DOL Home > OALJ > Whistleblower > Jackson v. Wyatt Transfer, Inc., 2000-STA-57 (ALJ Oct. 29, 2003) |
Jackson v. Wyatt Transfer, Inc., 2000-STA-57 (ALJ Oct. 29, 2003)
U.S. Department of Labor | Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 | ![]() |
Issue Date: 29 October 2003
Case No.: 2000-STA-00057
In the Matter of:
THEODORE R. JACKSON,
Complainant,
v.
WYATT TRANSFER, INC.,
Respondent.
This case arises under Section 31105 of the Surface Transportation Assistance Act of 1982 (STAA), 49U.S.C. § 2305 (hereinafter "the Act"), and the implementing regulations set out at 29 C.F.R. Part 1978 (2002). The Act and the regulations prohibit covered employers in the transportation industry from discharging or otherwise discriminating against employees who have engaged in certain protected activities. More specifically, the Act protects employees from discharge, discipline, or discrimination for filing a complaint about commercial motor vehicle safety, testifying in a proceeding regarding such safety, or refusing to operate a commercial motor vehicle when operation would violate a federal safety rule or when the employee reasonably believes it would result in a serious injury to himself or others.
Statement of the Case On May 24, 2000, Complainant, Theodore Jackson, filed a complaint with the Secretary of Labor alleging that Respondent, Wyatt Transfer, had discouraged him from reporting defects on Driver Vehicle Inspection reports and discriminated against him by forcing him to operate unsafe vehicles in violation of the United States Department of Transportation regulations. See 49 C.F.R. § 392.66and § 393.94.
The Regional Supervisory Investigator at the Occupational Safety and Health Administration (OSHA) sent a letter to Jackson on July 18, 2000 that acknowledged an informal settlement agreement between Jackson, Wyatt Transfer, and OSHA. On August 9, 2000, the Regional Administrator at OSHA dismissed the complaint based on a lack of merit under Section 405 of the Act. Jackson submitted a response to the Office of Administrative Law Judges on August 10, 2000 in which he objected to the administrative closing of the matter and denied participation in any settlement agreement. At that time, he requested a hearing before an Administrative Law Judge.
A formal hearing was held in Richmond, Virginia on December 19, 2000 and each party appeared pro se. All parties were afforded full opportunity to present evidence and arguments as provided in the Act.
In a recommended decision and order issued on May 24, 2001, the undersigned Administrative Law Judge denied payment for four lost days of work in October 2000 as well as reinstatement following dismissal. The complainant appealed and noted that witnesses were not sworn in at the hearing. The Administrative Review Board remanded the case for another hearing.
A second formal hearing was held on August 8, 2003. Each party appeared pro se, oaths were properly administered, and each party was afforded full opportunity to present evidence and arguments as provided in the Act.
On November 1, 2000, Mr. Jackson amended his complaint to allege that Wyatt Transfer had retaliated against him for filing Vehicle Inspection Reports by denying him the opportunity to work for four days. On November 15, 2000, the undersigned issued a pre-trial order indicating that the hearing would be limited to the loss of wages between October 16, 2000 and October 19, 2000.
At the hearing in 2000, the parties notified the Court that Wyatt Transfer had discharged Jackson on December 8, 2000. Jackson alleged that Wyatt Transfer discharged him in retaliation for filing complaints about commercial motor vehicle safety. Considering the seriousness of the employment action, the Court broadened the scope of the hearing to include the issue of Jackson's discharge and allowed the parties to testify about the matter.
Notwithstanding the possible lack of notice prior to the administrative hearing, due process is not offended if an agency decides an issue that the parties fairly and fully litigated at a hearing. When parties fully litigate an issue, they obviously have notice of the issue and have been given an opportunity to respond. This satisfies the requirement of administrative due process. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
Whether Respondent violated 49 U.S.C. § 2305(a) by withholding work from Complainant for four days in October 2000 or by discharging Complainant in December 2000.
