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Houle v. Collins Lumber Corp, 2000-STA-29 (ALJ Sept. 6, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 | ![]() |
Issue Date: September 6, 2000
CASE NO.: 2000-STA-00029
In the Matter of
BRIAN L. HOULE
Complainant
v.
COLLINS LUMBER CORPORATION
Respondent
Appearances:
Kelly Schorr, Esquire, Troy, New York, for the Complainant
Gerry Zartmann, General Manager, Troy, New York, for the Respondent
Before: Daniel F. Sutton
Administrative Law Judge
This case arises from a complaint filed by Brian L. Houle (the "Complainant") against the Collins Lumber Corporation (the "Respondent") under the employee protection provisions of section 405 of the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. §31105, and the implementing regulations at 29 C.F.R. Part 1978. Section 405 of the STAA protects a covered employee from discharge, discipline or discrimination because the employee has engaged in protected activity pertaining to commercial motor vehicle safety and health matters. The matter is before me on the Complainant's request for hearing and objection to the findings issued by the Regional Administrator of the Department of Labor's Occupational Safety and Health Administration after investigation of the complaint. 49 U.S.C. §31105(b)(2)(A), 29 C.F.R. §1978.105.
The Complainant filed his complaint on December 23, 1999, alleging that the Respondent terminated his employment on December 28, 1999 in violation of the STAA after the Complainant had provided the Respondent with a physician's note on December 24, 1999 stating that the Complainant was not to drive a specific truck. ALJX 5.1 After an investigation, the Regional Administrator for the Occupational Safety and Health Administration ("OSHA") Region II issued a Secretary's Findings on February 22, 2000 that the evidence showed that the Complainant was not meeting the standards of his position and that his termination was for non- discriminatory reasons. ALJX 3.2 The Complainant appealed the Secretary's findings and requested a hearing before an administrative law judge in a letter which was received by the Office of Administrative Law Judges on March 3, 2000. ALJX 5. Pursuant to notice, a hearing was conducted before me in Troy, New York on April 5, 2000, at which time all parties were afforded an opportunity to present evidence and argument. The Claimant appeared represented by counsel, and an appearance was made on behalf of the Respondent by its general manager, a non-attorney. Testimony was elicited at the hearing from the Complainant and from the Respondent's general manager, and documentary evidence was admitted as ALJX 1-7, CX 1-6 and RX 1-5. The parties submitted closing argument on the record, and he record was then closed.
The parties stipulated to the following findings:
TR 11-14; ALJX 3. The parties' stipulations are adopted as findings.
A. The Claimant's Testimony and Supporting Documentary Evidence
The Complainant testified that he completed a tractor-trailer driving training program, and he has about eight years of truck driving experience, the last two of which have been with a Class A commercial driver's license with all endorsements. TR 24. He was hired by the Respondent as a driver on June 21, 1999. He received no formal training and learned the duties and responsibilities of his new position from the Respondent's other drivers, Ron, Art and Mohammed. TR 25-26, 73. Essentially, his job was to deliver lumber and building products, although he was occasionally assigned general maintenance duties around the lumber yard when things were slow. TR 26. The Complainant usually drove the same vehicle, Number 1990, an International box truck. TR 35. He was initially paid at a rate of $10.00 per hour and received a raise to $10.50 per hour in late October 1999. He was paid for 37 hours per week and received medical benefits which he valued at $40.00 per month. TR 120-21.
On a typical day, the Complainant would start work at 8:15 a.m., at which time Tom, the dispatcher, would have delivery tickets made out indicating where the drivers were scheduled to drive that day. TR 27-28. After obtaining his delivery orders, he would perform a pre-trip inspection of his truck, a process which he described as taking approximately 15 to 20 minutes. TR 28-33. The Complainant testified that he was unable to document the pre-trip inspection as he was taught in driver training school because the Respondent did not utilize vehicle inspection report ("VIR") forms which enable a driver to determine if a prior driver had noted any defect or deficiency in the truck. Instead, the Complainant, who usually was the only driver of his truck, would check his driver's log. TR 30-31, 35. According to the Complainant, a driver would fill out the driver's log in duplicate on a daily basis, noting his production and any defects in the vehicle. TR 67-70. The Complainant further testified that one of the Respondent's other drivers, Mohammed, is a non-certified mechanic who takes care of some vehicle repairs, while more serious problems are sent out to a certified repair shop. TR 33. When a problem arose with his truck that needed attention, he initially notified his supervisor, Rick Collin, or Gerry Zartmann after he became the Respondent's general manager. TR 34, 38. If he was not satisfied after a week or two, he would go to Ed Collins, the owner. TR 35.
