DOL Home > OALJ > Whistleblower > Mason v. Potters Express, Inc., 1999-STA-27 (ALJ Nov. 1, 1999) |
Mason v. Potters Express, Inc., 1999-STA-27 (ALJ Nov. 1, 1999)
U.S. Department of Labor | Office of Administrative Law Judges 2600 Mt. Ephraim Avenue Camden, NJ 08104 (856) 757-5312 | ![]() |
DATE: November 1, 1999
CASE NO.: 1999-STA-00027
In the Matter of
CRAIG MASON
Complainant
v.
POTTERS EXPRESS, INC.
Respondent
Appearances:
Paul O. Taylor, Esq.
For Complainant
Brian S. Kremer, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act, hereinafter the "Act", 49 U.S.C. Section 31105 (1982); which prohibits covered employers from discharging or otherwise discriminating against employees who have engaged in certain protected activities.
Complainant filed his complaint on January 26, 1999, and on March 16, 1999, the Occupational Safety and Health Administration of the U.S. Department of Labor issued its investigate findings to the effect that the complaint had no merit (ALJ 1).1
Complainant requested a hearing on March 31, 1999 (ALJ 2) and an initial notice of hearing was issued on April 12, 1999 (ALJ 3) upon the April 9, 1999 assignment of this case to the undersigned. After one continuance (ALJ 6) the matter was tried on August 12, 1999 in Albany, New York. Briefs were filed by October 5, 1999.
49 U.S.C. Section 31105. Employee protections
Complainant asserts that Respondent dismissed him from its employ in violation of Section (a)(1)(B)(i) and (ii).
Whether Respondent fired Complainant in violation of the Act.
Under the burdens of proof and production in "whistleblower" proceedings, Complainant must first make a prima facie showing that protected activity motivated Respondent's decision to take an adverse employment action. Respondent may rebut this showing by producing evidence that the adverse action was motivated by a legitimate, non- discriminatory reason. Complainant must then establish that the reason proffered by Respondent is pretextual. At all times, Complainant has the burden of establishing that the real reason for his discharge was discriminatory. St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993); Thomas v. Arizona Public Service, Co., Case No. 89-ERA-19, Sec. Dec., Sept. 17, 1993, slip op. at 20.
In order to establish a prima facie case, a complainant must show that:
(1) he engaged in protected conduct; (2) the employer was aware of that conduct; and (3) the employer took some adverse action against him. Carroll v. Bechtel Power Corp, Case No. 91-ERA-0046, Sec. Dec., Feb. 14, 1995, slip op. at 9, citing Dartley v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-8. Additionally, the complainant must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Id. See also Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159, 1162 (9th Cir. 1984); McCuistion v. TVA, Case No. 89-ERA-6, Sec. Dec., Nov. 13, 1991, slip op. at 5-6. This inference of causation can be raised by the temporal proximity between the protected activity and the adverse action. Zessin v. ASAP Express, Inc. Case No. 92-STA-33, Sec. Dec., Jan. 19, 1993, slip op. at 13; Bergeron v. Aulenback Transp., Inc., 91-STA-38, Sec. Dec., Jun. 4, 1992, slip op. at 3. Williams v. Southern Coaches, Case No. 94-STA-44, Sec. Dec. Sept. 11, 1995.
The preponderance of evidence establishes that Complainant entertained a reasonable apprehension of serious injury to himself or the public by "bobtailing"2 in the weather conditions existent on January 22, 1999, and that such "bobtailing" might violate a United States' regulation related to commercial motor vehicle safety or health3 (Tr. 35, 37, 39, 45, 47; 129-133). Thus, Complainant is found to have engaged in protected conduct under the Act in his refusal to "bobtail". There is no question that Respondent's dispatcher (Ludwig) was aware of this conduct (Tr. 42; 130). Also, I find that Complainant was discharged by Respondent on January 24, 1999.4 On that date, Respondent's owner (Hunt), after Complainant's telephonic refusal to attend a meeting to discuss the problems surrounding his employment behavior (Tr. 175-8), advised Complainant that "...it's been nice knowing you..." (Tr. 178). Mr. Hunt readily acknowledged that Complainant had a job at Respondent "...right until 30 seconds before [this statement]" (id), that he wanted to tell Complainant that he was fired (id), that, after this telephone conversation, he did not expect Complainant to return to work (Tr. 212), and, that he had "...made up [his] mind that [Complainant] wasn't going to work [at Respondent] anymore" (id). This testimony clearly demonstrates the occurrence of employment action adverse to Complainant, a firing, a termination from employment.
I find that Complainant has established a prima facie case of discriminatory discharge.
The record evidence demonstrates that Respondent-employer has rebutted Complainant's prima facie showing and has overcome the inference of causation, as it has produced sufficient proof that the discharge of Complainant was occasioned by legitimate, non- discriminatory reasons.
