DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION D -- DUAL MOTIVE
[Last updated May 25, 2010]
[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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- D. Dual motive
In Pollock v. Continental Express , ARB Nos. 07-073, 08-051, ALJ No. 2006-STA-1 (ARB Apr. 7, 2010), the ARB affirmed the ALJ's finding that the Complainant was terminated from employment because of his refusal to drive on a weight restricted road. The ALJ's causation determination was partly based on the temporal proximity between the refusal and the termination a week later without an intervening event. In addition, the Respondent HR director had testified that the Complainant's refusal to drive was "the straw that broke the camel's back."
The Respondent argued that it terminated the Complainant based on his entire employment history of company policy violations and insubordination. The ALJ agreed that the Complainant was a "difficult" and "problem" employee. The ARB stated that the ALJ properly noted, however, that "it is not sufficient for an employer to merely prove that it had a 'good reason' to terminate its employee, but must prove by a preponderance of the evidence that 'would have' terminated the employee, even if the employee had not engaged in protected activity." USDOL/OALJ Reporter at 11, quoting ALJ decision. The record did not, the ARB found, support a finding that had the Complainant not refused to drive on a weight restricted road, the Employer would still have considered terminating the Complainant. The ARB found that substantial evidence supported the ALJ's finding that pretext had been shown, and that the Respondent failed to show that it would have terminated the Complainant even if he had not engaged in protected activity.
[STAA Digest IV D 1]
MIXED MOTIVE ANALYSIS IS NOT APPLICABLE WHERE RETALIATION IS FOUND NOT TO BE EVEN A PARTIAL MOTIVATING FACTOR
Where the ALJ finds that retaliation was not even a partial motivating factor, the mixed motive analysis is inapplicable under the STAA whistleblower provision. Ridgley v. USDOL , No. 07-3917 (6th Cir. Oct. 21, 2008) (unpublished) (case below ARB No. 05-063; ALJ No. 2004-STA-53).
[STAA Digest IV D 1]
DUAL MOTIVE; RESPONDENT'S BURDEN IS PROVE THAT IT "WOULD" HAVE � NOT "MIGHT" HAVE � DISCHARGED THE COMPLAINANT FOR NONDISCRIMINATORY REASONS
In Carter v. Marten Transport, Ltd. , ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the Respondent articulated four reasons why it would have discharged the Complainant despite his protected activity. The ALJ, however, found that the Respondent had not offered any persuasive evidence that any of those justifications would have led it to actually dismiss the Complainant. The ARB agreed, and wrote: "Marten's burden is to demonstrate by a preponderance of the evidence that it "would have," not "might have," terminated Carter for one of those reasons." USDOL/OALJ Reporter at 13 (footnote omitted).
IV. D. 1. Treatment of dual motive cases
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 found that the Supreme Court did not disturb its treatment of mixed motive cases ( see Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989)) in St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, U.S. , 113 S. Ct. 2742 (1993).
[STAA Whistleblower Digest IV D 1]
MIXED MOTIVE ANALYSIS; DIRECT EVIDENCE OF RETALIATION IS NOT A PREREQUISITE
In Calmat Co. v. USDOL , No. 02 73199 (9th Cir. Apr. 19, 2004) (case below ARB No. 99 114, ALJ No. 1999 STA 15), the 9th Circuit Court of Appeals observed that the ARB erred when it rejected the ALJ's mixed motive analysis insofar as it stated that direct evidence of retaliation is necessary to apply the mixed motive framework. The court indicated that a STAA whistleblower complainant need not produce direct evidence of retaliation under either the pretext or mixed motive framework.
[STAA Whistleblower Digest IV D 1]
DUAL MOTIVE; IF FINDING MADE THAT ADVERSE ACTION IS NOT MOTIVATED BY AN UNLAWFUL MOTIVE, COMPLAINANT HAS NOT PROVEN HIS CLAIM AND DUAL MOTIVE ANALYSIS NEED NOT BE REACHED
"[W]here a fact finder affirmatively concludes that an adverse action is not motivated in any way by an unlawful motive, it is appropriate to find simply that the complainant has not proven his claim of discrimination and it is not unnecessary to rely on a 'dual motive' analysis." Mitchell v. Link Trucking, Inc. , ARB 01-059, ALJ No. 2000-STA-39 (ARB Sept. 28, 2001).
