DATE: October 10, 1995
CASE NO: 95-SWD-0001
Joseph Skelley, Jr.
Complainant
v.
Consolidated Freightways, Corp.
d/b/a CF Motorfreight
Respondent
Appearances:
John M. Gallagher, Jr., Esq.
For Complainant
Edward S. Mazurek, Esq.
For Respondent
Before: RALPH A. ROMANO
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This proceeding arises under the employee protection
provision of the Solid Waste Disposal Act, hereinafter the "Act",
42 U.S.C. §6971 (1988); which prohibits covered employers
from discharging or otherwise discriminating against employees
who have engaged in certain protected activities.
Complainant filed his complaint on September 21, 1994, and
[PAGE 2]
on October 21, 1994, the Employment Standards Administration of
the U. S. Department of Labor issued its investigative findings
to the effect that the complaint had merit (ALJ 1).[1]
Respondent requested a hearing on October 28, 1994 (ALJ 1),
and an initial notice of hearing was issued on November 10, 1994
(ALJ 2) upon the assignment of this case to the undersigned.
After a continuance (ALJ 5), the matter was tried on February 6,
1995[2] in Philadelphia, Pennsylvania. Briefs were filed by
June 6, 1995.[3]
THE LAW
42 U.S.C. §6971. Employee protection
No person shall fire, or in any
other way discriminate against, or
cause to be fired or discriminate
against, any employee or any
authorized representative of
employees by reason of the fact
that such employee or
representative has filed,
instituted, or caused to be filed
or instituted any proceeding under
this chapter or under any
applicable implementation plan, or
has testified or is about to
testify in any proceeding resulting
from the administration or
enforcement of the provisions of
this chapter or of any applicable
implementation plan.
ISSUE
Whether Respondent issued disciplinary notices to
Complainant in violation of the Act.
SUMMARY OF THE EVIDENCE
Complainant has been a truck driver for Respondent since
approximately November 1986 (Tr. at 15). On August 23, 1994,
Complainant telephoned Luther Grim, Respondent's Operations
anager at its Aston, Pennsylvania terminal, from Speakman
Company, a customer of Respondent located in Wilmington, Delaware
(Tr. at 20-21; RX 1 at 7, 17-18), and informed Grim that he
perceived an odor emanating from some freight on the trailer
[PAGE 3] Complainant was operating (Tr. 21; RX 1 at 18). Complainant stated to Grim that the freight from which this odor was emanating was to be delivered to International Petroleum Corporation in Wilmington (Tr. at 22; RX 1 at 18). When Complainant reported the odor, Grim asked him whether the freight from which it was emanating had any labels on it indicating that it contained any hazardous material, and whether there was anything leaking from the shipment (RX 1 at 20). Complainant responded that there were no hazardous labels on the freight nor was there any leakage (RX 1 at 20). Grim then checked the bill of lading and the delivery receipt for the International Petroleum shipment to determine whether the freight contained any hazardous material that was being transported, and those records reflected no hazardous material. (RX 1 at 21). Grim then telephoned Respondent's terminal in Houston, Texas from which the Aston, Pennsylvania terminal received the International Petroleum freight (RX 1 at 21). After Grim explained to the dispatcher in Houston that Complainant had noted an odor coming from the International Petroleum shipment, the Houston dispatcher contacted the originating shipper about the shipment and ultimately informed Grim that there was no hazardous material on that shipment and that the bill of lading in that respect was correct (RX 1 at 21). Grim next asked Complainant whether he could access the International Petroleum freight from which the odor was apparently emanating (RX 1 at 22-23). When Complainant responded that the International Petroleum freight was indeed accessible, Grim instructed Complainant to go from Speakman directly to International Petroleum to deliver the shipment emanating the odor (RX 1 at 23; Tr. at 22). At the time Grim instructed Complainant to go directly to International Petroleum, Complainant was within a couple of miles of International Petroleum. (RX 1 at 23). Grim testified that Complainant initially stated that he wanted to drive the freight back to the Aston terminal -- a distance of approximately 25 miles -- but ultimately stated that he would proceed directly to International Petroleum as instructed. (RX 1 at 19, 23). Complainant decided to stop first at another of Respondent's customers Brandywine Compounding, to make a delivery there rather than proceeding directly to International Petroleum (Tr. at 22-23). Complainant testified that he understood Grim's instruction to go directly to International Petroleum to be more of a suggestion rather than an order inasmuch as "...it might not be a bad idea" to unload this freight as soon as possible (Tr. 46, 47). Moreover, Complainant felt that since the Brandywine situs was between Speakman and International, it was within his discretion, and more practical, to proceed first to Brandywine (Tr. 22, 23; 46, 47). When he arrived at Brandywine Compounding, Complainant telephoned Grim
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and stated that he wanted to return to the Aston terminal
immediately with the freight emanating the odor (Tr. at 24), but
Grim again instructed him to deliver the freight immediately to
International Petroleum (Tr. at 25).
