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Eash Roadway Express, Inc., 2000-STA-47 (ALJ June 13, 2001)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 | ![]() |
Issue date: 13Jun2001
CASE NO.: 2000-STA-47
In the Matter of:
LARRY E. EASH,
Complainant
v.
ROADWAY EXPRESS, INC.
Respondent
This proceeding arises under the employee protection provisions of Section 405 of the Surface Transportation Assistance Act ("STAA" or "Act") of 1982, as amended and re-codified, 49 U.S.C. § 31105, and its implementing regulations, 29 C.F.R. Part 1978. Section 405 of the STAA provides for employee protection from employer discrimination because the employee has engaged in a protected activity, consisting of either reporting violations of commercial motor vehicle safety rules or refusing to operate a vehicle when the operation would violate these rules.
The above-captioned matter is set for a formal hearing before the undersigned on June 25-26 in Akron, Ohio. On April 16, 2001, respondent submitted a Motion to Dismiss the above-captioned claim. Respondent's motion was supported by Respondent's Exhibits A-H and K-CC. Complainant responded on May 7, 2001. In support of complainant's response, complainant submitted reports of the National Climatic Data Center of the National Oceanic and Atmospheric Administration (marked as complainant's exhibit A), the affidavit of complainant (marked as complainant's exhibit B), and several newspaper articles detailing the weather conditions of January 14, 1999 (marked collectively as complainant's exhibit C). 1 Respondent requested permission to submit a reply brief, which was granted on May 24, 2001. The brief was due to the undersigned on or before June 8, 2001. No brief was received.
BACKGROUND
On or about March 26, 1988, Larry E. Eash, Sr. ("complainant") was hired by Roadway Express, Inc. ("respondent") as a commercial motor vehicle driver. It is undisputed that at all times herein, complainant was an employee of respondent. 2 It is also undisputed that in the course of complainant's employment, he directly affected commercial motor vehicle safety. 49 U.S.C. § 31101(2)(A). Respondent does not dispute that it is engaged in commercial motor vehicle operations and maintains a place of business in Copley, Ohio. In the regular course of respondent's business, respondent's employees operate commercial motor vehicles over interstate highways and connecting routes predominantly to transport cargo.
Complainant filed a timely complaint with the Secretary of the Department of Labor ("Secretary") on March 10, 1999, alleging that respondent had discriminated against him in violation of Section 31105 of the STAA. On June 22, 2000, the Secretary determined, after an investigation of the above-captioned complaint, that the allegations lacked merit. On June 26, 2000, complainant objected to the Secretary's findings and requested that the claim be referred to the Office of Administrative Law Judges.
The claim was set for a formal hearing in on March 9, 2001. By agreement of the parties, that hearing date was vacated and rescheduled for June 25-26, 2001 in Akron, Ohio.
UNDISPUTED FACTS
There are several incidents and actions that comprise the factual basis for this claim. Each incident will be discussed in turn.
October 16, 1998 Warning Letter
The first incident involves a warning letter issued by respondent to complainant on October 16, 1998. (RX B). That letter was issued because respondent alleged that complainant had failed to meet the running time from West Seneca, New York to Copley, Ohio. 3 There is a dispute as to whether the running time for this trip is 5.00 hours or 5.50 hours. However, the discrepancy between these times is not material because considering either running time, complainant failed to meet the prescribed running time.
Once complainant was issued the warning letter, he responded by issuing a "protest letter." (RX F & G). In this letter, which was subsequently amended by complainant, he alleges that the letter contains factual misrepresentations. Complainant alleges that because the rest breaks that he took on this trip are protected by the STAA, that such rest stops should be factored into the running time, thus permitting complainant a running time of 7.25 hours. The facts surrounding the warning letter are not in dispute.
On October 11, 1998, complainant went off duty at 9:30 a.m. and returned to his home to rest. Complainant was eligible to receive a work call 10 hours after the time that he went off duty. Complainant estimates that he slept approximately 5 hours that day. At midnight on October 12, 1998, complainant received a work call, and as per company policy, was required to report to work within 2 hours. At 2:00 a.m., complainant reported to work and was again on duty. At approximately 2:30 a.m, complainant left respondent's terminal in Copley, Ohio with his destination being West Seneca, New York.