[STAA Digest IV D 1]
DUAL MOTIVE; DOES NOT APPLY WHERE RECORD DOES NOT SUPPORT A
FINDING OF ANY UNLAWFUL MOTIVE
Where the evidence of record clearly does not support a finding of any unlawful motive on the part of a respondent, the "dual motive" analysis is inappropriate. Schulman v. Clean Harbors Environmental Services, Inc. , ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999).
DIRECT EVIDENCE OF RETALIATORY MOTIVE
[STAA Digest IV D 1]
Where the Complainant established that he had engaged in protected activity - objection to assignment to a certain truck - and the Respondent maintained that it terminated the Complainant's employment for insubordination, the Respondent's reason was an effective admission of termination, at least in part, for protected activity.
The Secretary noted that "[w]here there is direct evidence that the adverse action is motivated, at least in part, by the protected activity, the respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of the protected activity." Caimano v. Brink's, Incorporated, 95-STA-4, slip op. at 23-24 (Sec'y Jan. 26, 1996) (citation omitted).
IV D 1 Dual motive; employer's burden akin to affirmative defense
The employer's burden in a "dual motive" case resembles an "affirmative defense" the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another." Ass't Sec'y & Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22 (Sec'y July 26, 1995), quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989).
IV D 1 Implication of dual motive analysis where evidence indicated Respondent did not follow gradual disciplinary process used in regard to employees charged with similar offenses
Where there was evidence that the Respondent's practice was to use a gradual disciplinary process through warning letters, suspensions, and then discharge, and that the Complainant had been treated differently than other employees charged with similar offenses, the Secretary concluded that the Respondent's articulated reason for discharging the complainant was at least partially pretextual and due to protected activity. Thus, the Secretary proceeded to the dual or mixed motive analysis. Clifton v. United Parcel Service, 94-STA-16 (Sec'y ay 9, 1995).
IV.D.1. Dual motive; when implicated
In an STAA whistleblower case, in the event that a complainant demonstrates that the respondent took adverse action in part because he or she engaged in protected complaint or refusal, the burden shifts to the respondent to demonstrate that the complainant would have been disciplined even if he had not engaged in the protected activity. Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993).
IV.D.1. Dual motive; when implicated
Where an employer is motivated by both a legitimate and illegal reason, in order to avoid liability, the employer "has the burden of proof or persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." See Dartey v. Zack Co. , 80-ERA-2 (Sec'y Apr. 25, 1983). A mere showing that the employee was "in part" discharged for a legitimate reason does not meet the employer's burden of proof. Davis v. H.R. Hill, Inc. , 86-STA-18 (Sec'y Mar. 19, 1987).
IV. D. 1. Implication of dual motive
Where there is direct evidence that the adverse action is motivated, at least in part, by the protected activity, the burden shifts to the respondent to demonstrate that it would have discharged the complainant even if he had not engaged in the protected activity. In such cases, a respondent bears the risk that the influence of legal and illegal motives cannot be separated.
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), there was direct evidence of motivation. The person who fired Complainant stated "I was very upset with the fact he didn't finish his route like he had been instructed to, and I told him that his services were no longer required by the Kansas division."
IV.D.1. Direct evidence of animus
Where the record included evidence of repeated negative statements of managers about the Complainant's discussions with employees about DOT regulations, ongoing animus was suggested, and the burden shifted to the Respondent to demonstrate that the Complainant would have been discharged even if he had not engaged in protected activity.
Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993).
[Editor's note: It appears that the Secretary is stating that where there is direct evidence suggesting discriminatory intent was a motivating factor in the adverse action, the dual motive analysis is implicated.]
IV. D. 1. Implication of dual motive
Where there is direct evidence that the adverse action is motivated, at least in part, by the protected activity, the burden shifts to the respondent to demonstrate that it would have discharged the complainant even if he had not engaged in the protected activity. In such cases, a respondent bears the risk that the influence of legal and illegal motives cannot be separated.
