DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON FOR ADVERSE ACTION
[Last updated Mar. 3, 2011]
[Caution: Prior to 2007, the STAA employed a three-step burden shifting framework derived from the McDonnell-Douglas Title VII framework. In 2007, the STAA was amended to employ instead the AIR21 two-step analytical framework: (1) whether the complainnat has met his burden of establishing that protected activity was a "contributing factor" in the alleged adverse personnel action, and if so, (2) whether the respondent can establish by "clear and convincing evidence" that it would have takne the same adverse action in the absence of the protected activity. See Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014).
This Digest contains casenotes on cases decided under the old framework. Researchers should take care not to rely on caselaw that was supplanted by the 2007 amendments.]
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IV. Burden of proof and production
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* * *
- B. Articulation of nondiscriminatory reason for adverse action
The STAA whistleblower provision prohibits "discharge . . . discipline or discriminat[ion] . . . regarding pay, terms, or privileges of employment " because of protected activity. 49 U.S.C.A. § 31105(a)(1) (emphasis added). Thus, in Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ erred when he found no adverse action because the evidence did not show that the Complainants were fired, disciplined, or suffered any other adverse employment action, but did not actually discuss whether the Respondent had discriminated against the Complainants.� The ARB found that it was possible that the Complainants had suffered such discrimination when, for example, the Respondent found replacement drivers for the Complainants' shows [the Complainants being paid solely on commission for sales of ammunition made at gun shows] while their names still were listed on the assignment board, and the Respondent did not offer the Complainant work that did not require participation in driving trucks with possible violations.
IV B 1 Secretary only looks to whether articulated reason would violate the STAA; does not consider whether it would violate only anti- discrimination statutes
In Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995), the Respondent meet its burden of articulating legitimate, non-discriminatory reasons for the adverse actions, where, inter alia, it explained that it chose the Complainant for layoff because of a reduced need for drivers, the belief that Nolan intended to retire soon, the fact that Nolan qualified for social security in view of his age, and disappointment with Nolan's work performance.
In a footnote, the Secretary observed that he was only finding that the Respondent articulated reasons for the layoff that do not violate the STAA, and that he was making no finding whether it would violate other anti-discrimination statutes to select an employee for layoff because he is old enough to receive social security benefits or is planning to retire.
[STAA Digest IV B 1]
NON-DISCRIMINATORY REASON; RESPONDENT'S BURDEN IS ONE OF
ARTICULATION, NOT PROOF
In a STAA whistleblower case, it is not an employer's burden to prove a legitimate, non-discriminatory, non-pretextual reason for its action in order to rebut evidence raising a reasonable inference of retaliatory discharge. Rather, if a complainant presents evidence raising a reasonable inference of retaliatory discharge, the employer need only articulate a non-discriminatory reason for its action. At all times, the complainant had the burden of establishing that the real reason for discharge was discriminatory. See St. Mary's Honor Center v. Hicks , 113 S.Ct. 2742 (1993). Shute v. Silver Eagle Co. , 96-STA-19 (ARB June 11, 1997).
IV.B.1. Respondent must raise genuine issue of fact
An employer attempting to rebut a prima facie case of discrimination must produce evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The evidence, however, must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255.
Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), slip op. at 4-5 and n.4.
IV.B.1. Respondent's failure to establish legitimate, nondiscriminatory reason for adverse action
Respondent's purported legitimate, nondiscriminatory reason for discharging the complainant -- his "overall work record," including four warnings issued due to the complainant's unavailability when a dispatcher tried to contact him and for a weekend job assignment -- was not persuasive where
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Respondent had never previously discharged a driver for
receiving four such warnings
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The fourth letter related to unavailability on the date
of a co-worker's grievance hearing at which the complainant
had previously obtained permission to attend for purposes of
testifying (issuance of this letter itself appears to
constitute unlawful adverse employment action).
- A supervisor's had threatened discharge in retaliation for giving testimony at the co-worker's hearing (which constituted compelling evidence of motive).
Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd in part on other grounds and rev'd and remanded on this issue sub nom. because of the Secretary's failure to afford respondent adequate notice it would be litigated, Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).
IV.B.1. Complainant Did Not Sustain His Burden of Proving Adverse Action by the Employer in Contesting Complainant's Entitlement to Workers' Compensation Benefits was Motivated by a Discriminatory Intent
The Secretary found that complainant had not established a discriminatory motive on the part of the employer in contesting complainant's entitlement to workers' compensation benefits. The complainant, pro se, introduced no evidence in his case-in-chief. The employer introduced direct testimonial and documentary evidence supporting legitimate, non-discriminatory reasons for its workers' compensation challenge. Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).
IV.B.2.a. Legitimate, nondiscriminatory reason for adverse action
Respondent demonstrated legitimate, nondiscriminatory business reasons for complainant's lay off where it established that shortly before complainant was laid off, he was involved in three vehicular accident which raised legitimate insurance concerns and resulted in costs for damages; it offered credible testimony concerning complainant's unauthorized use of company equipment for personal use, and the deterioration of his job performance and attitude; and complainant acknowledged that respondent was previously upset about his leaving personal items on or near company property, and that his part-time work for a nearby garage had posed conflicts with working for respondent.
Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992) (complainant failed to show pretext; admitted that another driver had been fired after being involved in two accidents in one month; complaint dismissed).
IV B 2 b Threat acerbated by physical conduct
In Toland v. Burlington Motor Carriers, Inc., 93- STA-35 (ALJ Oct. 31, 1994), adopted (Sec'y Feb. 27, 1995, the ALJ found that although the Complainant had lodged complaints about his trainer's log violations after an altercation with his trainer, the Complainant was fired for his egregious behavior rather than his protected activity. The ALJ took into consideration that had the log violations not occurred, the altercation may not have occurred. Nonetheless, the Complainant's behavior included abusive language, threats of violence, and a lunge at the trainer unlike Moravec v. HC & M Transp., Inc., 90-STA-44 (Sec'y Jan. 6, 1992), where the complainant merely had spontaneously challenged his supervisor to a fight following provocation by the employer's unlawful conduct, and where no blows where struck.
IV.B.2.b. Articulation of nondiscriminatory reason for adverse action; complainant challenged supervisor to fight; sufficient to shift burden
In Moravec v. HC & M Transportation, Inc., 90- STA-44 (Sec'y Jan. 6, 1992), the statements of the complainant's supervisor that the complainant was discharged because he challenged the supervisor to a fight, was a sufficient articulation of a nondiscriminatory reason for the discharge such that the burden shifted back to the complainant to establish pretext.
In Spelson v. United Express Systems , ARB No. 09-063, ALJ No. 2008-STA-39 (ARB Feb. 23, 2011), the ARB noted that the ALJ had misstated the ARB's holding in Harrison v. Roadway Express, Inc. , ARB No. 00-048, ALJ No. 1999-STA-037 (Dec. 31, 2002), aff'd sub nom. Harrison. v. Roadway , 390 F.3d 752 (2d Cir. 2004). The ARB stated that it did not hold in that decision that the concept of leeway for intemperate behavior applies only to the STAA "refusal to drive" provision and not to the "filed a complaint" provision. Rather, the ARB declined in that case to apply the "intemperate but protected" theory because the complainant's conduct was unemotional, deliberate and repeated, rather than impulsive, emotionally motivated conduct incidental to protected activity.
[STAA Digest IV B 2 c]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; INSUBORDINATION; CALLING A SUPERVISOR A LIAR
[STAA Digest IV B 2 c]
WHETHER LEEWAY FOR IMPULSIVE BEHAVIOR IS WARRANTED DEPENDS ON PARTICULAR FACTS OF THE CASE
In Ridgley v. USDOL , No. 07-3917 (6th Cir. Oct. 21, 2008) (unpublished) (case below ARB No. 05-063; ALJ No. 2004-STA-53), the Complainant had previously expressed a desire not to work beyond 4:00 pm on Mondays, because he was scheduled for a long Tuesday route. On Monday, December 1, 2003, the Complainant was scheduled for a longer than normal route because it was a holiday delivery. The Complainant, concerned that the trip would take 14 to 16 hours, objected to working past 4:00 pm, and asked for a helper. The company's president attempted to accommodate the Complainant but determined that no helper was available. Because it was not feasible to remove certain stops from the route, and there was no other available assignment for the Complainant that day, the route was assigned to a substitute driver and the Complainant was sent home for the day. When the company president called to confirm whether the Complainant would be in for his Tuesday route, he left what the ALJ found to be a calm and patient message, noting that the Monday run had only taken 8 hours and 20 minutes. When the Complainant returned the call, the Complainant asked whether any stops had been removed from the Monday run. The president said that they had not, and the Complainant indicated that he found that hard to believe. The president then asked if the Complainant was calling him a liar, and the Complainant replied "[y]es, and you've been lying to me for years." The president then fired the Complainant. The Complainant filed an STAA whistleblower complaint. After a hearing, the ALJ found that the Complainant was fired for insubordination, and that the termination was not causally related to any protected activity under the STAA. The ARB affirmed.
