DOL Home > OALJ > Whistleblower > Dalton v. Copart, Inc., 1999-STA-46 (ALJ Nov. 27, 2000) |
Dalton v. Copart, Inc., 1999-STA-46 (ALJ Nov. 27, 2000)
U.S. Department of Labor | Office of Administrative Law Judges 603 Pilot House Drive, Suite 300 Newport News, Virginia 23606-1904 (757) 873-3099 | ![]() |
Date: November 27, 2000
Case No.: 1999-STA-0046
In the Matter of:
CHARLES L. DALTON,
Complainant,
v.
COPART, INC.,
Respondent.
Appearances:
Robert S. Coffey, Esq.,
For Complainant
onica L. Goodman, Esq.,
For Respondent
Before: DANIEL A. SARNO, JR.
Administrative Law Judge
This proceeding arises from a claim filed under the Surface Transportation
Assistance Act of 1982 (hereinafter, "the Act"), 49 U.S.C. §31105.
A formal hearing was held in this case on May 10, 2000 in Tulsa, Oklahoma.
Charles L. Dalton (hereinafter, "Complainant") offered Exhibits CX-1 through CX-12.1 Copart, Inc. (hereinafter
"Respondent") offered Exhibits RX-1 through RX-26. All were admitted into
evidence2 (Tr 19-20, 76). Both parties filed
post-hearing briefs. The findings and conclusions which follow are based on a complete review of
the entire record in light of the arguments of the parties, applicable statutory provisions, regulations,
and pertinent precedent.
INTRODUCTION
A. Procedural History
Respondent employed Complainant from January 11, 1999 until March 4,
1999 as a "salvage hauler3 " (Tr
92-3). Complainant alleges that Respondent terminated him because he refused to drive a truck
which posed a danger of death or serious injury to himself or the general public, in violation of the
Act (RX-25). Complainant filed a complaint with the United States Department of Labor
(hereinafter, "USDOL") (RX-25). Randall Koonce, the USDOL Investigator assigned
to the case, conducted an investigation (RX-25). The Secretary of Labor reviewed the investigation
and issued Findings dismissing the complaint as meritless (RX-25). Accordingly, Complainant
timely objected to the Secretary's Findings and requested a hearing on the record (RX-25). The case
was assigned to Daniel A. Sarno, Jr., Administrative Law Judge, for hearing (Tr 3).
B. Case Participants
Larry Glass is a former co-worker of Complainant while he was employed by
Respondent (Tr 28). Glass and Complainant were also co-workers at Alliance Transportation4 (Tr 26).
Joey Tipton is an employee of Industrial Splicing (Tr 62).
Bill Vincent is an employee of Industrial Splicing (Tr 78).
Dan Cupp was the Yard Manager for Respondent and Complainant's
immediate supervisor (Tr 133).
Craig Gille is the General Manager for Respondent and Cupp's supervisor (Tr
244).
Jim Powell is the National Fleet and Safety Manager for Respondent (Tr 267-
8).
Scott Butts was hired as a driver for Respondent after Complainant's
termination (Tr 215).
Keith Mitchell is the Service Manager for Frontier International5 (hereinafter, "Frontier") (Tr 226).
Sharon Fair*6 is the
Human Resources Manager for Respondent's Western Division (Tr 204).
Thad Rodgers* is the Fleet Manager for Respondent's Western Division (Tr-
250).
Gerry Waters* is employed by Respondent (RX-14).
Rick Caudle* is employed by Ramsey Winch Company (RX-26).
Randall Koonce* is the USDOL Investigator assigned to Complainant's case
(RX-17).
Respondent and Complainant stipulated to7 and I find the following facts:
Respondent made the following admissions at trial:8
A. Testimony of Complainant
Complainant worked for Respondent from January 11, 1999 until March 4,
1999 as a salvage hauler (Tr 92-3). Complainant testified that he was CDL licensed in 1990, and
owned his own wrecker service for about three years (Tr 93). He described himself as "very
familiar with the hookup and operation of cable, fasteners, eye hooks, latches, bottles, [etc.]"
(Tr 93).
On the early morning of March 4th, Complainant reported to Frontier to pick
up his truck,9 but the vehicle was not finished
(Tr 93-4). Frontier told Complainant that his truck would be ready around 10 AM, so he left (Tr 95).
He reported to the yard to tell Cupp, the Yard Manager, that the brakes were not completed (Tr 95).
He also told Cupp that the truck's cables, leaking winches, and leaking rams10 were not being repaired11 (Tr 95). He told Cupp that the "truck
is unsafe . . . . The cables were written up even on . . . the 4th of the previous month [February], from
corporate themselves" (Tr 95). Cupp replied that "the brakes [will be repaired], but
we're so backlogged, we've got vehicles to go get, we have to get them in here" (Tr 96).
Complainant replied, "I don't think it's safe. . . . This thing has been pushed to the limit . . . .
These cables are going to snap anytime" (Tr 96, 104). He explained that he "had reached
[his] limit," and was scared (Tr 104-5). Cupp then asked Complainant if he wanted "to
clean out cars or . . . go home" to wait (Tr 98). Complainant explained that Frontier was
"not going to fix the other safety problems that I think . . . could harm me bad,"so he
would wait to see what repairs were made (Tr 98). Cupp replied, "No. We've got too much
to go and get" (Tr 98). Complainant then reiterated that he did not want to clean out vehicles,
but would wait to see what repairs Frontier made to the truck (Tr 98).
After this exchange, Complainant went to the truck stop, where he saw Larry
Glass (Tr 97). He told Glass that he was going to call Mr. Gille, the General Manager of the Tulsa
corporate office, at home (Tr 97-9). Complainant then called Gille (Tr 99). He told Gille that
Frontier was repairing the brakes, but that the winches, leaking rams and other problems would not
be repaired before he was dispatched (Tr 99). Gille replied that he "would talk to [Cupp] about
it," and get back to Complainant (Tr 99). Around 10:15 AM, Complainant went back to
Frontier to check on the truck (Tr 99). Complainant testified that after about thirty minutes, he
"couldn't pin anybody down as to when [Frontier] thought that [the truck] would be ready . .
. because they were having problems," so he went home (Tr 99-100).
At around 12:30 PM, Gille called Complainant at home and told him that the
truck was ready (Tr 101, 112). Complainant immediately asked Gille, "what about the winches
and the winch lines, has anything been done with them, the cables? Has anything been done with
the seals, the leaks?" (Tr 113). Gille responded that Cupp told him that the other repairs
"[were] not major concerns," and were not "a real issue as far as dangerous to
[Complainant] or anybody else" (Tr 101, 113). Complainant replied that "it is extremely
dangerous" (Tr 101). He further explained that the cables were repaired on January 20th, and
that he told Cupp on that date that "two cables needed to be replaced" (Tr 101). Cupp
responded that he couldn't replace "two cables because corporate w[ould] jump all over [his]
back" (Tr 101).
Complainant testified that the truck was taken into Frontier around 3 PM on
arch 3rd because he "almost slammed into somebody" that afternoon due to faulty
brakes (Tr 97). Complainant also stated that he discussed other safety issues with his supervisors
at several different times beginning on the date corporate performed the inspection in February (Tr
97). Complainant observed that the time to make the repairs "never seemed to come"
(Tr 97). On March 3rd, the repairs were listed on a sheet of paper to be given to Frontier so that all
the necessary repairs would be completed (Tr 98). Despite the written list of repairs, Complainant's
concerns were still not addressed (Tr 98).
Complainant responded affirmatively when questioned whether the winches
and cables were his primary safety concern (Tr 117). He explained that "when you have a leak
on a [high pressure] hydraulic hose . . . the pressure itself will keep bearing on that spot . . . and [the]
hoses just bust" (Tr 118). He also explained that the hydraulics could fail, and that the
hydraulic lift could fall on or hurt anyone nearby (Tr 119). Complainant pointed out that hydraulic
fluid was leaking from the gear lube that lubricates the Ramsey Winch bearings (Tr 119). He
explained that a gear box leak is dangerous to both the public and the driver because it can cause a
cable to snap (Tr 120). Complainant explained that a cable's life and safety depends on how it is
used:
To illustrate his fears about unsafe cables, Complainant testified about an
incident that occurred in January of 1999. He explained that, in January, he took the truck to
Industrial Splicing at Respondent's request (Tr 102). He told Industrial Splicing which cable
Respondent directed Complainant to replace (Tr 102). While Complainant waited, the workers
filling the work order told their salesman that more cables needed to be replaced (Tr 103). The
salesman then called Respondent and told them that more than one cable needed repair (Tr 103).
Despite this warning, only one cable was replaced by Industrial Splicing that day (Tr 103). Later that
same afternoon, Complainant was dispatched to Missouri (Tr 104). While he was picking up the
first vehicle on his run, one of the remaining cables snapped:
Complainant testified that he repeatedly voiced his concerns to Gille, both in
the morning and in the afternoon of March 4th (Tr 121). He stated that Gille's response was that
"you need to come in and drive the truck. And if you don't come in and drive the truck, you've
lost your job" (Tr 121). Complainant then repeated what Gille told him, and reiterated his
concerns to Gille once more (Tr 128). Gille gave him the same response (Tr 128). Complainant
explained that "at that point, I didn't feel like I had a job, because I wasn't going to endanger
myself any further" (Tr 128). Complainant testified that he was terminated around 12:30 PM
on March 4th (Tr 130). He insisted that he would have driven the truck if the repairs were completed
when he went to pick it up from Frontier that morning. He stated, "absolutely. If the things
needed to be repaired were repaired, would I drive it? You bet" (Tr 195).
During cross examination, Complainant admitted that he was aware that
Industrial Splicing usually repaired the cables (Tr 196-7). However, he testified that he knew
Frontier could perform some cable work because it was discussed with Frontier previously (Tr 196-
7). Complainant explained that cable work is "more of a specialty type thing that they
do" (Tr 196-7). For example, Frontier could tighten cables, but could not totally respool them
(Tr 196-7). Complainant also noted that the March 3rd-4th invoice12 from Frontier indicated that work was
completed on the winch in the center of the bed (Tr 198-9).
Complainant was questioned at length about Respondent's policy regarding
reporting safety concerns in Daily Driver's Logs. He admitted that he did not consistently list his
concerns as Respondent required (Tr 165). He explained that "when I first hired on [in
January], prior to right around the corporate inspection, which was in February, [Cupp] said, 'look,
don't write that stuff down. Just come to me, and . . . I'll address it immediately'" (Tr 166).
