DOL Home > OALJ > Whistleblower > Johnson v. Roadway Express, Inc., ARB No. 99-011, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000) |
Johnson v. Roadway Express, Inc., ARB No. 99-011, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000)
U.S. Department of Labor | Administrative Review Board 200 Constitution Avenue, N.W. Washington, D.C. 20210 | ![]() |
ARB CASE NO. 99-111
ALJ CASE NO. 1999-STA-5
DATE: March 29, 2000
In the Matter of:
DANNY JOHNSON,
v.
ROADWAY EXPRESS, INC.,
COMPLAINANT,
RESPONDENTS.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant:
Paul O. Taylor, Esq., Truckers Justice Center, Eagan
innesota
For the Respondent:
Sally J. Scott, Esq., Franczek Sullivan, P.C., Chicago
Illinois
This case arises under the employee protection provisions of the Surface Transportation Assistance Act (STAA) of 1982, as amended and recodified, 49 U.S.C. §31105 (1994). Complainant Danny Johnson (Johnson) claimed that his employer, Respondent Roadway Express, Inc. (Roadway), violated STAA when it discharged him on February 21, 1995, because he had been unavailable for dispatch on February 19, 1995. A Department of Labor Administrative Law Judge (ALJ) issued a Recommended Decision and Order1 in which he concluded that Roadway had violated §31105. The ALJ issued
a subsequent order recommending that Roadway pay Johnson's attorney for costs incurred and services rendered. Because substantial evidence supports the ALJ's conclusion that Roadway violated §31105 but does not support the ALJ's conclusion that Johnson failed to mitigate his damages, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.
On March 30, 1995, Johnson filed a timely complaint with the Department of Labor's Occupational Safety and Health Administration (OSHA) pursuant to 29 C.F.R. §1978.102 (1999). He claimed that Roadway had violated STAA by discharging him after he was absent from work due to illness (and therefore refused to drive) from February 14 through February 19, 1995.
In accordance with 29 C.F.R. §1978.104, OSHA's Assistant Secretary
issued written findings dismissing Johnson's complaint.2 Johnson filed timely objections to those findings and requested a hearing under 49
U.S.C. §31105(b)(2)(B) and 29 C.F.R. §1978.105. The ALJ assigned to the case held
a hearing on May 11 and 12, 1999. On July 21, 1999, he issued an R. D. & O. ruling in Johnson's
favor and recommending relief. Pursuant to 29 C.F.R. §1978.109(a), the ALJ forwarded his
R. D. & O. to the Administrative Review Board (Board) for review.
We have jurisdiction under 49 U.S.C. §31105(b)(2)(C) and 29 C.F.R.
§1978.109(c). Roadway filed a Brief in Opposition to the Administrative Law Judge's
Recommended Decision and Order. Johnson filed a Brief in Support of and in Opposition to the
Administrative Law Judge's Recommended Decision and Order.
The facts underlying this case are set forth in the R. D. & O. at 4-5 and 7-13,
and are summarized here in relevant part.
Roadway employed Johnson as a commercial motor vehicle driver from 1978
until February 21, 1995. Johnson worked at Roadway's Chicago Heights, Illinois facility as a district
bid run driver. As a district bid run driver Johnson would drive between the Chicago Heights facility
and other Roadway terminals several times a day. Tr. 27-28. The Chicago Heights facility is a
"less-than-trailer-load" distribution center where trailers deliver freight which is reloaded
onto other trailers and redistributed across the country. Tr. 258.
Under Roadway's attendance policy, drivers have five contractual paid sick
days per contract year. Drivers earn vacation time in accordance with the collective bargaining
agreement,3 and a driver is entitled to two
floating holidays which can be added to his or her earned time off. Any other absences are
considered unexcused. Tr. 261-62.
Roadway applies a progressive disciplinary policy to unexcused absences,
i.e., a warning letter for the first unexcused absence, followed by a second warning letter,
a three-day suspension, and another letter of warning which would be followed by a letter of
discharge for the fifth unexcused absence. Tr. 269. Article 46 of the Central States Area
Supplemental Agreement provides that an employee must receive at least one warning notice prior
to suspension or discharge and that warning notices remain in effect for no more than nine months.
JEX 21 at 207-8; Tr. 278-79. Under the collective bargaining agreement and Roadway's progressive
disciplinary policy Johnson received the following discipline for absenteeism: September 11, 1992,
warning letter for absenteeism; October 31, 1992, warning letter for absenteeism; December 10,
1992, one-day suspension for absenteeism; July 7, 1993, warning letter for absenteeism; September
7, 1993, three-day suspension for absenteeism; October 17, 1993, warning letter for absenteeism;
January 31, 1994, discharged for absenteeism (later reinstated); July 4, 1994, discharged for
absenteeism (later reinstated with a final warning); November 14, 1994, discharged for absenteeism
(later reinstated with discharge reduced to warning letter). REX 2 through 6.
1. Johnson's Discharge
On February 21, 1995, Roadway discharged Johnson because he had been
unavailable for dispatch on February 19, 1995. The events leading up to Johnson's termination are
as follows.
On Sunday, February 12, 1995, Johnson called Roadway4 to advise that he was ill with the flu and would
not be able to drive. Johnson sought medical treatment from Dr. Nilda Durany on Tuesday, February
14. Dr. Durany provided Johnson with a return-to-work certificate stating that Johnson was
suffering from pneumonia, and that he could return to work on the following Monday, February 20.
JEX 9. On Wednesday, February 15, Johnson called Roadway5
to advise that he had pneumonia. On Thursday, February 16, Johnson came to the
terminal to pick up his pay check and presented his supervisor, Jim Crowe, with the return-to-work
certificate. Crowe spoke with Johnson and testified that Johnson looked "better than I've ever
seen him look, better than what he looks today, and better than what I usually see him which [sic]
I dispatched him." Tr. 447. Crowe testified that Johnson did not appear to be sweating,
coughing, or suffering from a fever. Id. at 449. Crowe attached a post-it note to Johnson's
return-to-work certificate on which Crowe noted that Johnson did not appear ill or hoarse.