Complainant became fatigued at approximately 5:15 a.m. and stopped to rest. Complainant resumed his trip at approximately 6:30 a.m. Complainant arrived in West Seneca, New York at approximately 8:00 a.m. It appears from the pleadings, that although this trip took 5.50 hours, respondent is not alleging that this trip is the basis of the warning letter. From 8:00 a.m. to 8:20 a.m., complainant was on duty but not driving. Complainant was then dispatched from West Seneca, New York to Rochester, New York. At approximately 9:30 a.m., complainant arrived in Rochester. Complainant was considered off duty at 9:45 a.m. and was transported to a local hotel to rest. Complainant arrived at the hotel at approximately 10:45 a.m.
Complainant states that he slept from approximately noon or 12:30 p.m. until he received a telephone call at somewhere between 2:30 and 3:00 p.m. Complainant states that the telephone call was from his now former attorney, John Tucker. While the details of that conversation are protected by the attorney-client privilege, complainant was willing to divulge that the conversation left him very upset and unable to sleep. Complainant received a work call at 8:00 p.m. Complainant reported to work at 10:00 p.m. and was dispatched back to West Seneca. Complainant arrived in West Seneca at midnight on October 13, 1998. Complainant was on duty for approximately 45 minutes before he was dispatched from West Seneca to Copley at 1:00 a.m.
At approximately 2:30 a.m., complainant became drowsy and stopped traveling in order to rest. Complainant resumed driving at approximately 4:00 a.m. and drove continuously until 5:45 a.m. when he stopped to rest again. Complainant resumed his trip at 6:30 a.m. and drove until he arrived in Copley at 7:30 a.m.
January 19, 1999 Warning Letter On January 19, 1999, respondent issued a warning letter to complainant for failure to report to work after accepting a work call. (RX H). This letter was issued for complainant's failure to report to work on January 14, 1999. Complainant again responded with a "protest letter" dated January 22, 1999. (RX M). In that letter, complainant alleges that he had received no work call from respondent on the date mentioned in the warning letter. Complainant states further that he did not report to work on that date because of the weather conditions. Complainant stated that he based his decision to return home instead of reporting to work, on "17 years of driving commercial motor vehicles, 1.5 million miles of safe driving, and no moving violations in commercial vehicles for over 12 consecutive years." (emphasis in original).
The facts surrounding this warning letter are not disputed. On January 13, 1999, complainant was dispatched from Copley to Pittsburgh, Pennsylvania. At that time, complainant's "bid" called for complainant to travel from Copley to Pittsburgh, then from Pittsburgh back to Copley, and then return to Pittsburgh where complainant would be given the opportunity to rest. When complainant returned to Copley after the initial turn around, he was informed that he would not be dispatched back to Pittsburgh because of inclement weather. Complainant returned to his home.
On January 14, 1999, complainant states that he observed freezing rain from his home. At 3:45 p.m., complainant telephoned respondent's dispatcher, named Lynette, and asked Lynette to remove him from "the wheel" because of the weather conditions.4 Complainant requested that he not be dispatched until 6:30 pm. on January 15, 1999, his usual time to report to work on that date. The call was transferred to Todd, respondent's coordinator. Complainant expressed his concerns over the weather conditions to Todd and Todd informed complainant that he could not be removed from "the wheel."
Complainant called respondent's terminal at 7:30 p.m. on January 14, 1999. Complainant again requested that he be removed from "the wheel." Complainant stated again that he had observed freezing rain conditions around his home.5 Complainant told Todd that based on his observation of the television weather reports that he felt it was unsafe for him to drive from Copley to Pittsburgh. Todd informed complainant at that time to consider the call a work call and complainant would have 2 hours to report to work.
At 8:30 p.m., complainant left his home in his personal vehicle en route to Copley. Approximately 15 minutes later, complainant stopped his car and called respondent's terminal and spoke with Ed Tasz, respondent's coordinator. Complainant told Mr. Tasz that due to the freezing rain, he would not be reporting to work on that date. Mr. Tasz told complainant "do what you have to do." Complainant states that he did not understand this to mean that he would be disciplined for returning home.
Retaliation in connection with filing a prior OSHA claim
In addition to these two events, complainant alleges that he was discriminated against by respondent in retaliation for an OSHA claim that complainant had filed against respondent. 6 Complainant bases this allegation on the issuance of four warning letters by respondent. 7 The facts surrounding each letter will be discussed below.