Complainant explained that because he was "the new guy on the block," he followed
Respondent's instructions and the practices of his surrounding co-workers (Tr 120). However,
during "the early part of February, [Cupp] grabbed [Complainant] and Mr. Glass . . . and he
said, 'okay, . . . we've got to make this look right for corporate because they're coming, we're getting
the big inspection on the 4th [of February]'" (Tr 164). At this point, Complainant once again
began to list his concerns in the daily logs (Tr 164). Complainant also explained that sometimes he
failed to list safety concerns because he "wasn't [always] able to give [his truck] the post-trip
inspection" (Tr 165). Complainant testified that Respondent sometimes told him to take a
different vehicle and go out to get more vehicles immediately upon returning from a run (Tr 165).
However, in late February and early March, Complainant once again began to list his concerns,
against Respondent's instructions (Tr 189). He explained that "it became very apparent from
the way things were being handled that - - the vehicles weren't being repaired timely. I had safety
concerns from 2/4 on. I would go over and go over it [with Respondent]" (Tr 189).
Complainant showed remorse for his actions (Tr 190). He admitted that he "should have, from
the onset, written down everything from the go, and never - - I should have never, ever not written
it down" (Tr 190).
Complainant was also questioned about why the cables were not listed as a
safety hazard on the Oklahoma highway inspection report for his truck. Complainant testified that
during the inspection, the winches and cables were never inspected (Tr 193). He testified that he did
not recall having any discussions with Mr. Powell about the safety survey after it was done (Tr 194).
However, he remembered having a discussion with Mr. McMann about the truck because they
"went on a drive together" (Tr 194).
Finally, Complainant was questioned about whether he requested Frontier to
adjust the speed governor on his truck13
(Tr 208). He responded that he "didn't have the authority to tell [Frontier] to do anything . .
. It was not my truck. [Frontier] always called back to the shop and told [Respondent], 'this is what's
got to be done,' or whatever" (Tr 209).
Complainant testified that while he worked for Respondent he was not on
probation, and that he had no disagreements with dispatch (Tr 201-2). He recalled one incident with
Cupp, when Cupp cursed at him (Tr 203). He only recalled discussing his performance with Gille
one time, when they reviewed the incident with Cupp (Tr 204). He admitted "there's some
possibility" that he became "very argumentative and rude" during his post-
termination conversations with Fair, and that after he was terminated, he "could have"
become rude and argumentative with Gerry Waters (Tr 204-5). Complainant also admitted that he
had an appointment at 4 PM on March 4th to repair the windshield in his personal vehicle, and that
he told Gille about the appointment (Tr 209-10). He clarified that he did not make the appointment
until after he left the Frontier lot at 10:45 AM (Tr 209-210).
Complainant testified that his total damages were $74,215.72 (Tr 170). He
cited $6,900 lost in a startup business, $2,102.10 for 401K contribution, $10,000 for a truck for his
new business, $543 for commercial liability for the business, and $7,000 in family health insurance
copayments (Tr 170, 174-8). He admitted that he did not seek other employment after his
termination by Respondent (Tr 212-3). Instead, he began his own lawn service company (Tr 212-3).
Complainant also failed to purchase medical insurance after his termination (Tr 213).
B. Testimony of Larry Dean Glass
Mr. Larry Glass is a professional truck driver (Tr 28). He has driven regularly
from 1986 until the present (Tr 28).14 He
first met Complainant at Alliance Transportation, where they were co-workers (Tr 26). They once
again became co-workers when Respondent employed them (Tr 27). Glass described the trucks used
by Respondent as "flatbed tow trucks" that "could haul three vehicles on the truck
[with] one [in tow]" (Tr 54-5). He stated that, in addition to the winch cables, there are four
chains per vehicle to secure cars in tow (Tr 52).
At around 8 AM on March 4,1999, Glass overheard a conversation between
Complainant and Dan Cupp, Complainant's supervisor (Tr 29-30). The conversation took place at
Respondent's corporate office in Tulsa, Oklahoma (Tr 32). During the conversation, Cupp told
Complainant to check on his truck to see if the repairs were complete (Tr 29, 33). After checking
with Frontier, Complainant responded that the truck was not finished (Tr 30-1). He explained that
the brakes were not working properly, "the hydraulic ram was still leaking, and the [winch]
cables on the truck were frayed and worn and kinked, and . . . unsafe" (Tr 30-1). Cupp
responded that "the workload was too heavy to make all the repairs at that time" (Tr 31).
Glass' understanding of the conversation was that Cupp meant for Complainant to drive the truck
once the brakes were repaired, although the other repairs were not yet completed (Tr 31, 38). Glass
then left the office to fuel his own truck (Tr 40). Complainant followed Glass to the truck stop, and
told Glass that he did not "feel comfortable driving or operating the vehicle with[out] the
cables and the ram repaired" (Tr 40). He observed that it was unsafe to operate the vehicle in
that condition (Tr 40). Complainant told Glass that he was going to call Craig Gille, the General
anager of the Tulsa corporate office, at home to discuss his concerns (Tr 40-1).
Complainant called Gille from a telephone about ten yards away from Glass
(Tr 42-3). Glass only heard Complainant's part of the conversation, but clearly heard Complainant
say that he felt unsafe driving the vehicle because of the frayed cables and leaking ram (Tr 43).
Complainant also told Gille that Cupp could not address Complainant's concerns that day
"because the workload was too heavy" (Tr 43). Glass then left to complete his route (Tr
44). When Glass returned at the end of the day, Respondent told him that Complainant "no
longer worked for the company" (Tr 44).
Respondent employed Glass as a driver for approximately four months (Tr 28,
44). Glass left voluntarily because of safety concerns and "lack of pay" (Tr 45). When
questioned about his safety concerns, Glass responded that Respondent used a double standard for
safety (Tr 57). He explained that "corporate sets the standard for safety, and then, this
particular office sets another, lower standard for safety"15
when corporate is not around (Tr 57). However, Glass admitted that Respondent
required drivers to write down all safety violations or repairs not completed prior to dispatch in
Driver's Daily Logs and Vehicle Inspection Reports (Tr 49-50). Glass stated that he marked his
vehicle as unsafe on various Driver Inspection Reports, but that his concerns were not addressed (Tr
50). He testified that he discussed his concerns about safety issues with both Cupp and Gille, and
that their response was "we'll just get to them when we can" (Tr 52).
Despite his safety concerns, Glass never refused to drive a vehicle for
Respondent that he felt was unsafe (Tr 53). Glass explained that he was afraid of "crossing
a line of . . . insubordinat[ion]" (Tr 53). He stated that he was apprehensive of being labeled
insubordinate even though he was never told to expect disciplinary action or termination if he
refused to drive an unsafe truck (Tr 53). Glass concluded that his overall impression of Respondent
was that "they seemed to be unconcerned with the safety of their vehicles . . . for [either] the
public or the driver" (Tr 48).
C. Testimony of Joey Tipton
Mr. Joey Tipton has been employed by Industrial Splicing for thirteen years
(Tr 62). His job includes replacing, repairing and working on wrecker and crane cables (Tr 62, 70).
Typically, he repairs or replaces ten to twenty-five cables per day (Tr 70).
When filling a work order on cables, Tipton assesses the safety of the cables
and reports their condition to his manager (Tr 63). Tipton explained that the standard requiring cable
replacement is "five broken wires in a strand," although his practice is to report as few
as three broken strands to his supervisor (Tr 74).16 If Tipton reports three strands broken, it is company policy for the manager to
"asks the person . . . that [the vehicle] belongs to if they want [the cable] replaced," or
call and ask the company (Tr 66, 73). Tipton testified that the life of a cable depends on how it is
treated, for example, whether it is greased (Tr 68).
On March 5, 1999, Tipton replaced cables on Complainant's truck (Tr 63, 65).
He described the cables as having "bent wires, broken strands and kinked cables" and
determined that they were "in bad shape" (Tr 63). Tipton explained that a cable with
similar problems could break if any tension was applied to it (Tr 63-4). He also stated that if the
cable broke, it "[c]ould hurt [anybody who is standing nearby] if it hit them (Tr 64-5). He
explained that "it's possible" the cable could kill someone (Tr 64-5). Tipton also
admitted that in March the cable on Complainant's truck only "had three broken strands or
three broken wires in a strand . . . [but] it's five broken wires that [causes] a safety concern"
(Tr 74). In July, Complainant asked Tipton to make a written statement about the condition of the
cables during the March servicing (Tr 71). Tipton testified that he clearly remembered the condition
of the cables in March despite the lapse of time because his co-worker, who was afraid of heights,
helped replace the cable on the top of the truck (Tr 72).
Tipton also recalled working on Complainant's truck in January of 1999 (Tr
66). He specifically recalls this particular work order because Complainant returned to the shop on
the day after the replacement and requested Tipton to make a written statement about his observation
of the cable's condition (Tr 69). During this servicing, the cable exhibited "flattened strands
. . . and had kinks real bad" (Tr 66). Tipton agreed that the cables were in a "dangerous
condition," and recalled replacing only one of the cables in January (Tr 66). The other cables
were in a similar condition, but were not replaced (Tr 66).
D. Testimony of Bill Vincent
Mr. Bill Vincent has been employed by Industrial Splicing for seven to eight
years (Tr 78). He is required to "do an assortment of things," but his primary job is to
"coil cable for Ramsey winches" (Tr 83). He generally repairs "quite a few"
cables a day, but "it varies from day to day" (Tr 86).
Vincent agreed that the standard requiring cable replacement is "three
to five broken wires in a strand per foot or so of cable" (Tr 85, 89). He explained that the
distance used to examine the safety of the wires is called "a leg, which is the distance it takes
for the wire to coil around to the next section . . . if you're looking at it flat, from the point where it
goes upward around to the next section to meet the same spot is one leg (Tr 85). He explained that
on Complainant's truck, which used three-eighths rope, the distance "may be a foot, if that,
roughly" (Tr 85). He elaborated that an unsafe cable may have "a hard kink in it, . . . [or]
three to five broken wires in a strand" (Tr 84). He noted that "sometimes if the wires
overlap one another on the drum, they can get smashed or flat" (Tr 85).
