USDOL/OALJ Law Library
SURFACE TRANSPORTATION ASSISTANCE ACT
WHISTLEBLOWER DIGEST
DETAILED TABLE OF CONTENTS

MAIN HEADINGS

I. OVERVIEW
II. PROCEDURE
III. WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
IV. BURDEN OF PROOF AND PRODUCTION
V. PROTECTED ACTIVITY
VI. ADVERSE ACTION
VII. EMPLOYER/EMPLOYEE
VIII. MISCELLANEOUS DEFINITIONS
IX. DAMAGES AND REMEDIES
X. SETTLEMENTS
XI. DISMISSALS
XII. RES JUDICATA/COLLATERAL ESTOPPEL
XIII. RELATIONSHIP WITH OTHER REMEDIES

DIVISION I -- OVERVIEW

I. Overview

A. Statutory/regulatory scheme

1. Generally
2. Delegation of investigatory authority to Assistant Secretary
3. Retroactive effect of amendments

B. Purposes

1. To protect against discriminatory treatment
2. To ensure the flow of information
3. To vindicate private rights

DIVISION II -- PROCEDURE
II. Procedure

A. Applicability of 29 C.F.R. Part 18

B. Complaint

1. Filing of complaint, generally
2. Timeliness of filing of request for hearing or complaint
a. Effect of failure to object to Assistant Secretary's findings
b. Sufficiency of objections
c. Computation of timeliness
i. Postmark
ii. Mail days
iii. Date of initiation of period
iv. Complaint filed by telephone
d. Equitable tolling
i. STAA time limits directory; not jurisdictional
ii. Circumstances justifying equitable tolling
e. Continuing violation theory
3. Complaint not to be treated as formal legal pleading
4. Underlying violation

C. Prosecution of complaint

1. Obligation of DOL of prosecute
2. Right of complainant to continue despite Assistant Secretary's deferral to arbitration proceeding
3. Right of Assistant Secretary to file brief where he or she had earlier deferred to arbitration proceeding

D. Amendments to pleadings

1. Generally
2. Impleading of party
3. Second hearing request notice

E. Powers and responsibilities of Administrative Law Judge

1. Power to examine witnesses
2. Power to issue orders
3. Power to raise issue not addressed below
4. Responsibility to afford due process
5. Recusal/removal
6. Responsibility to afford opposing party opportunity to respond to motion
7. Power to remand
8. Scope of discretion on remand
9. Timeliness of decision

F. 120 days for Secretary's decision

G. Nature of ALJ decision: Recommended or Final

1. In General
2. Settlements
3. Withdrawals
4. Other dismissals

H. Scope of review

1. Case or controversy -- agency not bound
2. Deferral to findings of Assistant Secretary (see Evidence)
3. Deferral to other proceedings (see Evidence)
4. Secretary's/ARB's standard of review
a. ALJ's factual findings
b. Legal issues
c. Raising of new theories, issues or evidence before the Secretary
5. Federal court's standard of review

a. Generally
b. Reinstatement proceeding (see Damages)
c. Deferral to Secretary, not ALJ

I. Motion for reconsideration/reopening of the record

J. Service of decision and other service and filing issues

K. Discovery issues

L. Stay for bankruptcy proceedings or enforcement of Secretary's order

M. Misconduct/Sanctions

N. Evidence; admissibility issues

O. Photographing or broadcasting of hearing

P. Summary decision

Q. Appeals; interlocutory appeal

R. Law of the case

S. New evidence/argument

T. Amicus

U. Continuance

V. Consolidation

W. Choice of Law

X. Motion for Stay

Y. Removal to Federal District Court

Z. Sovereign Immunity

DIVISION III -- WEIGHING OF EVIDENCE AND INTERPRETATION OF LAW, GENERALLY
III. Weighing of evidence and interpretation of law, generally

A. Statutory and regulatory interpretation

B. Relationship to other acts

C. Weight and effect of Assistant Secretary's findings

D. Deferral to other proceedings

1. Grievance proceeding
2. NLRB proceeding
3. Arbitration proceeding
a. Requirement that proceeding be examined for adequacy
b. Deferral not required
[See also STAA Digest XIII C]

E. Conflict between STAA and Collective Bargaining Agreement

F. Complainant's motive for bringing complaint

G. Credibility determinations

H. Counsel as witness

I. Pro se complainant's burden of proof

J. Miscellaneous

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION A -- ELEMENTS

IV. Burden of proof and production

A. Elements; establishing causation

1. Elements, generally
2. Establishing causation element
a. Generally
b. Circumstantial evidence
i. Generally
ii. Proximate timing of adverse action
iii. Showing that respondent's reason for adverse action was baseless
iv. Pattern of retaliation
c. Illustrative cases
d. Requirement that respondent have been aware of protected activity
3. Error to consider respondent's reasons for adverse action at prima facie phase
4. Derivative complaint