On appeal, the Complainant argued that because he was fired for a comment made during a conversation about the length of his Monday route, he was necessarily retaliated against. The Court disagreed, writing:
But "an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern," Am. Nuclear Res., Inc. v. U.S. Dept. of Labor , 134 F.3d 1292, 1295 (6th Cir. 1998), as long as the termination is not because of the safety complaint. Ridgley claims he was fired "for challenging the employer's honesty about safety compliance ," (Appellant's Reply Br. 2 (emphasis added)), but the ALJ found that the termination was motivated solely by the accusation of dishonesty, not by the fact that the accusation was related to the length of Ridgley's route. Similarly, Ridgley argues that he had "the right to speak out when his employer [used] deception to break trucking safety laws" and states that "the lying employer cannot ask, on a question of compliance with motor carrier laws, �Are you calling me a liar', and then fire an employer for saying, �Yes.'" ( Id. at 4 (emphasis added).) These arguments presuppose facts that the ALJ found did not exist: that Dannemiller used deception to break trucking safety laws and that he lied to Ridgley.
Slip op. at 10-11. The court also found that the ALJ had properly distinguished a Secretary of Labor decision holding that the STAA provides some leeway for impulsive behavior, noting that such authority by its own terms held that the issue turns on the distinctive facts of the case. In the instant case, the Complainant had been accommodated and had not been asked to violate any commercial vehicle regulation.
[STAA Digest IV B 2 c]
LEGITIMATE NON-DISCRIMINATORY
REASON FOR TERMINATION OF EMPLOYMENT; COMPLAINANT�S BIZARRE AND DISRUPTIVE
BEHAVIOR
In Frausto v. Beall Concrete Enterprises, Ltd. , ARB No. 05-122, ALJ No. 2005-STA-9 (ARB Aug. 24, 2007), the ARB affirmed the ALJ's recommended dismissal of the Complainant's STAA complaint where overwhelming and credible evidence supported the Respondent's contention that it terminated the Complainant's employment because of his bizarre and disruptive behavior.� The Complainant failed to prove that this reason was pretext.
IV.B.2.c. Nondiscriminatory reason; complainant's distrust of company, refusal to transport cash, and repeated requests for pay advances
The respondent meet its burden of production to present evidence of a legitimate, nondiscriminatory reason for firing the complainant where its manager testified that he fired complainant because of complainant's expressed distrust of the company and its personnel, his refusal to transport cash between truck terminals according to the company's usual practice, and his repeated requests for pay advances. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992).
[STAA Whistleblower Digest IV B 2 c]
LEGITIMATE, NON DISCRIMINATORY REASON; INSUBORDINATION
Even if an employee engages in protected activity, an employer may discipline the employee for insubordination. Clement v. Milwaukee Transport Services, Inc. , ARB No. 02 025, ALJ No. 2001 STA 6 (ARB Aug. 29, 2003). In Clement , although Complainant was being approached about his use of flashers (Complainant alleged that federal law required use of the flashers whenever he stopped in traffic, whereas Respondent's policy was to use them only in emergencies) the record established that his discharge was for ignoring a supervisor and for his refusal to attend a meeting.
IV.B.2.c. Communication requirement STAA; Existence of legitimate, nondiscriminatory reason for adverse action
Complainant did not establish a causal link between his protected activity and his subsequent discharge where the record did not prove that the supervisor who discharged him had any knowledge of the protected activity or, otherwise, that the decision to discharge complainant was motivated in any part by complainant's protected conduct. Instead, the record proved that complainant was discharged for a legitimate, nondiscriminatory reason -- for refusing to attend a counseling session pertaining to his consistent problem of driving over Respondent's established speed limit. Although the complainant contended that the speeding resulted from the way he was dispatched, the Secretary concluded that the record did not support that contention; she also noted that the relevant inquiry is Respondent's perception of its justification for the discharge. Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987).
Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992).
IV B 2 c. Insubordination by using foul language over the phone to Respondent insufficient to establish non- discriminatory reason for adverse action.
In Kenneway v. Matlack, Inc., 88-STA-20, (Sec'y June 15, 1989), Complainant was terminated after he refused to accept a driving assignment which would have caused him to violated the Federal Motor Carrier Safety Regulation governing maximum driving and on-duty time. Complainant argued that his termination was in response to his refusal to drive. Respondent asserted that Complainant was discharged for vulgar and abusive language directed at Respondent's dispatcher during a telephone conversation.
In determining whether Complainant's alleged abusive language was sufficient motivation for Complainant's termination, the Secretary considered the fact that in labor relations cases "[c]courts have recognized that the use of intemperate language is associated with some forms of statutorily-protected activities ... due to the adversarial nature of these activities." Furthermore, the Secretary noted that "[b]because protected work refusals under the STAA present a similar potential for confrontation, recourse to labor relations cases is useful..."
The Secretary held that the right to engage in statutorily protected activity permits some leeway for impulsive behavior, which is balanced against the employer's right to maintain order and respect in its business by correcting insubordinate acts. Citing NLRB v. Leece-Neville Co., 396 F.2d 773, 774 (5th Cir. 1968) the Secretary stated:
"A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and shop discipline. . The issue of whether an employee's actions are indefensible under the circumstances turns on the distinctive facts of the case."
In Kenneway, the Secretary determined that, for the purposes of balancing Complainant's work refusal right against Respondent's right to maintain shop discipline, little if any injury was sustained by Matlack. (Alleged abusive language took place during an off-duty hours, out of the work place, telephone conversation with Respondent's dispatcher rather than in the presence of other employees).
While expressing doubts whether Complainant used foul languages, the Secretary held that the foul language stood alone as assertedly constituting "insubordination." Furthermore, the Secretary held that any language on Complainant's part was not offered in defiance to management authority, did not represent a refusal to follow reasonable instructions, and did not present a threat to shop discipline. Consequently, the Secretary held that Respondent failed to meet its burden to produce evidence that Kenneway's discharge was motivated by a legitimate, non-discriminatory reason. "In its context [Complainant's] language was not insubordinate and Respondent's 'reason' for discharge is not legally sufficient to justify judgment in its favor."
IV.B.2.c. Insubordination; refusal to perform non-driving duties
Homen v. Nationwide Trucking, Inc.
,
93-STA-45 (Sec'y Feb. 10, 1994)
The Secretary approved the ALJ's recommended decision to dismiss the complaint based on Complainant's failure to establish a prima facie case. To establish a prima facie case under the employee protection provision of the STAA. (49 U.S.C. app. § 2305), the complainant must show that he engaged in protected activity, that he was subject to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. The complainant was found to have engaged in the protected activity only after he was fired for insubordination and thus the Respondent was not aware of any protected activities engaged in by the complainant when they discharged him.
Even assuming that the complainant established a prima facie case, the Respondents demonstrated a legitimate reason for discharging him, which successfully rebuts the inference that the adverse action was motivated by the protected activity. The evidence showed that after the complainant refused to drive the truck for safety reasons, the Respondent assigned him to alternative, non-driving duties only; the Complainant refused the assignment and became disruptive and uncooperative. Hence, the complainant's insubordination was a legitimate reason for his discharge.
IV.B.2.c. Chronic complainer; relation to safety complaints
In Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984), the Secretary indicated that where an employee's complaints center around perceived safety defects and whose other complaints were not of great consequence (in this case complaining about not getting full-time work he had been promised and being assigned non-driving duties), an employer's articulation of the reason for adverse action being that he is a chronic complainer is probably not a legitimate reason for discharge.
IV.B.2.c. Intemperate behavior by complainant
In several decisions, the Secretary has considered labor relations precedent in addressing intemperate language and impulsive behavior associated with the exercise of STAA rights.
See Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7, 10-13; Ertel v. Giroux Brothers Transportation Co., 88-STA-24 (Sec'y Feb. 16, 1989), slip op. at 20-21, 30-31. Cf. Dunham v. Brock, 794 F.2d 1037 (5th Cir. 1986) (ERA case).