Johnson returned to work on Monday, February 20.6 Roadway discharged Johnson on February 21,
stating in its written termination letter that he was discharged because he was unavailable for
dispatch on February 19, 1995. JEX 4. Johnson unsuccessfully grieved his discharge, and it became
final on March 29, 1995. R. D. & O. 5.
At the hearing before the ALJ Johnson testified about his illness. He stated
that he was feverish when he returned from a dispatch to the Chicago Heights facility at 2 a.m. on
Saturday February 11. He went home to bed, by which time he had become more sick. He had a
high fever and chills, and he was coughing. All of his muscles were inflamed and hurting. Tr. 30-
31; 41. He testified that he was too sick to drive. Tr. 37; 43-44; 46. Florence Cody, Johnson's
fiancee at the time of his discharge, testified that Johnson was hot and pale and was sweating
excessively. Tr. 186; 194-95. She testified that Johnson stayed in bed for four or five days, only
getting up to go to the bathroom. Tr. 187. Johnson was so sick that Cody did not want him to drive
her car, and she drove him to the terminal on February 16. Tr. 193-94.
2. Johnson's Post-Discharge Employment
In April or May following his discharge, Johnson applied for a truck driving
position with Yellow Freight but was not offered a job. In May of 1995, Johnson interviewed with
Burlington Truck Lines and was offered a job as a truck driver. After attending orientation, Johnson
refused to accept the job because the position would have required him to drive all over the United
States. R. D. & O. 18.
In November 1995, Johnson found employment setting up concrete forms with
Arrowhead Construction, where he worked until September 1996. He then worked for Celadon
Trucking from October 17, 1996, until March 15, 1997. Johnson then worked one to two weeks for
EVI Services, Inc., as a truck driver. Beginning June 7, 1997, Johnson worked three weeks for DOT
Leasing as a truck driver. On July 1, 1997, Johnson went to work as a driver with Aaron's Limousine
Service, which continued until the company went out of business some two months later. From
September 12 to October 24, 1997, Johnson worked as a truck driver for Laura Stewart, quitting
when he was not paid. In January 23, 1998, Johnson began work as a truck driver for Landstar
Poole, until he was discharged on March 7, 1998. Later that year, Johnson also worked as a truck
driver for Trans-State Lines, CRST and DeKalb Transportation. He then began working as a truck
driver for Chieftain Contract Service where he was still employed at the time of the May 1999
hearing. R. D. & O. 5.
The ALJ found that Johnson's absence from work from February 13 through
February 19, 1995, was protected activity under STAA because during that period Johnson's ability
or alertness was so likely to have been impaired through illness that driving a commercial motor
vehicle would have violated the Department of Transportation's illness/fatigue rule.7 R. D. & O. 8. The ALJ concluded that
Roadway had a dual motive for terminating Johnson:
R. D. & O. 14. However, the ALJ concluded that Roadway had failed to prove, by a
preponderance of the evidence, that it would have discharged Johnson in the absence of his protected
refusal to drive on February 19. R. D. & O. 14-15.
The ALJ ordered Roadway to reinstate Johnson immediately8 and awarded Johnson back pay and costs.
However, the ALJ concluded that Johnson's entitlement to back pay ended in May of 1995 when he
did not accept a truck driving position with Burlington Truck Lines (Burlington). The ALJ found
that the Burlington truck driving job was substantially equivalent to Johnson's former truck driving
position with Roadway and that his refusal of the Burlington job offer showed a willful disregard
for his own financial interest. The ALJ concluded that this resulted in a breach of Johnson's
obligation to mitigate his damages. R. D. & O. 18.
In a September 3, 1999, Order Granting Attorney Fees, the ALJ recommended
that Roadway pay Johnson's attorney $28,757.16 for costs incurred and services rendered.
1. Whether Johnson's refusal to drive between February 12 and February 19, 1995, was an activity
protected by STAA §31105(a)?9
2. Whether Roadway discharged Johnson in violation of STAA?
3. Whether Johnson was entitled to back pay and for what period?
4. Whether Johnson's attorney is entitled to fees and in what amount?
Under the regulations implementing STAA, the Board is bound by the factual
findings of the ALJ if those findings are supported by substantial evidence on the record considered
as a whole. 29 C.F.R. §1978.109(c)(3); BSP Transp., Inc. v. United States Dep't of
Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d
41, 44 (2d Cir. 1995). Substantial evidence is that which is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In reviewing the ALJ's conclusions of law, the Board, as the designee of the
Secretary, acts with "all the powers [the Secretary] would have in making the initial decision
. . . ." 5 U.S.C. §557(b) (1994). See also 29 C.F.R. §1978.109(b).
Therefore, the Board reviews the ALJ's conclusions of law de novo. Roadway Express,
Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
We decide this case with two principles in mind. First, in order
to prevail, Johnson must prove that he engaged in protected activity, and that he was subjected to
adverse employment action because of that activity. Clean Harbors, 146 F.3d at 21,
citing Moon v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).
Second, as noted above, the standard of review that we must follow,
established in STAA implementing regulations, requires that we accept as conclusive the ALJ's
findings of fact if they are "supported by substantial evidence on the record considered as a
whole . . . ." 29 C.F.R. §1978.109(c)(3). In this case, were we free to evaluate the
evidence de novo we might reach a different result. However, as two different courts of
appeals have recently emphasized, in a STAA case this Board is not free to engage in an independent
evaluation of the facts. As the First Circuit stated "[t]he effect of STAA Rule 109(c)(3) is that
the Board cannot simply disagree, unless no reasonable mind could accept as adequate the relevant
evidence on which the ALJ's findings rested." BSP Transp., 160 F.3d at 48. "If
there is substantial evidence in the record to support the ALJ's findings," it would constitute
reversible error for this Board to fail to treat them as conclusive. Castle Coal, 55 F.3d at
44. Accord, Brink's Inc. v. Herman, 148 F.3d 175 (2d Cir. 1998).
As we discuss below, given these constraints on our authority to evaluate the
evidence in this case anew, we affirm the ALJ's findings of liability. We also affirm the ALJ's order
of reinstatement. However we modify the award of back pay because Roadway did not sustain its
burden of proving that Johnson did not use due diligence in pursuing suitable employment or that
the Burlington truck driver position he declined to accept was substantially equivalent to his truck
driver position with Roadway.