In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), there was direct evidence of motivation. The person who fired Complainant stated "I was very upset with the fact he didn't finish his route like he had been instructed to, and I told him that his services were no longer required by the Kansas division."
IV.D.1. Dual motive; risk of nonpersuasion
To prevail on a STAA complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under section 405. A complainant initially must show that it was likely that the adverse action, e.g., discharge, was motivated by a protected complaint or work refusal. The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then must prove that the proffered reason was not the true reason for the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). In the event that a complainant demonstrates that the respondent took adverse action in part because he engaged in a protected complaint or refusal, the burden shifts to the respondent to demonstrate that the complainant would have been disciplined even if he had not engaged in the protected activity. Cf. Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1289-90 (9th Cir. 1991); Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984). In such cases, a respondent "bears the risk that 'the influence of legal and illegal motives cannot be separated . . . .'" Mackowiak, 735 F.2d at 1164, quoting NLRB v. Transporation Management Corp., 462 U.S. 393, 403 (1983).
STAA section 405(a) prohibits an employee's discharge because he has filed a complaint "relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). Internal complaints, e.g., to an employer, are protected. Protection is not dependent on actually proving a violation. Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992).
STAA section 405(b) provides that "[n]o person shall discharge . . . an employee . . . for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." 49 U.S.C. app. § 2305(b). Protection under this criterion also requires that "[t]he unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition" and that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."
Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992); Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992).
IV.D.1. & 2. STAA case -- dual motive
Complainant engaged in protected activity when she reported to a Quality Assurance Evaluator that her assigned bus had an expired inspection sticker. Adverse action was taken against complainant when she was demoted to a substitute bus driver and later discharged.
The causal link between the protected activity and the adverse action was established by a memorandum reprimanding and demoting complainant for "divulging company information" by asking the Quality Assurance Evaluator about the expired inspection sticker, and by respondent's own testimony that complainant was primarily discharged for this incident. It was undisputed that the demotion was based solely on the protected activity.
Respondent articulated several nondiscriminatory reasons for the decision to terminate complainant.
The ALJ then analyzed the case for pretext; however, because respondent acknowledges that complainant's protected activity was a motivating factor in the decision to discharge her, the dual motive analysis should be applied. (The Secretary acknowledged in a footnote that the result was the same in this case under either analysis).
The dual motive doctrine is implicated when it is found that the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons, i.e., that the employer had dual motives. Citations omitted. In such a case, in order to avoid liability, the employer has the burden of showing by a preponderance of the evidence that it would have made the same decision as to the employee's discharge even in the absence of the protected conduct. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-58 (1989); Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991), slip op. at 4.
In the instant case, complainant was not given any verbal or written warning concerning the other alleged legitimate reasons for her termination; she was not informed of company policies until after the alleged violations occurred; an unfavorable comment about complainant from a prior employer was elicited after and as a result of her protected activity. On this basis, respondent could not avoid liability under the dual motive doctrine.
Park v. McLean Transportation Services, Inc., 91- STA-47 (Sec'y June 15, 1992).
IV.D.1. Dual motive analysis not applicable where complainant does not establish discriminatory motive by respondent
Where the complainant does not show that discriminatory motive played any part in respondent's adverse action decision, a dual motive analysis is not applicable. See generally Pogue v. United States Department of Labor, 940 F.2d 1287, 1289-91 (9th Cir. 1991).
Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992).
IV.D.1.a. Relationship between pretext and dual motive analysis
Where an ALJ finds that an employer's reason for taking adverse action against an employee is pretextual, it is not necessary for the ALJ to consider the "but for" question of the dual motive analysis. Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), overruled on other grounds, Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987).
IV.D.1.a. Sole motive as asserted by respondent
The dual motive analysis applies where the trier of fact concludes that the complainant's protected activity was a motivating factor in the decision to discharge. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), slip op. at 12 n.7; Dartey v. Zack Co. of Chicago, 82-ERA- 2 (Sec'y Apr. 25, 1983), slip op. at 9. Where the ALJ concluded that "the termination of [the complainant] resulted solely from pique at his repeated contemptuous disregard of [the respondent's] policy regarding appearance and attire," the ALJ correctly applied the pretext analysis rather than the dual motive analysis. Kimball v. Misty Moon Transportation, Inc., 92-STA-15 (Sec'y Oct. 29, 1992).