The standard employed under the National Labor Relations Act requires balancing the right of the employer to maintain shop discipline and the "heavily protected" right of employees to bargain effectively: to fall outside statutory protection, and employee's conduct actually must be "indefensible under the circumstances.
NLRB v. Southwestern Bell Telephone Co., 694 F.2d 974, 976-977 (5th Cir. 1982).
See Reef Industries, Inc. v. NLRB, 952 F.2d 830, 836-838 (5th Cir. 1991) (satirical letter and tee-shirt were not so offensive as to lose protection "when not fraught with malice, obscene, violent, extreme, or wholly unjustified"); NLRB v. Lummus Industries, Inc., 679 F.2d 229, 233-235 (11th Cir. 1982) ("allegedly false and defamatory statements" made in context of concerted activity "will be protected unless they are made with knowledge of their falsity or with reckless disregard for their truth or falsity").
oreover, "an employer may not rely on employee conduct that it has unlawfully provoked as a basis for disciplining an employee."
NLRB v. Southwestern Bell Telephone Co., 694 F.2d at 978-979. See NLRB v. Steinerfilm, Inc., 669 F.2d 845, 851-852 (1st Cir. 1982), citing Trustees of Boston University v. NLRB, 548 F.2d 391, 392-393 (1st Cir. 1977) ("insubordination was an excusable, if a regrettable and undesirable, reaction to the unjustified warning . . . received just minutes before," and the discharge therefore was improper).
Although under Title VII of the Civil Rights Act of 1964, opposition to unlawful employment practices is protected, "certain forms of 'opposition" conduct, including illegal acts or unreasonably hostile or aggressive conduct, may provide a legitimate, independent and nondiscriminatory basis for sanctions."
EEOC v. Crown Zellerbach Corp., 720 F.2d 1008, 1012 (9th Cir. 1983).
Stated differently, the form of opposition may remove Title VII protections.
> Id. at 1015 and nn. 4, 5, citing Rosser v. Laborers' Intern. Union of North America, 616 F.2d 221, 223 (5th Cir. 19xx), cert. denied, 449 U.S. 886 (1980); Silver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1978). See Jennings v. Tinley Park Comm. Consol Sch. Dist. 146, 864 F.2d 1368, 1372 (7th Cir. 1988) (decision to discipline employee "whose conduct is unreasonable, even though borne out of legitimate protest, does not violate Title VII").
Examples include
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conduct interfering with employee work
performance, e.g., hostility to supervisor, militant
demands, loud and insubordinate behavior in work areas,
participation in destructive, noisy demonstrations
during work hours, and
- conduct interfering with an employer's interest in maintaining the confidentiality of employee records, e.g., surreptitious copying of confidential documents.
In contrast, sending a letter to a significant customer of the employer which criticized its decision to present the employer with an affirmative action award "had absolutely no effect upon the [employees'] job performance or upon the workplace environment" and thus constituted "perfected appropriate," protected expression.
EEOC v. Crown Zellerbach Corp., 720 F.2d at 1015, 1016.
Similarly, an employee who surreptitiously tape-recorded conversations with his supervisors to gather evidence in support of his discrimination claim was held protected under the Age Discrimination in Employment Act prohibition (29 U.S.C. 623(d)) against discharge for "oppos[ing] any practice made unlawful by this section" or "participat[ing] in any manner in an investigation, proceeding, or litigation under this chapter."
Heller v. Champion Intern. Corp., 891 F.2d 432, 436 (2d Cir. 1989) (emphasis omitted). See Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569-70 (2d Cir. 1989) (employee protected in drafting memorandum documenting employer company's discriminatory practices, presenting it to company president for approval, and using signed memorandum in subsequent legal action against company); Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1355-57 (9th Cir. 1984) (Title VII protections extended to black nurse who, after unsuccessful meetings with hospital administrators, finally convened press conference to advocate the need for improved patient care).
Compare Jennings v. Tinley Park Comm. Consol. Sch. Dist. 146, 864 F.2d at 1374-75 (employee relinquished Title VII protections by sandbagging supervisor; "employee may not use legitimate opposition . . . to embarrass a supervisor or thwart his ability to perform his job"; an employer may discipline an employee for her "deliberate" decision to disrupt the work environment, including her superior's standing with his own superiors"); Jones v. Flagship Intern., 793 F.2d 714, 727-29 (5th Cir. 1986), cert. denied, 479 U.S. 1065 (1987) (employer prerogative to run business must be balanced against employee right to express grievances and promote own welfare; an employee charged with representing her company in equal employment matters was not protected in soliciting others to join in her discrimination claim and in "her expressed intent to serve at the vanguard of a class action suit"); Hochstadt v. Worcester Foundation for Experimental Biology, 545 F.2d 222, 230- 34 (1st Cir. 1976) (employee actions, albeit associated with protected objective, fell outside Title VII when, over a prolonged period, she interrupted staff meetings, circulated rumors, commissioned a covert affirmative action study, invited a newspaper reporter to examine confidential salary information, misused secretarial and copying services, incurred a large personal bill on the employer's telephone, received reprimands for poor work performance, and caused other employees to leave the company).
Citing this authority, and particularly the STAA Kenneway and Ertel cases, the Secretary found in Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 10-14, that the complainant's spontaneous intemperate reaction to his unlawful discharge, communicated privately over the telephone, neither removed statutory protection nor provided the respondent with a legitimate, nondiscriminatory motivation.
IV B 2 c Insubordination and deleterious effect on morale
In Gentry v. Rocket Express, Inc., 94-STA-25 (Sec'y Mar. 17, 1995), the Secretary adopted the ALJ's finding that the Respondent had discharged the Complainant for legitimate and nondiscriminatory reasons -- insubordination and the deleterious effect on worker morale of his ongoing dispute with Respondent over his responsibility for performing dockwork.
IV B 2 d Refusal to attend counseling session
No casenote.
[STAA Digest IV B 2 d]
RETALIATORY ANIMUS; SENDING COMPLAINANT FOR PSYCHOLOGICAL
EVALUATION
In Griffin v. Consolidated Freightways Corp. of Delaware , 97-STA-10 and 19 (ARB Jan. 20, 1998), Respondent became concerned about Complainant's fitness for duty based on statements made by Complainant in a letter to an ALJ presiding over a different STAA complaint and in deposition statements. Respondent referred the letter to a psychiatrist, who concluded that Complainant might have a delusional disorder and potential for dangerous behavior during employment activities. Respondent then arranged for a certified forensic psychologist who specializes in assessing threats posed by employees to evaluate Complainant. The psychologist concluded that Complainant had a delusional disorder, paranoid type, and recommended that Respondent find Complainant temporarily unfit for driving pending mandatory psychological treatment. Respondent then put Complainant on paid medical leave, and offered to pick up certain costs not covered under the health benefits plan if Complainant would arrange an appointment with a recommended psychiatrist. Complainant did not seek psychiatric help, and Respondent placed Complainant on medical leave without pay. Later, Respondent notified a subsequent employer about the reason Complainant was on leave. Complainant then filed the instant complaint alleging that because of earlier safety complaints and his pending STAA complaint, Respondent removed him from driving service, discharged him and blacklisted him.
The ARB focused on whether retaliatory animus motivated Respondent. The ARB found that a DOT regulation, 49 C.F.R. § 391.41(b), provides a regulatory basis for an employer to examine a truck driver's psychological fitness to drive, and, if justified, to remove the driver from service. The ARB then noted that in some contexts, an employer's direction of a psychological evaluation of fitness to work may be based on retaliatory animus for protected activity, citing as examples, Robainas v. Florida Power & Light Co. , 92-ERA-10 (Sec'y Jan. 19, 1996), and Robainas v. Florida Power & Light Co. (Robainas II) , 92-ERA-10 (Sec'y Apr. 15, 1996)(order denying reconsideration). On the other hand, in other contexts, a referral for psychological evaluation may be warranted, as where Complainant exhibits aberrant behavior. Citing Mandreger v. Detroit Edison Co. , 88-ERA-17 (Sec'y Mar. 30, 1994), and Robainas II , slip op. at 4. The ARB then stated that Robainas and Mandreger show that the evidence is examined "in each case carefully to determine if the employer observed unusual or threatening behavior prior to referring an employee for psychological evaluation of fitness for duty." Slip op. at 7. The ARB found that such observations in the instant case justified Respondent's actions. In a footnote, the ARB held that on the facts of the instant case, Respondent's letter to the subsequent employer informing it of the reason for Complainant's medical leave, was not an adverse action under the STAA, and that Respondent did not have a discriminatory motive in providing the information. Slip op. at 6 n.8.