Much of the Complainant's evidence pertaining to his employment history with the Respondent and the events leading up to his termination is contained in a hand-written document which the Complainant described as "driver's log" that he compiled from his personal diary and from the official driver's log sheets which he completed and turned into the Respondent on a daily basis during his employment. TR 67-70.3 The Complainant's driver's log" states
that it was drafted on December 28, 1999, and it covers the period of July 26, 1999 to December 29, 1999. CX 1. This document, in its entirety, reads as follows:
CX 1 (ellipses in original). The Complainant also testified regarding these entries in his log.
Concerning the November 24 entry about the truck's governor, he stated that the device was set to "top out" at 58 miles per hour ("MPH"), while the highway speed is 65 MPH, so he asked to have the governor adjusted to increase his productivity. TR 40. He testified that he was also concerned at this point with the truck's brake lights which constantly came on when he hit bumps or used the brakes going down hills. He stated that whenever this problem occurred, he wrote it up, and the brakes were either looked at or they were not. TR 40- 41.
Regarding the November 30 entry, the Complainant testified that he told Gerry Zartmann about the exhaust leak and that he explained that he was concerned because he had to open the windows, and it was getting cold. According to the Complainant, Mr. Zartmann replied that he was still new and that he should just keep writing it up. TR 41. The Complainant also stated that Mohammed had told him that the problem with the brake light was due to a loose wire, and he stated that this condition was never repaired. TR 41-42.
On December 2, 1999, the Complainant testified that he smelled burning brakes while operating the truck. He stated that he recognized the smell from past experience, and he observed that the brake light was on. He stated that he notified Gerry Zartmann who instructed him to write it up, and he went out on a delivery as he had been told. TR 42-43.
The Claimant testified that he discovered that the wipers on the truck were bad on December 6, 1999 when he had to drive 190 miles in the pouring rain. He denied having any conversation with the Respondent on that date concerning his performance or receiving any oral warning or reprimand. TR 42-45. He further testified that he had to use duct tape on December 8, 1999 to repair the rear view mirror bracket on the truck because "they didn't want to go purchase a bracket." TR 45-46.
Regarding the entry he made on December 20, the Complainant testified that he had pulled in to the Watervliet Housing Authority warehouse to make a delivery when he was stopped by a police officer who stated that he was conducting a D.O.T. Safety Check and directed the Complainant to follow him to a state motor vehicle agency inspection facility in Port Skyler. At Port Skyler, the Complainant's truck was inspected, and a citation was issued for three violations -- (1) improper tie-downs on the load, (2) faulty wiring and (3) defective of no lighting on the license plate. TR 48-51. The Complainant was issued a Driver Inspection Report by the Commercial Vehicle Enforcement Unit of the New York State Police which listed three violations as described by the Complainant: (1) improper securement system (tie-down assembly), one of two tie-downs, damaged webbing; (2) improper wiring installations (rear, bare and loose wires); and (3) no/defective lighting devices (plate light not working). CX 2. The Complainant testified he made the Respondent aware of these violations, but they were not corrected before be began driving the truck again. He further stated that he called the New York State Police on December 21 to report that the violations had not been corrected and was informed that a compliance investigation would be conducted. TR 51.
