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Pugh v. Con-Way Southern Express, 2003-STA-27 (ALJ Aug. 19, 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: 19 August 2003
Case No.: 2003-STA-27
In the Matter of:
TERRY PUGH,
Complainant
vs.
CON-WAY SOUTHERN EXPRESS,
Respondent
APPEARANCES:
TERRY PUGH, Pro se,
4735 Tulane Road, North
Nesbit, Mississippi 38651
For Complainant
CARLA J. GUNNIN, ESQ.,
Constangy, Brooks & Smith, L.L.C.
Suite 2400
230 Peachtree Street, Northwest
Atlanta, Georgia 30303-1557
For Respondent
BEFORE: RICHARD D. MILLS
Administrative Law Judge
This case arises under the employee protection provision of the Surface Transportation Assistance Act of 1982, 49 U.S.C. §31105 (herein the STAA or Act) and the implementing regulations thereunder at 29 C.F.R. Part 24.
This claim is brought by Terry Pugh, Complainant, against his former employer, Con-Way Southern Express ("Con-Way"), Respondent. Mr. Pugh alleges that he was improperly terminated by Respondent in August 2002. This matter was referred to the Office of Administrative Law Judges for a formal hearing. On July 11, 2003, both parties were given the opportunity to offer testimony, documentary evidence, and oral arguments. The following exhibits were received into evidence1 :
1) Complainant's Exhibits Nos. 1-7;
2) Employer/Respondent's Exhibits Nos. 1-4.
After giving full consideration to the entire record, evidence introduced, and arguments presented, the Court makes the following Findings of Fact, Conclusions of Law, and Recommended Order.
After an evaluation of the entire record, the Court finds sufficient evidence to support the following stipulations:
(1) Respondent is a person within the meaning of 1 U.S.C. § 1 and 49 U.S.C. § 31105.
(2) Respondent is a commercial motor carrier and an employer within the meaning of 49 U.S.C. § 31105;
(3) Respondent is engaged in transporting cargo on the highways and maintains a place of business in Memphis, Tennessee.
(4) Respondent hired Complainant as a driver of a commercial motor vehicle in approximately 1990, to drive as an over the road truck driver in a truck with a gross vehicle weight rating of 10,001 pounds or more.
(5) Complainant drove Respondent's truck over highways in commerce to haul various materials, directly affecting commercial motor vehicle safety in the course of his employment.
(6) Complainant was discharged on or about August 9, 2002.
(7) Complainant timely filed a complaint with the Occupational Safety and Health Administration on September 19, 2002, alleging that Respondent violated 49 U.S.C. § 31105.
The unresolved issues in this proceeding are:
(1) Whether Claimant engaged in protected activity under the Act; and
(2) Whether Respondent took adverse employment action against Complainant due to this protected activity.
At the formal hearing, the Court received testimony from Terry Pugh (Complainant), Robert L. Bell, Jeff Kerbo, Charles Leeke, and Jamuel Johnson. The following is a summary of each witness's testimony.3
TERRY PUGH
Mr. Pugh became employed by Con-Way in April 1990. TR. 21. On June 21, 2002, Mr. Pugh began a process of dental care in which his teeth were extracted in anticipation of dentures. TR. 23, 26; CX-3. In furtherance of this procedure, Mr. Pugh had an appointment with his dentist on August 1, 2002. TR. 31-32, 40-41. Expecting to miss work after this appointment, Mr. Pugh testified that on the night of July 31, 2002, he placed a request for sick leave in his manager's box at work. TR. 32-34, 36-37, 60; CX-4. Mr. Pugh testified that he had submitted a sick leave request in this manner several times in the past. TR. 37-38, 59-60. Mr. Pugh testified that on the night of July 31, 2002, he also notified his night time supervisor, Robert Bell, that he would not be able to work August 1, 2002, because of his dentist appointment. TR. 38-40.