Wyatt Transfer hired Mr. Jackson as a truck driver on December 7, 1998. (TrA at 5.) On May 24, 2000, Jackson filed a complaint with OSHA in which he stated that his employer forced him to drive tractors that emitted hazardous levels of carbon monoxide and noise. At that time, he stated, "I am afraid that if I refuse to drive these trucks, my employer will force me to quit or be fired." He also alleged that his employer discouraged him from reporting defects on Driver Vehicle Inspection reports. After investigating the complaint, the Secretary of Labor found that reasonable cause did not exist to believe that Wyatt Transfer had violated Section 31105(a) and/or (b) of the Act.
In his amended complaint, Jackson stated that he submitted a Vehicle Inspection Report on Friday, October 13, 2000, which documented a problem with the seat in truck 172. See. Report attached to Jackson's Motion to Amend Complaint).2 . He reported that the seat lacked a standard oscillation feature that helped to prevent back problems. (Id.; see also Cx. 1; TrA, at 29.). Jackson also testified that a driver could lose control of a vehicle if the seat did not have the shock absorption of an oscillating seat. (TrA at 30.). With the Driver's Inspection Report, he submitted a prescription from his doctor, dated October 9, 2000, requesting an oscillating seat because the non-oscillating seat in truck 172 caused Jackson to suffer increasing, escalating low back pain. (See Rx. 1; TrA 23.)
On Monday, October 16, 2000, Jackson reported to work at which time Mr. Chewning, who owns Wyatt Transfer, notified Jackson that he did not have a tractor for him to drive. (TrA at 8.). Chewning testified that he asked Jackson to meet with Mr. Coltrain, the maintenance manager at Wyatt Transfer, prior to returning to work. (TrA at 11-12; Rx. 1). According to Mr. Chewning, Wyatt Transfer tries to accommodate drivers' concerns by allowing the drivers to meet with its maintenance department. (TrA at 26). He wanted Jackson to meet with Mr. Coltrain to find a tractor with a suitable seat. (TrA at 23.). After speaking to Mr. Chewning on Monday morning, Jackson went home.3 (TrA at 9).
Mr. Jackson testified that he returned to work on Tuesday, October 17, 2000, and Mr. Chewning again stated that he did not have a truck for Jackson to drive. (TrA at 9). Chewning testified that Jackson could not return to work because he had still not spoken with Mr. Coltrain. (TrA at 11-12; Rx. 1) Jackson maintained that Mr. Chewning did not refer him to Mr. Coltrain on Tuesday, October 17.4 (TrA at 21). He stated that Chewning simply told him that he did not have a truck for him to drive on Tuesday. (TrA at 21.)
According to Mr. Chewning's notes, Jackson telephoned Mr. Coltrain on Tuesday about the truck. (Rx. 1.). After lunch on Tuesday, Mr. Jackson spoke in person with Mr. Coltrain and they determined that tractor 229 had a suitable seat. (TrA at 12, 24; Rx. 6; Rx. 1). Mr. Coltrain indicated that he and Mr. Jackson later agreed that the seat in tractor 207 would satisfy Mr. Jackson's needs and Mr. Coltrain supervised the installation of that seat into tractor 172 on October 20, 2000. (Rx. 6). Chewning testified that Mr. Coltrain and Mr. Jackson found only one tractor that had a suitable seat. (TrA at 25). Jackson drove tractor 229 on Wednesday, October 18, 2000, and Wyatt Transfer paid him for the nine hours that he worked. (TrA at 12, 21). After driving that tractor, Jackson completed a report on Wednesday afternoon in which he documented his exposure to fumes and loud noise. (TrA at 9, 12, 24). The Court notes that the October 18, 2000 Report has not been made a part of the record.
On Thursday, October 19, 2000, Jackson reported to work and Mr. Chewning told him that he did not have another truck for Jackson to drive that suited his needs. (TrA at 9, 12, 25). In his notes, Chewning indicated that he would "work on getting [Mr. Jackson] a tractor that might meet his needs." (Rx. 1). Chewning stated that it was his understanding that Jackson did not meet with Mr. Coltrain on Thursday. (TrA at 12). Mr. Jackson testified that he did not work on Friday, October 20, 2000. (TrA at 10).