I. Protected Activity
The ALJ found that Johnson did not work, and therefore refused to drive a
commercial motor vehicle, from February 13 through 19, 1995. The ALJ concluded that Johnson's
refusal to drive was protected under STAA §31105(a)(1)(B)(i) because "his operation
of a commercial motor vehicle would have amounted to actual violations [sic] of" the DOT
fatigue/illness regulation.10 R. D. & O. 8.
The ALJ based his conclusion11 on the
following facts:
The ALJ specifically dismissed the conflicting testimony of Roadway driver supervisor Jim
Crowe who saw and spoke with Johnson on February 16 because Crowe only observed Johnson
"very brief[ly]." Id. at 8.
Substantial evidence supports the ALJ's conclusion that Johnson engaged in
protected activity when he refused to drive a commercial motor vehicle from February 13 through
19. The ALJ chose between conflicting testimony and documentary evidence. He had an
opportunity to observe Johnson, Cody, and Crowe, and specifically credited Johnson's description
of his illness. R. D. & O. 8. There is more than a scintilla of evidence to support these findings.
Johnson testified in some detail that he was too ill to drive. Cody corroborated that testimony and
indicated that Johnson was so ill that she would not let him drive her car. In contrast, Crowe
testified that Johnson was in good health. Given the conflict in the testimony, the ALJ would have
been free to discount Johnson and Cody's testimony and to credit Crowe; however, he did not do so.
In a situation such as this our authority to overturn factual findings is limited. Although we might
have weighed the evidence on this issue differently if we were free to evaluate the record
independently, given the restrictive standard of review under which we adjudicate STAA cases, we
must treat these findings as conclusive.
Roadway argues that the ALJ erred in not making a specific finding that
Johnson suffered from pneumonia. Such a finding is not necessary in order to uphold the conclusion
that Johnson's refusal to drive was protected activity. What is determinative is not whether Johnson
actually had pneumonia, but whether he was too ill to drive a commercial motor vehicle safely on
the dates in question. The ALJ so found, and, as we concluded above, that finding is supported by
substantial evidence. On February 12, Johnson advised Roadway that he had the flu. After he
visited Dr. Durany on February 14 (and Dr. Durany diagnosed him), Johnson informed Roadway that
he had pneumonia. Johnson is not a medical expert, and it was not necessary for him to know the
exact medical diagnosis of his condition when he followed his doctor's order to remain away from
work until February 20. JEX 9. Moreover, the ALJ credited Johnson's and Cody's testimony
regarding the extent of Johnson's illness in addition to Dr. Durany's diagnosis. R. D. & O. 8. Given
the substantial evidence in the record supporting the ALJ's findings, we may not disturb them.
Roadway also seeks to discredit the medical certificate prepared by Dr. Durany
by noting "in March 1994, Dr. Durany's medical license was placed on indefinite probation[,
and in] February 1995, Dr. Durany was issued a notice to show cause as to her failure to comply with
the probationary order of March 1994." Roadway's Brief in Opposition to the Administrative
Law Judge's Recommended Decision and Order (Resp't Brief) 21. However, we agree with the
ALJ's determination that this information is immaterial to the outcome of this case. R. D. & O. 2.
At the time she treated Johnson, Dr. Durany was licensed to practice medicine in the State of
Indiana.12
We are fully cognizant that Johnson's record as an employee is imperfect, and
that a reasonable person might question the medical evidence supporting Johnson's claim that he was
too ill to drive between February 13 and 19. However, the very limited evidence that Roadway
introduced specifically relating to Johnson's physical condition while absent from work plainly did
not persuade the ALJ that Johnson was merely feigning illness, and was absent from work for
reasons unrelated to an inability to drive safely. In this regard, we emphasize that an employer is not
without tools for dealing with chronically absent employees. As long as the absences are not the
result of illness or fatigue which so debilitates a driver that driving would violate the DOT
regulation, or are not the result of the driver's reasonable good faith belief that it would be unsafe for
him to drive, those absences may provide a basis for discipline.
Moreover, where a driver's claim of illness is not legitimate, a refusal to drive
is not protected activity. "STAA does not preclude an employer from establishing reasonable
methods or mechanisms for assuring that a claimed illness is legitimate and serious enough to
warrant a protected refusal to drive." Ass't Sec'y of Labor for Occupational Safety and
Health and Anthony Ciotti v. Sysco Foods of Philadelphia, ARB Case No.98-103, ALJ Case
No.97-STA-30, Final Dec. and Ord., slip op. at 8 n.8, July 8, 1998, aff'd sub nom. Sysco Food
Services v. DOL, No. 98-6265 (3d Cir. 1999) (Ciotti). In the present case, Roadway
attempted to establish through the testimony of supervisor Jim Crowe that Johnson's illness from
February 13 through 19 either was feigned, or was not serious enough to preclude driving a
commercial motor vehicle. The ALJ, in his role of fact finder, credited the testimony of Johnson and
Cody over that of Crowe. That does not mean that Roadway would never be able to defend a
disciplinary action such as occurred here with other, or more substantial evidentiary support.
We conclude that substantial evidence supports the ALJ's finding that Johnson
engaged in activity protected by STAA when he refused to drive a commercial motor vehicle from
February 13 through 19 because he was sufficiently ill that to drive would have violated the DOT
illness/fatigue rule.
