Judge Orders Carrier to Reinstate Fired Driver

This story appears in the April 22 print edition of Transport Topics.

A federal administrative law judge cleared the way for a trucker to resume driving for a Boise, Idaho, refrigerated carrier, nearly three years after he was dismissed around the same time he asked that repairs be made on his truck.

The decision from the Labor Department’s Lee Romero Jr. ordered Cargo Express to reinstate T.J. Graff as a company driver and pay him nearly $65,800 in lost wages, $25,000 in punitive damages and attorney fees and reasonable costs.

The company must also expunge derogatory references made in his employment record and with reporting agencies, and post a copy of the order in its terminals.

“I’m looking forward to going back. I think it’s important that I return,” Graff, 54, told Transport Topics.

He has been a driver since 1992 and recently has been working for a trucking company in Wisconsin.

A Cargo Express manager was contacted by TT, but he said the company declined to comment.

According to Romero’s April 1 decision, Graff was working for Cargo Express on May 27, 2010, when he completed a repair order for an air leak.

“His air pressure lost 35 to 40 pounds [per square inch] within an hour,” the document said. Two days later, the truck was fixed, and Graff was dispatched from Boise to St. Louis.

“Within a few hours of the trip, [Graff] noticed the air gauges fluctuating between 139 psi and 110 psi,” the document said. Graff kept driving but monitored his dashboard carefully.

He delivered the load to Fenton, Mo., and noticed air and oil leaks near the turbocharger. Graff took his truck to a local dealership for repair. He told a technician the air compressor was running in two- or three-minute cycles rather than ones of 15 to 30 minutes, which was more typical, the decision said.

The judge’s decision also noted that proper air handling is necessary for a truck’s air brakes to work well. Graff was told the truck was fixed by the dealer, but after a pre-trip inspection, he told carrier management it was not.

Graff testified, according to the ruling, that a carrier manager told him the truck would not be repaired further and that Graff should “deal with it.” He delivered another load from Illinois to Colorado and complained of more maintenance issues.

He was told the truck had been repaired. While a leaking turbo actuator problem may have remained, he was told by management it should not be considered a safety problem.

Graff returned to Idaho with the truck, and shortly thereafter, he was fired — not because of the maintenance complaints but because of low mileage, he was told.

Romero’s decision said he found that Graff “presented sufficient circumstantial evidence to discredit [the carrier’s] proffered reasons for the termination, demonstrating instead that they were pretext for retaliation.”

Romero described driver complaints on proper truck maintenance as a “protected activity” for which a driver cannot be fired. However, Romero also said that exercising a right to protected activity does not immunize a driver for being dismissed for a legitimate reason.

Graff’s incident took place shortly before the Federal Motor Carrier Safety Administration’s Compliance, Safety, Accountability program started in December 2010.

Under the terms of CSA, drivers are supposed to do pre-trip safety inspections. If they are found operating a poorly maintained truck, both the driver and the motor carrier can be penalized with points against their safety records.