Mr. Pugh visited the dentist on the morning of August 1, 2002. TR. 31-32, 40-41. During that visit, Mr. Pugh was put on general anesthesia for the first 30 minutes and was provided Mepregan, a pain medication. TR. 41-42. Mr. Pugh testified that he took the Mepregan following his dental procedure, at about 11:00 a.m. TR. 42. He then went to bed. TR. 42. Mr. Pugh testified that he called Robert Bell at about 2:30 p.m. to confirm that Mr. Pugh did not have to work that night. TR. 42. According to Mr. Pugh, Mr. Bell indicated that Mr. Pugh had to work that night or Mr. Pugh would be terminated. TR. 43. According to Mr. Pugh, Mr. Bell did so despite Mr. Pugh's protests that he could not drive because he had been to the doctor and was given anesthesia and pain medication. TR. 43. Mr. Pugh explained that Mr. Bell informed him there were not enough drivers that night. TR. 43.
Mr. Pugh testified that he again called Mr. Bell at approximately 6:30 p.m. to inform Mr. Bell that he could not make it to work. TR. 44. Mr. Pugh testified that Mr. Bell again indicated that Mr. Pugh would be terminated if he did not come in to work. TR. 44-45. Mr. Pugh testified that he went into work that night at about 7:00-7:30 p.m. Mr. Pugh testified that although his mouth was swollen and in pain, he was safe to drive his truck. TR. 46, 62-64. Mr. Pugh testified that he was alert of everything around him and that his discomfort that night did not involve his brain. TR. 63. Mr. Pugh also testified that there was nothing about the vehicle that was unsafe and that he did not believe operating the vehicle that night would violate federal safety regulations. TR. 62.
According to Mr. Pugh, he had last taken pain medication at about 2:00-2:30 p.m. TR. 45. Mr. Pugh testified that the pain medication did not affect his ability to drive because he had stopped taking the medication 4� to 5 hours prior to his run. TR. 70-71. Mr. Pugh testified that he was not under the influence of medication the night of his accident. TR. 71. Although Mr. Pugh initially refused on August 1, 2002, to operate the truck, he did in fact operate the truck that night. TR. 62-63. According to Mr. Pugh, he did not refuse to drive because he was unsafe. TR. 63-64. Mr. Pugh testified that he instead refused to drive because he had been to the doctor and was hurting. TR. 63-64.
Mr. Pugh testified that while performing his run that night, he had an accident in Arkansas due to a blown tire. TR. 47. No one was injured in the accident, but the truck sustained damage. TR. 47-48. After the accident, Mr. Pugh was relieved of his duties until an investigation of the accident was completed. TR. 49. Mr. Pugh was ultimately terminated as a result of the accident on or about August 9, 2002. TR. 21, 50. According to Mr. Pugh, Con-Way believed the tire blowout did not occur until after Mr. Pugh's truck hit a guard rail. TR. 51, 70. Mr. Pugh appealed his termination to Con-Way's Employee Termination Review Board ("ETRB"), but his appeal was unsuccessful. TR. 50-51. Mr. Pugh testified that he was told by Con-Way management that he should not mention to the appeals board the fact that he was under a doctor's care the night of the accident. TR. 53, 67-68. Mr. Pugh understood that a preventable accident was grounds for termination in the transportation business. TR. 69.
ROBERT L. BELL
During the time of Mr. Pugh's dental work and truck accident, Mr. Bell worked for Con-Way as an Operations Supervisor. TR. 74. Mr. Bell testified that he originally did not schedule a run for Mr. Pugh on August 1, 2002, because he did not expect that Mr. Pugh would come in to work. TR. 75. Mr. Bell testified that Con-Way could have handled all the necessary runs on August 1, 2002, without Mr. Pugh's help. TR. 79-80. According to Mr. Bell, Mr. Pugh showed up at work that night and the runs had to be re-scheduled in order to accommodate Mr. Pugh. TR. 77-78.
Mr. Bell denied having a conversation with Mr. Pugh in which Mr. Pugh indicated that he could not drive because he had oral surgery and was under medication. TR. 83, 85. Mr. Bell denied telling Mr. Pugh that Mr. Pugh's job would be in jeopardy if Mr. Pugh did not go to work on August 1, 2002. TR. 78. Mr. Bell also denied being advised of a doctor's note for Mr. Pugh on August 1, 2002. TR. 79, 84. Mr. Bell testified that Mr. Pugh did not indicate to him that Mr. Pugh was unsafe to operate the vehicle in any way on August 1, 2002. TR. 79, 84.
