The Administrative Review Board (ARB), under the
substantial evidence standard, has upheld the ruling of an Administrative Law
Judge (ALJ) that Domino's Pizza violated the whistleblower provisions of the
Surface Transportation Assistance Act when it terminated a commercial truck
driver after he made internal complaints that he was being pressured to drive
during rest periods. The case, Williams v. Domino's Pizza, DOL ARB No.
09-092, 1/31/11 (released 2/4/11), illustrates the importantance of tracking
protected whistleblower activity and ensuring that protected speech does not
become entangled in the cause for termination.
Lavan Williams was hired by Domino's Pizza as a
commercial truck driver in January, 2007. To comply with driver hours of
service rules, Domino's assigned two drivers to a route so that one could rest
while the other drove. Williams complained to his supervisor on more than one
occasion that his co-workers were pressuring him to work during his rest
periods. Then, in late July or early August, 2007, Williams telephoned a
company compliance hotline and made the same complaint. Although Williams was
assured his call would remain confidential, two weeks later, Williams'
supervisor met with him to discuss the complaint. At that meeting Williams
refused to name the co-workers who had been pressuring him.
Three months later, Williams was involved in an accident
while driving a work route. Under Domino's' policy drivers were required to
call a company accident hotline within two hours of any accident. Williams did
not call the hotline but he did try to call his distribution center, and
submitted an accident report and diagram.
Four days later, Williams was suspended for failing to
call the accident hotline. At that time, Williams' supervisor told him that if
he was able to call the compliance hotline, he should have been able to call
the accident hotline. Williams complained to headquarters' personnel that he
believed he had been suspended for reporting a safety violation on the
Williams was then terminated for failing to report the
accident. Sometime later, Domino's' Human Resources department changed the
reason for termination to job abandonment because Williams had allegedly failed
to respond to the company's attempts to contact him. Thereafter, Williams filed
a timely complaint with the Occupational Safety and Health Administration
(OSHA) which handles whistleblower claims filed under the STAA and almost
twenty other statutes. OSHA dismissed Williams' complaint following
investigation as lacking merit. Williams appealed the decision and requested a de
novo hearing before an ALJ, who ultimately ruled in Williams' favor.
Domino's appealed the ALJ's decision to the ARB, but the Board rejected
Domino's' appeal, holding that there was substantial evidence in the hearing
record to support the ALJ's findings that Williams' protected activity was a
contributing factor in Domino's' decision to terminate his employment. In this
regard, Domino's made two critical errors: (1) conditioning whistleblower
protection on Williams' naming others who had made similar complaints; and (2)
mentioning Williams' protected conduct in justifying the termination decision.
The company's failure to establish a practice of terminating other employees
for failing to follow the accident call-in policy rendered the company unable
to prove by clear and convincing evidence that it would have terminated
Williams regardless of his protected activity.
Keller and Heckman provides assistance in all areas
covered in this Alert including Whistleblower litigation and Transportation
law. Interested employers should contact Mary Pivec at 202-434-4212 or
firstname.lastname@example.org, Michael Morrone at 202-434-4124 or email@example.com or Amy
Blackwood at 202-434-4118 or firstname.lastname@example.org.
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