II. Whether Roadway Retaliated Against Johnson for Engaging in Protected
Activity
The ALJ concluded that Johnson proved that Roadway's decision to terminate
Johnson was motivated in part by Johnson's protected refusal to drive from February 13 through 19.
"Johnson's discharge letter specifically stated that he was terminated due to his unavailability
for dispatch on February 19, 1995." R. D. & O. 13. However, the ALJ determined that
Johnson's record of absenteeism also motivated Roadway to terminate Johnson: "I do believe
that Johnson's overall work record, i.e. record of absenteeism, was a legitimate reason for the
discharge." Id. at 14. Applying a dual motive analysis, the ALJ then concluded that
Roadway had failed to prove by a preponderance of the evidence that it would have terminated
Johnson even if he had not engaged in the protected refusal to drive from February 13 though 19.
The Supreme Court has used the dual motive analysis in cases where an
employer's adverse employment action against the employee was motivated by both prohibited and
legitimate reasons. See Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
286 (1977) (discharging school board not precluded from establishing that it would have reached the
same decision not to grant tenure even in the absence of protected activity). In Mt. Healthy
the Court noted "[a] rule of causation which focuses solely on whether protected conduct
played a part, 'substantial' or otherwise, in a decision not to rehire, could place an employee in a
better position as a result of the exercise of . . . protected conduct than he would have occupied had
he done nothing." Mt. Healthy, 429 U.S. 285. Accord Price Waterhouse
v. Hopkins, 490 U.S. 228, 258 (1989)(when a Title VII plaintiff proves that her gender played
a motivating part in an employment decision, the defendant may avoid a finding of liability only by
proving by a preponderance of the evidence that it would have made the same decision even if it had
not taken the plaintiff's gender into account). "Under the dual motive analysis, when the
complainant proves that retaliation was a motivating factor in the respondent's action, the burden
then shifts to the respondent to show that it would have taken the same action against the
complainant even in the absence of protected activities." Somerson, ARB Case Nos.
99-005, 036, slip op. at 22. See, e.g., Shannon v. Consolidated Freightways, ARB Case No.
98-051, ALJ Case No. 96-STA-15, Apr. 15, 1998 (respondent demonstrated it would have
discharged complainant absent any protected activity); Williams v. Carretta Trucking, Inc.,
Case No. 94-STA-07, Sec'y Final Dec. and Ord., Feb. 15, 1995 (Respondent's unequivocal
policy that refusal of an assignment constitutes voluntary resignation established that it would have
fired Complainant even if he never complained about the safety of vehicles or threatened to take
assigned vehicles for a DOT inspection).
We agree with the ALJ that Johnson proved that his protected activity played
a part in Roadway's decision to terminate him. We also concur with the ALJ's conclusion that
Roadway failed to prove that it would have terminated Johnson on February 21 even if Johnson had
not engaged in his protected refusal to drive from February 13 through 19. Therefore, we affirm the
ALJ's finding that Roadway violated STAA when it terminated Johnson.
A. Whether Roadway was motivated to terminate Johnson,
at least in part, by Johnson's protected refusal to drive from February 13 through 19.
The termination notice which Roadway gave to Johnson on February 21 stated
that Johnson was being discharged because of his unavailability to drive on February 19.13 We have affirmed above the ALJ's finding
that Johnson's "unavailability to drive" from February 13 through 19 was, in fact, a
protected refusal to drive because he was so ill that he would have violated the DOT illness/fatigue
rule had he driven. Roadway contends before us that it did not terminate Johnson because he was
ill, but because his "frequent absences violate[d] Roadway's and the Union's mutually agreed
upon absenteeism policy." Resp't Brief 28. It attempts to distinguish this "legitimate
basis" from the protections provided by STAA, i.e., "[t]he right not to drive
when ill does not create a corresponding right not to be disciplined for excessive absenteeism."
Id.
Roadway's argument has been raised and rejected in previous STAA cases.
In Ciotti v. Sysco Foods, supra, a driver became sick during his run, and was subsequently
absent from work for two days. Because Ciotti had several previous infractions of his employer
Sysco System's attendance policy on his record, Sysco suspended him for one day. Sysco conceded
that a driver engages in protected activity when he refuses to drive a commercial vehicle when he
is too sick to do so safely. However, Sysco argued that Ciotti was punished because he ran afoul of
the company's attendance policy, not because he was sick. We rejected that reasoning:
Ciotti, ARB Case No.98-103, slip op. at 8. See also, Scott v. Roadway Express,
Inc., ARB Case No. 99-13, ALJ Case No. 98-STA-8, Final Dec. and Ord., slip op. at 11, July
28, 1999 (company's absentee policy presented ill driver with untenable choice between violating
fatigue/illness rule or receiving a warning letter). We apply the same reasoning here: Roadway's
termination of Johnson because Johnson refused to drive when he was too ill to do so safely amounts
to a per se violation of STAA's employee protection provision. When a "driver's
ability or alertness is so impaired, or so likely to become impaired, through . . . illness," an
employer cannot lawfully discipline that driver for refusing to drive. 49 C.F.R. §392.3.
Therefore, Johnson proved that Roadway's termination of Johnson was based, at least in part, on
Johnson's protected refusal to drive.
B. Whether Roadway proved, by a preponderance of the
evidence, that it would have terminated Johnson in the absence of his protected refusal to
drive from February 13 though 19.
As we noted above, in a dual motive case, once the complainant has
established that an illicit motive played a part in the adverse action taken by the respondent against
the complainant, the burden of persuasion shifts to the respondent to prove by a preponderance of
the evidence that it would have taken the adverse action in any event. We agree with the ALJ that
Roadway failed to meet this burden.