The Complainant testified that on December 22, 1999, he developed a headache and sleepiness after driving for 45 minutes with the windows rolled up even though he was "more than prepared for work" by getting six to seven hours of good, undisturbed sleep at night. He also stated that these symptoms abated after he was out of the vehicle for at least half of an hour. The Complaint testified that he consulted his eye doctor to see if a vision problem was causing the headache and drowsiness, but was told that his vision was normal and stable. TR 52-53. He then saw his family physician, Russell Wenacur, M.D. Dr. Wenacur's initial impression was possible carbon monoxide poisoning, and he gave the Complainant a note recommending that he not drive the International box truck. CX 3; CX 4 at 1. The Complainant testified that Dr. Wenacur referred him to a hospital for blood testing and that he provided a copy of Dr. Wenacur's note to Stan Duda, the Respondent's personnel/human resources director. TR 57. According to the Complainant, Mr. Duda threw his hands in the air upon reading the note and stated that he didn't want to have anything to do with it. Instead, he told the Complainant to see either Mr. Collins or Mr. Zartmann. TR 58-59. The Claimant stated that Mr. Zartmann was not there, so he went to Mr. Collins's office and, finding that Mr. Collins was at lunch, left Dr. Wenacur's note on his desk. TR 59. The Complainant stated that he then went to Tom, the dispatcher, who said that there was nothing really to do, so he spent the remainder of the afternoon reading newspapers, drinking coffee and eating food as there were no deliveries to make and it was just before the Christmas break. TR 61-62. The Complainant stated he and the other employees all received bonuses before leaving work on December 23 and that he had December 24th off as a paid holiday. TR 62.
The Complainant testified that he next reported for work at 8:01 a.m. on December 28, 1999, at which time Mr. Collins told him that he was permanently terminated because of his doctor's note since he could no longer perform his duties with the truck, and there was no work with the other vehicles. TR 63. After he left work, the Complainant testified that he contacted OSHA to file the complaint in this matter, and he filed a claim for unemployment compensation which the Respondent opposed. TR 64-65. The record shows that a hearing was conducted on the unemployment claim before an administrative law judge of the New York State Unemployment Insurance Appeals Board who ruled in the Complainant's favor. In this regard, the administrative law judge wrote:
CX 5. Subsequent to his termination, the Complainant learned from Dr. Wenacur that his blood test was negative for carbon monoxide poisoning. TR 88-90, 115-119; CX 4 at 2.4 On cross-examination, the Complainant testified that after he received notification from Dr. Wenacur that the blood toxicology report was negative, he called Mr. Zartmann on December 29, 1999 and asked to be returned to work since the medical tests were negative, and the doctor was releasing him, but Mr. Zartmann responded that his termination was permanent. TR 124-125; CX 1 at 3.
The Complainant additionally testified that he never received a personnel handbook from the Respondent, that he had no knowledge that the Respondent maintained any personnel file on him and that he never received or signed for any document from the Respondent stating that his performance was sub-par. TR 73-75. Finally, the Complainant testified he had lost around $2,260.00 as of the time of the hearing as a result of the Respondent's termination of his employment based on his loss of pay and medical benefits, reduction in earnings, legal fees, copying costs and at least 40 hours of time that he had spent in preparing for the hearing. TR 125-128.
The Complainant also testified on cross-examination that he is currently employed as a tow truck operator by Keilen's Auto Body and Towing in Latham, New York where he drives a 1999 International truck. TR 79, 90-91. He went to work at Keilen's within two weeks of his termination by the Respondent and is paid $10.00 per hour for 37 to 45 hours per week. TR 120-21. As of the date of the hearing, the Complainant was not yet eligible for medical benefits at Keilens, and he stated that he could not afford private medical coverage. TR 122.
The Complainant further testified on cross-examination that he was encouraged by Mr. Zartmann and the Respondent's other drivers to list deficiencies on the log book for his vehicle and to record any problems in the log book. TR 88. In addition, he acknowledged that the truck that he was driving on December 20, 1999 when he was stopped by the New York State Police was not his regularly-assigned vehicle and that his pre-trip inspection of this truck may not have been as thorough of an inspection that he would normally perform on his own truck. TR 91-92. However, he insisted that he did notice the damaged tie-down webbing which was cited in the New York State Police inspection report, and he testified that he informed Mr. Zartmann and another employee ("Mike in the yard") about this condition before he left to make the delivery, although he conceded that he made no mention of a defect in the vehicle log "because it wasn't my regular work vehicle." TR 93.
The Complainant again denied ever having any discussion with Mr. Zartmann regarding his job performance or whether he would be terminated. TR 100. He was also questioned about his testimony at the Unemployment Insurance Appeals Board hearing and acknowledged that he had testified in that proceeding that he believed that Fred Morelock, a driver who was hired by the Respondent on or about December 5, 2000, had been brought in to replace him because Mr. Morelock had told him that Mr. Zartmann had called him in November 1999 begging him to come to work at the Respondent. TR 100-104.
