DOL Home > OALJ > Whistleblower > Bushway v. Yellow Freight, Inc., 2000-STA-52 (ALJ Oct. 23, 2000) |
Bushway v. Yellow Freight, Inc., 2000-STA-52 (ALJ Oct. 23, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 | ![]() |
Issue date: 23Oct2000
CASE NO.: 2000-STA-00052
In the Matter of
DAVID L. BUSHWAY
Complainant
v.
YELLOW FREIGHT, INC.
Respondent
This proceeding arises 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 a motion for summary decision filed by the Respondent Yellow Freight, Inc. ("Yellow Freight"). The Complainant, David L. Bushway ("Bushway") has not filed any answer in opposition to Yellow Freight's motion, and I have concluded for the reasons set forth below that there is no genuine issue as to any material fact and that Yellow Freight is entitled to summary decision.
On January 20, 2000, Bushway filed a complaint with the Regional Administrator of the Department of Labor's Occupational Safety and Health Administration alleging that Yellow Freight had discriminatorily discharged him in violation of the STAA for complaining about the configuration (i.e., a low profile fifth wheel, undersized tires and trailer landing gear without adequate groung clearance) of a tractor/trailer unit he was required to operate. The Regional Administrator, acting as the agent of the Secretary of Labor, investigated Bushway's complaint. On June 26, 2000, the Regional Administrator issued Secretary's Findings which dismissed the complaint for lack of merit. By letter dated July 21, 2000, Bushway appealed the Secretary's Findings and requested a hearing on his complaint before an administrative law judge. After the matter was assigned to me, Yellow Freight moved for summary decision on September 29, 2000. Bushway, who was served with Yellow Freight's motion via Federal Express on September 29, 2000, has not filed any answer to the motion or requested an enlargement of the time frame for filing an answer.1
A. Material Facts Asserted by Yellow Freight
In its motion, which is supported by Bushway's testimony taken at a deposition2 as well as affidavits and documentary evidence, Yellow Freight states that it hired Bushway in 1986 as a full-time pick-up and delivery driver at its Williston, Vermont terminal where all hourly employees, including Bushway, are represented by the International Brotherhood of Teamsters. Over the course of his employment, Bushway was involved in 29 accidents while operating Yellow Freight equipment and was disciplined by Yellow Freight more than 60 times for various infractions. His prior disciplinary record includes the following actions:
(1) a suspension for a "road rage" incident on June 19, 1987 when he allegedly tailgated another diver while bowing his horn and shouting obscenities;
(2) a suspension for getting in a verbal altercation with the manager of a Yellow Freight customer because the manager did not have a hand truck, equipment that the driver is supposed to provide;
(3) a suspension for a July 10, 1991 accident where he struck an overhanging tree limb on a rural road, peeling off the top of his trailer and nearly hitting three children who were standing in their front yard by the roadside at the time of the accident;3
(4) a termination, which was subsequently reduced to a 30-day suspension by an arbitration committee, based on the tree limb accident and an August 13, 1991 incident where he allegedly sped through a construction zone, running over warning barrels and narrowly missing construction workers who were forced to dive out of the way;4
(5) a termination, which was later overturned because Yellow Freight had
neglected to pay him for accrued vacation time at the time of termination, for an incident where
he left work after refusing a light duty assignment and went to a health clinic where he allegedly
threatened to kill his supervisors on September 22, 1991;5
(6) a suspension for running into the building of a customer on November
4, 1996;
(7) a suspension for accidents on August 24, 1997 and December 3, 1997
in which he allegedly merged into occupied lanes, on each occasion wrecking an automobile;6
(8) a suspension for two accidents on January 30, 1998, one in which he
ran into a customer's overhead door and a second in which he struck a crosswalk light in
downtown Burlington, Vermont; and
(9) a termination, which was subsequently reduced by the arbitration
committee to a 30-day suspension and required attendance at a safe driving course, for alleged
"road rage" incidents on March 26, 1999 and April 1, 1999 where he cut off other
drivers and forced them off the road.7
On August 26, 1999, Bushway was assigned to drive a rented International
tractor. It is undisputed that this was the first time that he had been assigned to drive a rented
International tractor. While operating this unit, Bushway damaged the landing gear on his trailer
while backing up over a raised sidewalk. The following day, Yellow Freight's Williston
Terminal Manager, Ted Dunn, decided to once again terminate Bushway's employment. After
obtaining approval for this action from Yellow Freight's labor and human resources departments,
Dunn issued an intention to terminate letter on September 8, 1999. This letter, in relevant part,
states: "IN ACCORDANCE WITH ARTICLE 46 OF THE NORTHERN NEW
ENGLAND GENERAL FREIGHT SUPPLEMENT YOU ARE HEREBY DISCHARGED FOR
THE INCIDENT OF AUGUST 26, 1999 WHEREBY YOU EXHIBITED UNSAFE DRIVING
HABITS, AS WELL AS YOUR OVERALL WORK RECORD AND ACCIDENT
FREQUENCY." Pursuant to the terms of the applicable collective bargaining agreement,
Bushway continued to work while a grievance was processed over the proposed termination. On
January 20, 2000, the arbitration committee found against Bushway, and his employment at
Yellow Freight was officially terminated on that date.