IV.D.1.a. Rebuttal; pretext; dual motive burdens in STAA cases
Proof of a prima facie case is not proof of discrimination. An employer may rebut the prima facie case by articulating a legitimate non-retaliatory reason for the adverse action. The employee is successful only if he meets his overall burden of proving that the employer's motive for the adverse action was discriminatory. If the employer successfully rebuts the inference of retaliation that arises from the prima facie case by showing a legitimate motive for the adverse action, the burden then shifts to the employee to rebut the employer's showing by proving that the employer's articulated reason was not the true reason for the adverse action. The trier of fact then may conclude that the employer's proffered evidence is pretextual and that the employee has proved retaliation, or the trier of fact may conclude that the employer was not motivated, in whole or in part, by the protected conduct, and find that the employee has failed to prove retaliation. If, however, the trier of the fact concludes that the employer was motivated by both a prohibited and a legitimate reason (dual motives), the employer escapes liability only by establishing that it would have reached the same decision even in the absence of the protected conduct.
Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992), citing McGavock v. Elbar, Inc., 86-STA-5 (Sec'y July 9, 1986), which in turn cited Darty v. Zack Company, 80-ERA-2 (Sec'y Apr. 25, 1983).
IV.D.1.a. Assertion that employee's offensive behavior justified discharge can be analyzed either as a pretext or a dual motive case
An employer's assertion that the employee's offensive behavior justified the employee's discharge can be considered as argument that the employee's behavior was the real reason for the discharge, or can be considered an affirmative defense that the employer had the right to discharge the employee in spite of the employee's protected conduct. Thus, type of case can be analyzed either as a "pretext" or as a "dual motive" case. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), citing N.L.R.B. v. Cement Transportation, Inc., 490 F.2d 1024, 1029 n.6 (6th Cir. 1974), cert. denied, 419 U.S. 828 (1974).
In Muzyk v. Carlsward Transportation , ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007), the ARB found that substantial evidence supported the ALJ's finding that although discrimination �played a role� in the decision not to rehire the Complainant, the Respondent would have refused to rehire the Complainant absent any of his safety-related complaints where the Complainant had engaged in suspicious and dishonest activity which raised security and loss of confidence concerns for the Respondent.� Another bus driver had informed the Respondent that the Complainant was out to get the Respondent.� In addition, the Complainant was deceptive when the Respondent confronted him over his reason for hanging around the Respondent's busses at a time when he had no business at the depot.� The Complainant admitted that he had been playing a �cat-and-mouse� game because he did not want to disclose that he was taking pictures for an upcoming meeting with an attorney. � In a footnote, the ARB noted that the ALJ had observed that the Respondent's action was �reasonable� and �justified� in addition to being legitimate and non-discriminatory.� The ARB noted that �the purpose of the STAA employee protection provision is specific to retaliation because of protected activity,� and cited decisions to the effect that the STAA was not intended as a vehicle for judicial second-guessing of employment decisions.
IV.D.2. Dual motives; particular circumstances establishing
Complainant established dual motives in a his discharge in an STAA case where the record indicated that complainant's prior indiscretions had resulted only in verbal reprimands (except in one instance in which he had been ordered to make a repair when he damaged the yard), and where the complainant's alleged indiscretions made the day of his discharge were in obedience to the Traffic Officer who had stopped complainant, were not adequately proven (conflicting testimony regarding whether the truck had been left unsecured), or were not persuasive (failure to complete driver's report not persuasive since respondent was constantly after the drivers to complete their paperwork). Wilson v. Bolin Associates, Inc., 91-STA-4 (ALJ Sept. 6, 1991), aff'd, 91-STA-4 (Sec'y Dec. 30, 1991).