The Complainant was questioned about an assignment he was given on December 21, 1999 and whether he completed the job successfully. He stated that he completed the assignment "to the best of my ability" and denied later admitting to Mr. Zartmann that he had not read the delivery ticket and had forgotten to pick up certain material. TR 105- 106.5 He later testified on redirect that he had no independent recollection of the December 21, 1999 delivery and that it would not have been brought to his attention if he had forgotten to pick up materials from a delivery site because it was not unusual for a driver to forget to pick something up and the Respondent "would just be like, go back and fix it, like another driver did one time, and we all had to go back and fix it." TR 113-115. Finally, the Complainant testified that after he received notification from Dr. Wenacur that the blood toxicology report was negative, he called Mr. Zartmann on December 29, 1999 and asked to be returned to work since the medical tests were negative, and the doctor was releasing him, but Mr. Zartmann responded that his termination was permanent. TR 124- 125; CX 1 at 3.
B. The Respondent's Rebuttal Evidence
Mr. Zartmann called himself as the Respondent's only witness. He testified that the Complainant was terminated for poor performance and for no other reason and that he had made notes of two specific conversations he had with the Complainant on December 6 and 16, 1999 concerning his sub-par performance. TR 131-132; RX 3, 4. Mr. Zartmann testified that he met with the Complainant on December 6, 1999 and advised him that the time he took to compete deliveries was sub-par and that he took one and one half to twice the time required by the other drivers. TR 131. He further testified that the Complainant approached him on December 16, 1999 and asked if his job was in jeopardy and that he replied that the Respondent still had difficulty with the time he was taking to make deliveries. In addition to these two conversations, Mr. Zartmann stated that he spoke to the Complainant on six or seven occasions during the December 1999 time frame, most at the Complainant's initiative, and that he told the Complainant during these conversations that the time he took to complete deliveries was excessive, that he would be terminated and that the only reason he was not being terminated immediately was that Mr. Zartmann did not wish to fire him before Christmas and wanted to afford him some time to look for other work. Mr. Zartmann estimated that he spent a total of two to two and one half hours discussing the Complainant's performance and the Respondent's decision to terminate his employment over the course of these conversations in December 1999. TR 132.
On cross-examination by the Complainant's counsel, Mr. Zartmann testified that a driver's performance is measured by the time it takes to complete a delivery and that a driver's time is related to mileage. TR 134. He further stated that he would not be surprised to learn, as calculated by the Complainant, that the Complainant's mileage driven increased over the six months of his employment from 2,276 in his first month to 1,991 in the second month, 1,491 in the third month, 1,783 in the fourth month, 2,057 in the fifth month and 2,154 in his final month. TR 135.6 He testified that he and the Respondent's owner, Ed Collins, handle personnel matters. TR 136. He also stated that Mr. Collins made the decision to terminate the Complainant. TR 143.
Mr. Zartmann testified that he wrote the notes of his December 6 and December 16 conversations with the Complainant contemporaneously and that he gave the notes to Stan Duda who placed them in the Complainant's personnel file which contains items such as an employment application form, W-2 forms and other government forms required to begin employment, a record of pay raises and notes relating to performance. TR 137-138. Mr. Zartmann also testified that he had not informed the Complainant that he had made any notes of their conversations regarding his performance, and he stated that he had not asked the Complainant to sign his notes of the December 6 and December 16 meetings. TR 138-139.
Mr. Zartmann further testified that he was aware that the Complainant had a practice of making notes on the back of his driver's logs, and he stated that the practice became more prevalent after the Complainant learned that his employment would be terminated. TR 139-140. He also acknowledged that the Complainant had requested that the governor on his truck be turned up; however, he stated that he did not remember the Complainant ever explaining why he wanted the governor turned up and that he was not even sure whether the truck assigned to the Complainant had a governor. TR 140-142.