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION B -- ARTICULATION OF NONDISCRIMINATORY REASON FOR ADVERSE ACTION
IV. Burden of proof and production

B. Articulation of nondiscriminatory reason for adverse action

1. Generally
2. Particular reasons
a. Accident record
b. Fighting or challenge to fight
c. Personal attitude
d. Refusal to attend counseling session
e. Other reasons
3. No nondiscriminatory reason articulated
4. St. Mary's Honor Center; bursting bubble upon articulation; relevance of prima facie case analysis after hearing on merits and articulation

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION C -- PRETEXT
IV. Burden of proof and production

C. Pretext

1. Generally
2. Illustrative cases
a. Pretext established
b. Pretext not established
3. Respondent's perception of reasons controls
4. Discrimination against similarly situated employees
5. Balancing of business interests with safety concerns
6. Respondent's rebuttal

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION D -- DUAL MOTIVE
IV. Burden of proof and production

D. Dual motive

1. When implicated
a. Relationship between pretext and dual motive analysis
2. Establishing dual motive
3. Illustrative cases

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION E -- DEFORD "ENTITLEMENT" THEORY
IV. Burden of proof and production

E. DeFord "entitlement" theory

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION F -- BLACKLISTING
IV. Burden of proof and production

F. Blacklisting; motive; loss of employment opportunity

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION G -- CONTRIBUTING FACTOR
IV. Burden of proof and production

G. Contributing Factor

DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION H -- CLEAR AND CONVINCING EVIDENCE
IV. Burden of proof and production

H. Clear and Convincing Evidence

DIVISION V -- PROTECTED ACTIVITY
SUBDIVISION A -- GENERALLY

V. Protected Activity

A. Generally

1. Element of prima facie case
2. Section 31105(a)(1)(A); filing of complaint or instituting of proceeding
a. Statutory provision
b. Interpretation of "relating to"; pleading requirements
c. Perceived rather than actual violations
d. Resolved safety complaints
3. Section 31105(a)(1)(B)(i) - "federal motor safety violation" (formerly referred to as "when" clause)
a. Statutory provision
b. Complainant's subjective opinion
c. Prospective violation
d. Authority of DOL to find safety violation; standard of proof
e. Applicability of reasonable person and communication requirements to "when clause"
4. Section 31105(a)(1)(B)(ii) - "reasonable apprehension of injury" clause (formerly referred to as "because" clause)
a. Statutory provision
b. Reasonable person standard
i. Generally; Applicability of Pensyl
ii. Hazardous condition does not have to be confirmed
iii. Illustrative cases
c. Communication requirement
i. In general
ii. Communication requirement applies only to unsafe equipment
iii. Sufficiency of articulation
iv. Communication not feasible
v. Opportunity for timely correction
vi. Correction made but adverse action taken against complainant
5. Mixed safety and non-safety reasons for work refusal
6. Effect of complainant's compliance with order to work after raising safety complaint

DIVISION V -- PROTECTED ACTIVITY
SUBDIVISION B -- SPECIFIC PROTECTED ACTIVITY
V. Protected Activity

B. Specific protected activity

1. Activities protected under section 31105(a)(1)(A)
a. Internal complaints, generally
b. Counseling other employees about DOT regulations
c. DOT proceedings, and proceedings under other federal and state laws, arbitration, and employer hearings
i. In general
ii. Grievance proceedings
iii. Complaint about internal shop conditions
iv. Complaints to state official
v. Support for co-workers
2. Activities protected under section 31105(a)(1)(B)
a. Illness or physical condition
i. Generally
ii. When clause; complainant's subjective opinion
iii. Because clause; reasonable apprehension and communication requirements
iv. Fatigue
v. Use of medication
b. Defective vehicle
c. Unsafe conditions
d. Refusal to violate hours of service regulation
e. Refusal to drive with unsafe co-driver
f. Refusal to speed
g. Moving equipment to safe location

DIVISION VI -- ADVERSE ACTION
VI. Adverse action

A. Generally

B. Specific actions

1. Constructive discharge
2. Refusal to pay lodging
3. Refusal to pay worker's compensation
4. Other actions

C. Case or controversy

D. Hostile work environment

DIVISION VII -- EMPLOYER/EMPLOYEE
VII. Employer/employee

A. Employee

1. Generally
2. Specific occupations
a. Escort vehicle driver
b. Mechanic
c. Armored truck messenger
d. Government employee
e. Individual who directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier
3. Permissibility of raising of issue by ALJ

