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Jackson v. Butler & Co., 2003-STA-26 (ALJ June 24, 2003)
U.S. Department of Labor | Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111 Veterans Memorial Blvd Metairie, LA 70005 (504) 589-6201 | ![]() |
Issue Date: 24 June 2003
In the Matter of
PHILLIP JACKSON
v.
BUTLER & COMPANY
Case No.: 2003-STA-26
Complainant
Respondent
This claim arises under Section 405 of the surface Transportation Act (the Act), 49 U.S.C. 31104. The Act protects employees from discharge, discipline or discrimination for filing a complaint about commercial motor vehicle safety and for refusing to operate a vehicle when such operation constitutes a violation of Federal motor vehicle safety regulations or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment.
The Complainant filed a complaint with the Secretary of Labor alleging that he was discriminatorily terminated in violation of the Act. Following an investigation of this matter, the Secretary of Labor, acting through her agent, the Regional Administrator of OSHA, issued findings on February 10, 2003, that his complaint was without merit. (ALJ 1). The Complainant requested a formal hearing, and on May 8, 2003, a hearing was held in Tallahassee, Florida, at which time all parties were given an opportunity to present evidence and arguments. This decision is based on the record made that day at that de novo hearing.
1. Whether the Complainant engaged in activity which is protected within the meaning of the Act; and
2. Whether any adverse action taken against Complainant was due to his engaging in protected activity.
1. Complainant is 62 years old. He started driving for Respondent trucking company on March 24, 1997.
2. Respondent is a trucking company engaged in interstate commerce.
3. Complainant's driving included hauling bulk industrial grade loads of materials such as clay, salt, lime and catalyst throughout the United States. He has never been charged with an accident or speeding ticket.
4. Complainant as a driver of a commercial vehicle with a gross weight in excess of 10,000 pounds, and Respondent as the owner of such vehicles both fall within the requirements and protection of the Act.
5. On Thursday, November 15, 2001, Complainant was dispatched to drive a load from Cario, Georgia, to the Shell Oil Refinery in Norco, Louisiana, and return to the Cario terminal.
6. Complainant departed Cario at approximately 7:00 p.m. and arrived in Norco at approximately 3:00 a.m. Following security check in and unloading, Complainant departed Norco at approximately 5:30 a.m.
7. Complainant testified that in order to avoid New Orleans morning rush hour traffic, he started his return trip immediately and drove east to Gulfport, Mississippi, arriving at approximately 7:00 a.m.
8. Respondent does not have a 24-hour dispatcher on duty. Consequently, when leaving Norco, Complainant used his Qualcomm (computer) to report his tank was empty, and before taking his mandatory eight hour rest break in Gulfport, Complainant testified he called, as customary, dispatch and left a voice message that he had delivered his Norco load and was commencing his break in Gulfport.
9. At approximately 10:30 a.m. Complainant was awakened by his Qualcomm with a message to call dispatch.
10. Upon calling dispatch, Complainant talked with Deborah Hawkins, and he was told to go to Avery Island, Louisiana, to pick up a load and deliver the load in Tifton, Georgia, by noon the following day.
11. Complainant stated that he advised Ms. Hawkins he would pick up the load, but he could not legally drive the hours required to make the noon delivery deadline.1 At this point Complainant testified Ms. Hawkins ordered him to return to the Cario terminal and call in before 5:00 p.m.
12. Upset over his conversation with Ms. Hawkins, Complainant testified he started his truck and began driving to Cario, only to have his Qualcomm advise him to stop until his break was completed.
13. At 4:30 p.m. Complainant called Ms. Hawkins. She advised Complainant he was fired and to remove his personal belongings from the truck after returning to the terminal.
14. Upon arriving at the Cario terminal, Complainant called the station manager, David Miller, who told Complainant not to worry and come back on Monday morning.
15. On Monday, November 19, 2001, Complainant returned to the terminal at Cario and met with the General Manger, Alicia Pinkerton. Ms. Pinkerton advised Complainant he was indeed fired for refusing the load. Complainant said he protested that he only said he could not make a delivery within the specified time.
16. Following his termination Complainant maintains that he immediately sought employment and began working for Celadon Trucking Services, Inc., as a driver, during January and February of 2002. He lost that job, and since July 2002, Complainant has driven for Arnold Transportation Services, but desires to be reinstated as a driver with Respondent because of the greater benefits.
17. Neither Deborah Hawkins, David Miller nor Alicia Pinkerton testified at the hearing. Lecial Eugene Hollis, a safety supervisor, and Sherry Guffey, a customer service representative and former dispatcher, were Respondent's only two witnesses.2
18. Mr. Hollis testified that he was told by Ms. Hawkins on November 16, that Complainant had refused a load, but was driving home "out of hours." Because drivers must be off eight hours following ten hours of driving, Mr. Hollis said he instructed Ms. Hawkins to tell Complainant to quit driving until his rest period was completed.
