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Coxen v. United Parcel Service, 2003-STA-13 (ALJ Apr. 27, 2004)
U.S. Department of Labor | Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 | ![]() |
Issue Date: 27 April 2004
CASE NO.: 2003-sta-00013
In the Matter of:
BRADLEY COXEN,
Complainant,
vs.
UNITED PARCEL SERVICE,
Respondent.
Appearances:
Bradley Coxen,
Pro se
Jessica Lee, Esquire,
Tanya Macallair, Esquire,
For the Respondent
Before:
Jennifer Gee
Administrative Law Judge
This matter is before me on a request by Bradley Coxen, the Complainant, for a hearing before the Office of Administrative Law Judges ("OALJ") under the employee protection provision of the Surface Transportation Assistance Act of 1982 ("Act" or "STAA"), 49 U.S.C. § 2305. The Complainant objects to findings issued by the Regional Administrator of the Department of Labor's Occupational Safety and Health Administration ("OSHA"), which dismissed a complaint he filed on May 21, 2002, alleging that the Respondent, United Parcel Service ("UPS"), violated § 405 of the STAA. Section 405 of the STAA provides protection from discrimination to employees who report violations of commercial motor vehicle safety rules or who refuse to operate a vehicle when such operation would be in violation of those rules. The OALJ has jurisdiction over this matter pursuant to 49 U.S.C. § 2305 and 29 C.F.R. § 1978.105.
I conducted a hearing in this matter in Colorado Springs, Colorado, on February 18 and 19, 2004. The Complainant and counsel for the Respondent all appeared and participated in the hearing on both days. At the hearing, the Complainant's exhibits ("CX") A1-9, B13, B16-22, B24-27, B31, C1, C3, C5-6, C8-10, C14-15, and D1 were admitted. The Complainant's exhibits A10-31, B1-12, B14-15, B23, B28-30, B32, C4 and C7 were excluded, and his exhibits C2, C11-13 were withdrawn. Respondent's exhibits ("EX") 3-13, 15-18 were admitted, and exhibit 14 was excluded. Respondent's exhibits 1-2 and 19 were withdrawn.
For the reasons set forth below, the Complainant's complaint is DISMISSED.
Factual Background
The Complainant was employed by the Respondent as a driver. On December 28, 2000, he had a verbal disagreement with his supervisor, Carl Dunn. When Mr. Dunn instructed him to go to work, he told Mr. Dunn that he was unable to operate his motor vehicle because he was lightheaded and queasy. (HT, p. 150.) Mr. Dunn did not believe the Complainant and instructed the Complainant to take a break and report back to him. (HT, p. 151.) After the Complainant took his break, he indicated that he still was not feeling well, but that he would go to work. Mr. Dunn then instructed the Complainant to leave work and go home. (HT, p. 151.)
When the Complainant returned to work on December 29, 2000, Mr. Dunn informed him that he could not work until he had obtained a release from his physician allowing him to return to work. The Complainant was unable to obtain a release from his doctor, and on January 3, 2001, Mr. Dunn instructed the Complainant to see the company doctor. (HT, pp. 153, 348.) On January 4, 2001, the Complainant saw the company doctor, who diagnosed the Complainant as suffering from situational hypertension and released him to return to work on January 5, 2001. (HT, pp. 154, 348.)
On December 30, 2000, the Complainant filed a complaint with OSHA alleging that he had been retaliated against by the Respondent for refusing to operate his motor vehicle on December 28, 2000, when he was lightheaded and queasy. (Stipulation1 of the Parties; EX 12.2 ) OSHA investigated the complaint and dismissed it on February 28, 2001, finding that no discrimination had occurred. (Stipulation.) OSHA specifically found that "in view of what transpired, it would have been reasonable for the supervisor to interpret that the Complainant was refusing to drive in the �heat of anger.'" (EX 13.)
