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Toland v. Keystone Freight Corp., 2003-STA-25 (ALJ Aug. 26, 2003)
U.S. Department of Labor | Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 | ![]() |
Issue Date: 26 August 2003
CASE NO.: 2003-STA-25
In the Matter of
DWIGHT E. TOLAND
Complainant
v.
KEYSTONE FREIGHT CORPORATION1
Respondent
Appearances:
Dwight E. Toland,
pro se
Catherine S. Ryan, Esq.,
For the Respondent
BEFORE: RICHARD A. MORGAN,
Administrative Law Judge
I. JURISDICTION
This proceeding arises under the "whistleblower" employee protection provisions of Section 405 of the Surface Transportation Assistance Act of 1982 [hereinafter "the Act" or "STAA"], 49 U.S.C. § 31105 (formerly 49 U.S.C. app. § 2305), and the applicable regulations at 29 C.F.R. Part 1978. The Act protects employees who report violations of commercial motor vehicle safety rules or who refuse to operate vehicles in violation of those rules.
Complainant, Mr. Dwight Toland (hereinafter "Toland"), filed a complaint of discrimination with the Department of Labor, under Section 405 of the Act, against Keystone Freight, Inc. (hereinafter "Keystone"), alleging he was discharged by respondent because he had voiced safety concerns over driving hours in excess of those permitted by law. The complaint was investigated by the Department of Labor and found not to have merit. On February 26, 2003, the Secretary issued her Findings dismissing the complaint. By letter dated March 16, 2003, Mr. Toland, representing himself, requested a hearing. A Notice of hearing was issued on April 4, 2003.
A hearing was conducted by the Honorable Richard A. Morgan, Administrative Law Judge, U.S. Department of Labor, in the above-captioned matter, on Tuesday, June 17, 2003 through Friday, June 20, 2003, in Columbus, Ohio. I found Mr. Toland, who has one year of community college, articulate, knowledgeable, and capable of self-representation. In their pre-hearing submissions, both the complainant and respondent joined the issue of whether Mr. Toland was discharged in violation of the STAA. A post-hearing brief was filed, August 15, 2003, by the respondent's counsel, Catherine S. Ryan, Esq., with Eugene K. Connors, Esq., on the brief. Mr. Toland did not submit a brief.
A. Stipulations
The parties agreed to, and I accepted, the following stipulations of fact (TR 15-21):
1. The respondent is a motor carrier engaged in commercial motor vehicle operations which maintains a place of business in Columbus, Ohio.
2. The respondent's employees operate commercial motor vehicles, in the regular course of business, over interstate highways and connecting routes, principally to transport cargo.
3. The respondent isand was a "person," as defined in the STAA, 49 U.S.C. § 31101(3).
4. The complainant was hired as an employee of the Respondent, on or about December 12, 2002.
5. During this period he was a "probationary" employee.
6. The complainant worked as a driver of a commercial motor vehicle with a gross weight in excess of 10,000 pounds used on the highways to transport cargo.
7. Mr. Toland, as a driver, operated over an air radius beyond 100 miles from the normal work reporting location.
8. On or about December 30, 2002, Mr. Toland filed a complaint with the Department of Labor, OSHA, under the provisions of the STAA.
9. The complaint was timely filed.
10. on or about February 26, 2003, the Area Director, OSHA, Deborah Zubaty, issued "Secretary's Findings" finding Mr. Toland's complaint to be without merit.
11. The Office of Administrative Law Judges, U.S. Department of Labor properly exercises in personam and subject matter jurisdiction to hear this matter.
Whether, under 49 U.S.C. § 31105(a)(1)(a), the respondent discharged, disciplined or discriminated against an employee, to wit the complainant, regarding pay, terms or privileges of employment, because,
He had filed a complaint related to a violation of a commercial motor vehicle safety regulation, standard, or order, (49 C.F.R. section 395.3 maximum driving times4 )? (TR 10-11).
The complainant was hired as an employee of the respondent commercial motor carrier, on or about December 12, 2002. All drivers are informed of Keystone's policies. (TR 76-81; RX B, C, D, E). He worked as a driver of a commercial motor vehicle, for Keystone approximately twelve days and was discharged on or about December 23, 2002. During that brief period, he was a probationary employee. All the respondent's employees are "probationary" for their first 90 days, under a collective bargaining agreement with the union. (TR 81-82, 84; RX F). John Dietz is NRS/Keystone's Terminal Manager, in Columbus, but is employed by NRS. Dispatchers Randolph and Dave Barnes work for him. Keystone uses a Qualcom satellite tracking system to track its trucks. (TR 137).