[STAA Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; THREAT AGAINST MANAGER
In Sacco v. Hamden Logistics, Inc. , ARB No. 09-024, ALJ Nos. 2008-STA-43 and 44 (ARB Dec. 18, 2009), the Complainants were brothers who both worked for the Respondent, and who both engaged in protected activity under the STAA when they complained about hours of service violations. One of the brothers was discharged because, upon learning that his route had been given to another employer, he threatened to kill the terminal manager and that manager's family. The ARB found that substantial evidence supported the ALJ's findings that the Respondent had not retaliated when this Complainant had earlier engaged in protected activity, that the discharge did not occur until the day of the threats, and that the threats severed any causal connection between the discharge and the prior protected activity. The ARB found that the temporal proximity of the threats to the firing and the lack of adverse consequences following the earlier hours of service complaints, provided substantial evidence that protected activity did not contribute the the Respondent's decision to fire this Complainant.
The other brother was also fired. The ARB found substantial evidence supported the ALJ's finding that this Complainant was fired because of his brother's threats and not because of his earlier protected activity. The ALJ had noted that it may not have been fair to fire this Complainant because of his brother's actions, but that the firing did not violate the STAA whistleblower provision.
[STAA Digest IV B 2 e]
LEGITIMATE, NON-DISCRIMINATORY REASONS FOR DISCHARGE; EXCESSIVE ABSENCES AND TARDINESS
In Peters v. Renner Trucking and Excavating , ARB No. 08-117, ALJ No. 2008-STA-30 (ARB Dec. 18, 2009), the ALJ recommended dismissal of the Complainant's STAA whistleblower complaint on the ground that the Respondent discharged the Complainant for two legitimate, non-discriminatory reasons: "attendance problems and a falsified haul report after an unauthorized detour to the post office." The ARB, affirming the ALJ's denial of the complaint, found that substantial evidence supported the ALJ's finding that the Complainant was late and absent a number of times during his six months of employment with the Respondent, and had been given "a �final warning notice' on December 26, 2006," after which he was again late once and absent twice. The ARB also found it notable that during a state employment compensation hearing, the Complainant did not mention that he thought that he was discharged for his alleged protected activity rather than for absences and tardiness.
[STAA Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR DISCHARGE; COMPLAINANT'S FALSIFICATION OF DRIVING LOGS
In Jackson v. Smedema Trucking, Inc. , ARB Nos. 07-011, 08-052, ALJ Nos. 2005-STA-44, 2006-STA-36 (ARB Sept. 30, 2008), a previous whistleblower complaint by the Complainant against the Respondent had resulted in the Complainant's reinstatement following a settlement. An audit of the Complainant's driving records revealed several serious violations, including log falsification, and upon his return to work, the Respondent warned the Complainant about the previous violations and had him sign a notice confirming the warning. Several weeks later the Respondent terminated the Complainant for intentionally falsifying logs. The Complainant filed a new STAA complaint alleging that he was fired as retaliation for complaining about violations of DOT's maximum driving times and for filing the earlier STAA complaint. The ALJ granted summary decision against the Complainant. On appeal, the ARB affirmed. The Respondent presented evidence that the Complainant was terminated because he falsified logs in violation of DOT regulations, and the Complainant failed to put forth evidence which, giving all favorable inferences to him, raised a genuine issue of material fact that he was terminated because of the prior complaint. The ARB noted that the Complainant had signed a written warning listing his previous log violations including log falsification, and that the Complainant had expressly admitted that he intentionally falsified the logs to provide a "smoking gun" against the Respondent in subsequent audits and that he had done this to "half a dozen" or more employers. Like the ALJ, the ARB also rejected the Complainant's claim of pretext on the ground that no other employee had been fired for log falsification and that the Complainant had not been fired on the spot but instead was fired the next day. The ARB found that the Complainant failed to raise a genuine issue of material fact. "The fact that Smedema did not terminate Jackson on the spot but instead waited until the next day to terminate him does not provide probative evidence of pretext."
[STAA Digest IV B 2 e]
CAUSAL LINK; COMPUTER ERROR ON PERSONNEL RECORD UNKNOWN TO RESPONDENT UNTIL COMPLAINANT NOTIFIED THE RESPONDENT; ABSENCE OF PROOF OF INTENT TO RETALIATE
In White v. J.B. Hunt Transport, Inc. , ARB No. 06-063, ALJ No. 2005-STA-65 (ARB May 30, 2008), the Complainant and Respondent had earlier entered into a settlement agreement, which included a provision concerning the procedure for responding to inquiries about the Complainant's employment with the Respondent. The Complainant alleged that the Respondent committed a new STAA violation when it changed his work record to reflect company policy violations. The Respondent presented an affidavit indicating that the change resulted from new computer software and that the Respondent was not aware of the change until the Complainant contacted the company's legal counsel about it. The affidavit indicated that the Respondent immediately corrected the information. The ARB held that"[b]ecause Hunt submitted admissible evidence that it did not intentionally retaliate against White, the burden shifted to White to produce enough evidence to create a triable issue of fact regarding Hunt's intent to blacklist him." Although the evidence showed that a change occurred to the Complainant's work record, he submitted no evidence demonstrating that the Respondent intentionally disseminated any information that caused the change. Because the Complainant failed to present sufficient evidence to create a genuine issue of material fact that the Respondent intentionally retaliated against him because of STAA protected activity, the Respondent was entitled to summary decision.
[STAA Digest IV B 2 e]
CAUSATION; FAILURE TO PROVE THAT COMPLAINANT WAS GIVEN FEWER ASSIGNMENTS BECAUSE OF HIS PROTECTED ACTIVITY RATHER THAN A BUSINESS SLOWDOWN AND HIS LACK OF DEPENDABILITY AS OPPOSED TO OTHER DRIVERS
In Walkewicz v. L & W Stone Corp. , ARB No. 07-001, ALJ No. 2006-STA-30 (ARB May 30,2008), the Complainant had refused to drive a truck which had run out of gasoline back to the yard because to do so would have violated the hours of service regulation. Over the course of the next few weeks, he received fewer assignments than other drivers. He then filed a STAA complaint alleging constructive discharge. The ARB agreed with the ALJ that the Complainant failed to produce sufficient evidence to establish a constructive discharge, but nonetheless had suffered adverse action in the form of loss of pay for fewer assignments. The Respondent, however, had presented evidence that there was a seasonal decrease in business during the period in question (from December to early January) � which was not contested by the Complainant. The Respondent also presented evidence that it assigned the Complainant fewer assignments than other drivers because he was less dependable. Specifically, the Respondent had observed him driving too fast; he had been cited because his truck's license plate was covered; he had threatened to abandon a load; he had run out of gas on two occasions; about 80% of the time he did not promptly return his truck to the yard for servicing. The Complainant did not adduce evidence that he was dependable compared to other drivers. In addition, he had been given a bonus and granted vacation requests two days after his protected refusal to drive. The ARB found that substantial evidence supported the ALJ's finding that the Complainant did not prove by a preponderance of the evidence that the Respondent retaliated against him because of his protected activity.
[STAA Digest IV B 2 e]
ADVERSE ACTION; ABSENT
AN ACTUAL RESIGNATION, AN EMPLOYER WHO DECIDES TO INTERPRET AN EMPLOYEE'S
ACTIONS AS A QUIT OR RESIGNATION HAS, IN FACT, DISCHARGED THE EMPLOYEE
In Minne v. Star Air, Inc. , ARB No. 05-005, ALJ No. 2004-STA-26 (ARB Oct. 31, 2007), the ALJ found that the Complainants had not been fired because the record contained no evidence that the Respondent had explicitly fired the Complainants � the ALJ apparently concluding that it was the Complainants' behavior of deciding not to return to work that ended the employment relationship.� The ARB held that this was error, writing that "�under our precedent, except where an employee actually has resigned an employer who decides to interpret an employee's actions as a quit or resignation has in fact decided to discharge that employee."� USDOL/OALJ Reporter at 14.� The ARB held that because the did not actually resign but simply did not return to their jobs, the Respondent's "decision to remove them from the payroll rather than address the issues they had raised constituted a decision to terminate them for what Star presumed was job abandonment."� USDOL/OALJ Reporter at 15.� The ARB held, therefore, that adverse action had occurred.
In a footnote, the ARB rejected the Complainants' argument that they had been constructively discharged, because under ARB precedent, constructive discharge can only be found when a complainant actually resigns.� In the instant case, the Complainants argued that they did not resign.