The Complainant continued working for the Respondent through 2001. On April 23, 2002, while on workers' compensation, the Complainant delivered a note to Mr. Dunn, asking to be removed from the "feeder qualified list." (CX A1.) The Complainant's note stated the following:
Under article 3 of the contract, having been repeatedly discriminated against by Carl Dunn for the mere fact of being on the feeder qualified list, I Brad Coxen am requesting to be removed from said list. I am saddened by the fact that I must remove my name from this list as a defensive measure to prevent Carl Dunn from using my presence on this list as a reason to overlook language in our shared contract. I am further dismayed by these practices being overlooked and condoned by my union and supervisors above Carl in U.P.S., among these managers are Randy Johnson, George Brooks, Bill Norris, and Lori Razagholi. Carl has been allowed to lie, cheat and steal the dignity and respect away from others and myself that would normally be present working at U.P.S. Any one of these infractions would have terminated hourly careers but seemed to be overlooked in the management ranks.
The Complainant gave Mr. Dunn this note in the presence of Mark Dunlap, a union official. Mr. Dunn was offended by the note and told Mr. Dunlap that the note went beyond a request to be removed from the feeder list and that he felt the contents could be considered insubordination. He stated that he was going to forward the letter on and that discipline might be a possibility. (HT, pp. 340, 361.)
Mr. Dunn informed Randall Johnson, the Respondent's West Division Manager, of what had happened. Mr. Johnson asked Mr. Dunn to fax a copy of the note to him. After receiving the note and reading it, Mr. Johnson was upset because he felt the note was defamatory and inflammatory. (HT, pp. 380-81.) He also felt that the note was an antagonistic shot at Mr. Dunn and insubordinate, and that the Complainant was taking shots at management by naming management officials, including himself. He faxed a copy of the note to Lauri Rezagholi, the Respondent's District Labor Manager for the Rocky Mountain District. Mr. Johnson and Ms. Rezagholi discussed the note and decided to wait until the next day to decide on their course of action. The next day, Mr. Johnson and Ms. Rezagholi decided that the note was insubordinate and that the Complainant should be terminated for insubordination under Article 17 of the collective bargaining agreement. (HT, p. 269.) Mr. Dunn concurred in their decision. (HT, p. 340.)
On May 3, 2002, Mr. Johnson prepared a letter notifying the Complainant that he was being terminated effective immediately3 under Article 17, Section I of the labor agreement because his April 23, 2002, letter: contained "unprofessional and derogatory comments" towards his immediate manager, constituted insubordination, and violated the company policy and Article 37 of the National Master Agreement. (EX 4.)
On May 14, 2002, the Complainant filed a grievance challenging his termination. (EX 6.) The grievance was scheduled for a local hearing on May 21, 2002, pursuant to the collective bargaining grievance procedures. Mr. Johnson, Ms. Rezagholi, Mr. Dunn, the Complainant, and Chris Rodriguez, a union representative, attended the local hearing. At the beginning of the local hearing, Mr. Johnson asked the Complainant if he had a recording device. The Complainant said he did not have to answer the question. (HT, pp. 275, 383.) Mr. Johnson then asked everyone present if anyone had a recording device. Everyone except the Complainant responded "no." The Complainant refused to answer the question. (HT, p. 193, CX 15.) Ms. Rezagholi informed the Complainant that he did have to answer the question. He still refused. Mr. Johnson then told the Complainant that he was terminating the Complainant effective immediately. (HT, pp. 383-84, CX C15.)
After Mr. Johnson told the Complainant that he was terminated, the Complainant and Mr. Rodriguez left the hearing. Outside the hearing room, Mr. Rodriguez told the Complainant that he could go back into the hearing if he did not tape record the proceedings because there was an agreement between the union and the Respondent that the proceedings would not be recorded. The Complainant refused to agree not to tape the hearing. (HT, p. 208.)
On May 21, 2002, Mr. Johnson sent the Complainant a letter notifying him that pursuant to Article 17-I, he was discharged as a result of his insubordination earlier that day. (EX 7.) On May 21, 2002, the Complainant filed a complaint with OSHA alleging that he had been terminated in reprisal for the filing of his earlier OSHA complaint. (Stipulation.) The Complainant filed a new grievance on May 24, 2002, challenging his May 21, 2002, termination. (EX 8.) There was another local hearing about the Complainant's second termination. At this second hearing, the Complainant was asked again if he had a recording device and again refused to answer the question. Mr. Johnson then terminated the Complainant a third time, but he did not memorialize this termination in writing. (HT, p. 386.)