[STAA Digest IV D 2]
DUAL MOTIVE; RESPONDENT'S BURDEN
In Johnson v. Roadway Express, Inc. , ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), Respondent attempted to establish, by a preponderance of the evidence, that it would have taken the adverse action of terminating Complainant's employment for his reporting in as too ill to drive even if Complainant had not engaged in protected activity (refusal to drive when too ill). Respondent thus produced a great deal of evidence to show that Complainant had an abysmal attendance and disciplinary record (which, in fact, had been sufficient to convince the ALJ that Respondent had dual motives in discharging Complainant). Respondent also presented evidence that it had a long standing policy to look at an employee's entire work record when determining whether to terminate that employee's employment.
The ARB, however, agreed with the ALJ that there was no evidence to establish that Respondent would have discharged Complainant even if he had not reported as too ill to drive. The ARB noted that "[u]nder 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." Slip op. at 13.
In Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995), the Respondent had a forced dispatch policy: any driver who refused an assignment when he or she had available driving hours was considered to have resigned. The Secretary, analyzing the case under a dual motive analysis, concluded that because of this unequivocal policy, the Respondent would have fired the Complainant even if he never complained about the safety of Respondent's vehicles or threatened to take assigned vehicles to a DOT inspection.
[ Editor's note: Compare Smith v. Yellow Freight System, Inc., 91-STA-45 (Sec'y Mar. 10, 1993), slip op. at 8-9 n.7(an employer's legitimate business interests do not outweigh safety policies underlying the STAA), affirmed Yellow Freight System, Inc. v. Reich , 27 F.3d 1133 (6th Cir. 1994) (holding, however, that the Secretary in that case did not substitute his business judgment for that of the employer); Yellow Freight Systems, Inc. v. Reich, No. 93-1205 (4th Cir. Oct. 29, 1993) (discussion of relation between STAA's purposes and an employer's disciplinary practices). ]
[STAA Whistleblower Digest IV D 3]
LAYOFF WOULD HAVE OCCURRED DUE TO END OF SEASON AND SENIORITY RIGHTS REGARDLESS OF PROTECTED ACTIVITY
In Walters v. Angelo Luppino, Inc. , ARB No. 05-018, ALJ No. 2004-STA-39 (ARB Oct. 26, 2006), PDF | HTM the Complainant requested that the State Police inspect the dump truck she was driving; the Police found major safety deficiencies and took the truck out of service. The Complainant claimed that her subsequent lay off was in retaliation. The Employer, however, contended that the layoff occurred because it did not have another truck or other work for the Complainant to do. The Complainant did not establish at the hearing that this explanation was pretextual. Moreover, even if the Complainant's instigation of the safety inspection was a motivating factor, the ARB agreed with the ALJ's conclusion that the Respondent would not have called the Complainant back to work in any event. The evidence established that due to the seasonal nature of the business and the layoff of more senior drivers, the Complainant would have been laid off regardless of her safety complaints.
[STAA Whistleblower Digest IV D 3]
DUAL MOTIVE; EMPLOYER'S PROOF THAT IT WOULD HAVE FIRED COMPLAINANT REGARDLESS OF THE PROTECTED ACTIVITY; PROVOCATION OF COMPLAINANT; REASONABLENESS OF COMPLAINANT'S RESPONSE
In Korolev v. Rocor International , ARB No. 00 006, ALJ No. 1998 STA 27 (ARB Nov. 26, 2002), Complainant engaged in protected activity when he refused to drive through a fuel/inspection lane because he was too fatigued and out of hours; however, Respondent legitimately fired the Complainant because during a confrontation over the work refusal, Complainant bumped the night supervisor with his truck as the supervisor was attempting to prevent Complainant from leaving the terminal. Complainant denied the bumping, but the presiding ALJ found that it had occurred and the ARB found that substantial evidence supported that finding. The ARB affirmed the ALJ's finding under the dual motive analysis that Respondent would have terminated Complainant regardless of the protected activity.
Complainant, citing Moravec v. HC & M Transportation, Inc. , 1990 STA 44 (Sec'y Jan. 6, 1992), argued that the bumping incident was not a legitimate reason for the firing because the supervisor provoked him by unlawfully insisting that he drive through the fuel/inspection lane. The ALJ, however, had found Complainant acted unreasonably under the circumstances, and the ARB found that substantial evidence supported that finding. The ARB found that Moravec was not helpful to Complainant because "it involved an employee challenging a supervisor to a fight, an 'indiscretion,' and not particularly egregious behavior compared to here, an assault with a truck."