Vincent recalled Complainant's truck coming into the shop on March 5, 1999
(Tr 78). Upon examining the truck, he found "several of the cables had been smashed or
broken in some places, some of them had kinks, burs, broken wires, et cetera" (Tr 78). Upon
seeing a cable in similar condition, Vincent would usually recommend that the owner replace the
cables "because they could become dangerous" (Tr 79). He explained that "they
could break, and . . . hurt the driver or anyone behind it" (Tr 79). He specifically stated that
on March 5th, Complainant's cable was in such bad condition that it "could break today . . .
[or] two days from now. You never know. It could be anytime" (Tr 79).
After examining the cable, Vincent talked to his boss about its condition (Tr
79). He was authorized "to replace one or two cables. I can't remember exactly. And whatever
was left, the excess, [Respondent] said that they'd replace it another time" (Tr 79). When
questioned whether all of the cable "was in equally bad condition," Vincent responded
that "they were all in bad shape," but could not recall exactly how many strands in the
cable were broken (Tr 80, 82). He "believ[ed]" the truck had "five
[cables]," and recommended "that they [all] be replaced;" however, only one or
two of the cables were authorized for replacement (Tr 80-1).
Vincent stated that he usually cannot remember the condition of any one
particular cable because he works on so many cables (Tr 87). However, he remembered the cable
on Complainant's truck because "there were three cables on the truck. Generally, [trucks] have
one, and sometimes two," but not as many as three cables17 (Tr 87). He was certain, however, that on
arch 5th, he replaced three of the cables because they had multiple problems (Tr 87-88). Vincent
also recalled Complainant returning to the shop after the March 5th repair and speaking with him
about the replacement (Tr 90). He recalled Complainant asking him to "write down [his]
impression of the cables" and to sign an affidavit (Tr 90). Despite his opinion of the cables'
safety, Vincent admitted that Respondent "could have requested" that all the cables be
replaced on March 5th "even if they weren't [in] bad [condition]" (Tr 88, 90).
E. Testimony of Dan Cupp
Cupp testified that Complainant had "a problem with me being his
superior" (Tr 134). He explained that on several occasions, he and Complainant had verbal
altercations; Cupp admitted that he and Complainant exchanged "heated words" over
company policy (Tr 134). Cupp also testified that Complainant had difficulties with dispatch; for
example, Complainant "wanted to more or less pick and choose what he went and picked up
and not what was assigned to him" (Tr 135).
Cupp testified that, on March 4th, Complainant's truck was in the shop for
brake adjustment (Tr 135). Cupp did not specifically recall any repairs to leaky winches during the
service, although he admitted that the repair ticket indicated that both the winch seals and gaskets
were replaced (Tr 135-136). However, Cupp recalled Complainant visiting Frontier to determine
if the truck was ready for pick up (Tr 136). Cupp testified that, according to Complainant, the
vehicle was not ready (Tr 136). Cupp later called Frontier and learned that the brake repairs were
complete (Tr 136). He could not recall whether Complainant mentioned any concerns about the
cables, the winches, or the hydraulic leaks that morning (Tr 136).
Later that morning, after learning the truck was repaired, Cupp told
Complainant to "come back in and work in the yard until his truck was finished" (Tr
137). Complainant responded that "he wasn't a yard monkey, and he wasn't going to do that
work" (Tr 137). Cupp then told Complainant that, his "brakes [were] fixed, and [he had]
cars to pick up, and [they] need[ed] to get those cars picked up" (Tr 137). Cupp testified that
Complainant claimed he was having the windshield on his car repaired that afternoon and would not
report for work (Tr 137).
Cupp insisted that Complainant did not refuse to work because of safety
concerns. However, Gille told Cupp about Complainant's safety concerns prior to Complainant's
termination (Tr 137-8). Cupp testified that as soon as he was notified about Complainant's safety
concerns, he inspected the truck and ensured that the winch cables were safe (Tr 138). He admitted
that "there were some frayed spots on the cable," but stated that these spots were
"far from being unsafe" (Tr 138). He maintained that the hydraulic leaks were not a
safety concern because "all the hydraulics do is operate the winches" (Tr 160). He
explained that "from where the controls are for the winches, the driver is free and clear of the
cables, free and clear of the cars that the cable is moving up and down, so there's no way that it could
be a danger to the driver" (Tr 139, 160). Cupp asserted that even if there was a leak, it would
not cause the hydraulics to automatically lose pressure and fall (Tr 139). According to Cupp, if the
hydraulic ram fails because there is not enough fluid, a safety feature causes "everything to
shut down and stop where it is . . . . the winches won't turn, nothing" (Tr 139, 141). Cupp
insisted that he discussed this safety feature with Complainant (Tr 140-141). He admitted, however,
that his understanding of the safety feature is based upon an explanation by Frontier's mechanics
because he never personally worked with hydraulics (Tr 142, 160).
Cupp testified that Respondent requires its drivers to keep Daily Driver's Logs
and Daily Vehicle Inspection Reports (Tr 139). He insisted that he never told the drivers "not
to list safety concerns" in the logs; they were "my way of knowing and keeping up with
what is wrong with the trucks" (Tr 139). He testified that on March 2nd Complainant made
no mention that cable repairs were needed (Tr 143). He also noted that Complainant checked the
box on his inspection report stating that Complainant "detect[ed] no defect or deficiency in [his
truck that] would be likely to affect the safety of its operations or result in a mechanical
breakdown" (Tr 143). Upon reviewing the inspection reports for the week prior to March 2nd,
Cupp stated that Complainant did not list the cables as a safety concern in his reports (Tr 143-144).
He explained that he expected Complainant to list any safety concerns he had on his inspection
report (Tr 144). Cupp denied any knowledge of an incident in which a cable snapped on
Complainant's truck (Tr 144).
Cupp admitted that the Oklahoma Highway Patrol inspected Complainant's
truck and found that the brakes "were not adjusted to specifications" (Tr 145). As a
result, the Highway Patrol prohibited use of the truck until Respondent repaired the brakes (Tr 145).
Cupp testified that the truck passed inspection in all other regards, without mention of the cables or
winches being unsafe (Tr 145-6). He also stated that a citation was not issued for failure to repair
the brakes, and that the truck was not driven until the brakes were fixed (Tr 145-6).
Cupp insisted that Complainant requested Frontier to adjust the speed governor
on his truck to 75 miles per hour (Tr 146). He explained that every truck has a speed governor,
which is generally set at 62 to 64 miles per hour and installed by the truck manufacturer at the factory
(Tr 146). He testified that he was unaware of the change on Complainant's truck until he received
a call from the Fleet Manager, Pat McMann, asking whether he authorized the change (Tr 146).
Cupp stated that he immediately contacted Frontier to determine who authorized the work order and
learned from Mitchell that Complainant requested the change (Tr 146).
Cupp testified that Complainant was terminated on March 4th after he refused
to drive the truck (Tr 149). Cupp insisted that there were no problems with the truck and that it was
safe to drive (Tr 149). However, he admitted that he knew the cables were scheduled to be replaced
on March 6th (Tr 149). He also admitted that although the cables were listed as needing replacement
during the February 4th corporate inspection, the cables were not actually replaced until March 4th
(Tr 151-2). When questioned about the delay in fixing those repairs, Cupp stated that "the
things that needed immediate attention was done immediately. The other items that were . . . marked
generally good or needs some improvement, those [were] done at other scheduled times whenever
the truck would be in the shop for its next service" (Tr 152).
Cupp stated that after receiving the February 4th survey from corporate, he
discussed "which items needed immediate attention" with Powell, the National Fleet and
Safety Manager (Tr 158). Cupp insisted that "anything that pertains to the safety of the truck,
the drivers, or anybody else involved" would have repair priority and be fixed immediately (Tr
158). However, Cupp admitted that several items requiring immediate repair were not replaced
before the end of the month (Tr 153-4). For example, the tow bar hook and the T-pin were not
repaired until February 23rd (Tr 153-4). The driver's seat, hydro leaks, and safety chain were not
repaired until February 24th (Tr 153-4). The body of the truck was not repaired until March 5th (Tr
153-4).
F. Testimony of Craig Gille
Mr. Craig Gille is the General Manager for Respondent (Tr 244). He has been
employed by Respondent since September of 1994 and knew Complainant as a driver for
Respondent (Tr 244).
Gille described Complainant as a "difficult employee . . . [that] liked to
do things his own way, and [that] had problems with the Yard Manager, run-ins with myself . . . and
run-ins with the dispatcher" (Tr 244). Gille admits that on March 4th Complainant's truck was
in the shop for brake and winch repairs (Tr 245). Gille testified that, to his knowledge, the repairs
were made (Tr 245). However, he testified that when Complainant initially went to pick up the
vehicle, it was not ready (Tr 245-6). Gille admitted that at that point, Complainant was
"willing to pick up the truck and drive it" (Tr 246). He testified that Complainant called
him that morning to tell him the truck was not ready, but did not mention anything about hydraulic
leaks or the cable during the conversation (Tr 246). Gille told Complainant to "report to the
yard . . . and wait for the truck to get fixed" (Tr 246). He testified that Complainant was given
the option to work in the yard, but did not do so (Tr 246-7).
Gille later called Complainant to tell him to pick up the truck and go to work
(Tr 247). Gille testified that Complainant told him "it would be a waste of [Complainant's]
time to work half a day," and that Complainant did not voice any safety concerns (Tr 247).
Gille claims that Complainant merely refused to come in (Tr 247). Gille responded by telling
Complainant that "if he didn't [come to work], his employment would be terminated"
(Tr 247). Gille then terminated Complainant for "insubordination or refusing to come to
work" (Tr 248).
Gille testified that he first became aware of Complainant's safety concerns
when he was contacted by Sharon Fair, Respondent's Human Resources Manager for the Western
Division (Tr 248-9). Gille stated that Complainant called Fair "shortly after I terminated him
by phone" (Tr 249). Gille also noted that Complainant called Thad Rogers, the Fleet Manager
for the Western Division, about safety concerns (Tr 250, 259). Gille claims that he immediately
spoke with Cupp and called Keith Mitchell from Frontier (Tr 250, 252). Gille testified that he
personally spoke to Mitchell about the cables, and that "if [the cables] looked bad, [Mitchell]
would have told us, which is always the situation with Frontier. If they find something dangerous,
they're going to call" (Tr 252). According to Gille's testimony, Cupp also assured him that the
cables were "fine" (Tr 252).