On his second day of work, Friday, December 13, 2002, Mr. Toland admitted he knowingly drove 11 hours, a violation of DOT's 10-hour rule. (TR 196-197, 259). This was discovered subsequent to his termination and Mr. Cluver was not aware of it. At the time he was within an hour's drive of the delivery destination and wanted to know whether to proceed. Prior to exceeding the 10-hour limit, Mr. Toland testified he queried Keystone's evening dispatcher, Mr. Randolph, about the company's policy on "fudging" and the latter told him, "You gotta do what you gotta do." (TR 186-187, 196). Mr. Randolph denied remembering either being asked or saying that and testified "we never ask our drivers to run over hours, never." (TR 179). Whatever, Mr. Randolph may have said, if anything, Mr. Toland testified that he interpreted it as showing the company did not care if he "fudged." (TR 197, 280-82). His experience is that companies don't care about drivers "fudging" until someone complains. (TR 198). According to Mr. Toland, "If you're not running you're not making the company money. [A]nd . . . you're not making yourself any money." (TR 198). He added, "if you don't do what a company wants . . . you'll be fired." Finally, he admittedly "fudged" his driver's log to accommodate the extra hours. (TR 282).
On the morning of December 17, 2002, at 12:16 A.M., after having driven a company truck from Keystone's Columbus, Ohio, terminal to Norridge, Illinois, and being on-duty eighteen hours, Mr. Toland's truck collided with an unoccupied, parked, car in a customer's parking lot.5 (TR 187, 256-258). Mr. Toland appropriately reported the accident. (TR 187, 226; CX 1). Mr. Barnes completed a company accident report which he forwarded to New Jersey. He did not mention Mr. Toland had offered to pay for the damage himself, raging from $500 to $2000. (TR 239, 251-52). Mr. Barnes testified that Mr. Toland had not mentioned anything about being overly tired or working too long, in relation to the accident. (TR 244). The documentation concerning the incident was submitted to Keystone's Accident Review Board, at its headquarters in North Bergen, New Jersey. ( RX G; TR 42). Mr. Cluver's testimony categorizing the no-injury accident as "severe" is an exaggeration. (TR 29).
The seven-member Accident Board, chaired by Mr. William Cluver, Keystone's Director of Corporate Safety and Loss Control, meets weekly to review all accidents during the previous week and determines the appropriate disciplinary action. (TR 75). In this case, the Board met December 23, 2002. (TR 42, 44). Based upon a review of the accident information, the Board decided Keystone would terminate Mr. Toland's employment based upon the incident, which it found preventable or "chargeable". (TR 88, 112). The Board did not have Mr. Toland's driver's logs and had no information about the amount of time he had driven related to the accident. (TR 91-92). The Board did not know the dollar amount of the claimed damages. (TR 29). Nor did the Board know of any safety concerns or complaints by Mr. Toland. (TR 92). The termination decision was made solely by the Board without involvement of Keystone's Columbus, Ohio, employees. (TR 70, 91, 182, 243-44). According to dispatcher Mr. David Barnes, the "termination" fax to Columbus was received on December 23, 2002. (RX P; TR 244-45). The evidence was conflicting regarding the actual date Mr. Toland was informed of his termination. (TR 68). Mr. Toland and Mr. Dietz both testified he was informed on December 26, 2002. (TR 66, 187-88). Mr. Barnes, who initially informed Mr. Toland, seemed to agree. (TR 236). Mr. Toland subsequently filed complaints with DOT and OSHA. Mr. Dietz testified he had no role in the termination decision other than to enforce it. (TR 65, 70).