[STAA Digest IV D 3]
DUAL MOTIVE; EMPLOYER CHECKED ON COMPLIANCE WITH SETTLEMENT
AGREEMENT ONLY AFTER COMPLAINANT LODGED ADDITIONAL SAFETY
COMPLAINTS
In Madonia v. Dominick's Finer Foods, Inc. , 1998-STA-2 (ALJ Oct. 5, 1998), Complainant was discharged after an altercation with another employee. Complainant was reinstated after signing a settlement agreement that provided that he would be immediately discharged if he failed to complete a psychotherapy program required by the settlement or if he assaulted or battered anyone while on duty. Complainant was later discharged for failure to complete the psychotherapy program. The ALJ found that Complainant's safety complaints prompted Respondents to check on his compliance with the settlement agreement; that although the non-compliance was a legitimate reason for the discharge, it also provided an excuse to fire Complainant for making safety complaints. The ALJ found under dual motive analysis that Respondents failed to establish that they would have fired Complainant in the absence of his protected activity.
[STAA Digest IV D 3]
DUAL MOTIVE; DISCHARGE OVER CONFRONTATION WITH CO-WORKER;
CONSISTENCY WITH TREATMENT OF CONFRONTATIONS BY OTHER EMPLOYEES
In Shannon v. Consolidated Freightways , 96-STA-15 (ARB Apr. 15, 1998), the ARB adopted the ALJ's finding that Respondent would have discharged Complainant absent any protected activity because of a confrontation she had with a co-worker. The ARB emphasized that Respondent's treatment of Complainant was consistent with the treatment of two other employees who had confronted co-workers. Although Respondent had discharged Complainant on the basis of her "overall work record," which included both protected and unprotected activity, the ARB found that Complainant would have been discharged regardless of the protected activity because of the confrontation.
DUAL OR MIXED MOTIVE; DISRUPTIVE CONDUCT
[STAA Digest IV D 3]
Even when employees engage in protected activity, employers may legitimately discipline them for insubordination and disruptive behavior. Logan v. United Parcel Service , 96-STA-2 (ARB Dec. 19, 1996) (in dual motive case, Respondent established by preponderance of evidence that it would have discharged Complainant even if not for the protected activity where Complainant was insubordinate with a manager, used a tape recorder on company time, acted inappropriately toward officials when a relief driver arrived, had a history of past disruptions and threats, and Complainant could not explain his behavior).
DUAL OR MIXED MOTIVE; DISRUPTIVE CONDUCT
[STAA Digest IV D 3]
Even when employees engage in protected activity, employers may legitimately discipline them for insubordination and disruptive behavior. Logan v. United Parcel Service , 96-STA-2 (ARB Dec. 19, 1996) (in dual motive case, Respondent established by preponderance of evidence that it would have discharged Complainant even if not for the protected activity where Complainant was insubordinate with a manager, used a tape recorder on company time, acted inappropriately toward officials when a relief driver arrived, had a history of past disruptions and threats, and Complainant could not explain his behavior).
TREATMENT OF OTHER EMPLOYEES; TRUE REASON; DUAL MOTIVE
[STAA Digest IV D 3]
Where Complainant was found to have blatantly disregarded Respondent's lunch and break policy, and there was evidence that Respondent treated other drivers who violated the policy similarly, Complainant was found not to have carried his burden of proving that the true reason for the adverse employment action was retaliation for protected activity. Complainant had alleged "selective and discriminatory" enforcement of the policy based on the fact that he had filed an earlier STAA complaint.
The Board indicated that the complaint also would fail under the dual motive analysis because, even if the protected activity was found to have motivated Respondent in part to discipline Complainant, Respondent's treatment of other known violators established that it would have reached the same decision in the absence of protected activity.
Cach v. Distribution Trucking Co ., 95-STA-12 (ARB Aug. 20, 1996).