At this point, Complainant telephoned the Delaware
Department of Natural Resources and Environmental Control to
report the odor emanating from the International Petroleum
freight on his truck. (Tr. at 27; CX 4 at 6), and a Mr. Berlin
responded, inspected the vehicle, and called other authorities
including a fire engine and an ambulance (Tr. 28). The trailer
was roped off, and a reporter from a local radio station
interviewed Complainant at the scene of the trailer. Complainant
testified that his supervisor, terminal manager Dan McTyre, was
standing approximately 10 feet away from him while he was talking
with the reporter from the radio station (Tr. 29-30). Also
present at the scene was an account manager for Respondent, Pat
cKee (Tr. 30), who allegedly told Complainant, "I'm not saying
you didn't have a problem here, but you didn't have to call the
environmental people." (Tr. 31).
The freight emanating the odor was ultimately delivered to
International Petroleum by Complainant (Tr. 32) where other
environmental officials took a sample of leaking fluid from the
truck (Tr. 34, 35). When Complainant returned to the terminal
later that day, Grim requested that he fill-out a report about
what had transpired that day with the International Petroleum
shipment (RX 1 at 25), but Complainant refused to do so (RX 1 at
25). Grim then asked Complainant why he did not follow Grim's
instructions to proceed directly to International Petroleum
rather than stopping in the interim at Brandywine Compounding (RX
1 at 26). Grim testified that Complainant then shouted
profanities at him (RX 1 at 26). Complainant then walked out of
the terminal office onto the dock for a couple of minutes (RX 1
at 27), and returned to the office with a beverage bottle
purportedly containing the substance that had been emanating the
odor on his truck (RX 1 at 28; Tr. at 36-37). Complainant
shouted further profanities at Grim when Grim refused to smell
that substance (RX 1 at 28; Tr. 38). At that point, Grim stated
that Complainant would be getting a disciplinary letter for
insubordination (RX 1 at 28-29).
The following day, August 24, 1994, Grim issued four letters
to Complainant for violating Respondent's Uniform Rules and
Regulations (RX 15). The first letter was issued to Complainant
for the profanity used with Grim (CX 6). The second letter was
for Complainant's disobeying of orders when he refused to proceed
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directly to International Petroleum (CX 6). A third letter was
issued to Complainant by Grim for a separate violation of work
rules for failure to sign, date, or indicate the number of pieces
delivered on a delivery receipt (CX 6). A final letter was
issued to Complainant on August 24, 1994 for his failure to
complete his Equipment Daily Inspection & Condition Report in
violation of work rules (CX 6). Complainant received another
letter on September 14, 1994 for backing his truck into a parked
car (CX 6), and two letters were both issued to Complainant on
September 20, 1994 for failure to get a good count of freight,
and failure to obtain a bill of lading (Tr. at 52; RX 1; CX 6).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Complainant asserts that Respondent issued the noted seven
(7) disciplinary letters to him in retaliation for his reporting
of the odor to the State environmental authorities on August 23,
1994, all in violation of the Act. He seeks an order striking
these letters from his personnel file, four and one-half (4-1/2)
days pay lost as a result of the alleged retaliation, costs and
attorney's fees.
Respondent argues that the subject letters were justifiably
issued for Complainant's violations of its work rules.
As indicated by Respondent, it has been held that to make
out a prima facie case on a claim of unlawful
retaliation under the Act, a Complainant must prove by a
preponderance of the evidence that (1) he engaged in some
activity protected under the Act; (2) the employer had actual or
constructive knowledge of the protected conduct; (3) the alleged
discrimination occurred; and (4) a nexus exists making it likely
that the protected activity led to the alleged discrimination.