However, Gille's testimony is contradictory. After stating that he personally
ensured the vehicle was safe, he stated that "the cables were never a concern to me at that point
. . . because no one told me about a problem with the cables" (Tr 251). He also testified that
he merely "assumed" Frontier examined the cables when the winches were serviced (Tr
150). Gille also contradicted himself about when he first became aware of Complainant's safety
complaints. For example, he stated that Complainant did not raise the issue of safety concerns until
after Complainant was terminated (Tr 257-8). However, his own notes reflect that Complainant
brought up safety concerns prior to Complainant's termination (Tr 257-8). Fair's notes also reflect
that Complainant did not refuse to come in until after he discussed his safety concerns with Gille (Tr
259). Gille responded that Fair must have "two or three phone conversations mixed up"
(Tr 262). Gille then admitted that he did not "remember exactly how it all went . . . I do
believe that both conversations, the one in the morning and the one when I terminated him, there was
not safety issues mentioned" (Tr 262). Gille further contradicted his earlier statement
concerning the cables' safety (Tr 251). After taking a moment to think, he admitted that the cables
needed repair; "when the inspection was done, [the cables] were given a 2, which . . . means
generally good but fix on the next service in" (Tr 251). Gille also confirmed that all of the
cables were replaced shortly after the March 4th incident because the Fleet Department ordered their
replacement (Tr 252-253).
Gille testified that at some time in February or March of 1999 he became
aware that Complainant's speed governor was changed because the work appeared on an invoice (Tr
253). He testified that neither he nor Cupp authorized the change, but stated that "drivers will
give instructions to Frontier about what needs to be done with the truck" (Tr 253-4). He
explained that Frontier would not understand that a particular repair ordered by a driver should be
refused (Tr 254). Gille then stated that drivers can not "initiate something like that, like a
governor," which contradicted his earlier testimony that Complainant authorized the governor
adjustment (Tr 254).
Gille denied any knowledge of the January 21st incident during which a winch
cable snapped on Complainant's truck (Tr 266). Gille testified that Complainant verbally threatened
him by saying that he "would have to watch [his] back for as long as [Complainant] was
alive" (Tr 250).
G. Testimony of Jim Powell
Mr. Jim Powell is the National Fleet and Safety Manager for Respondent (Tr
267-8). He has been employed with Respondent for approximately fifteen months (Tr 267). His
duties require that he oversee the fleet operation of approximately 400 trucks and 200 loaders, as
well as the safety of about 1,600 employees (Tr 269). Powell stated that Respondent told
Complainant to list all safety violations on his Driver Vehicle Inspection Report (Tr 276). Powell
testified that it is Complainant's responsibility as a CDL licensed driver to ensure that he marked all
safety violations on the report (Tr 276).
Powell completed an inspection of Complainant's truck on February 4, 1999
(Tr 269). He rated the third winch and cable on the truck as a 2, meaning that "it's generally
in good condition" (Tr 270). He explained that the cable was rated a 2 because it was showing
"signs of wear" (Tr 271). However, Powell insisted that the cable was not a safety
hazard (Tr 271). He explained that a safety hazard would be six or seven sliced wires in multiple
strands of a leg (Tr 271). He testified that, if there was a safety issue, the winch and cable would
have been rated a 1, along with a notation that the item be immediately repaired or replaced (Tr 270).
In addition to marking the item on the survey, he would have discussed the need for an immediate
repair with the General Manager (Tr 270). However, Powell also claimed that if an item received
a 1 on the inspection survey, it would not necessarily be a safety concern (Tr 272). He explained that
in this particular instance, by marking the winch and cable as a 2, he intended to replace the cable
on the next "B service"18 (Tr
270-1). Powell explained that the next B service "could be one to two months away,
depending on the driver's driving record" (Tr 271). Powell then reviewed the repair dates for
Complainant's truck, and stated that everything was repaired "quickly enough" according
to Respondent's standards (Tr 272).
Powell also testified about the safety inspection he performed in February.
He stated that the inspection was both a "superficial" and an "in-depth
check" (Tr 274). For example, he explained that during the inspection, inspectors "climb
all over the truck . . . look for [problem] areas on the truck . . . look for maintenance history on the
truck . . . [and look to] see how the truck is being taken care of" (Tr 274). He asserted that
"you can tell fairly quickly on a truck whether . . . somebody is taking care of it and taking
pride in their truck or not" (Tr 274). When questioned whether he checked the brakes on
Complainant's vehicle during the inspection, Powell admitted that he had not, explaining that he
"did not have the tools with [him] to check brakes" (Tr 273). He also admitted that
Complainant "was right, there was something wrong with the brakes" (Tr 275). Powell
testified that, after the inspection, he discussed with Cupp that the brakes needed immediate attention
(Tr 277). Powell insisted that the brakes were "done immediately that day" (Tr 277).
Powell also testified that he felt the vehicle was safe. He explained that the
vehicle is designed to have three additional chains attached to each vehicle in tow (Tr 279). The
capacity on each of these chains is approximately 4,700 pounds, for a total of about 12,000 pounds
(Tr 279). Additionally, each chain has a hook on it that is stronger than the individual chains (Tr
279). Powell explained that "the winch itself can only pull up 4,000 pounds," while the
winch cable is designed to hold 15,000 pounds (Tr 279). Powell then stated that, "at our
facility, if the winch cable [were] to break, . . . there is a special area where, if a cable were to break
or something was to happen, there's nobody behind the vehicle for anything to happen,"
referring to the winch control panel located "on the side [of the truck] . . . just behind the rear
wheels (Tr 279-280). Powell asserted that he "has yet to see a snapped cable . . . come straight
up and right toward the winch" (Tr 280). He explained that this scenario is unlikely because
"the car is actually held together on a bridle. It's a V-shaped bridle . . . with two hooks in it.
So if the cable was to break, it's going to go straight back" (Tr 280). When questioned whether
drivers occasionally have to "move a piece of sheet metal in order to [make] the car accessible,
[or] move a bumper away from a wheel," Powell admitted that drivers have to remove pieces
of metal in addition to hauling cars onto truck beds (Tr 281).
Finally, Powell testified that the hydraulic leaks are not a safety issue because
of their design. He explained that "if you do lose hydraulic pressure on [the ram], it will lock
in place. The cylinders themselves also lock in place" (Tr 282). He insisted that if the Ramsey
winch fails, "it will freeze, it will lock up the unit," so that it is not a danger to the driver
or others nearby (Tr 284).
H. Testimony of Scott Butts
Respondent has employed Mr. Scott Butts as a driver since May 3, 1999 (Tr
215). His Yard Manager was Dan Cupp for approximately four to five months, and his general
manager is Craig Gille (Tr 217). The truck Butts drives was purchased and brought to the yard the
week before he was employed (Tr 218). He reported no major problems with the truck, and
explained that only minor repairs have been made, such as changing a light bulb (Tr 218).
Butts explained that "the worst thing" that has gone wrong with
his new truck is that two cables needed replacement (Tr 219). On the first occasion, Cupp was still
Butts' supervisor (Tr 219). Butts testified that Cupp told him to take the truck to Industrial Splicing
and have it fixed (Tr 219). Butts stated that he worked "roughly four months" before
the first cable needed repair (Tr 221). He reported that one of the cables on his truck had been in use
for a year and still had "no major wear on it" (Tr 221). He asserted that he never
experienced hydraulic failure on a ram on this truck, but has seen hydraulic lines break while
employed by a different employer (Tr 222). He testified that when a hydraulic ram breaks "the
winch just stops. . . it stops, and it's stuck" (Tr 222-223). Therefore, he does not consider a
hydraulic failure a dangerous situation (Tr 222-223).
Butts testified that he has never driven a vehicle for Respondent that he
thought was unsafe (Tr 215). He has never been instructed "not to have a repair made"
(Tr 215). He has never been told that "things are done one way while corporate people are in
town and another way when they are not in town," nor has he ever been told "to deviate
from corporate policy" (Tr 215). He testified that he would not feel his job was in jeopardy
if he failed to bring a safety concern to the attention of his yard manager or general manager (Tr
215). He also reported that his safety concerns have never been ignored (Tr 216).
I. Testimony of Keith Mitchell
Mr. Keith Mitchell is the Service Manager for Frontier (Tr 226). Mitchell has
been employed by Frontier for twenty-two years (Tr 226). Throughout his employment with
Frontier, Mitchell has either repaired trucks or been in charge of truck repair (Tr 226). His current
job as Service Manager requires that he oversee shop personnel (Tr 226).
On March 3rd and 4th of 1999, Complainant's vehicle was brought to Frontier
for repairs (Tr 227). Various work was completed on the truck, including brake, driver's seat, backup
light and winch repairs (Tr 227). All three winches were removed and resealed (Tr 227). Mitchell
testified that his workers had the opportunity to inspect the winch cable while repairing the winches
(Tr 227). He stated that if the cable was not in safe working order, his workers would have notified
either Mitchell or Respondent (Tr 227). Mitchell stated that Frontier's policy requires that customers
are notified of unsafe conditions (Tr 227). He testified that he received no reports of problems
regarding the winches, and that he considered the truck safe to drive when it left the premises on
arch 4th (Tr 227-8). Furthermore, Mitchell insisted that he would not have allowed the truck to
leave the premises if he felt it was unsafe because Frontier has a responsibility to ensure the safety
of both its customers and the general public (Tr 228).
Despite this responsibility, Mitchell admitted that Frontier does not complete
a "top to bottom" inspection before the vehicles are released (Tr 228). He admitted that
while Frontier notifies customers of any parts Frontier finds unsafe, each customer must
"make the determination what they want to do." The customer chooses whether to
request Frontier to repair the unsafe parts (Tr 229). Mitchell also admitted that Frontier does not
"do the cable part ourselves" because Frontier's workers are not "cable
specialists," (Tr 231). Instead, Frontier leaves the cable inspections and repairs "up to
the cable specialists" (Tr 231).
Mitchell testified that he wrote a letter indicating that Complainant requested
the speed governor on his truck to be set to 75 miles an hour (Tr 232). Mitchell explained that he
knew Complainant made the request because Mitchell's service writer "put [the request] on
the ticket at the time the truck was repaired" (Tr 232). Mitchell verified this information by
asking his service advisor if Complainant had instructed him to change the governor (Tr 232). Upon
questioning, Mitchell admitted that he did not "overhear [Complainant] speak to anyone about
setting the speed at 75 miles an hour" and that he did not have personal knowledge of the
request (Tr 233). However, Mitchell persisted that Complainant ordered the governor change
because repair instructions are generally taken from the truck drivers (Tr 239). Mitchell insisted that
Complainant personally ordered the governor modification, despite the fact that the work order in
question listed "about five or six pages, single spaced" of necessary repairs (Tr 239).