On December 11, 2002, the Regional Administrator for OSHA issued a decision finding that the Complainant participated in a "protected activity" when he filed his December 30, 2000, STAA complaint with OSHA and that management was aware of his complaint. However, the Regional Administrator dismissed the Claimant's May 24, 2002, complaint, finding that the evidence did not support a causal link between the Complainant's "protected activity" and his termination. The December 11, 2002, determination specifically stated that "based on the evidence on record, it is determined that the Complainant's alleged harassment and termination was not the result of his having filed a STAA complaint on December 30, 2001.4 It appears that, more than likely not, his discharge was for insubordination." (Stipulation; EX 11.)
Applicable Law
Section 405 of the STAA was enacted to encourage employees in the transportation industry to report noncompliance with applicable safety regulations governing commercial motor vehicles and to protect these "whistle-blowers" by forbidding the employer to discharge, or to take other adverse employment action, in retaliation for refusing to operate a motor vehicle that does not comply with applicable state and federal safety regulations or for filing complaints alleging such noncompliance. Brock v. Roadway Express, Inc., 481 U.S. 250, 255; 107 S.Ct. 1740, 1744 (1987); 49 U.S.C. app. § 2305(a), (b). The STAA protects three distinct types of protected activities: (1) safety-related complaints (either internal or external), (2) refusals to operate a vehicle when the operation of the vehicle would in fact violate Federal safety standards, and (3) refusals to operate a vehicle if (a) an employee has a "reasonable apprehension of serious injury to himself or the public" because of the unsafe condition of the vehicle and (b) the employee has unsuccessfully attempted to have his employer correct the unsafe condition. 49 U.S.C. § 31105(a)(1).
Under the burden of proof in proceedings under the STAA employee protection provision, in order to establish a prima facie case, the complainant must show by a preponderance of the evidence that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-9 (case under analogous provision of ERA). The complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 2.
However, where, as in this case, there has been a full trial of the matter and the Respondent has presented evidence of lawful reasons for terminating the Complainant, the question of whether the Complainant has established a prima facie case is moot, and the analysis of the facts can be limited to the issue of whether the Complainant has proven a violation of the STAA by a preponderance of the evidence. See USPS Board of Governors v. Aikens, 460 U.S. 711, 713-16 (1983). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Anderson v. Jonick & Co., Inc., 93-STA-6 (September 29, 1993). The Administrative Review Board ("ARB") specifically stated in Assistant Secretary & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998), that where the case has been fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. a full trial has been held. The relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. If he or she did not, it does not matter whether he or she presented a prima facie case. If he or she did prevail on the ultimate question of liability, whether a prima facie case was presented is irrelevant.
In this case, I find the Complainant has failed to show that his termination was in reprisal for his December 2000, STAA complaint to OSHA.
The Complainant Failed to Show that the Stated Reason for His Termination Was a Pretext
The Complainant pursued a number of theories to show that the stated reason for his termination, insubordination, was merely a pretext and that his termination was a retaliation for the December 2000, STAA complaint that he filed.
The Complainant was terminated under Article 17 of the collective bargaining agreement, which allows the Respondent to terminate employees for a number of stated reasons without requiring progressive discipline. Section I of Article 17, which was the specific basis for the Complainant's termination, allows the Respondent to terminate an employee for unspecified "other serious offenses." (EX 18.) Mr. Johnson and Ms. Rezagholi felt that the Complainant's April 23, 2002, note was inflammatory and insubordinate; violated Article 37 of the National Master United Parcel Service Agreement (EX 5), which requires employees to treat each other, as well as management, with dignity and respect; and was sufficiently serious to come under the "other serious offenses" provision of Article 17.
The Complainant argues that there is no definition of "insubordination" in any of the Respondent's company documents or in the collective bargaining agreement, implying that his conduct was not insubordination under the "other serious offense" provision of Section I of Article 17. The Complainant admitted on re-cross-examination that the state panel's role is to interpret the collective bargaining agreement. (HT, p. 259.) The state panel exercised its interpretive responsibility and agreed with Mr. Johnson and Ms. Rezagholi's opinion that "insubordination" included the use of derogatory language included in the Complainant's April 23 note, and that his termination under Section I, Article 17 was appropriate.