19. Ms. Guffey testified that where possible trucks should be kept loaded because it was not profitable to drive "empty miles." She said once a driver unloads, he should check with the dispatcher for another load.
20. Ms. Guffey agreed Complainant could not have made the noon delivery in Tifton, Georgia, from Gulfport, Mississippi, on the day in question. She also testified Ms. Hawkins was new to the job of dispatcher and was later returned to her usual job as a receptionist and ultimately terminated. While she "assumes" Complainant was terminated for refusing the load and then continuing to drive, Ms. Guffey readily admitted that she was not there and has no personal knowledge of what took place.
21. In addition to the testimony of Complainant's wife, Carol Jackson, who corroborated Complainant's feelings of being "lost", depressed and embarrassed over his termination, Complainant offered the expert testimony of Dr. Michael J. Piette, a PhD economist, who provided an opinion as the economic loss in wages, fringe benefits, and medical expenses Complainant has incurred since his November 16, 2001, termination. Dr. Piette's opinion is set out in detail as Complainant's Exhibit 50.
In 1982, Congress enacted §405 of the Surface Transportation Assistance Act, 49 U.S.C. §31104. This legislation was designed to promote safety on the highways by protecting employees from discriminatory action due to an employee's engagement in protected activity. Section 405 of the Act provides:
No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards or orders applicable to commercial motor vehicle safety or health, or because the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.
In this instance, Complainant, as a covered employee, has made out a prima facie case by showing that he could not have made the noon deadline delivery required of him without violation of a Federal Commercial Vehicle Safety Regulation, Standard or Order and was terminated as a result thereof. Of the necessary elements required of a prima facie case, the only one in dispute is whether Complainant was fired because of his refusal to meet the delivery deadline.
Inasmuch as Complainant was the only person to testify who has first hand knowledge about the events of that day, I find little choice but to accept his unrefuted sworn testimony that he did not refuse the load and was fired because he refused to meet a delivery deadline which would violate Federal regulations. See 49 C.F.R. §395(a)(1).
Granted, the Respondent has attempted to put forth legitimate, non-discriminatory reasons for Complainant's termination, but in the absence of any real evidence in support thereof, I find that Complainant has met his burden that Respondent's suggested reasons appear pretextual.
In its post-hearing brief, Respondent states that this case will be decided on (1) the contents of Complainant's and Hawkins' argument; (2) Respondent's policies concerning "deadheading" and dispatch of drivers; and (3) the grounds for Complainant's firing. As to the first, and despite Respondent's urging, there is but one version of "the argument," and it comes in the form of the sworn testimony of Complainant.3 As to the second item, while it stands to reason a trucking company does not wish to run empty trucks up and down the highways, as demonstrated by Complainant's Exhibit 9 it has been done many times by Complainant since 1997 for distances much greater than the trip he made on this occasion. As far as whether Complainant, as a practical matter, should have stayed close to Norco from 5:30 a.m. until dispatch opened at 8:00 a.m. on November 16, 2001, Complainanat testified he was dispatched to make the trip and return home, received no further dispatch and wished to avoid the morning traffic in New Orleans. However, even if he made an error in judgment, Complainant's testimony is unrefuted that he did not refuse to return to Louisiana, only that in doing so he could not make the delivery deadline.4
So what was the real reason for Complainant's termination? Despite Respondent's argument, the evidence offered at the hearing does not support a finding that it as because Complainant refused to pick up a load in Avery Island or because he intentionally violated an unwritten company policy by not remaining in Norco. No, based on the unrefuted testimony of the Complainant, the reason for his termination was his refusal to ignore his rest period by committing to a delivery deadline that would violate Federal regulations.5
Reinstatement is the favored remedy in a case such as this unless a showing is made that a normal work relationship is not possible or that the employee has an actual medical risk that prevents him from performing his former job. Since no such evidence exists in this case, and Complainant is desirous of his previous job, I find Respondent must reinstate Complainant to his previous position as a truck driver under the same terms, conditions and privileges as if he had not been terminated. In other words, no loss of seniority or benefits.
Complainant testified that in an attempt to mitigate his damages he started to search for new employment within a month of his November 16, 2001, termination; however, he was unsuccessful in obtaining employment until January 2002, when he started driving a truck for Celadon Trucking Services, Inc. A dispute arose with that employer, and Complainant was terminated in February of 2002. His next employment did not occur until July 2002, and he has worked for that employer, Arnold Transportation Services, at a rate equal to or greater than he earned with Respondent, since that time.