Keystone routinely discharged probationary drivers following serious preventable accidents. (TR 115, 241). Following its decision, the Board faxed a letter to Mr. Barnes informing him that Mr. Toland's employment was terminated effective December 23, 2002. (TR 240; RX P). Mr. Barnes subsequently informed Mr. Toland, most likely on December 26, 2002, that he had been terminated. (TR 69, 188, 189). He also informed Mr. Toland that Mr. Dietz was trying to get his job back. (TR 189, 238). Mr. Dietz confirmed the termination in a telephone call to the complainant. (TR 66-67). Thereafter, Mr. Toland repeatedly called Mr. Cluver demanding an explanation why he had been discharged. (TR 36, 113). Mr. Toland admitted he had falsified his driver's logs, so Mr. Cluver instituted an audit.6 (TR 65, 114). The audit, conducted by Mr. Dietz, revealed irregularities and inconsistencies in Mr. Toland's log books. 7 (TR 27, 65, 70-71, 94, 99, 114; RX H). Mr. Toland admitted, at the hearing, he had falsified logs and driven in excess of permissible hours. (TR 293).
Although Keystone normally does not provide terminated probationary employees discharge letters, it did so at Mr. Toland's insistence and following the audit of his logs. (RX L; TR 36, 40-41, 113-114). The undated letter, signed but possibly not written by Mr. Cluver, and sent certified mail, on January 2, 2003, stated, "Your employment is being terminated for cause since you have violated the Federal Hours of Service Regulation by driving over hours and falsifying your logs, as well as having been involved in a preventable accident." (RX L; TR 35), 114. Mr. Cluver testified he was on vacation December 24, 2002 through January 2, 2003.
Although Mr. Toland had originally complained to OSHA that his excessive driving hours were part of the accident's cause, at the hearing he testified that he had not been fatigued and that "I show 10 hours driving and one hour on duty." (TR 250-251; RX H). Both Mr. Toland's personal driver's log and the one he provided the company confirmed that. Mr. Toland is familiar with DOT log book and driving time requirements, as well as Keystone's written policy about that. (TR 76-78, 253-254, 259-260; RX B).
Mr. Toland maintained two separate and different log books; one he submitted to the company and one he produced during pre-hearing discovery. (CX 5; RX A; TR 266-270, 275). They are inconsistent in several regards. (TR 263-64, 267-269, 274, 275-276, 278; CX 5). For example, his log for December 17, 2002, the accident trip, reflects he was sleeping in the truck's sleeper berth between 12:00 A.M. and 1:00 A.M.; he was not. (RX H; CX 5; TR104-105).
Following his discharge, Keystone discovered additional matters which it believes may have resulted in Mr. Toland's termination, including, that he falsified his log books, drove in excess of permissible hours, and may have lied on his employment application. (TR 94-100, 110, 285-90; RX H, K). Mr. Toland conceded he had provided incomplete and inaccurate information on his employment application by not reporting previous employers and the terms of his separation from them. (TR 284-92, 321; RX Q-T). He provided some justification pertaining to why he did not list certain information. Although I admitted evidence concerning Mr. Toland's post-termination behavior and the company's response, as well as his other STAA complaints and Keystone's DOT complaint, it played no role in this decision. (RX N; CX 17).
Mr. Toland has been a trucker for some fifteen years. (TR 185). Immediately before Mr. Toland worked for Keystone, he had worked for Arrow about five months. (TR 184). He testified that there he refused to violate "hours of service" regulations and was therefore fired for refusing to "fudge".8 He revealed some less than ideal, but nevertheless not unlawful, business practices by Keystone's local Columbus office. For example, he was given a fuel credit card in another driver's name that he was told to use to purchase fuel. (CX 2). However, he signed his own name when buying fuel. (CX 3). He showed Mr. Cluver had occasionally used the name "Mr. Klick" in telephone calls. (TR 27). Also, some errors appear to have been made on Mr. Toland's hiring paperwork and initial company orientation. (CX 12). Mr. Toland also believed it was Keystone's responsibility to find out everything about him before putting him into the drivers' seat. Keystone rebutted with evidence establishing that some background checks had been made. Additionally, Mr. Toland alleged Keystone had dispatched him on December 23, 2002, and December 24, 2002, when he lacked the hours to permissibly drive. (TR 190-192).
Mr. Toland ended his testimony admitting he had violated DOT regulations, falsified logs, and driven in excess of permitted hours. He added, that if Keystone had fired him for the accident right away, he would have accepted it. (TR 294). Most poignantly, Mr. Toland testified that when it came to the logs, he was "damned if he did (fudge) and damned if he did not." (TR 294). Mr. Toland testified that after his experiences with Arrow and Keystone, it will be very difficult to find trucking work. (TR 204).