June 15, 1998 Warning Letter
On June 15, 1998, respondent issued a warning letter to complainant stating that complainant had reported to work 20 minutes late on June 12, 1998. (RX N). Complainant responded with a "protest letter" dated June 22, 1998. (RX P). In that letter, complainant challenged the accuracy of the time card that was the basis of the warning letter. The card is dated May, 12, 1998, not June 12, 1998. Complainant later explained in his deposition that it was explained to him by his union business agent that the time clock sometimes fails to advance the month automatically and that the advancing must be done manually. See RX CC. Complainant does not accept that the card being dated incorrectly is a typographical error. Complainant stated in his deposition that he was not late on the date in question, but that he has no evidence to establish that he was not late on June 12, 1998.
September 14, 1998 Warning Letter
Complainant was issued another warning letter on September 14, 1998. (RX P). This letter was issued by respondent for complainant failing to follow instructions. Complainant responded to respondent's warning letter with a "protest letter" dated September 16, 1998, which was subsequently revised by complainant on January 28, 1999. (RX R & S). The parties are not in agreement with regard to the facts surrounding this letter.
Respondent alleges that complainant was told to telephone respondent's terminal "time critical" when complainant completed his delivery. See Respondent's Motion to Dismiss, p. 8-9. Complainant replied with a "protest letter." This letter alleges that complainant was never instructed to call respondent's terminal when he left the client's location on September 11, 1998. Complainant stated that he was given a cellular telephone and instructed on how to use the telephone but that he was not told when he was to use the telephone. See RX CC. Additionally, complainant states in his "protest letter" that if he was given the instruction to call "time critical" on September 11, 1998, that doing so would be impossible considering the fact that complainant left the customer's location on September 10, 1998. Again, complainant is unwilling to accept that the date discrepancy is a typographical error.
September 22, 1998
A warning letter was issued to complainant on September 22, 1998 for requesting payment for 12 hours of birthday leave after complainant had already received payment for working on his birthday. (RX T). This letter was subsequently rescinded by respondent on September 28, 1998. A conversation concerning this situation was held between complainant and respondent's assistant relay manager. A compromise was reached and the letter was rescinded.
Complainant filed a "protest letter" on September 30, 1998. (RX U). Complainant continues to believe that the letter was retaliatory. Complainant is not clear in his explanation of how this letter is retaliatory considering that the letter was rescinded by respondent.
October 6, 1998
On October 6, 1998, respondent issued a warning letter to complainant for a violation of the "doctor/lawyer will call" policy. (RX V). Complainant responded with a "protest letter" dated October 13, 1998 which was subsequently revised. (RX W & X). Complainant, at the time of his deposition, agreed that this letter was not a part of respondent's discriminatory activities. As such, this letter will be considered no further.
January 26, 1999
On January 26, 1999, complainant was issued a warning letter for destroying company property. (RX Z). The facts with regard to the issuance of this letter are not in dispute. Complainant was given a notice of hearing from one of respondent's employees. Complainant signed the form and returned it to the employee. Complainant asked that the form be returned to him, at which time he ripped the form into pieces. Complainant states in his "protest letter," dated January 27, 1999, that he destroyed the form because he was not aware of the legitimacy of the form and he wished to "void" his signature. (RX AA).
Ohio Joint State Committee Proceedings
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent, Roadway Express, Inc. engages in interstate trucking operations and its employees operate commercial motor vehicles over interstate highways, principally to transport cargo. See Secretary's Findings, dated June 22, 2000. The Secretary has consistently stated that the STAA should be interpreted liberally in order to promote an interpretation of the Act which is consistent with its Congressional intent, namely, the promotion of commercial motor vehicle safety on the nations highways. See generally, Boone v. TFE, Inc., 90-STA-7 (Sec'y. July 17, 1991) DOL Decs. Vol. 5, No. 4, p. 160, 161, Aff'd sub nom., Trans Fleet Enterprises, Inc. v. Boone, 987 F.2d 1000 (4th Cir. 1992); Somerson v. Yellow Freight Systems, Inc, 1998-STA-9 & 11 (ARB Feb. 18, 1999).
The regulations promulgated to govern the Surface Transportation Assistance Act do not address motions for failure to state a claim upon which relief can be granted. 8 As such, the Federal Rules of Civil Procedure govern where the regulations are silent. Glenn v. Lockheed Martin Energy Systems, Inc., 98-ERA-35 & 50 (ALJ July 15, 1999) citing Freels v. Lockheed Martin Energy Sys., 95-CAA-2, 94-ERA-6 (ARB December 4, 1996). Federal Rule of Civil Procedure 12(b)(6) provides for a motion for failure to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). In accordance with the text of Rule 12, a 12(b)(6) motion is to be treated as a motion for summary decision and adjudged in compliance with Rule 56.