Other Drivers Had Asked to Be Taken Off the Feeder Qualified List with No Problem
Mr. Dunn, Ms. Rezagholi and Mr. Johnson all construed the purpose of the Complainant's April 23 note as a request to be taken off the feeder qualified list. (HT, pp 339, 381-82.) Even the Complainant, himself, admitted that his note was a request to be taken off the list. (HT, p. 177.) If the Complainant had limited his note to that request, there would have been no problem. Other employees had asked to be taken off the feeder qualified list with no repercussions. Victor White, another driver, also asked to be taken off the feeder qualified list. He did so by giving Mr. Dunn a letter dated July 7, 2001 (CX B24), stating:
As of August 18, 01, having completed my (3) yr feeder commitment, I am requesting my removal from the feeder qualified list.
UPS Pueblo management has been given ample time to fill the vacancy that this will create. As of Aug 18, 01, in my opinion, I have the contractual right to to [sic] refuse any work offered or forced upon me.
Mr. White was not disciplined for any of the statements he included in his July 7, 2001, letter. (HT, pp. 96-97.)
Mr. Johnson testified that other drivers have submitted requests to be taken off the feeder qualified list, and there was no termination action taken against any of those drivers, who all limited their written requests simply to requests to be taken off the list. (HT, p. 388.)
The Complainant's Note Was Not A Request for an Investigation
The Complainant pursued a theory that his April 23 note was mandated by the Respondent's policy requiring employees with concerns to communicate them to the company and to ask for an investigation into their concerns. He noted that one company document states that employees should use any means available to communicate their concerns and asserted that he did so by writing his April 23 note. He also asserted that he believed every comment to be true and that the letter was part of his duty to make disclosures required by the Respondent's Code of Business Conduct. (HT, p. 112; CX B27.) The Complainant argued that his letter to Mr. Dunn was very professionally written and pointed out that he used no expletives.
I am not persuaded that the Complainant's April 23 note was an effort to communicate his concerns about Mr. Dunn to the Respondent or that it was a request for an investigation into Mr. Dunn's activities.
The evidence offered by the Complainant shows that if he had offered evidence of illegal or improper activity by Mr. Dunn, the complaint would have been investigated, and there would have been no repercussions to him. In the mid-1980s, Bart Kovtynovich, another employee, reported his supervisor, Donna Pepper, to the Respondent for possible misuse of her expense account. (HT, p. 19.) He went to his division manager, Jim Deidel, presented Mr. Deidel with a folder of petty cash and disbursement receipts concerning Ms. Pepper, and told Mr. Deidel that he needed to look at the receipts. (HT, pp. 20-21.) Mr. Kovtynovich's information was investigated, and he was subsequently interviewed by the Respondent's district human resources manager and district loss prevention manager about his accusation and questioned about whether he had any personal animus towards Ms. Pepper. However, he suffered no adverse employment consequences as a result of his accusation. (HT, p. 22.)
In contrast to Mr. Kovtynovich, the Complainant did not ask for an investigation or provide any information that could establish a basis for an investigation. He merely launched into an attack on Mr. Dunn, accusing Mr. Dunn of lying, cheating and stealing, and accusing Mr. Johnson, Mr. Brooks, Mr. Norris and Ms. Rezagholi of condoning and overlooking Mr. Dunn's actions, without providing even minimal facts that could form the basis for an investigation.
Other Employees Were Terminated Under Article 17
The Complainant attempted to demonstrate that other employees who engaged in conduct that called for termination under Article 17 and had not engaged in activity protected under STAA were not terminated. His evidence did not support his claim. Instead, it showed that the Respondent did terminate other employees who engaged in conduct listed in Article 17 as the basis for immediate termination but that those terminations were later reduced as a result of the union grievance procedure.
Robert Martinez, a package car driver for the Respondent, had a rollaway accident while working for the Respondent. A roll away accident is a basis for termination under Article 17 of the collective bargaining. Mr. Martinez testified that after his accident, he was terminated by the Respondent and filed a grievance over his termination. Through the grievance process, he was reinstated, but was not paid for the time between his termination and his reinstatement. (HT, pp. 28-29.)
Gary Lucero, another driver for the Respondent, also had a rollaway accident in which his truck, which was parked on a hill while he was making a delivery, rolled backwards into a car. He testified that he was also terminated after the accident under Article 17, and filed a grievance concerning his termination. His grievance went to a hearing, and after the hearing, he was reinstated with a two-week suspension. (HT, pp. 82-83.)