The STAA prohibits the discharge of, or discipline or discrimination against, an employee in the commercial motor transportation industry because the employee either files a complaint or initiates or testifies in a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or because the employee refuses to operate a vehicle in certain circumstances:
49 U.S.C. §31105(a). The elements of a violation of the STAA's employee protection provisions are "that the employee engaged in protected activity, that the employee was
subjected to adverse employment action, and that there is a causal connection between the protected activity and the adverse action." Scott v. Roadway Express, ARB Case No. 99-013 (July 28, 1999) (Roadway Express), slip op. at 7, quoting Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (Clean Harbors). A complainant initially may show that protected activity likely motivated the adverse action by proving: (1) that he engaged in protected activity; (2) that the respondent was aware of the activity; (3) that he suffered adverse employment action; and (4) the existence of a causal link or nexus, e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon v. Consolidated Freightways, 96-STA-15 (ARB April 15, 1998), slip op. at 5-6; Kahn v. United States Secretary of Labor, 64 F.3d 261, 277 (7th Cir. 1995). An employer may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate, non-discriminatory reason, and the complainant must then prove that the employer's proffered reason was not the true reason for the adverse action and that protected activity was the real reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).
The Complainant contends that he engaged in activity protected by the STAA when he raised safety concerns to the Respondent, including his delivery of Doctor Wenacur's note on December 23, 1999 recommending that he no longer drive the International box truck, and that the evidence shows that he was terminated on December 28, 1999 because, as the Unemployment Insurance Appeals Board ALJ found, because he was perceived to be a troublesome employee. The Complainant further contends that the statements and conduct of the Respondents support a reasonable inference of a causal connection between his protected activity and the termination decision, and he seeks as a remedy compensation for his monetary losses and compensation for the time he has put in to prosecuting his complaint and for the adverse impact that the Respondent's conduct has had on his life. TR 146-158.
The Respondent, on the other hand, asserts that the Complainant has not met his burden of proving that he was terminated for engaging in activity protected by the STAA. Rather, it avers that the evidence establishes that the Complainant was terminated for poor job performance, that he had prior knowledge that he would be terminated after the Christmas holiday, and that he began to write up his truck more frequently and submitted the note from Dr. Wenacur only after he had been notified that he would be terminated. Thus, the Respondent insinuates that the Complainant fabricated a case of unlawful retaliation once he learned that his employment was going to terminated. TR 158-162.
The Complainant's activities which are asserted to be protected under the
STAA fall into two basic categories (1) his internal complaints to the Respondent about
defective and unsafe conditions on his assigned vehicle and (2) his refusal to drive the
International box truck based on Dr. Wenacur's December 23, 1999 recommendation. Regarding
the former, it is well-established that an employee's internal safety complaints to management are
protected by 49 U.S.C. §31105(a)(1)(A). Clean Harbors at 19-21; Doyle v.
Rich Transport, Inc., 93-STA-17 (Sec'y April 1, 1994), slip op. at 2; Davis v. H.R. Hill,
Inc., 86-STA-18 (Sec'y March 19, 1987), slip op. at 3-4. Here, there is uncontradicted
evidence in the record that the Complainant made internal complaints to the Respondent
concerning what he perceived to be defects or unsafe conditions on his assigned vehicle. As the
Respondent has not disputed that these complaints fall within the ambit of section
31105(a)(1)(A), I find that the Complainant engaged in protected complaint activity. See
Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 45-46 (2nd Cir. 1995) (allegation
of a violation sufficient to invoke the protection of subsection (a)(1)(A) without proof of a
violation of any motor vehicle safety rule).7
Concerning to the Complainant's refusal to drive the International box
truck, it is similarly well-established that a refusal to drive a commercial motor vehicle based
upon an employee's illness or physical condition may be protected under section
31105(a)(1)(B)(i) and (ii). Somerson v. Yellow Freight System, Inc., 1998-STA-9 and 11
(ARB February 18, 1999), slip op. at 13-14; Smith v. Specialized Transportation Services,
91-STA-22 (Sec'y April 30, 1992), slip op. at 2; Mace v. ONA Delivery Systems, 91-
STA-10 (Sec'y January 27, 1992), slip op. at 7-8. To be protected under subsection (B)(i), the
Complainant "must show that the operation would have been a genuine violation of a
federal safety regulation at the time he refused to drive -- a mere good faith belief in a violation
does not suffice." Yellow Freight Systems v. Martin, 983 F.2d 1195, 1199 (2nd
Cir. 1993). Where, as in this case, a refusal to drive is based on an allegation of fatigue or
drowsiness, a genuine violation of a federal safety regulation may be established by proof that the
employee's ability or alertness was so impaired as to make vehicle operation unsafe. See
Specialized Transportation Services, slip op. at 3; ONA Delivery Systems, slip
op. at 8. In my view, there is insufficient evidence in this record given the negative blood test
results to prove that the Complainant's alertness was impaired to the point that continued
operation would have been unsafe. Therefore, I find that his refusal to continue driving the
International box truck on December 23, 1999 was not protected by the "violation"
clause of subsection (B)(i). However, a refusal to drive based on fatigue may also be protected
under the subsection (B)(ii) "reasonable apprehension" clause which is not dependent
on proof of a genuine violation. The requirements for protection under subsection (B)(ii) are set
forth at 49 U.S.C. §31105(a)(2):
Therefore, to obtain protection under the "reasonable apprehension" clause, a
complainant must show that "a reasonable person in the same situation would conclude
that there was a reasonable apprehension of serious injury if he drove." Cortes v.
