USDOL/OALJ STAA Whistleblower Digest

IV. Burden of proof and production

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E. DeFord "entitlement" theory

IV.E. DeFord "entitlement" theory

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993), the ALJ made, and the Secretary adopted, a finding that a purported policy that drivers who did not make to their destination on time because they stopped due to illness or fatigue could not be reimbursed for lodging was not actually in effect. The ALJ also made an alternative finding that such a policy, if in effect, would violate the STAA, citing DeFord v. Tennessee Valley Authority, 700 F.2d 281 (6th Cir. 1983), in which the court indicated that employee protection provisions could not be defeated by a uniformly discriminatory policy. Respondent and amicus argued that this alternative ruling contravenes Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir. 1991), in which the court stated that drivers are guaranteed equal economic treatment, not special economic treatment. In Roadway , the court "discern[ed] no conflict" between its decision and DeFord in that the employee in DeFord who was unlawfully demoted "established an entitlement to the job he occupied and therefore established unlawful discrimination when he was removed from it for an impermissible reason."

The Secretary declined to rule on the alternative finding because the finding that Respondent did not have the alleged policy resolved the case. Nonetheless, he did point out that

    [T]he Roadway "entitlement" theory is potentially troublesome because it may unduly delimit employee protection. Discrimination cases may well arise in "discretionary" circumstances. For example, an employer may consider an employee for a promotion "earned" and deserved due to exemplary job performance but to which the employee is not strictly "entitled" under the terms of his employment. Protection arguably could extend to that employee if the employer decided against promotion for an impermissible reason. [* /]

    The entitlement theory also may prove difficult in cases of harassment or intimidation, a consideration which concerned the ALJ. . . . In fact, the Roadway court case involved just such a situation. . . . [W]hen drivers refused to continue, the dispatchers retaliated by withholding the authorization to shut down. . . . This response clearly was calculated to keep the drivers on the road despite their legitimate safety concerns.
[* /] The DeFord distinction drawn by the Roadway court -- that a demoted employee is "entitled" to his former job -- is questionable. An "at will" employee ordinarily has no job entitlement -- he may be terminated at any time, for any reason, or for no reason -- and an employee subject to discharge only for "just cause" may have no job entitlement depending on his employment history. Also troubling is the manner in which the court's entitlement criterion appears to alter burdens of proof in discrimination cases. Ordinarily a complainant must show that the respondent likely took adverse action against him because he engaged in protected activity, and a respondent may rebut by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. Under Roadway , a complainant would be required to show that he was entitled to the job or benefit he had been denied, i.e. , that the respondent had no legitimate reason for its denial.