First, Complainant, in his relatively short tenure at Respondent, had been the subject of violations of company policy and numerous customer complaints relative to poor job performance and customer relations (Tr. 149-161; 229-231). And, Hunt had continually discussed these problems with Complainant (156-7). Indeed, just prior to Complainant's discharge, there were several instances of customer complaints and discussions thereof between Hunt and Complainant (Tr. 61; 80-1; 85-8), with Hunt warning Complainant and encouraging him to correct his behavior, ending in Hunt's disillusioned realization that, on the heels of these discussions, a still further complaint was forthcoming (Tr. 159-60).5
Second, after his normal run and refusal to "bobtail" on the afternoon of January 22, 1999 (Tr. 38-42), Complainant left his tractor-trailer, still running, unparked in the yard, contrary to company procedure known to Complainant (Tr. 91-94; 221-22).6
Finally, Complainant refused to attend a meeting on January 24, 1999 with Hunt and Ludwig, arranged by Hunt to discuss the issues in contention surrounding Complainant's employment and to finalize Complainant's status, as promised Complainant the previous day (Tr. 101- 3; 172-178).7
Hunt and Ludwig credibly and convincingly testified as to the above events and circumstances. The January 23, 1999 conversation between Complainant and Hunt, secretly recorded by Complainant (CX 13), totally corroborates Hunt's state of mind and motivation in discharging Complainant, and includes Hunt's consistently repeated disclaimer that Complainant's refusal to "bobtail" had any bearing upon Hunt's then concern with Complainant's work performance, nor, inferentially, upon the later reached (intended but aborted) decision of a one-day suspension, nor, inferentially, upon the ultimate discharge.
I find that Respondent discharged Complainant for the legitimate, non- discriminatory reasons as set forth above, and Complainant has entirely failed to prove otherwise.
Complainant urges that the foregoing reasons for discharge should be seen as pretextual because: (1) Hunt viewed "bobtailing" as part of Complainant's job duties (Tr. 188-190), (2) Hunt appeared to support Complainant's position relative to the customer complaints, and (3) Ludwig told Hunt that Complainant refused to "bobtail" (Tr. 225), and did not tell Hunt that Complainant left his truck unparked and running in the yard.
But, the context in which Hunt noted that "bobtailing" was a regular part of the trucking business and truckers' duties, involved his dispute with the proposition (put forward by Complainant's expert - CX 7) that "bobtailing" should never occur in icy or
snowy conditions. There is no necessity, in logic, to extend this disputation to conclude that if Hunt's truckers refused to "bobtail", they would be fired! So too, that Hunt was sympathetic with Complainant's version of his efforts to deal with some customers, acknowledged that "...some...customers are difficult" and made attempts to be fair and just by sometimes backing up his truckers (Tr. 158; 204-5; CX 13), does not eliminate the negative impact of the (uncontroverted) fact that "[all other of Hunt's truckers] could get into and out of [Northeast Products'] yard...", but Complainant "...continually got stuck" (Tr. 158) - that Hunt felt the need to advise Complainant that he must "...stop fighting with the customers...stop pissing them off...[because]...Everybody can't be wrong. It's you" (Tr. 159). Complainant's argument in this regard confuses the fact of the numerous complaints about him with the would-be relative merits of the particular circumstances surrounding those complaints. Finally, there was an obvious need for Ludwig to tell Hunt of Complainant's refusal to 'bobtail" for background in revealing to him Complainant's having left his truck unparked and running (Tr. 162; 165; 227).
Respondent has failed to establish that the stated (and here accepted) reasons for terminating Complainant were pretextual.
I recommend the complaint be DISMISSED.
RALPH A. ROMANO
Administrative Law Judge
Camden, NJ
NOTICE: This Recommended 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, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. Section 1978.109(a); 61 Fed. Reg. 19978 (1996).
1 References to the record are: "ALJ" - Administrative Law Judge exhibits: "CX" as Complainant's exhibits: "EX" - Respondent's exhibits: "Tr," - transcript of trial.
2 Driving only the tractor portion of a tractor-trailer combination.
3 49 C.F.R. 392.14.
4 An inference of causation between this discharge and Complainant's protected activity is triggered due to the temporal proximity between the refusal to operate the vehicle (January 22, 1999) and this discharge date, Zessin, supra.
5Hunt's attempts to correct Complainant's behavior evidently "...went in one ear and out the other...". (Tr. 175).
6 Complainant's explanation/justification for leaving the truck in the yard running and unparked, i.e., he thought he had been fired by Ludwig because Ludwig told him to "go home" (Tr. 94; 97), is viewed, in its best light, as totally irresponsible, and, in its worst, disingenuous. Hunt's assumption that Complainant's anger provoked this behavior (Tr. 175; 191; CX 13), appears well-grounded.
7 Complainant's superiors, Hunt and Ludwig, were unable to execute their planned intention to "...jolt" Complainant (Tr. 174) and "...get [his] attention somehow" (Tr. 175) with a one day suspension and "...letter in his file" (Tr. 174). Complainant's unreasonable/arrogant refusal to attend this meeting (Tr. 175-178) effectively deprived his superiors of this management effort to salvage Complainant as an employee (Tr. 174).