According to Mr. Chewning's notes, Mr. Jackson reported to work on Friday and Mr. Chewning asked him to meet with Mr. Coltrain later in the morning to find another tractor that satisfied Jackson's concerns about fumes, noise, and driver's seat oscillation. (Rx. 1). Jackson testified that Mr. Chewning never explained to him during that four day period that he needed to meet with Mr. Coltrain. (TrA at 28). He testified that "Mr. Chewning's statement to me was that he had no tractor he could assign me to, and there [was] no work for me." (TrA at 28).
Chewning stated that Jackson had the opportunity "to meet with Mr. Coltrain at any point during the period in question to work out the details of finding a tractor that suited him to drive." (Rx. 2). He also stated that Wyatt Transfer operated 24 hours per day during that period, so Mr. Jackson could have worked at any point in time. (Rx. 2). After Jackson met with Mr. Coltrain, he could have "arranged with the Operations Manager the opportunity to work in any area of [the] trucking operation". (Rx. 2).
Jackson returned to work around October 23, 2000 and continued to work until December 8, 2000. (TrA at 28). Prior to his return, Wyatt Transfer installed a new seat in tractor 172. (Cx. 1). Jackson testified that he drove tractor 172 and did not have any problems with it. (TrA at 29). He also stated that he did not have any problems with trucks during the months of November and early December. (TrA at 30-31.)
At the hearing in 2003, there was extensive discussion as to the events during the week in October 2000.
Jackson testified that he was driving truck number 172 during the week prior to October 16. He had "written up" the truck as the driver's seat would not oscillate, contrary to restrictions assigned by his physician. The complainant stated that on the sixteenth and seventeenth, Chewning told him that the company did not have a truck for him to drive. (TrB 12).
The complainant stated that on Monday and Tuesday
there was no reason for Mr. Chewning to refer me to Mr. Coltrain on account of based on the DOT regulations. Anything that I need to know about that truck or have any questions concerning that truck should have been filled out and made to me on it, a return on the tractor itself. I mean, that's DOT regulations.
�I'm going by the rules because if I would happen to drive that truck, and I had an accident or something, and the truck has not been repaired, then that was because of one of my response of the truck itself. Because it was dangerous when the seat, when you are driving a truck and the seat doesn't oscillate, you go with the truck. And then you lose control of the truck. (TrB 12 & 13).
Chewning testified that,
On Monday, October 16th, Mr. Jackson was told to meet with Mr. Coltrain the maintenance manager about his concerns about the truck. On Tuesday, Mr. Jackson came in at 6:15 a.m. I asked Mr. Jackson if he'd met with Mr. Coltrain yet. His response was no.
I told him he could not work till he had met with Mr. Coltrain. On Wednesday, 10:18 of that week, Mr. Jackson worked a full day. I asked him if he'd met with Mr. Coltrain on Wednesday morning. He said yes.
On Thursday, 10-19, Mr. Jackson came in at 6:30. He reported the tractor 229 was not adequate for him to drive. I told Mr. Jackson I didn't have a truck that was adequate for him to drive on Thursday, 10-19.
He didn't work on Friday. Quite frankly, Sir, I don't have in my records why he did not work on Friday.
He did work on Monday, driving 172. Which had had another seat installed between Wednesday and Monday of the previous week. (TrB 15 & 16).
The respondent stated that he did to have a truck that suited Jackson on Monday or Tuesday. The complainant drove tractor 229 on Wednesday, and on Thursday he reported that the truck was not suitable. Chewning did not have a truck that was "suitable" on Thursday or Friday.
Jackson testified that he inspected every truck that he drove. He would fill out an inspection sheet even if the truck was all right.
None of the write-ups that I did on Mr. Chewning's vehicles was responded to through the write ups. If anybody had a problem or something they needed to see the driver, it should have been done through the DOT regulations.