J. Exhibits
CX-1: a four page document signed twice by Gille and three times
by Complainant, noting Respondent's OSHA Injury & Safety Program Policy Statement. The
relevant parts note that:
The attached Employee Safety Orientation checklist shows checkmarks next
to the training Complainant received, including the following phrase:
"The immediate reporting of hazardous conditions and/or unsafe work
practices to supervisory personnel without fear of reprisal" (CX-1, RX-3).
CX-2: Three page document including Complainant's commissions,
a Truck Survey (indicating the need for various repairs and their dates of completion) (also RX-5)
and a fax from Cupp to the Oklahoma Highway Patrol noting brake adjustment completion (also RX-
6).
CX-3: Eight page document including five pages of notes written
by Fair regarding Complainant's termination (also RX-7, RX-8), a statement written by Gille to
Gerry Waters, a memorandum written by Jo Ann Deloy, Employee Relations Manager, to Paul Styer,
and a Statement of Facts written by Rodgers (also RX-9).
CX-4: Two page document, including an Employee Status
Notification indicating Complainant's termination (also RX-2), and two time cards dated February
19-25 and February 26-March 4.
CX-5: One page document titled Driver Vehicle Inspection Report
from the Oklahoma Highway Patrol noting a brake adjustment violation. The document, signed by
Cupp, indicates the violation was corrected.
CX-6: Two page document consisting of two letters from Mitchell
to Respondent. The first letter states that Frontier repaired Complainant's vehicle on March 4, 1999
(also RX-12). The second letter states that on February 24, 1999, Complainant requested the
governor on his truck be set at 75 miles per hour (also RX-13).
CX-7: Thirteen page document, front and back, titled Driver's Daily
Log. Each page consists of two logs, with corresponding Driver's Vehicle Inspection Reports on the
back of each log (also RX-17). The reports are dated daily from February 1, 1999 to March 3, 1999.
The documents list Complainant's work for the day and note several concerns with his truck. There
is a gap of time where no concerns are listed, after which the concerns reappear in greater number.
One of two boxes is checked on each report, either that the concerns affect the safety of the vehicle
or do not affect the truck's safety.
CX-8: Eleven page 1999 Tax Return and W-2 form for Complainant.
The tax return shows a business loss of approximately $5,500.
CX-9: Two page document including receipts from Industrial
Splicing and Frontier International. The Industrial Splicing receipt shows replacement of three
cables (also RX-18B). Frontier International's receipt shows that the top winch cable was cut off and
the torque set was reinstalled, along with various other maintenance on the truck (also RX-18A).
CX-10: Four page document consisting of an affidavit by Glass, an
affidavit and statement by Tipton and a statement by Vincent. Glass discussed the inspection
procedures of Respondent, and a conversation he overheard between Complainant and Cupp. Tipton
discussed the necessity to replace all the cables on Complainant's vehicle, and that the condition of
the vehicle prior to the repair placed those persons around the truck in danger. Vincent stated that
the condition of the cables would have caused an accident.
CX-11: Five page document consisting of 3 letters to Fair from
Complainant and one letter to Mr. Randall Koonce from Complainant.
CX-12: Three page document including a two page letter to Mr.
Coffey from Ms. Goodman, and a one page letter from Mr. Coffey to Judge Sarno discussing
discovery and interrogatory requests.
RX-1: One page document titled Employee Status Notification
indicating Complainant was hired as a driver for Respondent on January 12, 1999.
RX-2: One page document titled Employee Status Notification
indicating Complainant was terminated by Respondent on March 4, 1999. Identical to Employee
Status Notification in CX-4, above.
RX-3: One page document titled Employee Safety Orientation with
checks by various training Complainant received. Identical to CX-1, above.
RX-4: Three page document indicating Respondent's OSHA Injury
& Safety Program Policy Statement. Same as CX-1, above.
RX-5: One page document titled Truck Survey and dated February
4, 1999. Identical to the Truck Survey in CX-2, above.
RX-6: Two page document titled Driver Vehicle Inspection Report
with fax from Cupp to the Oklahoma Highway Patrol attached. Identical to fax in CX-2, above.
RX-7: One page document of Fair's notes concerning Complainant.
Identical to notes in CX-3, above.
RX-8: Two page document of Fair's notes indicating conversations
she had with Complainant and Gille. Identical to CX-3, above.
RX-9: One page document titled Statement of Facts, prepared and
signed by Rodgers. Identical to CX-3, above.
RX-10: Five page document prepared and signed by Fair. The letter,
dated April 1, 1999, is addressed to the USDOL-OSHA investigator in Complainant's case, and
reviews Fair's impression of the evidence.
RX-11: One page memorandum addressed to Fair and signed by
Gille, stating that Complainant did not have permission to adjust the speed governor on his truck.
RX-12: One page memorandum addressed to Respondent and signed
by Mitchell, dated March 30,1999. Identical to CX-6, above.
RX-13: One page memorandum addressed to Respondent and signed
by Mitchell, dated March 30, 1999. Identical to CX-6, above.
RX-14: One page e-mail dated March 4, 1999, from Gerry Waters
to Gille and Fair, discussing Complainant's safety concerns and requesting further information.
RX-15: One page e-mail dated March 5, 1999 from Gille to Waters
discussing Complainant's termination.
RX-16: One page document dated July 16, 1999 and signed by Fair.
The document is a file copy of notes regarding Fair's conversation with the USDOL investigator.
RX-17: Thirteen page copy of Driver's Daily Logs and Driver's
Vehicle Inspection Reports, dated February 1 to March 3, 1999. Identical to CX-7, above.
RX-18A: Five page invoice from Frontier dated February 27, 1999
and signed by Gille. Identical to CX-9, above.
RX-18B: Two page invoice from Frontier dated March 1, 1999.
Identical to CX-9, above.
RX-19: Four page invoice from Industrial Splicing dated March 5,
1999, including a check signed by Gille. This is the most recent version of CX-9, above.
RX-20: Three page excerpt from Department of Transportation
regulations indicating the regulations for equipment, inspection and use, Driver Vehicle Inspection
Reports, and driver inspections.
RX-21: Two page Oklahoma Trucking Safety Guide demonstrating
driver qualifications and various regulations.
RX-22: Two page Arkansas Trucking Safety Guide, similar to RX-
21, above.
RX-23: Two page Kansas Trucking Safety Guide, similar to RX-21
and RX-22, above.
RX-24: Two page Missouri Trucking Safety Guide, similar to RX-21
to 23, above.
RX-25: Six page document indicating the Department of Labor
Secretary's Findings in Complainant's case. Page one is a letter, dated July 21, 1999, addressed to
Fair and signed by Gerald Foster, indicating the outcome of the investigation. The remaining pages
are the Secretary's Findings.
RX-26: One page e-mail dated May 9, 2000 addressed to Powell
from Rick Caudle at Ramsey Winch Company. Mr. Caudle indicated that "the winch [would]
not free-spool from a loss of hydraulic pressure if the clutch is fully engaged by the operator before
winching, the winch is in good condition and [it] has not been subjected to overloads causing failure
of any part(s)."
Complainant has the burden of establishing, by a preponderance of the
evidence, that his safety complaints led to his discharge, as protected under the Act.
Pike v. Public Storage Companies, 1998-STA-35 (ARB Aug. 10, 1999). To do so,
Complainant must prove four elements: 1) he engaged in protected activity; 2) Respondent subjected
him to adverse action; 3) Respondent was aware of the protected activity when it took the adverse
action; and 4) there is sufficient evidence to raise an inference that the protected activity was the
likely reason for the adverse action, i.e. causation. Auman v. Inter Coastal Trucking, 91-
STA-32 (Sec'y July 4, 1992); Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec.
15, 1992). Respondent may rebut Complainant's prima facie case by producing
evidence that the adverse action was motivated by a legitimate nondiscriminatory reason (the
bursting bubble theory). St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).
Complainant must then prove that the proffered reason was not the true reason for the adverse action,
but that the protected activity was the reason for the action.
A. Protected Activity
The employee protection section of the Act prohibits an employer from
discharging or otherwise taking adverse action against an employee "because the employee
refuses to operate a vehicle which violates a regulation, standard, or order of the United States
related to commercial motor vehicle safety or health; or 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 (1994). Thus, the Act protects employees who refuse to operate a vehicle
because the operation either violates a federal rule (the "when" clause) or causes the
employee to reasonably apprehend serious injury to himself or others (the "because"
clause).
In the case at hand, Complainant clearly engaged in protected activity as
defined in the "because" clause of the Act. Both Complainant's and Glass' testimony
demonstrate that Complainant refused to drive Respondent's truck because he feared for the safety
of himself and others around him. For example, Complainant testified that on March 4, 1999 he told
Cupp that the truck was unsafe, and that the repairs were "pushed to the limit," referring
to corporate's determination on February 4, 1999 that the cables needed replacement (Tr 95-6 ).
Complainant then called Gille and expressed his concerns that the ram and winches would not be
repaired (Tr 99). Complainant testified that when Gille called him back to tell him that the brakes
were repaired, he immediately asked Gille about the winch and cable repairs (Tr 113). When Gille
told Complainant that the leaks were not a danger, Complainant protested that the leaks were
extremely dangerous, and reminded Gille that on January 20, 1999, a winch cable snapped because
of lack of maintenance and repair (Tr 101-105). Complainant further testified that Respondent
promised repairs that were never made (Tr 97).
Complainant explained that his concerns were based on hydraulic leaks and
unsafe cables. He explained that improperly maintained hydraulics are dangerous because the
hydraulic lines may break and cause the lift to fall, potentially harming anyone standing nearby (Tr
119). To illustrate his concerns, Complainant described in depth an incident in which a cable
snapped and "came whipping straight back towards" him (Tr 104). He explained that
he was frightened, and that the cable "could have taken off a limb" (Tr 104). He testified
that he witnessed persons decapitated by a snapped cable (Tr 105). Complainant also testified that
if the repairs he requested were completed when he went to pick up the truck, he would have driven
it without reservation (Tr 195).