According to Complainant's expert economist, Dr. Piette, Complainant earned $34,763.00 with Respondent in the year 2001 until his termination on November 16. Annualizing that figure over a 12 month period, Dr. Piette opined that Complainant would potentially have earned with Respondent $39,652.00 for the whole of the year 2001, but since he was terminated his loss for 2001 was $4,889.00. For the year 2002, Dr. Piette again used Complainant's estimated earnings for the whole of the year 2001 ($39,652.00) and subtracted therefrom the $20,222.00 that Complainant earned for that year, demonstrating a loss of $19,430.00 for the year 2002.
I accept Dr. Piette's approach since his testimony went unrefuted; however, while agreeing with his estimation of Complainant's losses in 2001, for purposes of this case I do not agree with Dr. Piette's estimation for the year 2002.
Complainant worked with Celadon approximately three weeks. He testified he found the job two months after his termination and lost the job with Celadon the first week of February 2002. Therefore, it appears Complainant lost all wages for the first three weeks in January 2002, as a result of his termination by Respondent. Using Dr. Piette's annual earnings estimate of $39,652.00 divided by 52 weeks equals a loss of $762.54 each of these three weeks. Complainant's loss of wages, however, was mitigated by the middle of January 2002, when Complainant began working at Celadon. His earnings for his three weeks at that job was $1,418.07 (CX 25), and when divided by three weeks yields an approximate weekly salary of $472.69. Subtracted from his estimated weekly earnings with Respondent of $762.54, Complainant's weekly loss while working with Celadon was $289.85; and it is at this point in time and up until Complainant obtained employment with Arnold in July, 2002, that I depart from Dr. Piette's suggested method of calculating Complainant's loss wages.
Complainant has a duty to mitigate his damages, and Respondent was not an insurer of Complainant's future employment. Complainant's loss of his job with Celadon was the result of a dispute between Complainant and Celadon. It in no way involved Respondent nor any wrong doing on Respondent's part. Therefore, for the weeks that transpired following Complainant's termination in February 2002, until Complainant was employed with Arnold in July 2002, I find that the measure of Complainant's weekly loss of wage should be $289.85 (the difference between his earnings at Celadon and Respondent) not a total loss of his weekly wages with Respondent as suggested by Dr. Piette.
Based on the foregoing approach, I find, due to his termination by Respondent, Complainant lost wages of $4,889.00 for the year 2001 following his termination on November 16; $2,287.62 for the first three weeks of January, 2002, before his employment with Celadon, and $6,666.55 thereafter for the 23 weeks that transpired until his July employment with Arnold, all for a total wage loss of $13,843.17.
As to Complainant's losses under his 401K plan, which involved Respondent's matching contribution, Dr. Piette estimated Complainant's total loss to be $644.00. Dr. Piette explained that with his present employer, Complainant is not eligible for an employer contribution to his 401K plan until July 1, 2003. Consequently, he projected Respondent's 25 percent matching contribution on a year by year basis to demonstrate Complainant's loss following his termination on November 16, 2001. There being no evidence to refute this testimony, I adopt the same and add the figure of $645.00 to Complainant's wage loss, all for a total of $14,478.17.
Following Complainant's termination with Respondent, Complainant continued his health plan by participating in COBRA at a monthly out of pocket expense of $659.31 until he was eligible to start a health plan with Arnold in November 2002, following a 90 day waiting period. However, the plan with Arnold, unlike Respondent's plan, cost Complainant a weekly out of pocket expense of $45.00. The total of these direct losses, according to Dr. Piette's unrefuted formula, has been $7,804.00, with projected losses through 2004 of an additional $3,736.00.
While I accept Dr. Piette's unrefuted testimony concerning the actual and direct expenses resulting from Complainant's loss of Respondent's health plan, I am unwilling to project these losses through the year 2004 inasmuch as I have ordered Complainant's reinstatement. The hearing in this matter occurred on May 8, 2003, and seven weeks have transpired since that time with one remaining week in the month of June. Consequently, while I am unwilling to project Complainant's future loses through the year 2004, I do add to Complainant's actual losses 10 weeks at $45.00 per week for a total of $450.00, thereby increasing Complainant's direct losses to $8,254.00.
In addition to actual premium costs, Dr. Piette also testified that Complainant has incurred out of pocket expenses for medical care for himself and his disabled wife that were previously covered by Respondent's policy, but are no longer covered under Complainant's present policy.
As examples, Dr. Piette explained that Complainant's medical policy no longer pays for discounted mail order drugs, and he estimated that with the couples' medicine needs they now spend $336.00 per quarter or $1,344.00 per year for mail order drugs previously paid by Respondent's plan. Added to these costs are the expense of Mrs. Jackson's methadone which did cost $60.00 and now costs $120.00, all of which places on Complainant and his wife additional medicine expenses of $1,464.00 a year. In addition, Dr. Piette points out that Ms. Jackson sees a chiropractor at least 50 times a year, and where her cost was $8.31 per visit, it is now $27.00 per visit. Also, a monthly visit to her treating physician is now $32.50 per visit where it had been $20.00. Finally, Complainant uses a special rheumatoid arthritis drug called Remicade which while expensive did cost Complainant only $20.00 per treatment and now costs $650.00 approximately six times per year. In all, Dr. Piette placed the costs of these "indirect health plan losses" through the year 2004 at $13,382.00.