On October 22, 1999, Bushway wrote to Yellow Freight's former president
protesting his proposed termination. In this letter, he characterized the August 26, 1999 accident
as a small incident which he blamed on the International tractor. He stated that he did not like
using the rented Internationals because they are lighter, have smaller tires and softer suspensions
have lower profile fifth wheels than the company's regular tractors, making the Internationals ride
closer to the ground. In this letter, Bushway also made numerous allegations against Yellow
Freight's Williston Terminal management such as engaging in nepotism, deliberately misloading
his trailers and having personal animosity toward him. At his deposition, Bushway testified that
August 26, 1999 was the first time that he had used the rented International tractor:
Deposition at 64-65. Bushway further testified at his deposition that there were a number of
things that he did not like about the International tractor, but none of these conditions were
violations of federal safety regulations:
Id. at 63. Rather, it is his contention that the rented International tractors should
only be used sparingly as they are not practical for Yellow Freight's business. Id. at 61-
62. Bushway similarly testified at his hearing before the Arbitration Committee that the
tractor/trailer unit that he drove on August 26, 1999, including the clearance of the landing gear
from the road, was not an unsafe condition. Motion for Summary Judgement, Exhibit 10.
B. Yellow Freight's Motion for Summary Decision
In its motion, Yellow Freight states that there are no issues of material fact,
that it accepts Bushway's version of events as true for purposes of its motion and that even
Bushway's version of events does not establish liability. Motion for Summary Judgement at 12.
Specifically, Yellow Freight contends that it is entitled to summary decision in its favor because
Bushway has not established a prima facie case of discrimination prohibited by the
STAA since his complaints about the International tractor are not protected by the STAA and in
any event could not have been a motivating factor in the decision to terminate his employment as
such complaints were not made until after the termination decision. Motion for Summary
Decision at 14-18. Yellow Freight further contends that, even assuming that Bushway had
established a prima facie case, his complaint nonetheless must be dismissed because he
can not rebut Yellow Freight's legitimate, non-discriminatory reasons for terminating his
employment. Id. at 18-19.
Under the Rules for Practice and Procedure for Administrative Hearings,
any party may "move with or without supporting affidavits for a summary decision on all
or any part of the proceeding." 29 C.F.R. §18.40(a). A party opposing the motion
may not rest on the mere allegations or denials of the motion but must "set forth specific
facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R.
§18.40(c). An administrative law judge "may enter summary judgment for either
party if . . . there is no genuine issue as to any material fact and [the] party is entitled to summary
decision." 29 C.F.R. §18.40(d). In evaluating a motion for summary decision,
"the judge does not weigh the evidence or determine the truth of the matters asserted, but
only determines whether there is a genuine issue for trial . . . If the slightest doubt remains as to
the facts, the ALJ must deny the motion for summary decision." Stauffer v. Wal-Mart
Stores, Inc., ARB No. 99-107, (ARB November 30, 1999), citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1985). Moreover, in determining whether a genuine issue of
material fact exists, the evidence and factual inferences must be viewed in the light most
favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986).
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), slip op. at 7, quoting Clean Harbors Environmental Services,
Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998). 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, OALJ Case No. 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. St. Mary's Honor Center v.