Glass' testimony corroborated Complainant's testimony. Glass testified that
he overheard the conversation between Complainant and Cupp, during which Complainant told
Cupp that "the hydraulic ram was still leaking, and the [winch] cables on the truck were frayed
and worn and kinked, and . . unsafe" (Tr 30-31). Glass testified that Complainant told him that
he did not "feel comfortable driving or operating the vehicle with[out] the cables and the ram
repaired," and that the truck was unsafe (Tr 40). Glass also testified that he overheard
Complainant tell Gille that he felt unsafe driving the vehicle (Tr 43).
Complainant has clearly provided evidence that he feared for his safety.
However, the "because clause" of the Act also requires that Complainant prove that the
conditions causing his fears are "of such nature that a reasonable person, under the same
circumstances . . . would conclude that there is a bona fide danger of accident, injury, or serious
impairment of health." Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29,
1993). The Act provides that the determination of reasonableness "must focus on the
information available to the complainant at the time of the work refusal." Caimano v.
Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996). Under Dutile v. Tighe Trucking,
Inc., 93-STA-31 (Sec'y Nov. 29, 1993), the Secretary has indicated that "it is proper to
look to evidence that repair work was performed later in judging the reasonableness of Complainant's
refusal to drive."
The evidence shows that, at the time Complainant refused to drive
Respondent's truck, he knew that there were multiple hydraulic leaks, and that the cables needed
replacement, as determined in a February 4, 1999 corporate inspection (Tr 95). Complainant knew
that each of these conditions was potentially hazardous (Tr 104-5, 118-20). Complainant personally
experienced a recent incident in which a cable snapped while he was loading a car, which he
described as "frightening" (Tr 104-5). During his testimony of the incident, he appeared
close to tears (Tr 113).
Complainant also knew that both Cupp and Gille told him the truck was safe,
and that hydraulic leaks were not a danger (Tr 101, 113). However, Complainant also knew that he
had asked for various repairs numerous times, and marked needed repairs on his Driver Inspection
Reports, with no response from Respondent (Tr 189). He was well aware that both Cupp and Gille
determined that no other repairs, other than the brakes, would be completed before he drove the truck
on March 4th (Tr 96, 121). Given these circumstances and personal experiences, a reasonable person
could apprehend his/her safety, or that of the public, despite the reassurances of Respondent, who
repeatedly refused to make reasonable, necessary repairs.
The testimony of both Tipton and Vincent further supports Complainant's
position. Vincent and Tipton completely replaced the cables on Complainant's truck on the same
afternoon Complainant was terminated. Additionally, a large five to six page single-spaced typed
work order of repairs was completed on the truck jointly by Frontier and Industrial Splicing (Tr RX-
18). Both Tipton and Vincent agreed that the cables repaired on March 4 and 5, 1999 were in an
unsafe condition (Tr 63, 79). Tipton pointed out that the cable had "bent wires, broken strands
and kinked cables" (Tr 63). Vincent stated that "several of the cables had been smashed
or broken in some places, some of them had kinks, burs, broken wires, et cetera" (Tr 78).
Tipton further testified, and Vincent agreed, that if a cable breaks it could hurt, and possibly kill, a
person standing nearby (Tr 63-5, 79).
Based on the above evidence, Complainant clearly established his
apprehension was reasonable. However, the "because" clause of the Act further requires
that Complainant prove that he communicated his apprehension to his Employer, and that he sought
"but was unable to obtain correction of the unsafe condition by the Employer."
Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10
(Sec'y July 17, 1991). In this case, it is clear that Complainant repeatedly communicated his fears
to Respondent. Complainant testified, and Glass corroborated, that Complainant complained to both
Cupp and Gille, but received no satisfaction from either (Tr 31, 38, 95-8, 121). Cupp told
Complainant that there was too much work to be done, and that all the repairs could not be made
during that particular service (Tr 96). Gille promised to call Cupp and get back to Complainant
about the repairs (Tr 99). But when Gille later called Complainant, he told him the brakes were
fixed and to get back to work, without addressing Complainant's remaining concerns (Tr 99). When
Complainant asked about the other repairs, Gille responded that they were not safety concerns or
dangerous (Tr 101, 113). Complainant protested that "it is extremely dangerous" and
reminded Gille that the last time a cable repair was delayed, the cable snapped (Tr 101-105). Gille
then gave Complainant an ultimatum; either drive the truck or voluntarily resign (Tr 121).
Respondent's answer to Complainant's pleas clearly provided Complainant no satisfaction.
Respondent disputes that Complainant was engaged in protected activity, but
merely asserts that Complainant was not fired for making safety complaints as a defense. Therefore,
I find that Complainant engaged in protected activity under the Act.
B. Adverse Action
An adverse action is one that shows discrimination regarding pay, terms, or
privileges of employment. Complainant contends that Respondent took adverse action against him
for refusing to drive an unsafe truck. The action at issue is Complainant's verbal termination on
arch 4, 1999, after making safety complaints to Cupp, Gille and Fair. Terminating Complainant's
employment is clearly an adverse action.
Respondent does not contest Complainant's assertion that his termination was
an adverse action. Furthermore, when considering whether Complainant established the elements
of a prima facie case, it is improper to consider Respondent's reasons for its actions.
Auman, 91-STA-32 (Sec'y July 24, 1992); Hernandez v. Guardian Purchasing Co.,
91-STA-31 (Sec'y June 4, 1992); Moravec v. HC & M Transportation, Inc., 90-STA-44
(Sec'y Jan.6, 1992).
Thus, I find that Complainant's termination was an adverse action under the
Act.
C. Respondent's Awareness of Protected
Activity
Complainant has presented sufficient evidence to demonstrate that Respondent
was aware of his protected activity at the time of Complainant's termination. Both Complainant and
Glass testified that Complainant made complaints about the safety of the truck to both Cupp and
Gille to explain why he refused to report to work. Complainant specifically told Cupp that the winch
leaks needed repair and that the cables needed to be replaced (Tr 95). Complainant followed up his
safety concerns by calling Gille to discuss the hydraulic leaks and the condition of the cables (Tr 99).
Gille told Complainant that he would talk to Cupp and get back to Complainant (Tr 99). When he
called Complainant to tell him the brakes were fixed, Complainant pointedly asked him about the
hydraulic leaks and winches (Tr 113). Gille responded that they were not major concerns (Tr 101,
113). Complainant then told Gille that they were safety concerns, and reminded him that the cables
were past due for servicing (Tr 101). Gille told Complainant to report to work to drive the truck, or
that his refusal would be considered a voluntary termination (Tr 121). Complainant refused based
on safety grounds, and repeated his concerns along with his reasons for the refusal to Gille (Tr 121).
Gille then verbally discharged Complainant (Tr 121). Gille's own notes reflect that Complainant told
him about the safety concerns prior to Complainant's termination (Tr 257-8). Additionally, Fair's
notes reflect that Gille discussed safety issues with Complainant prior to his termination (Tr 259).
Respondent, through Gille and Cupp, clearly knew that Complainant was in
reasonable apprehension of injury to himself or others because Complainant specifically discussed
his safety concerns and reasons for refusing to drive the truck with both Gille and Cupp. Respondent
disputes Complainant's evidence. However, Complainant has presented sufficient evidence for the
court to infer that Respondent was aware of Complainant's protected activity, as provided by the Act,
at the time Respondent terminated Complainant.
D. Causation
Direct evidence of causation is not necessary. Complainant need only raise
the inference that the protected activity was the likely reason for the adverse action by presenting
sufficient evidence to prevail if not contradicted. Ass't Sec'y and Brown v. Besco Steel
Supply, 93-STA-30 (Sec'y Jan. 24, 1995); Ertl v. Giroux Brothers Transportation, Inc.,
88-STA-24 (Sec'y Feb. 16, 1989). Close proximity between the protected activity and the adverse
action may raise the inference that the protected activity was the likely reason for the adverse action.
Kovas v. Morin Trasport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993) (citing Moon v.
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). In this case, Respondent verbally
fired Complainant during a conversation about Complainant's safety concerns regarding the truck
(Tr 121). The complaints and the adverse action were contemporaneous (Tr 121). See Kovas
v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993). Complainant began making
complaints with his immediate supervisor, and then moved up the corporate chain to speak with
Gille, Fair and Rodgers about his safety concerns (Tr 95-100, 121, 248-9, 250, 259). He repeatedly
brought attention to his fears. When Complainant insisted on an answer, Gille gave Complainant
an ultimatum; either drive the truck despite his concerns or be terminated (Tr 121). Complainant
again reiterated his safety concerns and stated that he would not drive the truck because of its
condition (Tr 121). Gille then terminated Complainant (Tr 121).
Based on the evidence, I find that Complainant's report of safety concerns and
his subsequent refusal to drive the truck provoked Respondent's adverse action. Therefore, I find
that Complainant provides sufficient evidence to raise the inference that Complainant's protected
activity was the likely reason for his termination, and has thus made a prima facie showing
of discrimination for his termination from service on March 4, 1999.
E. Legitimate, Nondiscriminatory
Reason
Once Complainant proves the four elements of a prima facie case,
Respondent may rebut Complainant's case by articulating a legitimate, non-discriminatory reason
for the adverse action, also called "bursting the bubble." St. Mary's Honor Center
v. Hicks, __ U.S. __ (1993). It is not Respondent's burden to prove a legitimate, non-
discriminatory reason for its action, but merely to articulate a non-discriminatory reason. Id.
However, the legitimate reason must be sufficient to raise a genuine issue of fact as to whether the
Respondent discriminated against the Complainant. Brothers v. Liquid Transporters, Inc.,
89-STA-1 (Sec'y Feb. 27, 1990). The burden then shifts to Complainant to show that the protected
activity was the more likely cause of the adverse action or that the reason offered by Respondent is
not credible. Caroll v. J.B. Hunt Transport, 91-STA-17 (Sec'y July 23, 1992).
In this case, Respondent rebuts Complainant's case by arguing that
Complainant was discharged for refusing to report to work, and for insubordination, but not for
refusing to drive the truck for safety concerns (Tr 248). Therefore, Respondent has successfully
articulated a legitimate, nondiscriminatory reason to rebut Complainant's prima facie case
of discrimination.