While Dr. Piette's estimates remain unchallenged, as with the medical health premium costs, I am unwilling to predict Complainant's future direct expenses given the fact I have reinstated him with his previous employer and with his previous benefits. Therefore, while I accept Dr. Piette's estimate of$3,277.00 actual losses, I am unwilling to accept as damages Complainant predicted future (through 2004) medical losses of $10,105.00.
In addition to Complainant's direct and indirect pecuniary losses, as discussed above, under the Act Complainant is also entitled to compensatory damages for such harms as humiliation and mental anguish or suffering caused him by his wrongful termination.
In this instance, both Complainant and his wife testified as to his stress and depression following the loss of his job on November 16, 2001, and how it affected their personal life and marriage. It is unrefuted that until Complainant found other employment he was moody, depressed and short tempered with a low self-esteem and sense of embarrassment compounded by financial concerns.
There is no formula for determining the value to be placed on Complainant's emotional suffering; however, since he ultimately found employment within two months and since I have attempted to make Complainant whole for his losses and since there is no medical evidence to support the degree and/or cause of his condition and since there is no evidence of an ongoing scheme or design on Respondent's part to harass Complainant or drive him from his employment, I find $4,000.00 to be adequate compensatory compensation in this instance.
The results in this case in large part have been achieved by the lack of evidence on Respondent's part, and, frankly, I am not certain I have a complete picture of Complainant's and Ms. Hawkins' discussion on November 16, 2001. The worst case scenario appears to be an inexperienced dispatcher who over reacted and has since been terminated. While this does not relieve Respondent of its liability, it does remove the intentional infliction of emotion harm from the equation and to some degree mitigates the circumstances. Also, Complainant has shown a propensity to argue with dispatchers, both before and after this event, and while the evidence here bodes in his favor, I am not without some questions about the events of November 16, 2001.
The Secretary of Labor has the authority to grant equitable relief in cases of this nature to abate retaliatory conduct on Respondent's part. In this instance, I require of Respondent that any mention of Complainant's November 16, 2001, termination be expunged from his personnel records.
It is hereby ORDERED :
1. Complainant shall prevail on his complaint as it pertains to his wrongful termination of November 16, 2001;
2. Complainant shall be reinstated to his previous position as a truck driver with Respondent under the same terms, conditions and privileges, with no loss of seniority or benefits, as if he had never been terminated;
3. Respondent shall expunge from Complainant's personnel records any reference to Complainant's termination of November 16, 2001;
4. Respondent shall pay to Complainant for loss wages as well as other direct and indirect losses and compensatory damages suffered by virtue of his wrongful termination the total sum of $30,509.17;
5. Respondent shall pay interest on the above sums as of the date of this ORDER at the rate provided by 28 U.S.C. §1961; and
6. Complainant's counsel shall have fifteen days from receipt of this Order in which to file a fully supported attorney fee petition and simultaneously to serve a copy upon opposing counsel. Thereafter, Respondent shall have ten (10) days from receipt of the fee petition in which to file a response.
So ORDERED this 24th day of June, 2003, at Metairie, Louisiana.
C. RICHARD AVERY
Administrative Law Judge
CRA:kw
1 Complainant testified at the hearing that he had just begun his eight hour mandatory rest period and that a return drive to Avery Island would take at least four hours, that washing out his tank would take two hours, loading at Avery Island would take another hour and his drive to Georgia would then be 11 or 12 hours. Added to this was the requirement of another mandatory rest period, all which he said made the noon deadline impossible to meet.
2 This matter was set for trial on May 8, 2003, by formal notice which issued on March 25, 2003. By fax received April 30, 2003, Respondent's counsel advised that he had just been retained and needed additional time to prepare a defense; however, because of the remedial nature of the Act, the fact Employer had chosen to delay the employment of counsel and over objection of Complainant, Respondent's Motion for Continuance was denied.
3 As far as Respondent's theory that Complainant wanted to get home to see a Florida State University football game on television, not only did Complainant deny the allegation but pointed out his truck was equipped with a television.
4 There is no evidence that Respondent's dispatcher made any effort to alter the delivery arrangements with the customer in order to allow Complainant to make a late deliver.
5 As far as Complainant's heat of the moment action in driving during his rest period following his argument with Ms. Hawkins, I find it to be impulsive behavior on his part and it was never suggested as a reason for his termination.