However, the regulations governing the practice and procedure for administrative hearings before an administrative law judge provide the procedural mechanism for summary decisions and as such will be used to govern the present motion before this court. The standard for granting summary decision is set forth at 29 C.F.R. § 18.40. 9 Pursuant to § 18.40, the administrative law judge may enter summary decision if "the pleadings, affidavits, material obtained by discovery or otherwise, ... show that there is no genuine issue as to any material fact and that a party is entitled to summary decision." 29 C.F.R. § 18.40(d). It is further provided that the non-moving party "may not rest upon the mere allegations or denials of such pleadings. Such response must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c); Stauffer v. Walmart Stores, Inc., 1999-STA-21 (ARB Nov. 30, 1999).
If a non-moving party fails to establish sufficient evidence of an essential element to his claim, on which he bears the burden of proof, there is no genuine issue of material fact and the moving party is entitled to summary decision. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). The Court is required, in reviewing all of the evidence of record, to draw all reasonable inferences from the underlying facts in the light most favorable to the non-moving party. Reves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986).
The STAA protects employees from adverse employment actions when any person covered by the STAA engages in protected activity. The STAA states that
(1) [a] person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because(A) the employee ... has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
(2) Under paragraph (1)(B)(ii) ... an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
49 U.S.C. § 31105 (a).
For the sake of making this recommended decision and order more coherent, each of complainant's allegations will be addressed as they have been addressed in the pleadings in this claim.
October 13, 1998 failure to meet running time
With regard to this incident, respondent alleges that it is entitled to summary decision because complainant's rest breaks on this run from New Seneca to Copley are not protected activity under the STAA. Respondent bases this belief on the fact that complainant was provided more than ample time to rest before being dispatched by respondent. Additionally, respondent alleges that it did nothing to prevent complainant from driving safely on October 13, 1998. Thus, respondent is alleging that through no fault of respondent, complainant was fatigued on October 13, 1998.
In response, complainant states that on October 13, 1998, he was too fatigued to drive safely and as such his rest breaks were protected activity under the STAA. In support of this proposition, complainant states that he rarely rests as well during the daylight hours as he does during the nighttime hours. Complainant also alleges that on October 12 and 13, his sleep was sporadic and he was driving at time when he was prone to fatigue. Additionally, complainant submitted the findings of the Federal Motor Carrier Safety Administration in a Notice of Proposed Rule Making dated May, 2000. These findings deal with fatigue in commercial motor carriers and sleep cycles. Complainant states that he is prone to fatigue if he has not slept well in the previous 24 hours. Complainant states that if he had continued to drive on October 13, 1998 without the rest stop, he would have violated a federal safety regulation.
Complainant alleges that respondent disciplined him for refusing to drive due to fatigue which complainant contends is protected activity under 49 U.S.C. § 31105(a)(1)(B)(i). In order to establish protected activity, complainant must show that the operation of a motor vehicle would have been a genuine violation of a federal safety regulation at the time he refused to drive. Yellow Freight Systems v. Martin, 983 F.2d 1195, 1199 (2nd Cir. 1993). Complainant alleges that had he driven, he would have violated the safety regulation located at 49 C.F.R. § 392.3, which reads as follows:
[n]o driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him to begin or continue to operate the commercial motor vehicle.
The first issue that must be decided in determining whether complainant has established a prima facie case of discrimination, is whether complainant was engaging in protected activity when he failed to meet his running time from New Seneca, New York to Copley, Ohio. The Administrative Review Board ("Board") has consistently held that the STAA does not protect an employee who, through no fault of the employer, has made himself unavailable for work. A'sst Sec'y & Porter v. Greyhound Bus Lines, 1996-STA-23 (ARB June 12, 1998). What appears to be the dominant theme underlying all of the cases where rest periods were considered protected activity is that the fatigue was in some way precipitated by the actions of the employer. See Stauffer v. Wal-Mart Stores, Inc., 1999-STA-21 (ARB Nov. 30, 1999); Brandt v. United Parcel Service, 1995-STA-26 (Sec'y Oct. 26, 1995); Yellow Freight Systems, Inc. v. Reich, 8 F.3d 980 (4th Cir. 1993).