Roadway produced ample evidence supporting a conclusion that Johnson had
an abysmal attendance and disciplinary record. Under the collective bargaining agreement and
Roadway's progressive disciplinary policy Johnson received the following discipline for absenteeism:
September 11, 1992, warning letter for absenteeism; October 31, 1992, warning letter for
absenteeism; December 10, 1992, one-day suspension for absenteeism; July 7, 1993, warning letter
for absenteeism; September 7, 1993, three-day suspension days for absenteeism; October 17, 1993,
warning letter for absenteeism; January 31, 1994, discharged for absenteeism (later reinstated);
July 4, 1994, discharged for absenteeism (later reinstated with a final warning); November 14, 1994,
discharged for absenteeism (later reinstated with discharge reduced to warning letter). REX 2
through 6.
In his decision, the ALJ listed twenty-two disciplinary actions Roadway took
against Johnson in the five years prior to his February 21, 1995, discharge. R. D. & O. 9-10. The
ALJ also discussed the circumstances related to Johnson's three-day suspension in September 1993;
his February 1994 discharge; his July 1994 discharge; and his November 1994 discharge. R. D. &
O. 10-11. These facts led the ALJ to conclude that Roadway had a dual motive for discharging
Johnson: "I find that Johnson was ultimately fired for his absence on February 19, 1995.
However, I do believe that Johnson's overall work record, i.e., record of absenteeism, was a
legitimate reason for discharge." R. D. & O. 14.
To satisfy its burden, Roadway also presented testimony, which the ALJ
credited, that it's long standing policy was to look at an employee's entire work record when
determining whether to terminate an employee. However, the ALJ correctly held that Roadway
failed to prove that it would have decided to discharge Johnson even if Johnson had not engaged in
the protected refusal to drive from February 13 through 19. In fact, the evidence is quite to the
contrary. Nothing in the record suggests that, had Johnson not refused to drive during that period,
Roadway even would have considered discharging him on February 21. Under the dual motive
analysis it is not sufficient for an employer to prove that it had good reason to take adverse action
against an employee. Rather, the employer must prove by a preponderance of the evidence that it
actually would have taken that action, even if the employee had not engaged in protected
activity. "[I]t is not a defense to a discrimination case that the plaintiff should have been fired,
if he would not have been fired had it not been for discriminatory animus." Coco v.
Elmwood Care, Inc., 128 F.3d 1177, 1180 (7th Cir. 1997). See Price
Waterhouse, 228 U.S. at 252 (employer's legitimate reason for discharge in dual motive case will
not suffice "if that reason did not motivate it at the time of the decision"). Because
Roadway failed to meet this evidentiary burden, we conclude that Roadway's termination of Johnson
on February 21 violated STAA.
III. Relief
STAA provides that:
49 U.S.C. §31105(b)(3)(A). STAA also provides for the award of "costs (including
attorney's fees) reasonably incurred by the complainant in bringing the complaint." 49 U.S.C.
§31105(b)(3)(B). The ALJ ordered reinstatement, back pay, restoration of health and
retirement benefits, interest and attorney's fees and costs. We consider each of these aspects of relief
in turn.
A. Reinstatement.
The ALJ directed Roadway "to immediately reinstate the
Complainant." ALJ's Corrective Order at 2. The ALJ's reinstatement order was effective
immediately upon receipt. Spinner v. Yellow Freight Sys., Inc, Case No. 90-STA-17, Sec'y
Final Dec. and Ord., slip op. at 22-23, May 6, 1992, aff'd sub nom. Yellow Freight Sys. v.
artin, 983 F.2d 1195 (2d Cir. 1993); 29 C.F.R. §1978.109(b). Reinstatement provides
an important protection for employees who report safety violations. "[T]he employee's
protection against having to choose between operating an unsafe vehicle and losing his job would
lack practical effectiveness if the employee could not be reinstated pending complete review."
Brock v. Roadway Express, Inc., 481 U.S. 252, 258-59 (1987). These protections also
extend to employees who refuse to drive vehicles because of safety concerns such as illness or
fatigue. 49 C.F.R. §392.3. Because we conclude Roadway's discharge of Johnson violated
STAA, we affirm the order to reinstate Johnson.
B. Back Pay
The ALJ awarded Johnson back pay based upon Roadway's violation of
STAA. However, the ALJ found that the entitlement to back pay ended in May of 1995 because
"Johnson's refusal to accept the trucking job with Burlington [Truck Lines] showed a willful
disregard for his own financial interest and . . . resulted in a breach of his obligation to mitigate
damages." R. D. & O. 18. We agree that back pay should be awarded. However, for the
reasons we discuss below, we reject the ALJ's finding that back pay entitlement terminated when
Johnson declined the Burlington Truck Lines job.
The purpose of a back pay award is to make the employee whole, that is, to
restore the employee to the same position he would have been in if not discriminated against.
Clifton v. United Parcel Service, ARB Case No. 97-45, ALJ Case No. 94-STA-16, Final
Dec. and Ord., slip op. at 2, May 14, 1997, rev'd on other grounds sub nom. United Parcel
Services, Inc. v. Administrative Review Board, 166 F.3d 1215 (6th Cir. 1998)(table); accord
Blackburn v. Metric Constructors, Inc., Case No. 86-ERA-4, Sec'y Decision and Order on
Damages and Attorney Fee, slip op. at 8, Oct. 30, 1991, aff'd in relevant part and rev'd in part
sub nom. Blackburn v. Martin, 982 F.2d 125 (4th Cir. 1992).
Once a complainant establishes that he or she was terminated as a result of
unlawful discrimination on the part of the employer the allocation of the burden of proof is reversed,
i.e., it is the employer's burden to prove by a preponderance of the evidence that the
employee did not exercise reasonable diligence in finding other suitable employment. Timmons
v. Franklin Electric Cooperative, ARB Case No. 97-141, ALJ Case No. 97-SWD-2, ARB Final
Dec. and Ord., slip op. at 11, Dec. 1, 1998. See also Wheeler v. Snyder Buick, Inc., 794 F.2d
1228, 1234 (7th Cir. 1986) (it is employer's burden to prove, as an affirmative defense, that the
employee failed to mitigate damages).