The Complainant also offered the testimony of Thomas Brooks, another driver for the Respondent, who was involved in an accident with a Mercedes while delivering packages. Mr. Brooks hit the Mercedes when it came over a hill from his right after he had stopped at a stop sign and started into an intersection. His truck suffered minimal damage, and though the Mercedes was damaged, its driver was able to drive it away. Mr. Brooks testified that he lost no time or pay as a result of the accident. (HT, pp. 31-35.) However, there is no evidence to indicate that his accident was serious enough to require immediate termination under Article 17.
Ms. Rezagholi acknowledged that terminations are sometimes reduced during the grievance process. She explained that the Respondent looks at the employee's work history, whether or not there is any remorse for the conduct, and whether or not there is a change in behavior to decide if the termination should be reduced during the grievance process. Mr. Johnson identified two drivers, Justin Charter and Juan Olivaras, whose terminations under Article 17 for accidents, were reduced to suspensions. (CX B21 and B22.) He testified that at the local hearing into his grievance, Mr. Charter was very remorseful and offered to pay restitution for the damages he had caused. Mr. Charter was willing to spend his own time to study the safety manuals and offered to work additional hours to pay for the repairs. Mr. Olivarez similarly showed a lot of remorse at his local hearing. Both their terminations were reduced. (HT, pp. 389-90.)
In the Complainant's case, the Respondent saw a pattern of ongoing insubordination and behavior attitude problems that Mr. Johnson and Ms. Rezagholi felt were not going to change. (HT, p. 285.) Ms. Rezagholi pointed out that the May 21 local hearing was the Complainant's opportunity to convince the Respondent to reinstate him, and he failed to do that. (HT, pp. 285-86.) Instead, he persisted in his insubordinate activity.
Ms. Rezagholi's Reference to December 28, 2000, Incident Does Not Show Reprisal
In support of his argument that his 2000 OSHA complaint was a factor in the decision to terminate him, the Complainant points out that Ms. Rezagholi mentioned the December 28, 2000, incident during the state panel hearing and referred to an exhibit, CX D1, which described the time line surrounding the December 28, 2000, confrontation with Mr. Dunn. (HT, pp. 327, 329; CX B18.) Mr. Rezagholi adamantly denied that the December 28, 2000, incident was a factor in the Complainant's termination. She testified that the Complainant's termination was based solely on the April 23 note but that at the state panel hearings, it is customary for the Respondent to bring in anything else available to support a termination decision. (HT, pp. 278, 297, 327, 330-31.)
The transcript of the state panel hearing supports her claim. Ms. Rezagholi said at the state panel hearing that the April 23 note was the final straw that resulted in the decision to terminate the Complainant. At the state panel hearing, she explained that comment by referring to the Complainant's past conduct, saying: "I will enter the record just a few of the issues that support management's decision to terminate Brad's employment." (CX B18, p. 6, lines 19-21.) The December 28, 2000, incident was merely cited as one of a number of incidents that demonstrated the Complainant's poor attitude towards the Respondent's management.
There Were Other Means to Communicate Concerns to Management
The Complainant asserts that his note complied with the Respondent's Business Code of Conduct which urges employees to communicate their concerns to the company and to use any available means to do so. (CX B27, p. 4.) His note was not an effort to communicate concerns about Mr. Dunn. As discussed earlier, the purpose of the Complainant's April 23 note was to ask that he be taken off the feeder qualified list. (HT, pp. 177, 381-82.)
The Complainant filed complaints against Mr. Dunn and was well aware of the options available to him for filing additional complaints against him. The Complainant had available the Respondent's 800 number, which he used (CX C1), and the union's grievance procedure which he also acknowledged using to file grievances against Mr. Dunn and other supervisors. (HT, pp. 51, 116-17.) In addition, the Complainant acknowledged contacting other management officials directly, specifically, Bill Norris and George Brooks, whom he then included in his April 23 note. (HT, pp. 116-17; CX A1.)
Don Walters, another employee who also had complaints about Mr. Dunn, brought his complaints to the attention of Mr. Johnson. He discussed his concerns with Mr. Johnson, but in his own estimation, did not attack Mr. Dunn's character during his discussion with Mr. Johnson. (HT, pp. 201,203.) He testified on cross-examination that during his discussion with Mr. Johnson about Mr. Dunn, he focused on specific problems as opposed to making personal attacks. His conduct contrasts dramatically with the Complainant's non-specific attacks on Mr. Dunn. (HT, p. 205.)