Illustrative of this point is the Board's finding in Stauffer. In that claim, the Board noted that a person who had been awake for 17.25 hours "would be impaired due to fatigue." Stauffer, 1999-STA-21, fn. 2. In support of this proposition, the Board continues that remaining awake awaiting dispatch and operating vehicle over a period of 15 to 21 hours established that operating the vehicle would be unsafe. Supra. The Board's finding in Stauffer establishes that a driver may decline a work assignment based on the anticipation of future fatigue. However, inherent in this finding is the premise that the fatigue must have, in some way, been caused by the employer's actions.
In the above-captioned claim there is no dispute as to the facts surrounding complainant's fatigue. While it may be more difficult to sleep during the day, it is not within the province of this court to question the dispatch system of respondent. When there is no evidence that respondent's implementation of its dispatch system violated any specific Department of Transportation regulation, it is improper under the STAA to address a wholesale challenge to a facially lawful dispatch system. Somerson v. Yellow Freight System, Inc., 1998-STA-9 & 11 (AJL Feb. 18, 1999). Because complainant had adequate time to be rested and available for work, and was fatigued through no fault of respondent, I find as a matter of law that complainant did not engage in protected activity under § 31105(a)(1)(B)(ii) on October 13, 1998.
Additionally, complainant alleges that a material fact exists as to whether if he had continued to drive on October 13, 1998, he would have violated the provisions of § 31105(a)(1)(A)(ii). Complainant alleges that the rest stops he took in excess of the allotted rest periods are protected because he had a reasonable apprehension of serious injury to himself or the public because of the vehicle's unsafe condition. I am assuming that complainant is alleging that the unsafe condition of the vehicle is the fact that its driver was fatigued.
Complainant alleges that the facts of this claim are distinguishable form the facts of Porter, supra. I disagree with complainant's contention. Again, it is important that respondent had noting to do with complainant not being rested for his run from New Seneca to Copley. Complainant admits that it was through no fault of respondent that he was fatigued on October 13, 1998. Whether or not he believed it to be reasonable to make the rest stops is not relevant, considering that complainant made himself unavailable for work. Complainant's activities of October 13, 1998 are not protected activity under the provisions of § 31105(a)(1)(B)(ii).
January 14, 1999 refusal to report to work
Complainant alleges that he engaged in protected activity on January 14, 1999 when he refused to report to work because of inclement weather. Complainant alleges that had be reported to work on that date and driven his commercial motor vehicle, he would have violated 49 C.F.R. § 392.14.
Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke , adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to the passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured.
49 C.F.R. § 392.14.
Both complainant and respondent have cited to Robinson v. Duff Truck Line, Inc., 1986-STA-3 (Sec'y March 6, 1987), aff'd Duff Truck Line, Inc. v. Brock, 848 F.2d 189 (table)(6th Cir. 1988), in support of its proposition. I find the position of complainant more persuasive. The facts in Robinson are very similar to the facts surrounding complainant's activities on January 14, 1999. Robinson observed inclement weather in the area surrounding his home. Robinson called Duff's dispatcher to inform the dispatcher that he was not going to "make his run and that he was reporting off." Id. at p. 2. Robinson also informed the dispatcher that he was unable to get out of his driveway because of the weather. Id. In Robinson, the Secretary found that "a reasonable interpretation of section 392.14 is that it applies whenever a driver encounters hazardous weather conditions whether before his dispatch from the terminal or when he is on the road." Robinson at p. 4-5.
Therefore, respondent's contention that complainant had to arrive at the terminal in order to invoke the protections of the STAA is misplaced. Robinson did not arrive at the terminal before refusing to drive and the Secretary found that Robinson's activities were protected under the STAA. This does not mean that complainant has not established that his activities are protected under the STAA. However, there exists a material issue of fact as to whether the weather was of a type which would have made it unsafe for complainant to operate his vehicle.
"In order to establish that [complainant's] refusal to drive is protected because he would have violated section 392.14, [complainant] must show that there existed, ... the type of weather conditions which would make it unsafe to operate the vehicle." Robinson, at 5. There exists a material issue of fact as to whether complainant can establish that these weather conditions did in fact exist on January 14, 1999. Therefore, summary decision at this point would be inappropriate on the issue of whether complainant engaged in protected activity under the STAA provisions of § 31105 (a)(1)(B)(i)&(ii) on January 14, 1999.
Whistleblower Complaint
It is uncontested that complainant engaged in protected activity by filing a complaint with the Secretary of Labor on March 23, 1998. Therefore, complainant engaged in protected activity. It is also uncontested that complainant suffered an adverse employment action. Complainant served a five day suspension on April 19-23, 1999. Therefore, the only issue presented in this claim is whether there is a causal nexus between the protected activity and the adverse employment action.