A. STAA violations -- Overview
A complainant may recover under the Act under three circumstances:
First, by demonstrating that he was subject to an adverse employment action because he has filed a complaint alleging violations of safety regulations. 49 U.S.C. § 31105 (a)(1)(A). This provision of the Act provides specifically and in pertinent part:
(a) Prohibitions. -- (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because --(A) the employee . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, . . .
The U.S. Department of Labor (DOL) interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints has been found "eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman, ___ F.3d___, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998)(case below 95-STA-34). The Circuit Court of Appeals has stated internal communications, particularly if oral, must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. There is a point at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. Id. This is the only provision applicable in the present matter.
Second, by demonstrating that he was subject to an adverse employment action for refusing to operate a vehicle "because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C. § 31105(a)(1)(B)(i). This provision is admittedly not applicable to the case sub judice.
In such a case, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94 STA 55 (Sec'y Aug. 4, 1995). However, protection is not dependent upon actually proving a violation. Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992).
Third, by showing that he was subject to an adverse employment action for refusing to operate a motor vehicle "because [he] has a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition." 49 U.S.C.§ 31105(a)(1)(B)(ii). To qualify for protection under this provision, a complainant must also "have sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C. § 31105(a)(2). This provision is admittedly not applicable to the case sub judice.
In Byrd v. Consolidated Motor Freight, 97-STA-9 at 4-5 (ARB May 5, 1998), the Administrative Review Board (ARB), summarized the burdens of proof and production in STAA whistleblower cases:
A complainant initially may show that a protected activity likely motivated the adverse action. Shannon v. Consolidated Freightways, Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op. at 5-6. A complainant meets this burden 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, slip op. at 6; Kahn v. United States Sec'y of Labor, 64 F.3d 261, 277 (7th Cir. 1995). A respondent may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action and that the protected activity was the reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).
In a footnote to the above paragraph, the ARB provided further explanation on this last phase of the adjudication process:
Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant, throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by the 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, 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996) (whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).
Once the complainant satisfies these four elements, a rebuttable presumption of discrimination arises, and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. The burden shifting to the employer at that point is only to articulate a legitimate, nondiscriminatory, reason for the adverse action. The employer's burden at this point is one of production, not of proof.
With only one exception, the burden always remains with the claimant to establish the elements of his case: (1) protected activity; (2) a causal nexus between the protected activity and the adverse action; and (3) in response to employer's evidence of an allegedly legitimate reason for its action, evidence of pretext.9
The one exception to the claimant's burden of proof arises under the "dual motive" analysis: once the evidence shows that the proffered reason is not legitimate, and that the discharge was motivated at least in part by retaliation for protected activity, then the employer must establish by a preponderance of the evidence that it would have discharged the complainant independently of his protected activity. Faust v. Chemical Leaman Tank Lines, Inc., 93-STA-15 (Sec'y, April 2, 1996); Moravec v. HC & M Transportation, 90-STA-44 (Sec'y, January 6, 1992), slip op. at 12, n. 7.
Here, Mr. Toland has failed to establish a prima facie case. There was no refusal to drive. He established he suffered adverse an employment action; termination. However, he did not prove: (1) that he engaged in protected activity; (2) that the respondent was aware of any protected activity on his part; or (3) the existence of a "causal link" or "nexus," between any protected activity and termination.
With respect to his purported December 13, 2002, query about "fudging" DOT times; it was a query, if anything, not a complaint. Given his admissions against interest, I believe he did ask the dispatcher about proceeding contrary to the dispatcher's testimony. However, rather than adhere to DOT regulations, he drove on to the destination admittedly violating the time parameters and "fudged" his log. One can understand it was his second day on the job and given his perception of his experience at Arrow, he wished to both please his employer and avoid being fired. He must have felt he faced a Hobson's choice. When the dispatcher told him "sometimes you gotta do what you gotta do", Mr. Toland made the choice which left him without a remedy under the Act. The Act protects the law abiding. Moreover, it was not proven that the Accident Board, which decided to fire him, was aware of that matter.