See Simon v. Simmons Foods, Inc., 49 F.3d 386 (8th
Cir. 1995). Moreover, "Where there is evidence of 'dual motive',
e.g. where reasons other than retaliation may also account for
the employee's discharge, the employer has the burden of proving
by a preponderance of the evidence that it would have terminated
the employee even if the employee had not engaged in the
protected conduct. See Passaic Valley Sewerage Comm'rs
v. Department of Labor, 992 F.2d 474 (3rd Cir.)".
Simon, supra at 389.
First, I find that Complainant has established a
prima facie case of discrimination.
Complainant's telephone call to the State environmental
authorities is facially and clearly within the ambit of protected
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activity described at 42 U.S.C. 6971(a). That telephone call
"...instituted [a]...proceeding under [the Act]
or...implementation plan..." fostering the goals of the Act, and
included Claimant's "...testi[mony]...in [such
proceeding]...resulting from the administration or enforcement of
the provisions of the Act. I find also that Respondent knew of
that telephone call on the basis of Complainant's unrefuted
testimony that both Daniel McTyre[4] and Pat McKee[5] were made
aware of that phone call (Tr. 29-31). There is no dispute that
the alleged adverse employment action (disciplinary letters - CX
6) occurred. Finally, I find that Complainant has established,
by inference, that his protected activity was the likely reason
for the adverse employment action because of the temporal
proximity between the protected activity (August 23, 1994) and
the alleged adverse action (the subject letters written between
August 24, 1994 and September 20, 1994) Zessin v. ASAP
Express, Inc., Case No. 92-STA-33, Sec. Dec. 1/19/93;
Bergeron v. Aulenback Trans., Inc. 91-STA-38, Sec. Dec.
6/4/92.
I also find, however, that Respondent has established that
it would have issued the subject letters even if Complainant had
not engaged in the protected activity. This finding is made on
the basis that Respondent had, previous to the subject protected
activity, nearly regularly and repeatedly issued letters of
reprimand, suspension and warning to Complainant for his
violations of work rules. (see RX 2 - 13).[6] This clear
historical pattern of Respondent's reprimand of Complainant is
compelling evidence, in my view, that Respondent considered
Complainant to be a marginal employee who required the repeated,
constant attention of management. Complainant's assertion that
the post protected activity disciplinary letters were materially
different (in terms of frequency and speed of issuance) from pre
protected activity discipline notifications, draws no support
from this record.
Finally, I find that on this record, on balance, Respondent,
in any event, established that it took the subject adverse action
for legitimate, non-discriminatory, business reasons for the
reason that Complainant continuously and admittedly violated
Respondent's work rules (see Tr. 38, 49, 50, 52, 71).
RECOMMENDED ORDER
On the basis of the foregoing, I recommend this matter be
DISMISSED.
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RALPH A. ROMANO
Administrative Law Judge
Camden, New Jersey
NOTICE: This Recommended Decision and Order and the
administrative file in this matter will be forwarded for review
by the Secretary of Labor to the Office of Administrative
Appeals, U. S. Department of Labor, Room S-4309, Frances Perkins
Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210.
The Office of Administrative Appeals has the responsibility to
advise and assist the Secretary in the preparation and issuance
of final decisions in employee protection cases adjudicated under
the regulations at 29 C.F.R. Parts 24 and 1978. See 55
Fed.Reg. 13250 (1990).
[ENDNOTES]
[1] References to the record are: "ALJ" - Administrative Law
Judge exhibits; "CX" - Complainant's exhibits; "RX" -
Respondent's exhibits; "Tr" - transcript of trial.
[2] At the initially set January 30, 1995 hearing, the parties
advised that the matter was settled, however, the undersigned was
later advised that this settlement was withdrawn.
[3] The parties have waived all time requirements at 24 C.F.R.
24.6 (ALJ 4).
[4] Respondent's Terminal Manager (Tr. 116).
[5] Respondent's Account Manager (Tr. 147-148).
[6] Indeed, two of these previous warnings were issued the day
before the protected activity (See RX 12, 13).