The employer may prove that the complainant did not mitigate damages by
establishing that comparable jobs were available, and that the complainant failed to make reasonable
efforts to find substantially equivalent and otherwise suitable employment. Ass't Sec'y of Labor
for Occupational Safety and Health and Johnny Lansdale and Donna Lee v. Intermodal Cartage
Co., Ltd., Case No. 94-STA-22, Sec'y Final Dec. and Ord., slip op. at 6-7, July 26, 1995,
aff'd sub nom. Intermodal Cartage Co., Ltd. v. Reich, 113 F.3d 1235 (6th Cir. 1997)(table).
See also U.S. v. City of Chicago, 853 F.2d 572, 578 (7th Cir. 1988) (defendant must prove
both that the plaintiff was not reasonably diligent in seeking other employment, and that with the
exercise of reasonable diligence there was a reasonable chance that plaintiff might have found
comparable employment); Rasimas v. Michigan Dep't of Mental Health, 714 F.2d 614, 624
(6th Cir. 1983)(employer may satisfy its burden only by establishing that there were substantially
equivalent positions which were available and that the claimant failed to use diligence in seeking
such positions). We find that Roadway failed to prove either of these two elements.
First, Roadway failed to prove that other comparable jobs were available. In
an effort to meet the first prong of its affirmative defense, Roadway argued below that there was a
"well-documented shortage of drivers." Respondent's Post Hearing Brief 29-30.
However, the bald assertion that there was a need for drivers is not the sort of specific proof that
Roadway needed to provide to show that there were substantially equivalent positions available.
See, e.g., Kawaski Motors Mfg. Corp. v. NLRB, 850 F.2d 524, 528 (9th Cir. 1988)
(employer's reliance on newspaper advertisements and hiring records to show the availability of jobs
is not adequately convincing because they were not evidence of employment specifically available).
On this ground alone we could find that Roadway failed to prove failure to mitigate. However, we
also find that Roadway did not prove that Johnson failed to exercise due diligence in mitigating his
damages when he declined a position with Burlington Truck Lines.
The ALJ found that "the truck driving job offered to Johnson by
Burlington Truck Lines was substantially equivalent to his former truck driving position with
Roadway." R. D. & O. 18. As we discuss below, this finding is not supported by substantial
evidence on the record as a whole. A substantially equivalent job offers "virtually identical
promotional opportunities, compensation, job responsibilities, working conditions and status."
Rasimas, 714 F.2d at 624.
There are substantial differences between Johnson's position with Roadway
and the position he was offered with Burlington Truck Lines. Roadway is a unionized carrier which
paid Johnson fringe benefits including a pension, major medical and hospitalization insurance. Tr.
58. Johnson testified that Roadway's benefit package was better than any of the other companies
with whom he worked. Tr. 59. With Roadway, Johnson drove less-than-trailer load freight. Tr. 62.
In addition, Johnson drove on a district bid run which involved driving from Chicago Heights to
another terminal and back one or more times per day. Tr. 27-28.
Roadway offered no evidence or argument regarding Burlington Truck Lines'
union status, and Johnson asserts that Burlington Truck Lines is a non-union company.
Complainant's Brief in Support of and in Opposition to the Administrative Law Judge's
Recommended Decision and Order 23. Roadway also failed to establish that the Burlington position
paid the same as the position it discharged Johnson from. A lower-paying, non-union position would
not constitute substantially equivalent employment. Ass't Sec'y of Labor for Occupational Safety
and Health and Victor Polewsky v. B & L Lines, Inc., Case No. 90-STA-21, Sec'y Final Dec. and
Ord., slip op. at 3, May 29, 1991.
Roadway also failed to establish that the Burlington driver position offered
working conditions substantially equivalent to the Roadway position. Unlike Roadway, Burlington
was a trailer load carrier which would have required Johnson to drive throughout the United States.
Dep. 58; R. D. & O. 18. With Roadway, Johnson drove less-than-trailer load freight on district bid
runs, which entailed driving back and forth between terminals no more than 250 miles apart.
Deposition of Danny Johnson (Dep.) 59.
As this discussion demonstrates, the differences between Johnson's Roadway
position and that offered by Burlington Truck Lines are significant. Under the facts presented, we
must conclude that Roadway failed to establish that the truck driving job offered to Johnson by
Burlington Truck Lines was substantially equivalent to his former truck driving position with
Roadway. Johnson's failure to take the position with Burlington Truck Lines did not terminate his
entitlement to back pay.14 The ALJ's
finding to the contrary is not based upon substantial evidence.
In light of our conclusion that Johnson's refusal to take the Burlington Truck
Lines job did not terminate his entitlement to back pay, it is necessary to remand this case to the ALJ
to determine if or when Johnson's back pay entitlement was tolled. The ALJ, in compliance with
STAA, ordered that Johnson be temporarily reinstated. However, it is not clear from the record
before us whether or when that reinstatement actually occurred. Of course, reinstatement would toll
the running of back pay entitlement. Income earned by Johnson must also be deducted from any
award of back pay. Moreover, Johnson testified that he was discharged from one of those positions
(with Landstar Poole) because he violated company policy. Tr. 168-77. The ALJ should also
determine whether the discharge by Landstar Poole affects back pay entitlement.
D. Restoration of Other Benefits.
Because the ALJ found that Roadway violated STAA when it discharged
Johnson he "is entitled to any damages that flow from that unlawful discharge."