The Second Termination Does Not Show Pretext
The Complainant also argues that the pretextual nature of his termination is shown by the fact that the Respondent terminated him twice,5 questioning how he could be fired on May 21, 2002, when he had already been fired. Ms. Rezagholi explained that an employee who has been terminated by the Respondent has the right to grieve the termination. The employee continues to work for the Respondent while the grievance is processed, but there is no amnesty for the employee between the termination decision and the conclusion of the grievance process that exempts the employee from being disciplined. (HT, pp. 267-68.) As a result, an employee can be terminated again, like the Complainant, for misconduct that takes place after the termination decision and before the completion of the grievance process. (HT, p. 268.) She noted that while multiple terminations were not the norm, they were common, and that she was in the midst of one such termination at the time of the OALJ hearing in this case.. (HT, p. 268.)
The State Panel Proceeding and Decision Was Proper
The Complainant also alleges that the improper handling of the state panel decision supports his claim that the stated reason for his termination was merely a pretext. The Complainant asserts that the Respondent and the union have an "innocent until proven guilty" policy and the Respondent was the moving party at the state panel hearing and had the burden of proof at the state panel hearing. When the state panel announced its decision, it said that the union's claim was denied. The Complainant argues that because the Respondent had the burden of proof, the decision should not have focused on the union's claim and the fact that it did focus on the union's claim showed that the entire proceeding was a pretext. (HT, pp. 142-43.)
The Complainant's argument makes no sense. Since the proceeding took place because the Complainant filed a union grievance challenging a decision to terminate him, it was the union's challenge that was being acted on and the Complainant's grievance and claim that would be either granted or denied. Moreover, the state panel's decision essentially found that the Respondent had met its burden of proof.
The Complainant withdrew from active union membership in January 2002, while he was on workers' compensation. (CX A9.) He also pursued a theory that since he was no longer an active member of the union, the state panel's decision affirming his termination was invalid because the panel was improperly constituted. His theory was that the state panel was supposed to consist of three members of management and three members representing the grievant, and the union could no longer represent him on the panel since he was not a union member.
I find no merit to this argument. Despite his withdrawal from membership in the union, the Complainant continued to file grievances with his union and was represented by his union steward. He even chose to present the note to Mr. Dunn in the presence of Mr. Dunlap, a union steward.
The Complainant's Good Faith Is Irrelevant
The Complainant also presented arguments that he had a good faith belief that Mr. Dunn had lied and stolen from him, pointing out that the Respondent's policy stresses that employees who communicate their good faith concerns about the company will not be disciplined. He repeatedly argued that it was his responsibility to report unethical or illegal conduct to the Respondent and that he could be terminated or disciplined under the company policy if he failed to do so. (HT, pp. 114-15, 120, 126-28.)
The Respondent's Code of Business Conduct (CX B27) says that it is each employee's responsibility to report violations of the law and that each employee can do so without fear of reprisal. The Complainant argued that the Respondent's policies protect good faith disclosures and pointed out that "good faith" does not require the person to be right and only requires that the person believe he or she is providing truthful information. (HT, p. 126.)
The Complainant claimed that he knew of two instances during which Mr. Dunn had stolen because on two occasions, Mr. Dunn had failed to pay him for time the Complainant spent in meetings with Mr. Dunn. (HT, pp. 70-72.) These were not instances of theft. They constituted a disagreement between the Complainant and Mr. Dunn as to the Complainant's entitlement to be paid for the time he spent in those meetings. More importantly, the Complainant filed grievances over those two incidents and lost. (CX B13; HT, p. 71.) The Complainant also alleges that Mr. Dunn lied to the OSHA investigator about the circumstances surrounding the December 28, 2000, incident. (HT, p. 62.)
The Complainant's alleged good faith belief that Mr. Dunn had lied and stolen is irrelevant to his retaliation claim. Respondent's management interpreted the note as a request to be taken off the feeder qualified list which included insubordinate attacks on Mr. Dunn and other management officials. Management officials then took what they felt was appropriate disciplinary action by terminating the Complainant's employment. The Complainant exercised his right to grieve his termination, but at the local hearing, when he had an opportunity to demonstrate his remorse and willingness to cooperate, he elected to refuse to answer repeated questions about whether or not he had a recording device, prompting his second termination.
