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Eash Roadway Express, Inc., 2000-STA-47 (ALJ June 22, 2001)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 | ![]() |
Issue date: 22Jun2001
CASE NO.: 2000-STA-47
In the Matter of:
LARRY E. EASH
Complainant
v.
ROADWAY EXPRESS, INC.
Respondent
The undersigned issued an Initial Recommended Decision and Order Granting in Part and Denying in Part Respondent's Motion for Summary Decision ("Initial Decision and Order") on June 13, 2001. Since that time, it has been brought to the court's attention, that a reply brief was received from respondent, however, was not considered by this court due to an administrative error. In addition to respondent's pre-hearing submission, respondent submitted a copy of the Reply in Support of Respondent's Motion for Summary Decision. Considering that the Initial Decision and Order has already been issued, the submission of this reply will be considered a motion for reconsideration of the Initial Decision and Order.1
Respondent alleges that complainant's refusal to drive in hazardous conditions does not constitute protected activity, and as such, summary decision should be granted. In advancing this proposition, respondent alleges that the decision in Robinson v. Duff Truck Lines, Inc., 1986-STA-3 (Sec'y Mar. 6, 1987); aff'd sub nom. Duff Truck Line, Inc. v. Brock, 848 F2d 189 (6th Cir. 1988) does not apply to the above-captioned claim. Respondent states that the holding in Robinson applies only once the driver reaches the terminal or once the driver is driving in the hazardous conditions. Respondent also alleges that complainant cannot make a unilateral decision that it is unsafe to drive, and that the decision must be made between the employee and the employer together.
I disagree with respondent's reading of Robinson. The facts presented in Robinson are very similar to the facts presented in this claim. Some discussion of the facts present in Robinson is necessary. Robinson was scheduled to make his usual run when he observed snow and ice, making the roads dangerous. Robinson stated that the television reports advised against anyone driving on the highways due to the weather conditions. Robinson called the dispatcher for his employer and reported that he had no intention of making his scheduled run and that he was reporting himself off of duty. Robinson proceeded to tell the dispatcher that he could not pull his vehicle out of his driveway and that he did not believe it was safe to drive in the weather conditions. Robinson was told that if he did not report to work, that he would be considered to have resigned from his employment. Robinson did not report to work.
The Secretary for the United States Department of Labor ("Secretary") found that Robinson had engaged in protected activity. Respondent correctly states that the Secretary found that a reasonable interpretation of § 392.14 would apply "whenever a driver encounters hazardous weather conditions whether before his dispatch from the terminal or when he is on the road." Id. at 5. Reading this quote independent of the facts in Robinson would lead to the conclusion that respondent has drawn. However, reading the quote in connection with the facts presented in Robinson clearly indicates that the driver may invoke this protection before actually arriving at the terminal for dispatch. Such a reading of Robinson is justified by the Secretary's finding that Mr. Robinson had not reported to the terminal, yet was found to have engaged in protected activity.
Respondent is correct that the decision as to whether complainant would violate §392.14 by driving in the hazardous conditions is one that should be made jointly between respondent and complainant. However, when complainant refuses to drive because of hazardous weather conditions and respondent disagrees with that assessment, the determination of whether the activity is protected falls within the province of the fact-finder. The Secretary clearly stated in Robinson that when such a situation arises, "it is appropriate to examine the record evidence as to whether conditions during the period [complainant] would have been driving" create a hazardous condition making it unsafe to drive. Id. at 6. Therefore, whether such hazardous conditions existed, entitling complainant to the protection of the STAA, at the time of the refusal to drive becomes a question of fact for the fact finder. As such, summary decision is inappropriate as a genuine issue of material exists.
Respondent also alleges that summary decision is warranted on complainant's retaliation claim. Respondent states that complainant's "only real argument" for the warnings pertaining to tardiness and failure to follow instructions is that the warnings were "not merited." See Respondent's Reply Brief, p. 6. The allegation by complainant that the warnings were not merited creates an issue of fact as to whether the actions were pretextual. Complainant alleges that he was not late and that he was never given the instructions that he is accused of not following. The determination of the truthfulness of these allegations is a credibility determination that must be made by the court. Therefore, respondent is not entitled to summary decision on these issues.
IT IS HEREBY ORDERED that respondent's motion for reconsideration is DENIED.
ROBERT J. LESNICK
Administrative Law Judge
RJL:JBM
1 The undersigned has not addressed respondent's arguments regarding activities where summary decision was granted in the Initial Decision and Order. Considering that respondent's motion was granted, I do not believe that respondent wishes me to reconsider those aspects of the Initial Decision and Order.