Because after all, you write a truck up, you have a copy of your book. If you go out there and the DOT stops you and you're still driving that same truck, you can be held for driving a defective truck. Because you did not have adequate showing that the mechanics signed off on the truck, showing that the truck was safe to drive, or the write�ups were taken care of.
So I'd never gotten a report from the mechanic showing that that truck was safe to drive or anything. Mr. Chewning has a tendency to say that what I do on everything through write-ups. So anything that I have a problem with the truck, I write it up. And that's the way it's supposed to be done. And the write-up's supposed to come back before you drive the truck saying that it's okay to drive the truck. (TrB 18).
At the hearing in 2000, Mr. Jackson stated that he last worked on December 8, 2000. (TrA at 7) He stated, "they called me in after I worked a whole day and said that I had six points on my driving record and that they couldn't allow me to drive their trucks." (TrA at 7). According to Mr. Chewning, his insurance carrier asked him to dismiss Jackson and another driver because they had substandard driving records. (TrA at 32; Rx. 5). Chewning testified that he met with his insurance carrier earlier in the month of December at which time he pulled the driving records for all of his employees. (TrA at 32). The insurance carrier determined that Mr. Jackson's record was substandard because he received a reckless driving ticket and his driving license was suspended for approximately seven days in June 2000. (TrA at 32-33). Jackson admitted that he received a speeding ticket for reckless driving in his private vehicle on June 10, 2000.5 (TrA at 31). For the reckless driving ticket, he paid a $170 fine and received six points on his driving record. (TrA at 33). Mr. Chewning dismissed Mr. Jackson the day after the meeting with the insurance carrier.6 (TrA at 32).
Mr. Chewning stated that the company follows the advice of its insurance carrier to determine which drivers should be terminated because of substandard driving records. (TrA at 34). He stated that the insurance agent considers factors like the number of points and the type of ticket a driver receives. (TrA at 37). Mr. Joseph Webb, the insurance agent for Wyatt Transfer, indicated that his "carriers react most strongly to DWI or Reckless Driving and Providence Washington advises none is acceptable within 3 years." (Rx. 5). Mr. Chewning testified that the company considered Jackson a driver in good standing prior to its knowledge of the reckless driving ticket. (TrA at 38). His safety record was good at Wyatt Transfer and Mr. Chewning worked him every day that he could at Phillip Morris where Jackson had a local position. (TrA at 38-39). Although Mr. Chewning characterized Jackson as a "chronic complainer," he testified that he did not retaliate against Mr. Jackson for making numerous complaints. (TrA at 38-39). He stated that the insurance agent told him that he had to terminate Mr. Jackson if Wyatt Transfer wanted to keep its insurance in good standing. (TrA at 39).
The company manual states that drivers must notify the company upon receiving any ticket in a personal car; however, Mr. Jackson failed to notify the company when he received his reckless driving ticket. (TrA at 43.). The manual also references the need for drivers to maintain a clean driving record for continued employment. (TrA at 43). Although Mr. Chewning stated that the company provides new employees with the company manual and provides manuals to anyone upon request, Mr. Jackson stated that he never received it. (TrA at 43, 45).
At the hearing in 2003, the undersigned asked
Mr. Chewning, what led up to the dismissal?
MR. CHEWNING: I received a phone call from my insurance agent, Joe Webb. He informed me that two � � that DMV records were pulled on all of my driving employees. And that two people's driving records were inadequate for driving, and that those drivers needed to be removed from driving positions. As I am a trucking company, I don't have any other positions that truck drivers can do. So I let both of those drivers go. Mr. Jackson was one of those drivers. (TrB 23).
Jackson responded and stated that
after finding out that I had six points or more, I went to what they call voluntary driving improvement. And I had five points taken off. Five minus points taken off my driving record.
Which in that program, Mr. Chewning very well, if he was eager for me to have continue on having good relationship with him, I could have had the same opportunity to take those six points off my driving record in less than 24 hours prior to which would have left my record at minus one. (TrB 23). Jackson took the course in February 2001, and this reduced his points to minus one.