F. Rebuttal of Pretext
Complainant now bears the burden of proof. To prevail, Complainant must
show by a preponderance of the evidence either that the protected activity was the more likely cause
of the adverse action or that the reason offered by Respondent is not credible. Caroll v. J.B.
Hunt Transport, 91-STA-17 (Sec'y July 23, 1992). Complainant clearly meets his burden. He
not only shows that Respondent's proffered reason is not credible, but he also demonstrates that his
protected activity is the more likely cause of Respondent's adverse action against him.
On the whole, Complainant's witnesses are more credible than Respondent's
witnesses. Most importantly, three independent witnesses, Glass, Tipton and Vincent, corroborated
Complainant's testimony (Tr 28-57, 62-74, 78-90). Additionally, each witness was credible for
specific reasons. For example, Glass was forthcoming about his reasons for leaving Respondent's
employ, and was careful to limit his testimony to events and conversations about which he had
personal knowledge (TR 42-4, 45-57). Tipton and Vincent were both disinterested witnesses, who
candidly shared their observations of Complainant's truck with the court. Tipton clearly explained
why he recalled Complainant's truck in detail (Tr 72, 69). Vincent admitted when he could not
remember facts, and also when he was mistaken about the number of cables on Complainant's truck
(Tr 79, 82, 87). Vincent was also careful to explain why he was able to clearly recall certain portions
of his testimony (Tr 87, 90).
Complainant is also a believable witness. Complainant candidly admitted to
the court that he did not always follow Respondent's policies (Tr 165). He also honestly admitted
that he had several altercations with Cupp, and was rude and argumentative with both Fair and
Waters (Tr 165, 201-5). Additionally, he was forthcoming in admitting that he told Cupp that he had
a personal appointment that conflicted with his work schedule on March 4th (Tr 209-10).
Respondent's witnesses, on the other hand, are less credible than Complainant's
witnesses. Four of Respondent's five witnesses were interested parties. See Zessin v. ASAP
Express, Inc., 92-STA-33 (Sec'y, Jan. 19, 1993). Of the four interested witnesses, three of them
were key. The two least credible witnesses are Cupp and Gille, Complainant's immediate
supervisors. Both of these witnesses exhibited disturbing credibility problems. For example, Cupp
was unable to recall key topics, such as whether Complainant expressed safety concerns to him on
the morning of March 4th, and whether Frontier was asked to repair leaky hydraulics while
completing the brake repairs (Tr 135-6). Additionally, Cupp's testimony was contradictory in several
key areas, including whether the cables were a safety hazard on March 4th, in light of the fact that
they were scheduled to be completely replaced on March 6th, and why items that he testified were
high priority and immediately fixed were not repaired until almost a month later (Tr 149, 153-4,
158). Gille's testimony was also contradictory. For example, he claimed that he personally ensured
the cables were safe, but later admitted that the cables were not even an issue at that point in time
because he was unaware of possible problems with them (Tr 250-1). Gille also contradicted himself
about whether he first learned of Complainant's safety concerns before or after Complainant's
termination (Tr 257-9). He finally grudgingly admitted that he could not "remember
exactly" (Tr 262).
The most credible witnesses that Respondent produced include Mitchell,
whose testimony is clearly not credible in some areas; Powell, whose testimony is credible but
damaging to Respondent; and Butts, whose testimony is irrelevant. Mitchell testified that he had
personal knowledge about the speed governor, but later admitted that he obtained his knowledge
second-hand from another person, and that he did not see or overhear the conversation (Tr 232-3).
itchell's credible testimony demonstrates that Respondent made the final decision as to what
repairs Frontier would make to the truck, and that a complete inspection was not performed before
the vehicle left the Frontier facility (Tr 228-9). Mitchell also admitted that his facility does not
specialize in cable repair or replacement, and that they specifically leave cable inspections "up
to the cable specialists" (Tr 231). Powell's testimony, as compared to Respondent's other key
witnesses, is fairly credible. However, his testimony was not favorable to Respondent. Powell's
testimony centered on the quality of Respondent's vehicles and their upkeep. However, he admitted
that the safety inspection performed by corporate, the key diagnostic tool used by Respondent to
maintain vehicle safety, was not as thorough as portrayed; for instance, he did not inspect the brakes
on February 4, 1999 (Tr 273). In fact, Powell admits that he did not even bring the necessary tools
with him to inspect the brakes (Tr 273). Finally, Butts' testimony, although completely credible, is
completely irrelevant. Because Butts was provided a brand new truck while in Respondent's employ,
he simply did not have the opportunity to experience safety concerns similar to that of Complainant
(Tr 218). Additionally, he was hired after Complainant's termination, so he was unable to speak to
Respondent's practices while Complainant was employed with Respondent (Tr 215).
It is against this background that Complainant seeks to persuade the court that
Respondent terminated him for refusing to work due to safety concerns, and not for insubordination
or refusal to report for work. Based on the record, Complainant provides voluminous evidence to
suggest that he was terminated improperly, which Respondent simply fails to sufficiently rebut.
Respondent insists that Complainant was not fired for refusing to drive a truck while fearing for his
safety. Instead, Respondent asserts that Complainant was discharged for: 1) insubordination and 2)
voluntary failure to report to work.
To support Respondent's position that Complainant was insubordinate,
Respondent presented evidence that Complainant was a difficult employee, and argumentative with
other employees. For example, Complainant testified that he and Cupp had some altercations (Tr
201-4). He also admitted that he became rude and argumentative with Gerry Waters in conversations
that occurred after his termination (Tr 205). Cupp testified that Complainant had "a problem
with me as his superior" and that they exchanged heated words on occasion (Tr 134). Gille
testified that Complainant was a difficult employee and that Complainant threatened him on March
4, 1999, telling him to "watch his back" (Tr 244, 250). Finally, Fair's notes reflect that
Complainant was rude and argumentative with her on the phone after his termination (RX-7-8).
Respondent presented no other evidence to establish that Complainant was insubordinate.
Respondent's insubordination claim is simply not convincing. Although an
employer may discharge an employee at will for insubordinate behavior, there is little evidence that
Complainant was insubordinate during his employ with Respondent. It is very disconcerting that
no evidence was presented to demonstrate that Respondent kept track of Complainant's inappropriate
behavior in any manner whatsoever. Additionally, it is clear from the record that Complainant was
notified that his behavior was inappropriate on only one occasion, when Gille approached
Complainant about an altercation with Cupp (Tr 204). See Park v. McLean Transportation
Services, Inc., 91-STA-47 (Sec'y June 15, 1992). The record provided no evidence that Cupp,
Gille, or any other supervisor made notations that Complainant's behavior was insubordinate, other
than his refusal to drive the truck on March 4, 1999. In fact, about half of the evidence Respondent
submitted to support its insubordination claim clearly demonstrated that the alleged insubordination
occurred after Complainant was terminated (Tr 205, RX-7-8). Based on the evidence,
Respondent's claim of insubordination is simply not credible.
Respondent also asserts that Complainant was discharged for voluntarily
failing to report to work. This allegation presumes that Complainant's refusal to drive the truck was
not for safety concerns, despite a voluminous amount of evidence to the contrary. Both Cupp and
Gille denied that the truck was not safe, despite the fact that numerous repairs were made on the
truck on the afternoon of March 4th, immediately after Complainant was terminated. Cupp and Gille
insisted that hydraulic leaks were not a safety issue, despite an email from Rick Caudle at Ramsey
Winch Company stating that "the winch [would] not free-spool from a loss of hydraulic
pressure if the clutch is fully engaged by the operator before winching, the winch is in
good condition, and has not been subjected to overloads causing failure of any part(s)"
(Tr 101, 113, 139, 160, RX-26, emphasis added). Although this evidence tends to support
Respondent's position that the hydraulic winch is not a danger, Respondent failed to present evidence
that the winch was in good condition on March 4th. Complainant, however, presented convincing
evidence of repeated hydraulic leaks, including leaks from the gear box (Tr 30-1, 40, 113, 117, 135-
6). This clearly demonstrates that the winch was not, in fact, in good condition and rebuts
Respondent's position.
Cupp and Gille also denied that the cables were unsafe. They were careful to
deny any knowledge of a cable snapping on Complainant on January 20, 1999 (Tr 144, 266). Cupp
and Gille claimed they personally checked the condition of the cables; however, Gille later admitted
that he merely checked with Frontier's Service Manager to determine if he had knowledge of any
cable problems (Tr 250). However, both Cupp and Gille admitted that the cables were scheduled
to be completely replaced on March 6, 1999 only two days after Complainant was terminated for
refusing to drive the truck, partially due to his fears about the cables' safety (Tr 149, 252-3). Based
on this evidence, Respondent's assertion that Complainant was terminated for refusing to report to
work is unconvincing. Therefore, Complainant has met his burden by proving that Respondent's
proffered reasons are not credible.
Because Complainant has met his burden, it is unnecessary for the court to
determine whether Complainant clearly demonstrated that he was most likely terminated for his
protected activity. However, the court finds that Complainant has met this burden as well, and will
therefore briefly entertain Complainant's alternative burden. The record clearly demonstrates that
Respondent, through Gille, terminated Complainant because he engaged in protected activity. Based
on the facts, Gille clearly knew about Complainant's concerns because Complainant directly
addressed them to Gille by telephone on March 4th (Tr 42-3, 99, 257-8). Based on this conversation
and Gille's notes, Gille knew that Complainant's refusal to drive the truck was based on the safety
concerns he brought to Gille's attention (Tr 138, RX-15). Gille also knew that Complainant
previously asked Cupp to address the concerns and that Cupp refused (Tr 43, 99). Gille knew that
Complainant then called him, told him about the safety issues, and asked for his help (Tr 43, 99, 257-
8). Gille then gave Complainant an ultimatum (Tr 247). After terminating Complainant, Gille
claimed that Complainant was fired for refusing to report to work (Tr 248). However, based on the
evidence, Complainant was not fired for merely refusing to report to work. If this were the case,
Complainant would have been fired earlier in the day for refusing to clean out cars at the yard (Tr
9-10, 98, 137, 246-7). Additionally, during the conversation, Gille did not provide Complainant with
the opportunity to report to work and perform a different task from driving the truck; he clearly told
Complainant to "come in and drive the truck, [or] you've lost your job" (Tr 121, 247).
Gille clearly discharged Complainant because he refused to drive a truck which he reasonably
apprehended would cause physical harm to himself or others.