IV.B.2.e. Manipulation of dispatch system; violation of exclusive driving provision of employment contract
In Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr. 26, 1991), the Secretary held that assuming that awareness of the Complainant's protected activity could be imputed to the Respondent (which she had earlier found could not be), the Respondent established that the adverse actions were not motivated by the protected conduct. The first adverse action was a barring of the Complainant from a certain terminal when he tried to manipulate the dispatch system to obtain a more profitable run. This action showed legitimate management concern about the effect of such a manipulation on the operation of the Respondent's business. The second adverse action was a cancellation of the Complainant's lease to drive (which contained an exclusive driving provision) when the Respondent learned that the Complainant had signed a lease to drive for another company. There was no believable showing of pretext.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE NONDISCRIMINATORY REASONS FOR TERMINATION; LACK OF RELATIONSHIP BETWEEN DISCIPLINE AND MOTOR VEHICLE SAFETY
The Complainant alleged that he was discharged because his back condition made him unable to complete his work assignments due to restrictions on his ability to perform lifting due to a back condition (i.e., inability to assist in unloading the truck). The ARB -- having affirmed the ALJ's finding that the inability to work due to lifting restrictions was not protected activity because there was no connection between the lifting restrictions and motor vehicle safety regulations -- found no unlawful discrimination under the STAA. Safley v. Stannards, Inc. , ARB No. 05-113, ALJ No. 2003-STA-54 (ARB Sept. 30, 2005).
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE, NONDISCRIMINATORY REASON FOR ADVERSE ACTION; COMPLAINANT'S COMPLAINT UNREASONABLE AND PRESENTED IN AN ARGUMENTATIVE, CONFRONTATIONAL STYLE
Where the Complainant presented in an argumentative and confrontational manner the unreasonable contention that a road construction company was overloading his truck, the Respondent presented legitimate, nondiscriminatory reason for requesting that the Complainant not be sent back to its construction project. Where the Complainant did not establish by a preponderance of the evidence that this reason was pretextual, he did not prove discrimination under the STAA whistleblower provision. Feltner v. Century Trucking, Ltd. , ARB No. 03-118, ALJ Nos. 2003-STA-1 and 2 (ARB Oct. 27, 2004).
[STAA Digest IV B 2 e]
LEGITIMATE NON-DISCRIMINATORY REASON FOR DISCHARGE; FAILURE TO ADEQUATELY CLEAN CONCRETE FROM TRUCK
In Mason v. CB Concrete Co. , ARB No. 04-026, ALJ No. 2003-STA-21 (ARB Jan. 31, 2005), the ARB affirmed the ALJ's conclusion that the Respondent had discharged the Complainant for a legitimate reason � allowing the build-up of excess concrete on his truck in violation of the Respondent's rules. The Complainant argued that this reason was pretext because CB issued only warnings to other drivers who had concrete build-up and committed other, more serious infractions. The ARB, however, found that the fact that another driver was given only a warning for concrete build-up instead of being discharged was is insufficient to establish that the Complainant was fired because of protected activity, where the warning to the other driver followed the Complainant's discharge by more than three months, the warning letter threatening the other employee was more harsh than the initial verbal warning given to the Complainant (thus, the Complainant was not initially treated more harshly than the other driver), and the concrete build-up on the other truck was far less significant than the heavy accumulation on the Complainant's truck.
[STAA Whistleblower Digest IV B 2 e]
REHIRING; A RESPONDENT MAY DECLINE TO REHIRE BASED ON POOR PRIOR PERFORMANCE EVEN IF IT HAS KNOWLEDGE OF COMPLAINANT'S PROTECTED ACTIVITY
In Becker v. West Side Transport, Inc. , ARB No. 01 032, ALJ No. 2000 STA 4 (ARB Feb. 27, 2003), the ARB wrote:
The employee protection provision of the STAA does not require an employer to reinstate an employee who engages in STAA protected activity, quits his employment and subsequently changes his mind. Moreover, an employer is not required to rehire an employee when that employer is dissatisfied with the employee's previous work record. See, e.g., Gibson v. Arizona Public Service Co. , 90 ERA 29, 46 and 53 (Sec'y Sept. 18, 1995). In Gibson a supervisor who had knowledge of a former employee's protected activity did not select that person for rehire. The Secretary ruled that respondent was justified in its refusal to rehire the complainant because the supervisor took into account the complainant's prior performance as an unproductive and uncooperative employee.
In Becker , the ARB found that substantial evidence supported the ALJ's finding that Complainant's conduct towards Respondent's employees and managers constituted a legitimate, nondiscriminatory reason for refusing to rehire the Complainant. The ARB found that Complainant's burden was to establish that this reason was pretext, and that he had failed to do so.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE NON DISCRIMINATORY REASON FOR DISCHARGE; INABILITY TO PERFORM THE PHYSICAL DEMANDS OF THE JOB
Where a complainant is terminated from employment because of physical inability to perform assigned duties, there is no violation of the STAA whistleblower provision. Sosnoskie v. Emery, Inc. , ARB No. 02 010, ALJ No. 2002 STA 21 (ARB Aug. 28, 2003). In Sosnoskie Complainant returned to long haul truck driving following a disabling back injury several years earlier. On his first trip, he was unable to complete the return trip because of a sore back and fatigue. Respondent thereafter terminated Complainant's employment based in inability to perform physical demands of the job. Respondent had not required Complainant to drive in excess of 10 hours or while fatigued.
[STAA Whistleblower Digest IV B 2 e]
"LEEWAY FOR IMPULSIVE BEHAVIOR" STANDARD DOES NOT APPLY WHERE COMPLAINANT'S ACTIONS WERE CONTINUING AND REASONED
In Harrison v. Roadway Express, Inc. , ARB No. 00 048, ALJ No. 1999 STA 37 (ARB Dec. 31, 2002), Complainant had been "red tagging" (marking as out of service) trailers, and after concluding that management had been ignoring his safety concerns when he found that the problems had not been fixed or that tags had evidently been removed, began red tagging without prior supervisory permission as required by Respondent's policy. The ALJ applied the Kenneway v. Matlack, Inc. , 1988 STA 20 (Sec'y June 15, 1989), "leeway for impulsive behavior" standard for balancing an employer's right to maintain order and respect for its business by correcting insubordinate against the right to engage in statutorily protected behavior. The ALJ found that Complainant's actions in violating the policy about obtaining permission to red tag was reasonable in light of his good faith belief that his safety concerns were being ignored. The ARB found that resort to the Kenneway standard was error.
The ARB first indicated that Kenneway does not apply to section 31105(a)(1)(A) "filed a complaint" cases, as opposed to section 31105(a)(1)(B) "refusing to operate a vehicle" cases. The ARB indicated that Kenneway and similar DOL decisions should only be applied in cases involving implusive conduct incidental to the protected activity where the complainant is emotionally motivated B where the conduct is temporary and uncalculated.
In the instant case, Complainant's conduct was "unemotional, sustained and deliberate" and "continuing and reasoned." Thus, Kenneway does not apply.
[STAA Whistleblower Digest IV B 2 e]
LEGITIMATE, NON-DISCRIMINATORY REASON FOR ADVERSE EMPLOYMENT
ACTION; THREAT BY EMPLOYEE TO ABANDON LOAD
In Ass't Sec'y & Bates v. West Bank Containers , ARB No. 99-055, ALJ No. 1998-STA-30 (ARB Apr. 28, 2000), the ARB found a respondent's unwillingness to employ a driver who reserves the right to drop loads that he considers "too heavy" is compelling evidence of a legitimate business motive. Where the parties litigated this case on the theory that Respondent had only one motive for terminating Complainant -- either animus because of Complainant's safety complaints or an unwillingness to employ a driver who threatens to drop loads based on his subjective judgments -- and the ARB concludes that the record supports only the latter and not the former, the complaint will be dismissed.
[STAA Digest IV B 2 e]
ARTICULATION OF LEGITIMATE REASONS FOR SECOND DISCHARGE;
FAILURE TO FOLLOW CHAIN OF COMMAND
In Clean Harbors Environmental Services, Inc., v. Herman , __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), Complainant had been rehired but placed on a short lease, required to follow a strict chain of command. He was discharged for three instances of purportedly violating that chain of command. The court agreed that there was substantial evidence to support the agency's implicit finding that Complainant was placed on a rigid chain of command, unlike other employees, precisely because of Respondent's frustration with Complainant and his insistence on strict compliance with safety. The court also agreed with the agency that it was significant that Complainant had received no warnings prior to the second discharge, noting that Respondent's excuse that it had no time to issue warnings was weak because chain of command "violations" would hardly trigger emergencies.