Lucky Stores, Inc., 96-STA-30 (ARB February 27, 1998), slip op. at 4. In addition, a
complainant must, where reasonably possible, inform the employer of the safety basis for his
refusal to drive. La Rosa v. Barcelo Plant Growers, Inc., 96-STA-10 (ARB August 6,
1996), slip op. at 3; Assistant Secretary of Labor and Johnny E. Brown v. Besco Steel
Supply, 93-STA-30 (Sec'y January 24, 1995), slip op. at 3. The Complainant testified that he
experienced drowsiness while driving on December 22, 1999 despite getting adequate sleep at
night, that he suspected exhaust fumes were entering the vehicle's cab and that he went to see his
family physician who recommended that he not drive the International box truck pending the lab
report on his blood test for carbon monoxide poisoning. On these facts, which are not
contradicted, I find that the Complainant satisfies the reasonable apprehension requirement as
any reasonable person in these circumstances would be in apprehension that continued operation
of the vehicle could lead to an accident, injury, or serious impairment to his or her health. I also
find that the Complainant satisfied the second requirement that he inform the Respondent of the
safety basis of his refusal to drive since it is undisputed that he previously reported his concerns
about exhaust to the Respondent and then provided a copy of Dr. Wenacur's December 23, 1999
note to Mr. Duda and Mr. Collins. Accordingly, I find that the Complainant's refusal to drive on
December 23, 1999 was protected by section 31105(a)(1)(B)(ii).
There is no dispute that the Respondent was aware of the Complainant's
protected activity and that the Complainant was subjected to an adverse employment action when
he was terminated on December 28, 1999. Based on the close proximity of the Complainant's
protected activity, particularly his delivery of Dr. Wenacur's note to the Respondent on December
23, to the date of his termination, and the Complainant's uncontradicted testimony that Mr.
Collins referred to Dr. Wenacur's note when he informed the Complainant on December 28 that
his employment was terminated, I find that it is reasonable to infer that the Respondent's
termination decision was, at least to some degree, motivated by retaliatory considerations.