Chewning testified that he thought that Jackson had a good driving record until the insurance agent reported the six points to the company. The agent reported that two drivers had unsatisfactory records and that they needed to be removed from driving positions. (TrB 23). Jackson was dismissed as he was not insurable and as non-driving positions were not available.
Jackson alleges that Wyatt Transfer discriminated against him in violation of Section 405 of the Surface Transportation Act. The Act provides in pertinent part:
No person shall discharge, discipline, or in any matter discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because such employee...has filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order, or has testified or is about to testify in any such proceeding.
To establish a prima facie case of discrimination under the Act, Jackson must prove by a preponderance of the evidence that: (1) he engaged in protected activity, (2) that Wyatt Transfer was aware of the activity, (3) that he was subjected to adverse employment action, and (4) the existence of a casual 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, Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op at 5-6; Kahn v. United States Sec'y of Labor, 64 F.3d 261, 277 (7th Cir. 1995); Zessin v. ASAP Express, Inc., Case No. 92-STA-OO33, (Final Dec. and Order of the Secretary, January 19, 1993). The Court notes that both parties are pro se. While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp. Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
Once a prima facie case is established, the burden of production shifts to Wyatt Transfer to articulate a legitimate nondiscriminatory reason for its employment decision. If Wyatt Transfer rebuts the prima facie case, then Jackson may demonstrate that the proffered reason was a pretext for discrimination. Id.; see also Wrenn v. Gould, 808 F.2d 493, 500-0 1 (6th Cir. 1987); and Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., 783 F.2d 50, 54 (6th Cir.), cert. denied, 478 U.S. 1006 (1986).
Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of demonstrating intentional discrimination rests with Jackson throughout the proceeding. Where evidence of a dual motive exists, i.e., where there are legitimate reasons for a discharge in addition to unlawful reasons, Wyatt Transfer bears the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of Jackson's protected activity. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). Once Wyatt Transfer produces evidence sufficient to rebut the "presumed" retaliation raised by a prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-511 (1993).
Four Day Period
Jackson engaged in protected activity if he "filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard or order..." 49 U.S.C. app. § 2305(a). Internal complaints to management are protected activity in all Federal circuits under the STAA. Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994). Where the complainant in an STAA action makes complaints to his supervisor "relating to" alleged violations of Department of Transportation (DOT) regulations, these complaints constitute protected activity under the STAA even if the alleged violation is ultimately determined to be meritless. Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992) (citing Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept. 24, 1991), slip. op. at 6, n.3.).
In this case, Jackson argues that Wyatt Transfer discriminated against him because he filed a complaint with the Department of Labor. The complaint alleged that Wyatt Transfer violated Department of Transportation safety provisions relating to carbon monoxide and noise exposure. See 49 C.F.R. § 392.66 and 49 C.F.R. § 393.94. He also argues that Wyatt Transfer discriminated against him for filing various Driver's Inspection Reports with the company in which he documented a myriad of safety problems and concerns with the trucks he operated. Based on the foregoing information, Jackson established that he engaged in protected activity when he filed complaints relating to alleged violations of DOT regulations.
Jackson also argues that Wyatt Transfer subjected him to adverse action by withholding work from him for four days in October 2000. In Ass't Sec'y & Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995), the Secretary found that the complainant's uncontradicted testimony that the employer engaged in adverse action satisfied the requirement for his prima facie case. Applying the Secretary's reasoning, this Court finds that Jackson's testimony established the adverse action element of his prima facie case. Moreover, the record reflects that Wyatt Transfer was aware of the protected activity when it took the adverse action against Jackson.
Jackson must raise the inference that his protected activities motived the adverse action in order to make his prima facie case. The proximity in time between protected conduct and adverse action alone is sufficient to establish the element of causation for purposes of establishing a prima facie case. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989) (temporal proximity is sufficient as a matter of law to establish the final element in a prima facie case of retaliatory discharge); accord Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984).