[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; EMPLOYEE'S WASTING TIME
In Frechin v. Yellow Freight Systems, Inc. , 96-STA-34 (ARB Jan. 13, 1998), Respondent articulated the legitimate, nondiscriminatory ground for discharging Complainant that Complainant wasted company time (specifically, taking excessive time to depart from the terminal). Although Complainant presented evidence tending to show that this reason was prextexual, the ARB agreed with the ALJ's conclusion that such evidence was not convincing.
[STAA Digest IV B 2 e]
LEGITIMATE GROUNDS FOR ADVERSE ACTION; FAILURE OF COMPLAINANT
TO EXERCISE EMPLOYMENT OPTION FOLLOWING CLOSING OF TERMINAL
In Leidigh v. Freightway Corp. , 87-STA-12 (ARB Dec. 18, 1997), Respondent lost a contract, and decided to close the terminal from which Complainant was taking dispatches. Respondent gave drivers several employment options, including exercising seniority rights and transferring to a different terminal, becoming an owner-operator, retiring, or seeking employment elsewhere. Complainant missed several deadlines for stating which option he would exercise, and Respondent actually informed Complainant that it considered his employment to be terminated because he had not made himself available for dispatch at a new terminal. Complainant failed to establish that retaliatory animus motivated this adverse action, and his complaint was dismissed.
[STAA Digest IV B 2 e ]
ARTICULATED REASON FOR DISCHARGE; CONTACT WITH GOVERNMENT
AGENCY
In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was his contact with the Massachusetts Department of Environmental Protection (DEP) relating to the lack of a current vehicle identification card in a truck Complainant was assigned for a specific load. Although Complainant was advised to take a different truck upon reporting the problem to a supervisor, Complainant later telephoned DEP anyway.
The Board stated that it was "concerned any time that an employer faults an employee for seeking information from, or making a complaint to, a government agency such as DEP.... Here, even though [Complainant] received an acceptable response from [Respondent's] employees -- that he should drive a different truck rather than the one that lacked a vehicle identification card -- he still had the right to speak with DEP concerning a safety issue with that agency's purview. We find therefore that one of the articulated reasons for the second discharge directly violated the STAA." Slip op. at 7 (citations omitted).
[STAA Digest IV B 2 e]
ARTICULATED REASON FOR DISCHARGE; CIRCUMVENTING THE CHAIN OF
COMMAND
In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB Aug. 8, 1997), one reason articulated for Complainant's second discharge was bucking the agreed-upon chain of command. The Board wrote that "an adverse action taken because an employee circumvented the chain of command to raise a safety issue would violate the employee protection provision [of the STAA]" Slip op. at 7 (citations omitted).
[STAA Digest IV B 2 e]
LAWFUL REASON FOR DISCHARGE; GOING OUTSIDE CHANGE OF COMMAND
DOES NOT PROVIDE LAWFUL REASON IN STAA CASE
In Dutkiewicz v. Clean Harbors Environmental Services, Inc. , 95-STA-34 (ARB June 11, 1997), the Board ruled that "[g]oing outside the chain of command to raise safety complaints within the purview of the STAA would not provide a lawful reason for discharge." Slip op. at 2-3 (citations omitted).
OTIVE; CANNOT DEFEND BY PLACING BURDEN TO REFUSE OVERWEIGHT
LOADS SOLELY ON COMPLAINANT
[STAA Digest IV B 2 e]
A respondent who provides contract drivers to freight companies cannot absolve itself of responsibility for failing to respond to a driver's complaints about overloading by a freight customer simply by maintaining that the question of which loads to carry and which to refuse is a matter between the freight company and the driver. See Cook v. Guardian Lubricants, Inc. , 95-STA-43, slip op. at 22-29 (Sec'y May 1, 1996) (Editor's note: this is a paraphrase of the Secretary's discussion of the Respondent's motive; it is not an explicit ruling).
EVIDENCE; COMPLAINTS ABOUT THE COMPLAINANT PROXIMATE TO
DISCHARGE
[STAA Digest IV B 2 e]
Evidence that the decision to terminate the Complainant's employment was reached shortly after two different customers had lodged complaints about the Complainant was found in Polchinski v. Atlas Bulk Carriers , 95-STA-35 (Sec'y Mar. 7, 1996), to "validate the nondiscriminatory nature of the discharge decision."
IV B 2 e Acts of dishonesty and stealing time are legitimate, nondiscriminatory reasons to discipline an employee
Assertions that the Complainant engaged in "acts of dishonesty" or "stealing time" are articulations of legitimate, non-discriminatory reasons to discipline an employee. Clifton v. United Parcel Service, 94- STA-16 (Sec'y May 9, 1995) (enough to shift burden back to the complainant).
IV.B.2.e. Complaints about employee's behavior; attempt to remedy safety hazard; recalcitrance
The respondent, a school bus company, articulated a legitimate, nondiscriminatory reason for discharge where the new owner and management had made considerable effort to improve the situation with the complainant (a driver/mechanic who had been the subject of numerous complaints by parents, and who had a record of tardiness and resistance to employment procedures) during the three months preceding his discharge, and where the incident resulting in the discharge involved the complainant's apparent resistance to using required safety controls (installed as a result of an OSHA complaint filed by the complainant). The complainant failed to show that this reason was pretextual. Jacobson v. Beaver Transportation, Inc., 92-STA-17 (Sec'y Aug. 31, 1992).
IV.B.2.e. Client adamant about compliance with speed limit
Where the ALJ credited testimony and evidence that indicated Complainant had tampered with a tachograph (a device used to measure compliance with the 55 mile speed limit) and that Respondent's sole customer was adamant that the speed limit be complied with and had disqualified Complainant from driving their equipment because of the tampering, he concluded that Complainant's discharge was not in retaliation for his protected safety activities. Wherry v. Penn Truck Aids, 85- STA-14 (ALJ June 5, 1986), adopted (Sec'y Sept. 17, 1986).
IV.B.2.e. Excessive tardiness
In Roach v. Felts Enterprises, 93-STA-12 (ALJ Mar. 31, 1993), aff'd (Sec'y June 17, 1993), the ALJ found that the Complainant had not established a prima facie case, but even if he had, the Respondent's stated reason for the adverse action, excessive tardiness, was a reasonable and justifiable (even though the discharge of the Complainant occurred only three days after a state inspection prompted by the Complainant's allegations of unsafe conditions). The record included evidence of over 100 instances of tardiness by the Complainant, and although the frequency of tardiness had decreased, he had despite warnings and counselling accumulated three tardys in the month he was discharged, including two that same week.
IV.B.2.e. Post discrimination misconduct by complainant
In Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992), slip op. at 14, the Secretary noted that under the NLRA, a bona fide discriminatee who engages in post-discrimination misconduct can forfeit his or her entitlement to being made whole, Alumbaugh Coal Corp. v. NLRB, 635 F.2d 1380, 1385-86 (8th Cir. 1980), but that STAA section 405(c)(2)(B), 49 U.S.C. app. § 2305(c)(2)(B) may proscribe remedial limitation in that it states that if the Secretary determines that a violation has occurred, the Secretary "shall order" reinstatement together with back pay and compensatory damages.
In any event, the Secretary found that the record did not support a finding of post-discrimination misconduct, rejecting the ALJ's conclusion that the complainant had taken and refused to return the respondent's tractor after having been fired. Rather, the Secretary found that the respondent's difficulty in retrieving the tractor was related more to its own storage arrangement (employees were responsible for finding parking places since the respondent did not have parking spaces at its facility) than to any deliberate evasion by the complainant.
IV.B.2.e. Legitimate, nondiscriminatory motive; employer's subjective perception of circumstances
Where the complainant complained that the schedule did not allow sufficient time for a requisite eight hour layover and was discharged after completing the run, a prima facie case under 49 U.S.C. app. § 2305 was established. However, where the employer presented evidence of a legitimate business reason to discharge complainant -- falsification of logs and records -- and where the evidence permitted an inference that the employer believed that the schedule could be run legally and believed that complainant illegally and unnecessarily falsified his logs to cover up a self-imposed violation, the complaint was dismissed. It is the employer's subjective perception of the circumstances which is the critical focus of the inquiry. Allen v. Revco D.S., Inc., 91-INA-9 (Sec'y Sept. 24, 1991).