The Complainant's Termination Was Not In Retaliation for His OSHA Complaint
Section I of the Supplemental Agreement to the National Master UPS Agreement with the Teamster's Union (EX 18), provides that employees can be terminated without warning for serious offenses. Article 37 of the collective bargaining agreement, entitled Management �Employee Relations, addresses how employees and the employer should treat each other. It requires employees and management to treat each other with dignity and respect. The Complainant acknowledged that this was an obligation of his employment with the Respondent. (HT, p. 183.) He also acknowledged that the May 3, 2002, termination letter he received referred to Article 37. (HT, p. 185.)
Mr. Johnson testified that he was upset about the defamatory and inflammatory remarks in the Complainant's April 23 note and he considered the note and the references in it to him, Ms. Rezagholi, Mr. Brooks and Mr. Norris, to be gross insubordination. (HT, pp. 380-81.) He also did not consider the Complainant's April 23 letter to be a complaint or request for an investigation. (HT, p. 387.) He, Ms. Rezagholi, and Mr. Dunn all considered it to be a request to be taken off the feeder qualified list with personal comments. (HT, pp. 339, 387.) Mr. Johnson noted that if the Complainant intended the note as a grievance, the Complainant knew how to file a grievance on a grievance form. (HT, p. 388.)
As discussed earlier, the note was not a request for an investigation or an expression about concerns. It lacked the specific information necessary for a reader to interpret it as a request to begin an investigation into Mr. Dunn's conduct. Management officials interpreted the note to be insubordinate conduct. Though insubordination is not defined in any of the Respondent's company documents or policies, or in the collective bargaining agreement, the state panel, whose role it is to interpret the collective bargaining agreement, agreed with the Respondent's opinion that the Complainant's conduct was insubordinate and warranted termination under the "other serious offense" language in Article 17.
There were other employees who were terminated under the provisions of Article 17 which call for immediate termination for certain types of conduct, but their terminations were reduced through the grievance procedure. Mr. Lucero testified that the Complainant's termination was the only termination that was not reduced during the grievance process (HT, pp. 82-83), but the Complainant's failure to demonstrate remorse for his conduct and his repeated refusal to answer the question about having a recording device at the local hearing provides an explanation for the different result. As Mr. Johnson testified, and as demonstrated by Complainant's own transcript of that exchange (CX C15), the Complainant's second termination at the local hearing was the direct result of his refusal to answer the question about whether he had a recording device. (HT, pp. 383-84.)
The STAA does not prohibit an employer from discharging a whistleblower where the discharge is not motivated by retaliatory animus. See, e.g., Newkirk v. Cypress Trucking Lines, Inc., 88-STA-17 (Sec'y Feb. 13, 1989), slip op. at 9; cf. Lockert v. United States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989). I find that that both of the Respondent's decisions to terminate the Complainant were not motivated by retaliatory animus.
Accordingly, it is ORDERED that the Complainant's May 24, 2002, complaint alleging that the Respondent violated § 405 of the Surface Transportation Assistance Act of 1982 be DISMISSED.
JENNIFER GEE
Administrative Law Judge
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 At the beginning of the hearing, the parties agreed to nine factual stipulations which will be incorporated into these findings.
2 Some of the Respondent's and the Complainant's exhibits were the same. To avoid references to multiple exhibits, where the exhibits were duplicated, I will only refer to the Respondent's exhibit number.
3 Under the collective bargaining agreement with the Teamsters Union, which represents Respondent's drivers, union members who are terminated but file grievances challenging their terminations maintain their "employee" status until their grievance has been decided by a labor-management panel. The labor-management panel, described as "the state panel," consists of three management and three labor representatives.
4 The OSHA December 11, 2002, Determination letter incorrectly referred to the Complainant's first OSHA complaint as being filed in 2001. It was filed in 2000. (Stipulation.)
5 Mr. Johnson testified that the Complainant was actually terminated a third time after he refused to answer the questions about having a recording device at the local hearing concerning his May 21, 2002, termination, but that he elected not to memorialize that termination in writing. (HT, p. 386.)