Rushing telling Complainant he did not want him to quit. This Court finds that Rushing's actions
do not constitute harassment.
Constructive Discharge
Having found no harassment of Complainant, nor any adverse employment
action against him, the undersigned concludes that Complainant was not constructively discharged,
since a reasonable employee would not have found conditions so intolerable and discriminatory as
to justify resignation. The undersigned finds that Complainant had a disagreement with management
and quit; he was neither harassed nor discriminated against because he reported safety concerns
about trucks 263 and 248.
In sum, after weighing all of the evidence, I find that Complainant has failed
to establish that SA constructively terminated him in retaliation for engaging in protected activity.
Based upon the foregoing Findings of Fact, Conclusions of Law, and upon
the entire record, I recommend the following Order:
1. Complainant shall take nothing.
ANNE BEYTIN
TORKINGTON
San Francisco, California
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).
1The STAA was enacted for the
purpose of promoting safety on the nation's highways, and, among other things, prohibits any
person from discharging or otherwise discriminating against an employee in retaliation for
having engaged in certain safety-related activities. The Department of Labor regulations
implementing the STAA are set forth at 29 C.F.R. § 1978.
2There is no RX-2.
3 Claimant filed a post-trial
otion to Remove RX-4, pp.1,2, and 4, on March 13, 2000, to which Respondent filed an
objection on March 16, 2000. Having reviewed Claimant's Motion and finding no merit therein,
it is HEREBY DENIED.
4References to the transcript will
be designated "TR" followed by the page number(s).
5Mr. Rushing has been a mechanic
all of his life: he was a mechanic in the United States Army, a maintenance mechanic for Hearst
Trucking and Pilot Air Freight. He studied heavy-duty diesel and heavy equipment repair at
Seattle Community College for two years. TR-67.
6Some courts add a fourth
element, whether the employer was aware of the protected activity when it took the adverse
action. See Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995); Brothers v.
Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990).
[Page 3]
[Page 4]
[Page 5]
[Page 6]
[Page 7]
[Page 8]
Administrative Law Judge