On Friday, October 13, 2000, Jackson filed a Driver's Inspection Report for tractor 172 in which he documented the lack of oscillation in the driver's seat. When Jackson reported to work on Monday, October 16, Mr. Chewning informed him that he did not have a tractor available for Jackson to use. During the course of that week, Jackson missed four days of work because Mr. Chewning maintained that he did not have a suitable tractor available for Jackson. The Court finds the temporal proximity between Jackson's complaints and Wyatt Transfer's adverse action establishes the prima facie element of causation. Therefore, the Court finds that Jackson established his prima facie case.
However, Wyatt Transfer articulated a legitimate nondiscriminatory reason for its conduct that rebuts Jackson's prima facie case. Mr. Chewning testified that Jackson could not work for the four days in October 2000 because Wyatt Transfer did not have a tractor that satisfied Mr. Jackson's needs. On Monday, October 16, Mr. Chewning told Jackson to meet with Mr. Coltrain prior to returning to work to find a tractor with a proper seat. For some reason, Mr. Jackson did not meet with Mr. Chewning until Tuesday afternoon. As soon as possible after Mr. Jackson and Mr. Coltrain found a suitable tractor, Mr. Chewning allowed Jackson to resume his driving assignments. On Wednesday afternoon, Mr. Jackson documented noise and fume problems relating to the replacement tractor, which was the only other tractor available to Mr. Jackson that had a proper seat for him. Mr. Coltrain stated that he supervised the installation of a proper seat into Jackson's tractor on October 20 and Mr. Jackson resumed driving on October 23. Based on the foregoing information, the Court finds that Wyatt Transfer satisfied its burden of production and overcame the inference of causation in this case.
Therefore, Mr. Jackson bears the ultimate burden of demonstrating by a preponderance of the evidence that this legitimate reason is a pretext for discrimination. Although Mr. Jackson argues that Wyatt Transfer had trucks available for him to use during this four day period, there is no evidence in the record to support his contention. Wyatt Transfer allowed Mr. Jackson to resume working as soon as he and Mr. Coltrain located a tractor that accommodated his special seating requirement. Unfortunately, he could not continue driving that vehicle because of its documented problems with noise and fumes. Besides Jackson's bare assertion that other suitable trucks were available at that time, there is no evidence in the record that Wyatt Transfer had another tractor that satisfied Mr. Jackson's needs. Wyatt Transfer installed a suitable seat into Jackson's original tractor on October 20, 2000, at which point Mr. Jackson resumed work.
It is pertinent to note that tractors that met safety standards were available during that week. Jackson could have driven one of these vehicles but for his physical restriction requiring an oscillating seat.
The record reflects the fact that Wyatt Transfer treated Mr. Jackson's complaints seriously and acted to remedy the problems that Mr. Jackson reported. Therefore, this Court finds that legitimate, non-discriminatory reasons motivated Wyatt Transfer's actions and that the company did not withhold work from Mr. Jackson to punish him for filing safety complaints. As Jackson failed to meet his ultimate burden of establishing that Wyatt Transfer took adverse retaliatory action against him, the Court recommends that this complaint be dismissed.
Discharge
Mr. Jackson also argues that Wyatt Transfer discharged him in retaliation for filing safety complaints. Mr. Jackson engaged in protected activity by submitting Driver Inspection Reports to Wyatt Transfer and filing a safety complaint with the Department of Labor. Moreover, his discharge from Wyatt Transfer constituted an adverse employment action. The record reflects the fact that Wyatt Transfer was aware of Mr. Jackson's protected activity prior to his discharge in December 2000. The Court also finds that the temporal proximity between the Jackson's discharge and his protected activity raises an inference of causation. Therefore, the Court finds that Mr. Jackson established a prima facie case for retaliatory discharge.