Hufstetler v. Roadway Express, Inc., Case No. 85-STA-8, Sec'y Final Dec. and Ord., slip
op. at 52, Aug. 21, 1986, aff'd on other grounds sub nom. Roadway Express, Inc. v. Brock,
830 F.2d 179 (11th Cir. 1997). Once a complainant establishes that he or she was terminated as a
result of unlawful discrimination on the part of the employer, a presumption in favor of full relief
arises. Gaddy v. Abex Corp., 884 F.2d 312, 318 (7th Cir. 1989). The ALJ ordered Roadway
"to restore other benefits which Johnson was entitled to, including but not limited to health and
welfare contributions to which Johnson would have been entitled to." R. D. & O. 19. On
remand the ALJ should determine the amounts due Johnson in order to restore these benefits. In
particular, the ALJ should determine: 1) whether and in what amount Roadway is responsible for
payment of Johnson's medical expenses which would have been covered by the health and welfare
fund;15 2) whether and in what amount
Johnson is entitled to vacation pay for the period between his discharge and his reinstatement
(Moyer v. Yellow Freight Sys., Inc. [Moyer II], Case No. 89-STA-7, Sec'y Final Dec. and
Ord., slip op. at 36, Aug. 21, 1995, rev'd on other grounds sub nom. Yellow Freight Sys., Inc.
v. Reich, 103 F.3d 132 (6th Cir. 1996)(table)); 3) whether and to what extent Johnson is entitled
to vacation and holiday pay for the period for which he is entitled to back pay; and 4) whether and
to what extent Roadway must contribute the necessary pension funds on behalf of Johnson for the
period from the date of his discharge until the date of his reinstatement. Moyer II, slip op.
at 41.
E. Interest.
Interest is due on back pay awards from the date of discharge to the date of
reinstatement. Prejudgment interest is to be paid for the period following Johnson's termination on
arch 29, 1995, until the ALJ's order of reinstatement. Post-judgment interest is to be paid
thereafter, until the date payment of the back pay is made. Moyer I, slip op. at 9-10. The
rate of interest to be applied is that required by 29 C.F.R. §20.58(a)(1999) which is the IRS
rate for the underpayment of taxes set out in 26 U.S.C.A. §6621 (1999). Moyer II,
slip op. at 40. The interest is to be compounded quarterly. Ass't Sec'y of Labor for Occupational
Safety and Health and Harry D. Cotes v. Double R Trucking, Inc., ARB Case No. 99-061, ALJ
Case No. 98-STA-34, Supplemental Dec. and Ord., slip op. at 3, Jan. 12, 2000.
IV. Attorney's Fees
The ALJ issued a September 3, 1999, Order Granting Attorney Fees.
However, this was after the close of the briefing schedule before the Board. As a result, neither party
had an opportunity to comment on the attorney fees award. Since we are remanding this case for
further action by the ALJ, Johnson's attorney may submit to the ALJ an augmented fee petition for
work before the Board and upon remand. The Board will review the entire attorney fee award after
the ALJ's decision on remand and after the parties have briefed the attorney fee issue.
CONCLUSION
For the foregoing reasons we:
1. Affirm finding that Roadway violated STAA when it discharged Johnson;
2. Affirm the order to reinstate Johnson;
3. Affirm the award of back pay and benefits but remand to the ALJ to
recalculate the back pay award and Johnson's entitlement to the other benefits discussed in Part III
D of this decision.
The Board will review the award of attorney's fees in conjunction with its
review of the ALJ's recommended decision on remand.
SO ORDERED.
PAUL GREENBERG
E. COOPER BROWN
CYNTHIA L. ATTWOOD
1 Citations to the record are as follows:
Recommended Decision and Order (R. D. & O. ___); Hearing Transcript (Tr. ___); Joint Exhibit (JEX ___);
Complainant Exhibit (CEX ___); Respondent Exhibit (REX ___).
2 For reasons not reflected in the
record, the Assistant Secretary did not issue his written findings until August 31, 1998. JEX 1.
3 The applicable agreement is the
National Master Freight Agreement and the Central States Area Supplemental Agreement signed by
Roadway and the Teamsters Union. Drivers get one week of vacation after their first year of employment.
From two to seven years a driver earns two weeks per year. From eight to fourteen years a driver earns three
weeks of vacation. From fifteen to twenty years a driver earns four weeks of vacation per year. Beyond
twenty years a driver earns five weeks of vacation per year. JEX 21 at 227-28.
4 Johnson could not recall the driver
foreman with whom he spoke. Tr. 31-32.
5 Johnson did not identify with whom
he spoke. Tr. 40; 116.
6 There is conflicting evidence in the
record regarding whether Johnson returned to work on the 20th or the 21st. Roadway produced two
documents regarding Johnson's work status on February 20, 1995. In response to Johnson's discovery request
Roadway produced a list of Johnson's absences. Tr. 207; CEX 3. This document does not indicate Johnson
was off duty on February 20. Roadway also produced another list of absences which it introduced as part
of Respondent's Exhibit 7. This list indicates that Johnson was absent February 20, due to sickness (flu).
Roadway officials could not conclusively state that Johnson did not work on February 20. Tr. 339-340; 389;
429-30. The ALJ found that Johnson worked that day. R. D. & O. 11 n.5.
7 DOT's ill or fatigued operator
regulation provides in relevant part: "No driver shall operate a commercial motor vehicle . . . while the
driver's ability or alertness is so impaired . . . through fatigue, illness, or any other cause, as to make it unsafe
for him/her to begin or continue to operate the commercial motor vehicle." 49 C.F.R. §392.3
(1999).
8 This recommendation was made
in the body of the ALJ's July 21, 1999, R. D. & O. Id. 17. The ALJ made the reinstatement order
explicit in a subsequent Corrective Order issued July 26, 1999.
9 The employee protection provisions
of STAA provide, in relevant part:
49 U.S.C. §31105.
10 See n.7, supra.
For reasons that the ALJ did not articulate, he ruled that the other STAA refusal to drive provision
(commonly referred to as the "reasonable apprehension" provision (49
U.S.C.§31105(a)(1)(B)(ii)) "is . . . not applicable to this case." R. D. & O. 6. However,
Johnson's refusal to drive may have been protected by that provision since he could have had a reasonable
apprehension of serious injury if he had to drive in his ill state. 49 U.S.C. §31105(a)(1)(B)(ii).
