Issue
The United States Court of Appeals recently addressed whether an employer violated the whistleblower protection provisions of the Surface Transportation Assistance Act (STAA) when it suspended an employee without pay shortly after the employee voiced his concerns about safety violations. (CalMat v. United States Department of Labor, (— F. 3d —, 2004 WL 829895, 9th Cir., Apr. 19, 2004))
Facts
After Robert Germann, a local union shop steward and a CalMat employee, learned that three CalMat drivers had violated California and federal safety regulations, he informed the drivers that it is illegal to drive more than fifteen hours in one day and encouraged the drivers not to do so. He also reported the violations to the California Highway Patrol and talked to CalMat managers about the violations. Germann’s discussion with one of the employees was “heated” and the driver told a Calmat manager that Germann had cursed at him and called him a “Chihuahua.” The day after these violations were brought to light, CalMat suspended Germann without pay. Later that same month, CalMat converted the suspension to a disciplinary suspension for encouraging a work slow down and later terminated Germann’s employment.
Germann filed a complaint with the Department of Labor’s Occupational Safety and Health Administration. An administrative law judge and administrative review board concluded that CalMat violated the STAA by suspending Germann because the reason it gave for disciplining him was pretext for retaliation. CalMat appealed.
Appellate Court Decision
The STAA provides that employers in the commercial motor transportation industry may not discipline or discriminate against an employee for lodging a complaint about a safety regulation, standard or order. The Court of Appeals concluded that Germann had the burden of “raising an inference that protected activity was likely the reason for the adverse employment action”. The burden then shifted to CalMat to articulate a “legitimate non-retaliatory reason” for the suspension. Germann was then required to show that the reason offered by CalMat was pretext for retaliation.
Here, the Court noted that Germann was suspended only a few days after he voiced his concerns, the allegations of Germanns’ harassing behavior did not come to light until CalMat began investigating Germann’s complaints about safety violations, and CalMat’s punishment of Germann was severe given the circumstances and CalMat’s past treatment of similarly situated employees. The Court concluded that Germann had met his burden of showing that CalMat’s stated reason for disciplining him was mere pretext for retaliation for voicing his concerns about the safety violations.
The Court also concluded that the administrative law judge did not have to defer his/her decision to the outcome of an arbitration proceeding brought by Germann on his complaint that CalMat violated a collective bargaining agreement between CalMat and his union. The Court found that the arbitration did not address Germann’s rights under the STAA. Furthermore, the STAA protects an employee’s right to pursue both an STAA claim and a grievance arbitration under a collective bargaining agreement. Although the Secretary of Labor may decide to defer to the results of an arbitration proceeding, the Court determined that deferral was not necessary under the facts presented in this case.
Note: The STAA specifically excludes employees of the “United States Government, a State, or a political subdivision of a State acting in the course of employment” in its definition of employees who are covered by the whistleblower protection provisions of the Act. 49 U.S.C. § 31101.
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