The basis for the suspension, and complainant's allegation of retaliatory activity are four warning letters, dated June 15, 1998; September 14, 1998; September 22, 1998; and January 26, 1999. There are factual issues to be decided surrounding each of these warning letters.
The June 15, 1998 warning letter states that complainant was 20 minutes late for work on June 12, 1998. However, the card indicating that complainant was 20 minutes late is dated May 12, 1998. As such, there exists some issues of fact surrounding this warning letter. Therefore, summary decision would be inappropriate at this time. Additionally, there are factual issues to be decided surrounding the warning letter dated September 14, 1998. This letter was issued for complainant failing to follow instructions. Complainant alleges that he was never given the instructions that respondent alleges complainant failed to follow. The determination of the truthfulness of these allegations is a credibility determination that must be made by the court. As such, summary decision with regard to the September 14, 1998 warning letter would be inappropriate.
Document: Initial Recommended D&O.wpd Created by: RLESNICK on 06/13/2001 10:34:34 AM Summary decision is appropriate with regard to the January 26, 1999 warning letter for destruction of company property. The facts surrounding that incident are undisputed. As such, it is clear that complainant destroyed the hearing notice. Therefore, the warning letter presents no material issue of fact and complainant has failed to establish any causal nexus between the OSHA complaint and the adverse employment action.
As for the September 22, 1998 warning letter, complainant has presented no material issue of fact and as such summary decision should be granted with regard to these two letters. The September 22, 1998 letter was rescinded after the matter was resolved by complainant and one of respondent's employees. The letter is clearly marked "rescinded." Therefore, complainant has failed to establish any causal nexus between this letter and the adverse employment action.
Accordingly, with respect to complainant's allegation of whistleblower activity under the STAA, the June 15, 1998 and September 14, 1998 warning letters present material issues of fact that are inappropriate for summary decision, and the September 27, 1998 and January 26, 1999 letter present no issue of material fact and are appropriate for summary decision.
IT IS HEREBY ORDERED THAT respondent's motion to dismiss with regard to the October 13, 1998, September 27, 1998 and January 26, 1999 warning letters is GRANTED.
IT IS FURTHER ORDERED THAT respondent's motion to dismiss with regard to the January 14, 1999, June 15, 1998, and September 14, 1998 warning letters is DENIED.
ROBERT J. LESNICK
Administrative Law Judge
RJL/jbm
1 The following abbreviations have been used in this opinion: RX = Respondent's exhibits and CX = Complainant's exhibits.
2 Complainant was the driver of a commercial motor vehicle having a gross vehicle weight rating of 10,001 or more pounds used on highways in commerce to transport cargo and complainant was employed by a commercial motor carrier.
3 Respondent refers to the run as originating in Buffalo, New York. However, complainant acknowledges that West Seneca, New York is just outside of Buffalo, New York. This factual difference is not material as both parties agree that the route began around Buffalo, New York. This location will be referred to throughout this decision as West Seneca, New York to avoid any confusion.
4 As I understand the procedure concerning "the wheel," all drivers who are eligible to be called to work and are not currently dispatched are placed on "the wheel." As routes become available or necessary, drivers who are on "the wheel" are called to complete those routes.
5 Complainant's home is located between 20 and 26 miles from respondent's Copley terminal.
6 This prior claim was filed by complainant in March, 1998. The complaint was dismissed by Administrative Law Judge Gerald M. Tierney on May 11, 2000. An appeal of Judge Tierney's Order is pending before the Administrative Review Board.
7 In complainant's response to respondent's motion to dismiss, complainant alleges that a November, 1999 warning letter is also part of respondent's discriminatory activities. However, this letter is not mentioned anywhere else in the filings, including the complaint filed in this claim. As such, it will not be considered as a part of this recommended decision and order.
8 Respondent has made a motion to dismiss the complaint because the complainant has failed to produce evidence establishing a prima facie case of discrimination. I read this motion to be a motion to dismiss based on the complainant's failure to state a claim upon which relief can be granted. Thus, I will treat the motion as if it were so titled.
9 Part 18.41(2) provides that any final decision issued as a summary decision must comply with the requirements for all final decisions. As such, it must include findings of fact and conclusions of law, the reasons for those findings and conclusions, all the issues presented and any terms or conditions of the rule or order.