JEFF KERBO
Mr. Kerbo has been the Director of Human Resources for Con-Way since December 1996. TR. 86. Mr. Kerbo testified that a preventable accident may be grounds for termination at Con-Way, depending on the severity of the accident. TR. 89. According to Mr. Kerbo, Con-Way's safety department determines whether or not an accident was preventable. TR. 89. If the safety department finds the accident was preventable, then the driver is suspended pending a review of whether the driver should be terminated. TR. 91. The termination review is handled by Mr. Kerbo's office. TR. 87-88, 91. Mr. Kerbo testified that the same process was conducted with respect to Mr. Pugh's accident. TR. 91. Mr. Kerbo testified that in Mr. Pugh's case, the Arkansas Motor Vehicle Collision Report regarding Mr. Pugh's accident was relevant along with the internal investigation conducted by Con-Way's safety department. TR. 89. Mr. Kerbo testified that other employees have been terminated as a result of a preventable accident. TR. 90-91.
CHARLES LEEKE
Mr. Leeke has been the Service Center Manager for Con-Way in Memphis, Tennessee, for the past five years. TR. 99. Mr. Leeke testified that he is the only person authorized to sign sick leave forms for Con-Way employees. TR. 105. Mr. Leeke testified that an employee may put sick leave requests in his box, but that he would make it a point to speak with that employee prior to approving the time off. TR. 103-04, 106. Mr. Leeke testified that he did not see the sick leave request supposedly submitted by Mr. Pugh on July 31, 2002, until the day before the hearing. TR. 103-04; CX-4. Mr. Leeke also testified that the sick leave request supposedly submitted by Mr. Pugh on July 31, 2002, was not the type of form being used by Con-Way during the beginning of August 2002. TR. 103-04; CX-4.
JAMUEL JOHNSON
Mr. Johnson testified that he has been Personnel Supervisor at Con-Way for the past 5 years. TR. 108. Mr. Johnson testified that when an employee wants to take sick leave, Mr. Johnson provides the employee with a sick leave form, on which Mr. Johnson records how many days the employee has been absent during the prior 12 months. TR. 109. Mr. Johnson testified that his handwriting was not on the sick leave form submitted into evidence by Mr. Pugh. TR. 110; CX-4. According to Mr. Johnson, the sick leave form submitted into evidence by Mr. Pugh had been used by Con-Way, but that version of the form had been out of use two to three years prior to Mr. Pugh's accident. TR. 110; CX-4.
Mr. Johnson testified that he talked with Mr. Pugh prior to Mr. Pugh's appeal hearing with the ETRB. TR. 111. Mr. Johnson testified that he told Mr. Pugh only what to expect from the ETRB, such as the procedure and participants involved. TR. 113. Mr. Johnson denied talking to Mr. Pugh about the fact that Mr. Pugh was under the care of a doctor on August 1, 2002. TR. 114-15.
The following findings of fact and conclusions of law are based upon the Court's observations of the appearance and demeanor of the witnesses at the hearing and upon an analysis of the entire record, applicable regulations, statutes, case law, and arguments of the parties. Frady v. Tennessee Valley Authority, 92-ERA-19, (Sec'y, Oct. 23, 1995) (Slip Op. at 4). As the trier of fact, the Court may accept or reject all or any part of the evidence and rely on its own judgment to resolve factual disputes or conflicts in the evidence. Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). To the extent that credibility determinations must be made, the Court bases its credibility findings on a review of the entire testimonial record and exhibits, with due regard for the logic of probability and the demeanor of the witnesses.
To prevail on an STAA retaliatory action or "whistleblower" complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under Section 31105. A complainant initially must show that he engaged in a "protected activity." Next, he must prove that it was likely that the adverse action was motivated by this activity. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 (11th Cir. 1987). The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The burden then shifts back to the complainant to prove that the proffered reason was not the true reason for the adverse action. St. Mary's Honor Center v. Hicks, 125 L.Ed. 407, 416 (1993); Moyer v. Yellow Freight System, Inc., 89 STA 7 (Sec'y, Oct. 21, 1993). Remedies available to prevailing STAA Complainants include affirmative action to abate the violation, reinstatement to the former position with the same pay, terms, and privileges of employment, compensatory damages with back pay, and reasonably incurred attorneys fees and costs. 49 U.S.C. §31105(b)(3).
I. PROTECTED ACTIVITIES
Under the Act, the complainant must initially show that he engaged in a "protected activity." A protected activity is established by proof that:
(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, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a vehicle because �(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition. 49 U.S.C. §31105.
