Gatto v. General Utilities (agency decision, June 19, 2019)

Plain-English summary

Fuel-delivery driver Thomas Gatto refused to use a spare truck because he recalled earlier problems opening its doors and windows. He did not inspect or enter the truck before refusing, its maintenance records showed repairs and a passed state safety inspection, and a mechanic and other drivers found no problem. The ALJ held that an objectively reasonable person would not have believed the truck presented a serious risk of injury under those circumstances. Because the refusal was not protected activity, the ALJ denied Gatto's retaliation claim. The Board found those facts supported by substantial evidence, adopted the ruling, and denied the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105(a); 29 C.F.R. § 1978.110(b)
• Outcome: ALJ decision adopted and STAA complaint denied.
• Key point: A refusal to drive was not objectively reasonable when the driver did not inspect the truck and current inspection and operating evidence showed it was safe.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  THOMAS GATTO,                                    ARB CASE NO. 2019-0008


                  COMPLAINANT,                     ALJ CASE NO. 2018-STA-00003

         v.                                        DATE: June 19, 2019

  GENERAL UTILITIES,

                  RESPONDENT.


  Appearances:

  For the Complainant:
        Russell E. Adler, Esq.; Law Offices of Russell E. Adler PLLC; Katonah,
        New York; and Lauren G. Gatto, Esq.; New York, New York

  For the Respondent:
        Thomas B. Wassel, Esq.; Cullen and Dykman LLP; Garden City, New
        York

  Before: William T. Barto, Chief Administrative Appeals Judge; James A.
  Haynes and Daniel T. Gresh, Administrative Appeals Judges.


                          FINAL DECISION AND ORDER

        This case arises under the employee protection provisions of the Surface
  Transportation Assistance Act of 1982 (STAA) as amended. 49 U.S.C. § 31105(a)
  (2007); see also 29 C.F.R. Part 1978 (2018) (the STAA’s implementing regulations).

         Thomas Gatto was a seasonal driver for General Utilities who delivered fuel
  to customers during the winter months. Decision and Order (D. & O.) at 2. On



  December 23, 2016, Gatto noticed fuel oil leaking from his truck’s tank and he
  notified his supervisor, Frank Cassella. Cassella directed him to take a spare truck,
  Truck 96, to finish the deliveries. D. & O. at 2, 5. Gatto refused to drive Truck 96 as
  he stated it was unsafe, based on his prior experience when he was unable to open
  the doors or windows of the truck and similar complaints of other drivers. Id.
  Cassella told Gatto to discuss his complaint with the chief mechanic, who
  determined that Truck 96 was safe to drive. D. & O. at 2. Gatto nonetheless
  continued to refuse to drive the truck. D. & O. at 6. Because Truck 96 was the only
  truck available to complete the deliveries, Cassella told him to go home. On
  December 27, 2016, Gatto’s employment was terminated for abandoning his job. D.
  & O. at 3.

         Gatto filed a complaint pursuant to the employee protection provisions of the
  STAA with the Occupational Safety and Health Administration (OSHA) claiming
  retaliation for engaging in protected activity. The STAA protects drivers who,
  among other things, refuse to operate a vehicle based on a reasonable belief that
  doing so would constitute a serious risk of injury to themselves or the public. 49
  U.S.C. § 31105(a)(1)-(2). OSHA dismissed the complaint, finding no reasonable
  cause to conclude that General Utilities violated the STAA. Gatto objected to
  OSHA’s findings, and the case was assigned to an Administrative Law Judge (ALJ).

         The ALJ held a hearing and thereafter found that Gatto did not engage in
  protected activity under the STAA. For a refusal to drive to be protected under the
  STAA, the complainant must demonstrate a subjectively and objectively reasonable
  belief of a violation. Mauldin v. G & K Servs., ARB No. 16-059, ALJ No. 2015-STA-
  054, slip op. at 8 (ARB June 25, 2018). Because the ALJ found that an objectively
  reasonable person would not believe that the operation of Truck 96 would cause a
  serious risk or injury to themselves or the public, Gatto did not meet his burden of
  proving that he engaged in protected activity. D. & O. at 19-24. Specifically, the ALJ
  found that Gatto based his perception on his prior experience with Truck 96. D. &
  O. at 23-24. It is undisputed that Gatto did not conduct a pre-trip examination of
  Truck 96, enter Truck 96, or try its door or windows for problems before claiming
  that it was unsafe and refusing to drive it on December 23, 2016. Id. In finding
  Gatto’s refusal unreasonable, the ALJ cited the truck’s maintenance history. Truck
  96 had been repaired in March 2016. D. & O. at 21. In October 2016, before the
  December 23 refusal, the truck passed a New York safety inspection. D. & O. at 22.
  Finally, after Gatto’s complaint, General Utilities had the chief mechanic inspect
  the truck. The mechanic found no safety problems. Another driver drove Truck 96 to
  complete the fuel delivery and found the truck safe to drive. Truck 96 was also used
  within a week of December 23, 2016, without report of safety problems. D. & O. at
  23. Because engaging in protected activity is a required element of a successful
  STAA claim, the ALJ dismissed Gatto’s complaint for failing to prove that he
  engaged in protected activity. D. & O. at 24; Harris v. C & N Trucking, ARB No. 04-
  175, ALJ No. 2004-STA-037, slip op. at 2 (ARB Jan. 31, 2007).


         Gatto petitioned the Administrative Review Board (ARB or Board) for review
  of the ALJ’s decision.1 Upon review of the ALJ’s D. & O., the pleadings, and the
  record, we conclude that the ALJ’s factual findings are supported by substantial
  evidence and his conclusions of law are correct and well reasoned. Accordingly, we
  adopt and attach the ALJ’s decision and we DENY Gatto’s complaint.

         SO ORDERED.




  1
          The ARB has jurisdiction to review the ALJ’s STAA decision pursuant to Secretary’s Order
  No. 01-2019 (Delegation of Authority and Assignment of Responsibility to the Administrative Review
  Board), 84 Fed. Reg. 13,072 (Apr. 3, 2019); 29 C.F.R. Part 1978. The ARB reviews questions of law
  de novo and is bound by the ALJ’s factual determinations if the findings of fact are supported by
  substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.110(b).