Because there is direct evidence that Respondent's action was in part motivated
by Complainant's protected activity, Respondent may avoid liability only by establishing that it
would have taken the adverse action in the absence of Complainant's protected activity.
Caimano v. Brink's Incorporated, 95-STA-4, slip op. at 23-24 (Sec'y Jan. 26, 1996).
Respondent alleged two reasons for which it would have terminated Complainant despite his
protected activity. Based on the weight of the evidence, Complainant has shown by a preponderance
of the evidence that Respondent's proffered reasons, insubordination and refusal to report to work,
are not credible. Therefore, Respondent has failed to establish that it would have discharged
Complainant in the absence of his protected activity.
After evaluating all of the evidence, I find that Complainant was most likely
terminated because Complainant refused to drive the truck, despite his safety concerns, and that
Respondent's proffered reasons are not credible. Therefore, I find that Respondent violated the
employee protections of the Surface Transportation Assistance Act and acted improperly in
terminating Complainant for exercising protected activity.
G. Damages
Under the Act, Complainant is entitled to a mandatory award of back pay, and
reinstatement to his previous position with Respondent. See Moravec v. HC & M
Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). Interest is due on back pay awards from
the date of discharge until the date when payment of back pay is made. Johnson v. Roadway
Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 1000), slip op. at 17-
8. "Any uncertainties in calculating back pay are resolved against the discriminating
party." See Kovas. In cases where Complainant is awarded both back pay
and reinstatement, Respondent is liable to Complainant for back pay until Respondent reinstates the
Complainant, or makes Complainant a "bona fide offer of reinstatement." Polewsky
v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991).
Respondent has the burden of proving by a preponderance of the evidence that
Complainant did not mitigate his damages by exercising reasonable diligence in finding other
suitable employment. Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5
(ARB Mar. 29, 2000). To meet its burden, Respondent must establish that comparable jobs were
available, and that Complainant failed to make reasonable efforts to find substantially equivalent
employment. Id. Complainant must then prove that he exercised due diligence in
seeking suitable alternate employment. Id. at 16 n.14.
The Act also entitles Complainant to the restoration of pension, health and
welfare benefits that he enjoyed on his last days of employment. Dutile v. Tighe Trucking, Inc.,
93-STA-31 (ALJ July 1, 1994). However, Respondent will not be ordered to pay directly to
Complainant the amounts that Respondent would have spent for health, welfare and pension benefits
where a Complainant fails to present evidence of such losses or the purchase of substitutes for
benefits he would have received. Nevertheless, Respondent must restore past health, welfare and
pension benefits, to the extent that they affect Complainant's current or future entitlement to such
benefits. See Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op.
at 49, rev'd on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir.
1987). Finally, Complainant may also be entitled to compensatory damages under the Act,
including damages for pain and suffering, mental anguish, embarrassment, and humiliation.
Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997).
In the case at hand, Complainant requested $74,215.72 in damages.
Respondent argues that Complainant should not receive damages because he failed to mitigate by
seeking suitable alternate employment. It is true that Complainant did not seek other employment,
but merely started his own lawn care service (Tr 212-3). However, Respondent has failed to meet
its burden by presenting evidence that comparable jobs were available. Therefore, Complainant
prevails.
Under the Act, Complainant is entitled to be reinstated with Respondent to the
same position in which he was employed immediately prior to his termination. Additionally, based
on Complainant's average weekly wage, he is entitled to back pay in the amount of $531 per week
from the date of his termination, March 4, 1999, until Respondent reinstates Complainant or makes
him an offer of reinstatement (Tr 169). Interest on back pay owed is to be calculated on
Complainant's back pay from the date of discharge until the date Complainant is paid, in accordance
with 26 U.S.C. § 6621.
In addition to back pay, Complainant seeks reimbursement for the following
losses he incurred: $6,900: startup business; $2,102.10: 401(k) contribution, $7,000: family health
insurance; $10,000 new truck purchase for lawn care business; $543: commercial liability;
unspecified amount for compensatory damages (Tr 170, 174-8). Complainant is clearly not entitled
to damages for the purchase of a new truck, the costs of a startup business, or the purchase of
commercial liability insurance for his new business. Complainant was not entitled to any of these
"benefits" during the last days of his employment with Respondent. Therefore,
Respondent is not liable for any losses Complainant may have so incurred.
However, the Act clearly allows damage awards pertaining to Complainant's
loss of health insurance and 401 (k) contributions. Unfortunately, it is clear from the record that
Complainant was not entitled to 401 (k) contributions from Respondent because Respondent did not
maintain a 401(k) or stock option program (Tr 174). Additionally, Complainant failed to purchase
replacement medical insurance after his termination by Respondent (Tr 213). Therefore,
Complainant is not entitled to either damages for losses of 401(k) contributions or family health
insurance copayments. However, upon reinstatement, Respondent shall restore all of Complainant's
health, welfare and pension benefits to which he was entitled immediately prior to his termination.
Complainant also requested compensatory damages for his pain and
suffering and because he was effectively "blacklisted" by Respondent. Although the Act
provides for compensatory damages, Complainant failed to present sufficient evidence on his pain
and suffering, or that he was blacklisted, despite the court's encouragement to present all damages
at trial (Tr 131). Additionally, the court allowed both parties to present briefs on the issue of
damages (Tr 175-7). By way of his post-hearing brief, Complainant requested that the court allow
him to present evidence on his pain and suffering. The court denied this request, as it clearly stated
during the hearing that it would not entertain evidence post-hearing (Tr 181). Therefore, because
Complainant failed to address the issue, recovery of compensatory damages is denied.
It is hereby ORDERED that:
1. Respondent shall reinstate Complainant to his previous position as driver,
with the same pay schedule, health, welfare and pension benefits as of the date of termination.
2. Respondent shall pay Complainant back pay in the amount of $531 per
week, beginning at the date of termination, March 4, 1999, until the date of reinstatement, or the date
of Respondent's offer of reinstatement if Complainant declines reinstatement.
3. Interest at the treasury-bill rate specified in 26 U.S.C. § 6621 in effect
when this decision and order is filed with the Secretary of Labor shall be computed on all accrued
benefits from the date on which each payment was originally due to be paid.
4. The request for all other damages is DENIED.
5. Within thirty (30) days of the date of this Decision and Order, Counsel for
Complainant shall file a fully itemized and supported fee petition, sending a copy to Respondent's
Counsel, who shall have twenty (20) days to respond.
DANIEL
A. SARNO, JR.
DAS/AMM
NOTICE: This recommended Decision and/or 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, NW.,
Washington, DC 20210. See CFR §1978.109(a); 61 Fed. Reg. 19978 (1996).
1The following abbreviations are used as
citations to the record: 2Post-hearing exhibits were
specifically prohibited (Tr 181).
3A salvage hauler hauls totaled
vehicles that are used as salvage (Tr 93).
4Both Glass and Complainant worked
for Alliance Transportation prior to employment with Respondent (Tr 26).
5Frontier is a repair facility used by
Respondent (Tr 94).
6 * notes a person who did not testify
at the hearing
7At the hearing, the parties stipulated
to the following based upon the Secretary's Findings (Tr 5). I accepted the parties' stipulations;
however, the hearing was conducted de novo, as required by law.
8Respondent's Admissions are also
based upon the Secretary's Findings, with some minor corrections (Tr 5-6).
9The truck was in the shop for brake
repairs (Tr 34).
10On Respondent's trucks, vehicles
are pulled onto "decks." The hydraulic rams raise and lower the decks (Tr 95).
Complainant testified that the winch controls operating the rams are located on the side of the bed;
"the controls were about the middle of your bed, so to speak. The winches were mounted
basically dead center up on the top deck, and then, two . . . in the middle deck. And then, you had
a stinger that came off the back or . . . you had . . . mounting brackets" to tow the last car (Tr
184, 186). The stinger is the part on the back of the truck that carries a vehicle in tow (Tr 47).
11Complainant testified that Glass
was present during his conversation with Cupp (Tr 97).
12The invoice indicated that the
winch was leaking, and had "loose mounting bolts" (Tr 198-9).
13The speed governor limits the
speed at which the truck can be driven (Tr 146).
14Glass' driving record totals 24
years (Tr 28).
15For example, Glass explained
that the corporate office periodically performs individual inspections of the vehicles. On February
4, 1999, Thad Rodgers came to perform an inspection at the terminal where Complainant and Glass
worked (Tr 45). During the inspection, Rodgers found numerous problems with the truck Glass
drove, including oil and hydraulic leaks, cracks in the bed frame, and improper functioning of both
the low air pressure warning device and the horn (Tr 46). Rodgers remarked that the truck was
"in such bad physical condition" that "it should be replaced;" but, since it
could not be replaced yet, it would "definitely be repaired before it would be dispatched to
service again" (Tr 46). However, as soon as the inspection was completed, Glass was
dispatched to pick up his route for the day (Tr 46). His truck was not serviced until later (Tr 46).
In another incident approximately two weeks later, the Department of
Transportation set up a roadside inspection on Interstate 40 (Tr 46-7). Glass's truck was "shut
down completely" because of oil leaks, improperly functioning low air pressure warning
device and horn, and cracks in the stinger (Tr 46-7). The highway patrol told Glass that repairs must
be made before he could leave the inspection site (Tr 47). After explaining that he had no way to
make the repairs on site, the highway patrol allowed Glass to take the truck "straight to the
shop," with instructions that the truck "not be dispatched again until the repairs [were]
made" (Tr 47). The Highway Patrol told him that, if the truck was caught on the highway a
second time in its current condition, "there would definitely be a fine, and a possible arrest
because it was already inspected" (Tr 47-8). Glass testified that the repairs were made, but two
days later, the low air pressure warning device quit working and the oil leaks resumed (Tr 48). Glass
explained that an oil leak is a safety problem because it creates a fire hazard, and can cause a
breakdown or an accident on the highway (Tr 51).
16A cable contains "six
strands with 36 wires in each strand" (Tr 75, 84). The area of cable requiring replacement can
be "within an inch to . . . two foot" (Tr 75).
17Vincent originally believed that
the truck had five cables, when in fact it had only three (Tr 82).
18At specified intervals, the trucks
undergo routine maintenance known as a B service (Tr 271). A B service is scheduled
approximately every 8,000 miles (Tr 271).
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Administrative Law Judge
CX - Complainant's Exhibits
RX - Respondent's Exhibits
Tr - Transcript