IV.B.2.e. Use of vulgar language
Where Complainant had been discharged earlier for uncooperative behavior and was reinstated by an employee Board of Review on the condition that he would be discharged immediately if he refused to work, damaged company property, or used abusive or vulgar language with his coworkers, and there was testimony that Complainant was fired the second time for insubordination and using vulgar language with the safety manager of a terminal, Respondent articulated a legitimate reason for the discharge: violation of the conditions of reinstatement.
Complainant did not carry his burden of establishing that the reasons stated for his discharge were not credible and that the real reason was retaliation for safety complaints were Complainant used extremely vulgar language while speaking with the terminal employee who had no knowledge of Complainant's earlier complaints about the condition of the truck or of Complainant's reinstatement and its terms. That employee was offended and telephoned Complainant's superiors to report the vulgar language. See Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) ("[a]busive and profane language coupled with defiant conduct or demeanor justify an employee's discharge on the grounds of insubordination" even though the employee had also engaged in activity protected under an analogous employee protection provision); Couty v. Arkansas Power & Light Co., 87-ERA-10 (Sec'y Feb. 13, 1992) (no statutory violation where Complainant discharged for engaging in abusive, disruptive, profane, and threatening behavior towards supervisors).
Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993).
IV.B.2.e. "Availability" policy; policies which operate to discipline employees for protected activity
In Self v. Carolina Freight Carriers Corp., 91-STA-25 (Sec'y Aug. 6, 1992), the Secretary found that the employer's "availability policy," which required a driver to call in when too ill or fatigued to be available to drive to avoid discipline, did not provide and legitimate and nondiscriminatory motivation for disciplining a driver who refused to drive due to fatigue. To permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits. Moreover, independent statutory rights "cannot be abridged by contract or otherwise waived," and they take precedence over conflicting provisions in a bargained employment arrangement. Barrantine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 740-741 (1981). See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991) ("if the collective bargaining agreement conflicts with [the] STAA, then the statute supersedes the agreement because labor contracts cannot operate to deprive employees of rights specifically protected by federal statutes").
STAA section 405(b) does not require that an employer necessarily harbor an animus-motivated, specific intent to retaliate against an employee for engaging in protected activity. The prohibition applies equally to policies which operate to discipline employees for their protected refusals.
The Secretary concluded that the question is whether the respondent's legitimate business interests outweigh the policies underlying the STAA in the particular circumstances of the case. See Squier Distributing Co. v. Local 7, Intern. Brotherhood of Teamsters, 801 F.2d 238, 242 (6th Cir. 1986) ("[t]he question whether employees' protests should be protected by the Act involves the balancing of sensitive competing interests, and the employees' method of protest is relevant as one factor affecting this balance); Consolidation Coal Co. v. arshall, 663 F.2d 1211, 1219-1221 (3d Cir. 1981) (employee pronouncement that machine was "closed down," which prevented assistant from operating it, removed employee from statute's protection); Kenneway v. Matlack, Inc., 88-STA-20 (Sec'y June 15, 1989), slip op. at 6-7, 10-13 (right to engage in statutorily-protected activity permits some leeway for impulsive behavior, which is balanced against employer's right to maintain order and respect in its business by correcting insubordinate acts; key inquiry is whether employee has upset balance that must be maintained between protected activity and shop discipline; defensibility of employee actions turns on distinctive facts of case). In this instance, the STAA promotes highway safety and protects employees from retaliatory discharge.
The problem of driver fatigue pervades the transportation industry, and has resulted in extensive regulation. See, e.g., 49 C.F.R. §§ 392.3, 395.3, 395.8, 392.4. The respondent's interests were scheduling concerns and maintenance of employee discipline and management.
IV.B.2.e. Violation of conditions of reinstatement
If the complainant succeeds in establishing a prima facie case, the respondent has the burden of articulating a legitimate reason for taking the adverse action.
Where Complainant had been discharged earlier for uncooperative behavior and was reinstated by an employee Board of Review on the condition that he would be discharged immediately if he refused to work, damaged company property, or used abusive or vulgar language with his coworkers, and there was testimony that Complainant was fired the second time for insubordination and using vulgar language with the safety manager of a terminal, Respondent articulated a legitimate reason for the discharge: violation of the conditions of reinstatement.
Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993).
IV.B.3. No nondiscriminatory reason articulated
In Killcrease v. S & S Sand and Gravel, Inc., 92-STA-30 (Sec'y Feb. 2, 1993), where a Complainant established that a prima facie case of discrimination and the Respondent proffered no legitimate, nondiscriminatory reason for discharging the Complainant, the Complainant was found to have prevailed on the merits of the complaint.
In Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995), the Secretary found that the ALJ had applied an erroneous standard in determining the causal element of a prima facie case. Nonetheless, the Secretary noted that "[o]nce a respondent has presented rebuttal evidence ... the answer to the question whether the complainant has made a prima facie showing is not particularly useful. See Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11 (restating and clarifying legal principles applicable in whistleblower proceedings). At that point, 'the real battleground revolves around whether the reasons articulated by respondent Carry . . . are pretextual,' and whether Complainant met his ultimate burden of proof. Complainant's Brief at 4; Carroll , slip op. at 12."
[STAA Whistleblower Digest IV B 4]
UTILITY OF PRIMA FACIE CASE ANALYSIS AFTER CASE HAS BEEN FULLY TRIED ON THE MERITS
The ARB discourages the unnecessary discussion of whether a whistleblower has established a prima facie case when the case has been fully tried. Schwartz v. Young's Commercial Transfer, Inc. , ARB No. 02 122, ALJ No. 2001 STA 33, slip op. at n.9 (ARB Oct. 31, 2003).
To the same effect: Chapman v. Heartland Express of Iowa , ARB No. 02 030, ALJ No. 2001 STA 35 (ARB Aug. 28, 2003) (as reissued under Sept. 9, 2003 errata); Waters v. Exel North American Road Transport , ARB No. 02 083, ALJ No. 2002 STA 3 (ARB Aug. 26, 2003); Leach v. Basin Western Inc. , ARB No.02 089, ALJ No. 2002 STA 5 (ARB July 31, 2003); Simpkins v. Rondy Co., Inc. , ARB No. 02 097, ALJ No. 2001 STA 59 (ARB Sept. 24, 2003).
[STAA Digest IV B 4]
PRIMA FACIE
CASE ANALYSIS; NO ANALYTICAL PURPOSE ONCE
RESPONDENT PRODUCES EVIDENCE IN ATTEMPT TO ARTICULATE A LEGITIMATE,
NONDISCRIMINATORY REASON FOR ITS PERSONNEL ACTION
In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), the ARB repeated its direction to ALJs that it serves no analytical purpose to consider whether a complainant has established a prima facie case once the respondent produces evidence in an attempt to articulate a legitimate, nondiscriminatory reason for its personnel action. "Instead, the relevant inquiry is whether complainant prevailed, by a preponderance of the evidence, on the ultimate question of liability." Slip op. at 7-8 n.11.
[STAA Digest IV B 4]
PRIMA FACIE CASE ANALYSIS NOT USEFUL ONCE RESPONDENT PRESENTS
REBUTTAL EVIDENCE
In Stopak v. River Valley Paper Co. , ARB No. 00-001, ALJ No. 1999-STA-10 (ARB Dec. 30, 1999), the ARB affirmed the ALJ's recommended decision finding no discrimination where Respondent's president, who had made the decision to fire Complainant, had no knowledge of Complainant's asserted protected activity, and neither party filed a brief before the ARB. The ARB, however, modified the decision because the ALJ had focused his analysis on whether Complainant had made out a prima facie case. The ARB cited Carroll v. Bechtel Power Corp ., 1991-ERA-46 , slip op. at 11 (Sec'y Feb. 15, 1995), for the proposition that once a respondent produces rebuttal evidence, the question whether a plaintiff has presented a prima facie case is no longer particularly useful. Thus, the ARB modified the decision, not to be based on failure to establish a prima facie case, but on Complainant's failure to "carry his burden of proof because he did not show that the management official of Respondent who made the decision to terminate his employment was aware of Complainant's protected activity."
[STAA DIGEST IV B 4]
QUESTION OF
PRIMA FACIE
SHOWING IRRELEVANT ONCE EMPLOYER
PRESENTS REBUTTAL
In Andreae v. Dry Ice, Inc. , 95-STA-24 (ARB July 17, 1997), the Board declined to discuss the ALJ's findings on whether a prima facie showing had been made because once Respondent presented rebuttal evidence, the answer to the question whether Complainant made a prima facie showing is not useful. The Board emphasized that it applies the following principle set out in United States Postal Serv. v. Aikens , 460 U.S. 709 (1983):
-
Because this case was fully tried on the merits, it is surprising to find the parties and the [court] still addressing the question whether [the plaintiff] made out a prima facie case. . . .
- Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant . The [court] has before it all the evidence it needs to decide the [ultimate question of discrimination].
Andreae , 95-STA-24, slip op. at 2, quoting Aikens , 460 U.S. at 713-14, 715 (emphasis added by Board).
PRIMA FACIE
CASE ANALYSIS NOT USEFUL AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON; ERROR
FOR ALJ TO CONSIDER
[STAA Digest IV B 4]
In Polchinski v. Atlas Bulk Carriers , 95- STA-35 (Sec'y Mar. 7, 1996), the Secretary observed that it was "harmless error" for the ALJ to have held that the Complainant had not established a prima facie case after the hearing on the merits. The Secretary stated that "[o]nce Respondent produced evidence that the was subject to discharge for a legitimate, nondiscriminatory reason, the answer to the question of whether a prima facie case was presented is no longer useful." Slip op. at 3 n.2.
In Olson v. Missoula Ready Mix , 95-STA-21 (Sec'y Mar. 15, 1996), the Secretary stated that where a respondent has introduced evidence to rebut a prima facie case of a violation of an employee protection provision, it is unnecessary to examine the question of whether the complainant established a prima facie case. Where the Respondent produces evidence of a legitimate, nondiscriminatory reason for the adverse action, the relevant question is whether the complainant showed by a preponderance of the evidence that one of the real reasons he or she was discharged was his or her safety complaints.
To the same effect: Cook v. Kidimula International, Inc. , 95-STA-44 (Sec'y Mar. 12, 1996).
PRIMA FACIE
CASE ANALYSIS UNIMPORTANT AFTER RESPONDENT
PRODUCES EVIDENCE OF LEGITIMATE, NONDISCRIMINATORY REASON
[STAA Digest IV B 4]
In White v. Maverick Transportation, Inc. , 94-STA-11 (Sec'y Feb. 21, 1996), the Secretary held that once the Respondent produced evidence that the Complainant was subjected to an adverse employment action for a legitimate, nondiscriminatory reason, the issue of whether a prima facie case was presented is no longer useful. If the Complainant has not prevailed by a preponderance of the evidence on the ultimate question of liability, it does not matter whether a prima facie case was presented.
IV B 4 Burden of proof; after trial on merits and proper articulation by employer, analysis of prima facie case looses relevance
In
Wignall v. Golden State Carriers, Inc.,
95-STA-7
(Sec'y July 12, 1995), the Secretary indicated that where a case
is fully tried on its merits, it is not necessary to engage in an
analysis of the elements of a prima facie case. The Secretary
stated that once the Respondent produced evidence that the
Complainant was subjected to adverse action for a legitimate,
nondiscriminatory reason, the answer to the question whether a
prima facie case was presented is no longer useful. If the
Complainant has not prevailed by a preponderance of the evidence
on the ultimate question of liability, it matters not at all
whether he presented a prima facie case.
IV B 4 Ultimate burden of persuasion
In Bryant v. Bob Evans Transportation, 94-STA-24 (Sec'y Apr. 10, 1995), Complainant's assertion that the assigned co-driver was unsafe, together with the testimony of two other drivers that the complained of driver was unsafe in certain conditions, was sufficient to establish the protected activity element of a prima facie case. The Secretary, however, found that the Complainant did not carry his ultimate burden of persuasion on the issue of protected activity because the Complainant failed to establish that his belief that the other driver was an unsafe driver was reasonable. The Respondent had presented evidence that the other driver's driving was satisfactory.
IV B 4 Adverse action element; complainant's burden in regard to prima facie case versus ultimate burden of persuasion
In Ass't Sec'y & Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995), the Secretary found, contrary to the ALJ, that the Complainant's testimony that he was fired established adverse action element of the prima facie case. In a footnote, the Secretary noted that this testimony, standing alone, would satisfy the adverse action element of a STAA claim if not contradicted and overcome by other evidence.
Nonetheless, the Secretary found that the Complainant did not meet his ultimate burden of persuasion on the adverse action element. The Respondent "sufficiently articulated a legitimate basis for its actions, i.e. , that it did not fire [the Complainant], but simply accepted his decision to resign." The Secretary adopted the ALJ's finding that the Respondent's co-owner believed the Complainant had resigned voluntarily. Thus, although the Complainant established a prima facie case that he was fired, he did not ultimately sustain the burden of persuasion in establishing that fact. Thus, the Secretary found that the Complainant failed to establish that the Respondent took adverse action against him because he engaged in protected activity.
Ass't Sec'y & Brown v. Besco Steel Supply, 93- STA-30 (Sec'y Jan. 24, 1995).
[Editor's note: The Secretary appears to be applying a burden of articulation for the Complainant in making a prima facie case.]
IV.B.4. Ultimate burden of proof
In an STAA employee protection case, the Assistant Secretary has the ultimate burden of establishing that the respondent took adverse action against the complainant for reasons prohibited by the STAA. Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y Apr. 6, 1994), citing Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993), slip op. at 7.
IV.B.4. Bursting bubble (STAA digest)
In St. Mary's Honor Center v. Hicks, ___ U.S. ___ (1993) (available at 1993 U.S. LEXIS 4401), the United States Supreme Court held that under the McDonnell Douglas/Burdine allocation of the burdens of proof and production for Title VII discriminatory-treatment cases, the trier of fact's rejection of the employer's asserted legitimate, nondiscriminatory reasons does not entitle the employee to a judgment as a matter of law. The mere production of evidence of nondiscriminatory reasons, whether believed or not, rebuts the presumption of intentional discrimination. Upon articulation of a reason, the McDonnell Douglas framework becomes irrelevant and the trier of fact must then decide the ultimate question of fact.
Although Hicks involved racial discrimination, the Secretary has adopted the McDonnell Douglas/Burdine approach to the employee protection provisions adjudicated by the Department. See Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983).
IV. B. 4. St. Mary's Center , bursting bubble upon articulation
In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the court agreed with the Respondent's interpretation of St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, U.S. , 113 S. Ct. 2742 (1993). Specifically, when a trial court finds that an employer's proffered reasons for disciplining an employee are pretextual in a McDonnell Douglas analysis, the trial court may not automatically find illegal discrimination based on this finding alone. Rather, an employer's articulation of legal reasons for disciplining an employee satisfies its burden of production, 113 S. Ct. at 2747, and the employee must then satisfy his or her burden of proving that the employer discriminated against the employee on a forbidden basis. The finding that an employer's proffered reasons for an adverse action are pretextual does not, standing alone, compel a finding in favor of the employee. Id. at 2749.
The Sixth Circuit, however, found that the St. Mary 's rule does not come into play when neither the ALJ nor the Secretary held that the complainant is entitled to a judgment solely on the basis that the respondent's claimed reason for discharging the complainant was not the "true reason" for his or her termination.
In the instant proceeding, the Secretary, after rejecting Yellow Freight's proffered reason, continued with the required analysis and found that Smith proved that Yellow Freight intentionally discriminated against him for exercising his own rights under section 405 and in retaliation for assisting other employees to complain of safety-related violations.
IV.B.4. Secretary recognizes St. Mary's in STAA case
Burdens of proof under the STAA have been adopted from decisions under Title VII of the Civil Rights Act of 1964, such as Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Supreme Court's recent decision in St. Mary's Honor Center v. Hicks , No. 92-602, 1993 U.S. LEXIS 4401 (U.S. June 25, 1993), clarifies that the plaintiff in a Title VII case has the burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff on an impermissible basis.
Anderson v. Jonick & Co., Inc., 93-STA-6 (Sec'y Sept. 29, 1993).
IV B 4 St. Mary's in STAA case
In Settle v. BWD Trucking Co., Inc., 92-STA-16 (Sec'y May 18, 1994), the Secretary adopted the ALJ's findings that although Respondent's stated reason for the suspension was pretext, the record failed to substantiate that Complainant's discharge was motivated by retaliatory animus.
[Editor's note: The Secretary adopted the ALJ's decisions in their entirety (ALJ issued a supplemental decision on a motion for reconsideration and damages). The ALJ's thorough analysis relied heavily on St. Mary's Honor Center v. Hicks, 61 U.S.L.W. 4782, 1993 U.S. LEXIS 4401 (1993). Settle v. BWD Trucking Co., Inc., 92-STA-16 (ALJ July 30, 1993).]