IV D 3 Dual motive not rebutted where evidence showed other employees similarly situated were given more lenient treatment
Under the dual or mixed motive analysis, the employee must first show that the protected activity "played a role" in the employer's decision. The burden then shifts to the employer to show by a preponderance of the evidence that it would have taken the action against the employee even if the protected activity had not occurred.
Where the evidence clearly showed that other employees, similarly situated, were not discharged for similar behavior, the Respondent failed to sustain its burden of proof to show that the Complainant would have been discharged even if he had not engaged in protected activity.
Clifton v. United Parcel Service, 94-STA-16 (Sec'y ay 9, 1995).
IV.D.3. Illustrative case -- manipulation of dispatch system; driving for other companies in violation of employment contract
In Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr. 26, 1991), the Secretary held that assuming a dual motive analysis applied, even if the Complainant's refusal to drive in violation of an hours of service regulation partly motivated the adverse actions, his subsequent behavior would have resulted in those actions being taken in any case. Specifically, the Complainant attempted the day after the refusal to manipulate the dispatch system to obtain a more profitable run, and was therefore barred from a certain terminal. The following week, the Complainant signed a driving lease with another company, and the Respondent therefore canceled its lease with the Complainant (the lease contained an exclusive driving provision).
IV.D.3. The straw that broke the camel's back
The dual motive analysis is appropriate when it is found that the employer's adverse action against the employee was motivated by both prohibited and legitimate reasons, i.e., that the employer had dual motives. See generally Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992); Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991); McGavock v. Elbar, Inc. , 86-STA-5 (Sec'y July 9, 1986). Thus, where Respondent admitted that complaints about maintenance and safety conditions of trucks were included in the reason for discharge and stated that Complainant's comments to the Respondent's president/owner were "the straw that broke the camel's back," the dual motive analysis was invoked.
In such a case, in order to avoid liability, the employer has the burden of showing by a preponderance of the evidence that it would have made the same decision as to the employee's discharge even in the absence of the protected conduct. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-58 (1989). Thus, where there was no evidence that Respondent was displeased about Complainant's attitude or insubordination at any time prior to his discharge, the record established that the immediate cause of discharge was a protected safety complaint, although Complainant's discharge had been contemplated prior to this occasion there was no evidence that discharge was going to occur absent Complainant's protected activity, the record established that Complainant made frequent safety related complaints and that the general manager (who actually ordered the discharge) was displeased with Complainant for making too many complaints as opposed to his not adequately performing his job duties, Complainant established a retaliatory discharge in violation of the STAA.
Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993).
IV.D.3. Respondent's burden to show that it would have taken the same action even in the absence of the protected activity
In Harris v. Apaca Van Lines, 91-STA-39 (ALJ Aug. 31, 1992), aff'd, (Sec'y Aug. 31, 1992), the ALJ found that the complainant made a prima facie case of retaliatory discharge in violation of the STAA and that the respondent had both legitimate and unlawful reasons for firing the complainant. Applying the dual motive analysis, the ALJ found that the respondent showed by a preponderance of the evidence that, in the absence of the complainant's engaging in protected activities, it would have discharged her because of her job performance. The ALJ compared the magnitude of the respondent's legitimate objections to the complainant's job performance with the magnitude of the respondent's displeasure with the complainant's protected activity. He found that the respondent's dissatisfaction with the complainant's job performance was significant, but not extreme. In comparison, however, the dissatisfaction with the protected activity was of significantly smaller magnitude.
The ALJ also considered the timing of the discharge, and the customary employment practices of the respondent. He found that although the discharge occurred within two days of the protected activity, during the intervening period the complainant was blamed for taking a wrong route and it was this event, and not the safety complaint, that immediately precipitated the firing of the complainant. The ALJ noted that unlike a large, formally- structured organization where a summary firing without advance warning would be suspicious, this respondent was a relatively small business that operated informally, without rigid procedures for firing employees. Finally, the ALJ noted that the complainant had not been liked from the first day by a manager who the primary role in hiring and firing employees. It did not seem unlikely, given the complainant's inauspicious beginning, that the complainant would ultimately be fired for one reason or another, regardless of any protected activity in which she may have engaged.