In this case, the Court finds that Mr. Pugh has failed to establish that he engaged in a protected activity. First, there is no evidence of a safety complaint filed by Mr. Pugh, a safety-related proceeding initiated by Mr. Pugh, nor involvement by Mr. Pugh in any such proceeding. The only evidence in this case that remotely resembles the evidence required under the complaint prong of the Act is Mr. Pugh's testimony that he had notified Robert Bell on August 1, 2002 that he was unable to drive due to his dental procedure. TR. 43-44. Even if the Court accepted this fact as true,4 the fact establishes only that Con-Way treated Mr. Pugh improperly; it does not establish that Mr. Pugh engaged in protected activity. There is no evidence that Mr. Pugh took any action to complain or protest about any such impropriety. That is, there is no evidence that Mr. Pugh was disobedient to Con-Way as a result of any such impropriety. Such evidence is key to the Act in order to establish a basis for which an employer would retaliate against an employee.
Second, there is likewise no evidence that satisfies the refusal prong of the Act. Even accepting Mr. Pugh's testimony that he initially refused to operate his truck on the night of his accident, he did in fact operate the truck that night. TR. 62-63. In addition, Mr. Pugh testified that his initial refusal was not based on any unsafe condition with him or the truck, but instead was based on the fact that he had been to the dentist and his mouth was in pain. TR. 63-64. Mr. Pugh testified that although his mouth was swollen and in pain, he was safe to drive his truck. TR. 46, 62-64. Although Mr. Pugh had taken pain medication earlier in the day, Mr. Pugh testified that he was not under the influence of medication that night as the effects of the medication had worn off by the time he made his run. TR. 70-71. In short, there is no evidence in the record that satisfies the requirement that Mr. Pugh engaged in a protected activity prior to his termination at Con-Way.
The Court notes that Mr. Pugh also has not established that his termination was related to anything other than his accident in Arkansas. Both Mr. Pugh and Jeff Kerbo, Director of Human Resources for Con-Way, indicated that a preventable accident could be grounds for termination. TR. 69, 89. Con-Way produced evidence demonstrating that several other employees had been terminated because they were involved in preventable accidents. TR. 90-91; RX-2. As with the cases of the other employees, an investigation was conducted to determine whether or not Mr. Pugh's accident was preventable. TR. 91. Mr. Pugh's accident was determined to be preventable, based upon an internal investigation by Con-Way's safety department as well as the State of Arkansas' Motor Vehicle Collision Report, which indicated that no physical evidence supported Mr. Pugh's assertion that his tire blew out before hitting the guard rail. TR. 89-91; RX-1. Con-Way then evaluated whether Mr. Pugh should be terminated, concluding that Mr. Pugh's accident warranted termination. TR. 21, 50, 87-88. The Court finds credible Con-Way's delineation of the facts related to Mr. Pugh's accident and accident investigation. After considering Mr. Pugh's testimony and the other evidence in this case, the Court finds that Con-Way's proffered explanation for Mr. Pugh's termination was not a pretext for a discriminatory motive on the part of Con-Way. The evidence in this case weighs in favor of finding that Con-Way's termination of Mr. Pugh was related to Mr. Pugh's preventable accident and not to an illegitimate basis.
II. CONCLUSION AND RECOMMENDED ORDER
Mr. Pugh did not prove that he engaged in a protected activity. In addition, the evidence weighs in favor of finding that Mr. Pugh's termination was motivated by legitimate, nondiscriminatory reasons. As such, Mr. Pugh is not entitled to any remedy for his STAA claim.
Accordingly, the Court recommends that Mr. Pugh's claim be DISMISSED.
So ORDERED.
RICHARD D. MILLS
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 The following abbreviations will be used in citations to the record: CTX - Court's Exhibit, CX - Complainant's Exhibit, RX-Respondent's Exhibit, and TR - Transcript of the Proceedings.
2 TR. 10-11.
3 Exhibits will be cited to the extent they add to or differ from the witness's testimony.
4 According to Mr. Bell, Mr. Pugh did not indicate to him in any way that Mr. Pugh was unsafe to operate the vehicle on August 1, 2002. TR. 79, 84. The Court finds Mr. Bell's testimony credible. On the other hand, the Court finds that Mr. Pugh's testimony on this point is self-serving and unsupported by any other evidence.