Hicks, 509 U.S. 502, 506-508 (1993).
Viewing the evidence in a light most favorable to Bushway, I do have
some doubt, albeit slight, as to whether Yellow Freight has shown that he did not engage in any
protected activity. It is noted that a STAA complainant need not refer to particular safety
standards in order to be protected. See Davis v. H.R. Hill, Inc., OALJ Case No. 86-STA-
18 (Sec'y March 1987), slip op. at 5-6; Nix v. Nehi-R.C. Bottling Co., OALJ Case No.
84-STA-1 (Sec'y July 31, 1984), slip op. at 8, aff'd sub nom Nehi-R.C. Bottling Co., Inc. v.
Donovan, No. 89-1951 (4th Cir. 1985). A complainant need only show that he reasonably
believed he was complaining about a safety hazard. Yellow Freight System v. Martin,
954 F.2d 353, 357 (6th Cir. 1992) (employee protected where complaint based upon possible
safety violation). See also Doyle v. Rich Transportation, Inc., OALJ Case No. 93-STA-
17 (Sec'y. April 1, 1994), slip op. at 4. While the Complainant did testify at his deposition that
his complaints about the International tractor did not involve any violation of federal safety
regulations and that the tractor was not an "unsafe condition", I am reluctant to
conclude in view of his pro se status that his complaints about the International tractor
are wholly unrelated to safety concerns. Accordingly, summary decision for lack of a showing of
protected activity would not be appropriate. See Schuler v. M & P Contracting,
Inc., OALJ Case No. 94-STA-14 (Sec'y December 15, 1994), slip op. at 2 (where it was not
clear from the record here why complainant refused to plead guilty to an overload citation, case
was remanded to ALJ with instructions to give complainant an opportunity to show that his
refusal to plead guilty to the overload citation was based in part on safety concerns). However,
even assuming for purposes of ruling on Yellow Freight's motion that Bushway did engage in
activity protected by the STAA when he complained about the International tractor, I conclude
that summary decision is warranted because it is undisputed that Bushway's complaints came
after Yellow Freight's decision to terminate his employment. Thus, he can not establish
the existence of a causal link or nexus between his protected activity and his termination, a
necessary element of a prima facie case.
The Complainant has not set forth specific facts showing that there is a
genuine issue for trial, I conclude that the Respondent is entitled to summary decision. I further
conclude, after viewing the evidence in a light most favorable to the Complainant, that he can not
establish a causal connection between any activity protected by the STAA and the Respondent's
decision to terminate his employment.
The motion for summary decision filed by Yellow Freight is
GRANTED, and the complaint filed in this matter is DISMISSED in its entirety.
DANIEL F. SUTTON
Administrative Law Judge
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 By letter dated October 4, 2000,
Yellow Freight's attorney informed Bushway, who is not represented by counsel, that his answer
to the motion would be due October 9, 2000 pursuant to 29 C.F.R. §18.40(a).
2 The transcript of Bushway's
depostion is appended to the motion for summary decision as Exhibit 1. References to the
transcript will be designated as "Deposition at __."
3 Bushway stated at his deposition
that he was not at fault in this accident because the state should have cut the tree limb.
4 Yellow Fright notes that
Bushway was arrested and tried for this incident, but he was found not guilty because the
construction workers could not positively identify him or the truck he was driving. However,
Yellow Freight further notes that its manifests and other evidence show that Bushway was the
only Yellow Freight driver in the vicinity when this incident occurred.
5 Bushway returned to work at
Yellow Freight in December 1995 after this termination attempt was overturned. At his
deposition, he initially denied that he had threatened to kill his supervisors. Deposition at 136.
However, when confronted with affidavits of two medical clinic nurses who stated that he had
made the threats, he at first testified that he did not remember what he had said at the clinic but
later claimed that the nurses had lied. Id. at 137, 140. However, he did admit that the
Sheriff's Department required him to turn in his firearms following this incident. Id. at
82.
6 Bushway asserted at his
deposition that the other driver had fabricated the allegations against him arising out of the
August 24, 1997 accident.
7 Bushway denied both incidents
and asserted at his deposition that Yellow Freight management had coerced the two drivers into
making false allegations against him.
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(A) the employee, or another person at the employee's request, 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.
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