Having determined that the Complainant has established that he engaged in
activity protected by the STAA, that the Respondent was aware of such activity, that he suffered
an adverse action and that there is a sufficient nexus between his protected activity and the
adverse action to justify an inference of retaliatory motivation on the part of the Respondent, it is
incumbent on the Respondent to show that its decision to terminate the Complainant was based
on legitimate, non-discriminatory considerations. In this regard, the Respondent maintains that
the Complainant was terminated solely for poor performance and that his protected activity
played no role in its decision. The evidence bearing on this issue consists of the testimony from
the Complainant and the Respondent's general manager, Mr. Zartmann, who presented sharply
conflicting versions of the pertinent events. After carefully considering the testimony of these
two witnesses in light of the entire record and based on my observations of their demeanor on the
witness stand, I find Mr. Zartmann's testimony that he counseled the Complainant about his
performance and the time it took him to complete deliveries and that he notified the Complainant
on December 16, 1999 that he would be terminated after Christmas to afford him time to find
another job to be entirely credible. Mr. Zartmann testified consistently and answered all
questions directly and without equivocation or evasion. In addition, his testimony that the
Respondent decided in mid-December to terminate the Complainant for poor performance, but to
delay the action until after Christmas so as to not spoil the Complainant's holiday and to afford
him time to secure alternate employment, is supported by the fact that the Complainant received
a bonus along with the other employees at the end of the workday on December 23, even though
he had previously delivered Dr. Wenacur's note to Mr. Duda and Mr. Collins. In contrast, the
Complainant was a reluctant and evasive witness on cross-examination which was conducted by
r. Zartmann, a non-attorney, in a completely civil, non-hostile manner. Most significantly, he
was observed to be visibly uncomfortable (i.e., his body stiffened, his voice dropped and
he avoided eye contact) when he denied that he had ever been told that the Respondent had
problems with his performance and that he would be terminated for poor performance after the
Christmas holiday. Since I find Mr. Zartmann's testimony fully credible (and the Complainant's
testimony to the contrary unreliable), I find that the Respondent has met its burden of producing
evidence that it had a legitimate, non-discriminatory reason for terminating the Complainant's
employment. I further find that the Complainant has not shown that the proffered reason, poor
performance, is false and that the real reason was retaliation for his protected activity.8
Based on the foregoing, I conclude that the Complainant has failed to
establish by a preponderance of the evidence that he was terminated by the Respondent in
violation of the employee protection provisions of the STAA.
The complaint filed in this matter is DISMISSED with prejudice.
Daniel F.
Sutton
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the administrative file will be
forwarded for review to the Administrative Review Board, United States Department of Labor,
Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210.
See 29 C.F.R. §1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).
1 The documentary evidence admitted
to the record will be referred to as "ALJX" for jurisdictional and procedural
documents admitted by the Administrative Law Judge, "CX" for documents offered
by the Complainant, and "RX" for documents offered by the Respondent.
2 It is noted that the letters serving
the Secretary's Findings on the parties, as well as the letter filing the Secretary's Findings with the
Office of Administrative Law Judges, are dated February 17, 2000. However, since the
Secretary's Findings were not signed by the Regional Administrator until February 22, 2000, it
appears that the February 17, 2000 date is in error and that the Secretary's findings were not
served on the parties until February 22, 2000.
3 While the Respondent
challenged the accuracy of the Complainant's "driver's log" (TR 60, 69), the official
driver's logs were not offered in evidence. The Complainant's personal diary also was not
offered.
4 Specifically, the lab report on the
Claimant's arterial blood gas study, which was conducted at the Samaritan Hospital in Troy on
December 23, 1999, indicates that the Complainant's carboxyhemoglobin level was measured in
the normal range at 1.1. CX 4 at 2.
5 The delivery ticket in question
contains an instruction to pick up "8-2x10-22/0 [and] 12-3/4 TG ULP" and a notation
signed by Mr. Zartmann on December 21 that "Brian forgot to p/u material. 'Said' 'He
didn't read the ticket.'" RX 5 (quotations in original).
6 No mileage records were offered
in evidence. Assuming the accuracy of the mileage figures cited by the Complainant's counsel,
the Complainant's monthly mileage totals actually decreased over the first three months of
employment, then increased over the last three months, but not to the level achieved in the first
month of employment.
7 In view of the fact that the
Respondent has not argued that the Complainant's safety complaints are unprotected, I find the
ARB's recent decision in Assistant Secretary and Bates v. West Bank Containers, 98-
STA-30 (April 28, 2000) (discussing the analysis required where a respondent challenged
OSHA's interpretation that section 31105(a)(1)(A) protects safety complaints as long as the
employee has a reasonable belief that the condition violates a motor vehicle safety regulation) to
be inapplicable.
8 I recognize that my findings
regarding the reason for the Complainant's termination differ from the conclusion of the
Unemployment Insurance Appeals Board ALJ that the record before him showed that the
Complainant was terminated because he was perceived by the Respondent to be a
"troublesome" employee. However, it is unclear what evidence was offered in the
unemployment claim hearing. More importantly, the issue in that case was whether the
Complainant engaged in any conduct amounting to a substantial disregard of the Respondent's
interests which would rise to the level misconduct, not whether he met his burden of proving that
the Respondent terminated him in violation of the STAA because he engaged in protected
activities.
[Page 13]
[Page 14]
Administrative
Law Judge