B. Employer

1. Generally
2. Personal liability
3. Joint employers/Joint liability
4. "In commerce"
5. Specific employers
a. Corporations
b. Leasing agent
c. Other
6. Successorship liability
7. Vehicle rating or weight

DIVISION VIII -- MISCELLANEOUS DEFINITIONS
VIII. Miscellaneous definitions

A. Breakdown artist

B. Commercial motor vehicle; commercial motor carrier

C. "On-duty" time

D. Person

DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION A -- REINSTATEMENT

IX. Damages and remedies

A. Reinstatement

1. Validity of regulation
2. Purpose of provision
3. Secretary's finding of reasonable cause/immediate effect of order
4. Enforcement proceeding
a. Immediate enforceability
b. Complainant's right to intervene
c. District court's standard of review
5. Unconditional offer of reinstatement precludes subsequent order of reinstatement
6. Complainant's decision not to seek reinstatement
7. Complainant no longer qualified
8. Terminal closed; reassignment
9. Front pay
10. Stay of reinstatement order
11. Concern that complainant may be a threat to co-workers or the public

DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION B -- COMPENSATORY DAMAGES

IX. Damages and remedies

B. Compensatory damages

1. Generally
a. No special economic treatment
2. Back pay
a. Generally
i. Mandatory nature
ii. Purpose to cease employer misconduct
iii. Burden of proof on employer
iv. Absence of request for consequential damages
b. Computation
i. Generally; Quarterly base period/weekly rate
ii. Representative employee formula
iii. Continuation until reinstatement
iv. Interim earnings
v. Part-time earnings
vi. Situations in which it would be impossible to determine which job the complainant would have performed -- Seasonal work
vii. Unemployment compensation not deducted
viii. Prejudgment interest
ix. Tolling based on unconditional offer of reinstatement
x. Salary of replacement driver not standard
xi. Liability ends when complainant's employment would have ended without regard to discrimination
xii. Exclusion of layoff periods
xiii. Inclusion of ancillary benefits
xiv. Moonlighting
xv. Impact of bankruptcy order
xvi. After acquired evidence
xvii. Miscellaneous deductions
3. Mitigation of damages
a. Burden of proof
b. Substantially equivalent job
c. Delay in seeking employment
d. Delay based on employer's failure to reinstate
e. Pain and suffering; comparative award
f. Requirement that employee act reasonably to maintain subsequent employment

DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION C -- LITIGATION EXPENSES

IX. Damages and remedies

C. Litigation expenses

DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION D -- OTHER RELIEF

IX. Damages and remedies

D. Other relief

1. Cleansing of work record
2. Posting of notice of STAA obligations
3. Retroactive seniority and health benefits
4. Punitive damages
5. Blacklisting; cease & desist order

DIVISION IX -- DAMAGES AND REMEDIES
SUBDIVISION D -- OTHER RELIEF

IX. Damages and remedies

F. Enforcement

DIVISION X -- SETTLEMENTS

X. Settlements

A. Review of settlement agreement

1. Standard for review
2. Requirement of written agreement
3. ALJ's review of the terms of settlement agreement

B. Renunciation of settlement agreement/reopening

C. Dismissal with prejudice

D. Confidentiality provisions

E. Assent of Assistant Secretary

F. Enforcement

DIVISION XI -- DISMISSALS
XI. Dismissals

A. Voluntary dismissals

1. Generally
2. Obligation of ALJ to determine whether pro se complainant understands effects of dismissal
3. Withdrawal by complainant acting alone
4. Stipulated dismissal

B. Dismissals for cause

1. Abandonment
2. Failure to comply with ALJ's lawful order
3. Misconduct
4. Employer's failure to participate

C. Other dismissals

1. Involuntary bankruptcy
2. Special circumstances; section 1978.115
3. Dismissal of ARB review where neither party files an appellate brief

DIVISION XII -- RES JUDICATA/COLLATERAL ESTOPPEL

XII. Res judicata/Collateral estoppel

DIVISION XIII -- RELATIONSHIP WITH OTHER LAWS

XIII. Relationship with other remedies

A. Preemption/Abstention Doctrine

B. Requirement of exhaustion of administrative remedies

C. Deferral to arbritation proceedings
[See also STAA Digest III D]

D. Mootness doctrine