See n.9, supra; see also Somerson v. Yellow Freight Sys., Inc., ARB Case Nos. 99-
005, 036, ALJ Case Nos. 98-STA-9, 11, ARB Final Dec. and Ord., slip op. at 15, Feb. 18, 1999
("§31105(a)(1)(B)(ii) also encompasses situations where a driver's physical condition causes an
employee to have 'a reasonable apprehension of serious injury to the employee or the public'").
Because we conclude that Johnson's refusal to drive was protected under the "actual violation"
provision (§31105(a)(1)(B)(i)), we do not decide whether it was also protected under the
"reasonable apprehension" provision.
11 The ALJ first concluded that
"complainant has demonstrated, by a preponderance of the evidence, a prima facie case of
discrimination under Section 31105 of the Surface Transportation Assistance Act." R. D. & O. 13.
This conclusion is problematic for two reasons. First, as we have stated repeatedly, in analyzing the evidence
presented in a case such as this, which has been fully tried on the merits, it is not necessary to determine, as
the ALJ did (R. D. & O. 13-14), whether Johnson established a prima facie case, and whether
Roadway rebutted that showing. Once a respondent produces evidence in an attempt to articulate a
legitimate, nondiscriminatory reason for its personnel action, it no longer serves any analytical purpose to
determine whether the complainant presented a prima facie case. Instead, the relevant inquiry is
whether complainant prevailed, by a preponderance of the evidence, on the ultimate question of liability.
If he or she did not prevail on the ultimate question of liability, it matters not at all whether he or she
presented a prima facie case. If he or she did prevail on the ultimate question of liability, ipso
facto he or she presented a prima facie case. Somerson, ARB Case Nos. 99-005, 036
slip op. at 8 (and cases cited therein). In a case fully tried on the merits there is simply no reason for an
adjudicator to dance what one court has aptly called "the judicial minuet." Sime v. Trustees
of the California State University and Colleges, 526 F.2d 1112, 1114 (9th Cir. 1975).
Second, it is simply a misnomer to characterize the complainant's burden of persuasion
as one of proving a prima facie case by a preponderance of the evidence. Complainant's ultimate
burden, rather, is to prove the elements of a violation here that Johnson engaged in protected
activity and that Roadway took adverse action against him because of that activity by a preponderance of
the evidence.
12 Although Dr. Durany's medical
license was put on indefinite probation by order of the Medical Licensing Board of Indiana dated March 18,
1994, she was not prohibited from practicing medicine. Resp't Brief Ex B. It is true that Dr. Durany received
an Order to Show Cause for failure to comply with the Licensing Board's March 18, 1994 Order. However,
the Order to Show Cause was dismissed by the Board's March 8, 1995 Order. While that Order did modify
certain reporting requirements of the March 18, 1994 Order, it did not further restrict Dr. Durany's license
to practice medicine. Id. The probation was lifted by Order dated September 24, 1996. Id.
The fact that Dr. Durany's license was later suspended in 1998 is not relevant to her diagnosis of Johnson's
condition some four years earlier.
13 The February 21, 1995, Discharge
Letter listed two previous violations of a similar nature, i.e., a July 4, 1994, warning letter for
absenteeism and a November 14, 1994, warning letter for absenteeism. JEX 4.
14 In its Statement of Facts, Roadway
claims that Johnson did not use reasonable diligence in seeking employment after it discharged him. Resp't
Brief 11. However, an employer must meet both prongs of the Rasimas test before the
burden of going forward with evidence that he or she exercised due diligence shifts back to the employee.
OFCCP v. Cissell Mfg. Corp., Case No. 87-OFC-26, Ass't Sec'y Final Dec. and Ord., slip 18 n.13,
Feb. 14, 1994. Roadway did not establish that there were substantially equivalent jobs available. In any
event, although Johnson did not have to establish that he exercised reasonable diligence, his actions
demonstrate that he did. Donnelly v. Yellow Freight Sys., Inc., 874 F.2d 402, 411 (7th Cir. 1989)
(complainant can satisfy mitigation requirement by demonstrating a continuing commitment to be a member
of the work force). A complainant is only required to make reasonable efforts to mitigate damages, and is
not held to the highest standards of diligence. Rasimas, 714 F.2d at 624. Such efforts include
checking want ads, registering with employment agencies, discussing employment opportunities with friends
and acquaintances. Sprogis v. United Air Lines, Inc., 517 F.2d 387, 392 (7th Cir. 1975). A review
of the record reveals that Johnson satisfied the test for reasonable diligence. The day after his discharge,
Johnson contacted his union business agent to see if there were jobs available. Tr. 60. He checked with the
business agent frequently, once or twice a week. Id. He applied for a position with Yellow Freight
System, a unionized company, but was not hired. Tr. 62-63. Johnson also looked for a non-union truck job
and checked the want ads, Tr. 64; called all over the country looking for work, Tr. 64-66; and took jobs
outside the trucking industry, Tr. 67, 74-75. These efforts demonstrate Johnson's "continuing
commitment to be a member of the work force." Donnelly, 874 F.2d at 411.
15 The burden of proof for supporting
payment of these expenses rests with Johnson. Hufstetler, Case No. 85-STA-8 slip op. at 48. In
order to restore Johnson fully, Roadway also "must pay sufficient monies into the health and welfare
fund to permit [Johnson's] immediate coverage upon reinstatement." Moyer v. Yellow Freight Sys.,
Inc. [Moyer I], Case No. 89-STA-7, Sec'y Final Dec. and Ord., slip op. at 9, Sept. 27, 1990, rev'd
on other grounds sub nom. Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
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Chair
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