Administrative Review Board finds trucker illegally terminated for compliance with trucking safety laws and weighs in on procedure for calculating damages and back pay

The Department of Labor Administrative Review Board has affirmed the finding of an Administrative Law Judge that a trucker was illegally terminated for complying with safety provisions of the Surface Transportation Assistance Act of 1982 (STAA), though the ARB has remanded the decision to the ALJ for reconsideration of his inadequately explained calculation of back pay and punitive damages.

The case, Ferguson v. New Prime, Inc., ARB No. 10-075, ALJ No. 2009-STA-47 (ARB Aug. 31, 2011), concerns Cynthia Rae Harrison who worked as a truck driver for New Prime, Incorporated from September 8, 2008 until her termination on December 31, 2008. Ferguson, like many of New Prime’s driver, leased a truck from Success Leasing, Incorporated, and authorized New Prime to deduct $810 per week from her pay in payment of that lease. During her sixteen weeks of employment with New Prime, Ferguson maintained a negative balance of lease payments to the company, amounting to $5,000 at the time of her termination.

During the winter months of her tenure at New Prime, Ferguson had “shut down,” or suspended operation of the truck, when she judged the weather conditions too hazardous to drive. The Surface Transportation Assistance Act of 1982 protects from discrimination employees who refuse to operate a vehicle when such operation would violate commercial motor vehicle safety rules. Ferguson “shut down” on December 20^th and December 23^rd during hazardous winter weather episodes. She reports that Jeremy Thomas, the fleet manager responsible for supervising her schedule, soon after called her on her cell phone and told her that she would be fired if she shut down again. On December 26 Ferguson again encountered hazardous weather conditions en route to Donner Pass, and received word that the pass been intermittently shut down for unsafe driving conditions. Ferguson expressed reservation to Thomas about proceeding through the pass, to which Thomas responded “Chain up, asap,” which Ferguson interpreted, and the ALJ later confirmed, was meant to pressure Ferguson into driving through the pass despite her reservations. Thomas wrote an incident report detailing Ferguson’s frequent stops due to weather, and noted her “bad attitude” as well as her outstanding lease payments to New Prime. On December 31 Ferguson was terminated under threat of police intervention as she was dressing in the cabin of her truck.

Ferguson filed a complaint with the Secretary of Labor on March 3, 2009, alleging that she had been illegally terminated in violation of the STAA. The Secretary found against Ferguson on June 9, finding that she was terminated for her attitude and overdue lease payments, and not for engaging in protected activity. On appeal and Administrative Law Judge found in favor of Ferguson, citing evidence that New Prime would not have terminated her in the absence of the protected activity, and awarded her reinstatement, back pay to the date of her termination with the $5,000 in overdue lease payments deducted, as well as $50,000 in compensatory damages for emotional distress and $75,000 in punitive damages.

On review, the Administrative Review Board affirmed the ALJ’s finding that Ferguson was illegally terminated, but remanded the decision for its unsatisfactory calculation of back pay and punitive damages. The ALJ calculated back pay based on the amount a company driver is paid per mile, rather than a leased driver, without explaining that choice. The ARB remanded the decision for reconsideration of this unexplained choice. The ARB also remanded the ALJ’s calculation of punitive damages, noting that though Thomas’s actions were indeed retaliatory and illegal, the ALJ had failed to demonstrate that his actions reflected a company-wide retaliatory policy or culture, which punitive damages are meant to punish and deter.

Importantly, the ARB affirmed the ALJ’s award of $50,000 in compensatory damages for emotional distress despite the lack of medical evidence supporting that claim. The ARB reasoned that the finding of emotional distress could stand on Ferguson’s unrefuted, credible testimony alone.

David J. Marshall, a partner at Katz, Marshall & Banks, LLP in Washington, DC, who represents employees in claims of illegal termination under the STAA, welcomed the decision. “In addition to rectifying Ferguson’s unjust treatment at the hands of New Prime, this decision sends a message to country’s transportation workers that the law protects their safety, and that attempts to undermine that safety for expediency will not go unpunished,” Marshall said. “Transportation workers like Ferguson should never have to chose between their safety and their livelihood.”