Secondly, there was no evidence of any "protected activity" in relation to the events surrounding the parking lot accident. Mr. Toland confirmed the dispatcher's testimony that he never mentioned going over hours or being fatigued nor was he tired. Further, it was not proven that the Accident Board had knowledge of any concern about fatigue or driving over authorized hours. Keystone unquestionably established that it legitimately terminated this probationary employee solely because of the accident. It had routinely discharged hundreds of such probationary employees under similar circumstances. Given Mr. Toland's admissions, under oath, at the hearing and to Keystone about his logs and DOT violations, Keystone would have been justified terminating him on those grounds.
Finally, it is clear he was terminated before his OSHA or DOT complaints were submitted. The last letter from Mr. Culver, addressing the termination, merely memorialized what had already occurred on December 23, 2002, even if Mr. Toland was not informed, at the very latest, until the day after Christmas.
Mr. Toland has not established a prima facie case of any STAA violation. Even if he had, such as with his December 12, 2002, query, Keystone firmly established a legitimate nondiscriminatory basis for his termination, i.e., the accident, which was not rebutted. Mr. Toland's testimony reveals that truck drivers, particularly the newly hired, are sometimes caught between Scylla and Charybdis when it comes to DOT regulated driving times. If they do not occasionally "fudge" their logs and hours, they may displease their employer and risk discipline or termination, a difficult situation even given the remedial protections of the STAA. If, as here, they choose to "fudge", they lose protection under the Act; for it only protects the law-abiding. One can only hope that, contrary to Mr. Toland's perceptions, most employers do not place such Hobson's choices on employees. The evidence does not prove Keystone did. However, every trucking company, covered by the Act, must ensure every employee at each level clearly understands the law. Not only is "fudging" unlawful, it is not to be suggested. I do not find Mr. Toland's complaint frivolous.
It is Ordered that:
1. Mr. Toland's complaint is DENIED;
2. Keystone's prayer for costs is DENIED;
3. The only reason Keystone or NRS may give to others concerning Mr. Toland's termination is that he had an accident with a parked car while operating a Keystone truck.
4. If NRS or Keystone has provided other bases for the discharge it must make every effort to retract and correct that; and,
5. When asked about the basis for his termination with Keystone, Mr. Toland need only relate that it was due to a preventable accident with an unoccupied, parked, car.
RICHARD A. MORGAN
Administrative Law Judge
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 National Retail Systems ("NRS"), North Bergen, New Jersey, is Keystone's parent company. (TR 26, 63, 75).
2 References in the text are as follows: "ALJX ___" refers to the administrative law judge or procedural exhibits received after referral of the case to the Office of Administrative Law Judges; "CX __" refers to complainant's exhibits; "RX __" to respondent's exhibits; and "TR __" to the transcript of proceedings page and testifying witness' name. Mr. Toland's complaint against another respondent, Arrow Trucking Co., was dismissed with prejudice based on a settlement.
3 Mr. Toland essentially complained that had he not been compelled to drive over the mandatory limit on December 17, 2002, he would not have been involved in the automobile accident which was the primary basis for his termination. (TR 11). He confirmed he had never refused, in advance, to operate a vehicle. (TR 11).
4 § 395.3 Maximum driving and on-duty time
(a) ..., no motor carrier shall permit or require any driver used by it to drive nor shall any such driver drive:(1) more than 10 hours following 8 consecutive hours off duty; or(b) No motor carrier shall permit or require a driver of a commercial motor vehicle, ... , to drive for any period after --
(2) for any period after having been on duty 15 hours following 8 consecutive hours off duty;(1) Having been on duty 60 hours in any 7 consecutive days if the employing motor carrier does not operate every day in the week; or
(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates motor vehicles every day of the week.
5 Best Buy store.
6 The details concerning driver's log book completion are found at TR 78. Testimony concerning Keystone's compliance with DOT regulations is found at TR 36-37, 39-40, 76-78, 93, 99 and RX B and C.
7 The details concerning driver's log book completion are found at TR 78. Testimony concerning Keystone's compliance with DOT regulations is found at TR 36-37, 39-40, 76-78, 93, 99.
8 Other evidence indicates the reason for termination was insubordination. (TR 291).
9 In Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987), the court noted the addition of a fourth factor, i.e., that the employer knew of the plaintiff's protected activity. Id. at 229 n. 1.