However, Wyatt Transfer produced a legitimate, non-discriminatory reason that rebuts Mr. Jackson's prima facie case. Mr. Chewning testified that he dismissed Mr. Jackson because of his substandard driving record. Mr. Webb, Wyatt Transfer's insurance agent, stated that a reckless driving ticket within the last three years would not be acceptable to the insurance carrier. According to Mr. Chewning, the insurance agent stated that the company had to terminate Mr. Jackson and another drier if it wanted to keep its insurance in good standing. The Court finds that this legitimate, nondiscriminatory reason satisfies Wyatt Transfer's burden of production.
As stated above, Mr. Jackson retains the ultimate burden of persuasion in this case. Unless he can show that Wyatt Transfer's proffered reason is pretextual, then this Court must recommend dismissal of his claim. Mr. Webb's letter indicates that the insurance meeting that precipitated Mr. Jackson's dismissal occurred on December 11, 2000. Mr. Jackson argues that Wyatt Transfer dismissed him on December 8, 2000, which would indicate that Wyatt Transfer did not dismiss him because of problems with his driving record. He maintains that Wyatt Transfer discharged him in retaliation for filing safety complaints.
The relevant inquiry for this Court is whether Mr. Jackson prevailed by a preponderance of the evidence on the ultimate question of Wyatt Transfer's liability. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998). The record indicates that Wyatt Transfer notified Mr. Jackson on Friday, December 8, that it had a problem with Jackson's driving record and that Mr. Jackson last worked on that day. According to Mr. Webb's letter, he and Mr. Chewning discussed the driving records on Monday, December 11. Mr. Chewning testified that he terminated Mr. Jackson on the day after his meeting with the insurance agent. Despite Mr. Jackson's credible testimony, he has not established that Wyatt Transfer's reasons for terminating him are pretextual.
Jackson has alleged that Wyatt should have merely suspended him as the company was aware that a driver could attend a school and reduce his points. Chewning denied knowledge that such an event could occur. It is pertinent to note that six points stayed on the driving record until some 60 days after dismissal, when the Complainant took the course.
In light of Mr. Chewning's testimony and the other documentary evidence, this Court finds that Mr. Jackson failed to establish by a preponderance of the evidence that Wyatt Transfer discharged him in retaliation for filing safety complaints. Therefore, the Court recommends that Mr. Jackson's complaint be dismissed.
1. The Surface Transportation Assistance Act governs the parties and the subject matter.
2. Complainant demonstrated that he was engaged in protected activity when he filed safety complaints with his employer and with the Department of Labor under the STAA.
3. Complainant demonstrated that he suffered adverse employment actions when he was unable to work for four days and when he was dismissed.
4. Complainant demonstrated that Respondent had knowledge of his complaints at the time of the adverse employment actions.
5. Complainant presented sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action.
6. Respondent demonstrated legitimate non-discriminatory reasons for its actions.
7. Complainant failed to demonstrate that Respondent's articulated reasons for withholding work from Complainant and for Complainant's termination were pretextual.
On the basis of the foregoing, IT IS HEREBY RECOMMENDED that the complaint filed under the STAA by Theodore Jackson be dismissed.
RICHARD K. MALAMPHY
Administrative Law Judge
RKM/ccb
Newport News, Virginia
NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996)
1 The following abbreviations will be used as citations to the record:
Rx.- Respondent's exhibits;
Cx.- Complainant's exhibits; and
TrA Transcript of hearing in December 2000;
TrB Transcript of hearing in August 2003.
2 The Court notes that Mr. Jackson also filed a Vehicle Inspection Report on September 14, 2000, which referenced the seat problem in truck 172. (Cx. 1.)
3 Jackson testified that no one at Wyatt Transfer directed him to see Mr. Coltrain about getting another truck on Monday morning. (TrA at 10.)
4 Jackson admitted that he spoke with Mr. Coltrain about a truck; however, he did not recall talking to Mr. Coltrain on that day. (TrA at 22). He stated that he may have spoken to Mr. Coltrain on Wednesday afternoon. (TrA at 22,27).
5 He stated that he never had a citation, violation, or accident in one of the Wyatt Transfer's trucks. (TrA at 31).
6 Mr. Chewning stated that he also fired the other driver with the substandard driving record. (TrA at 32-33.)