Perez v. Guthmiller Trucking Co., 87-STA-13 (ALJ Mar. 28, 1988)

USDOL/OALJ Reporter
Perez v. Guthmiller Trucking Co., 87-STA-13 (ALJ Mar. 18, 1988)

U.S. Department of Labor Office of Administrative Law Judges

DATE: March 28, 1988

CASE NO. 87-STA-00013

IN THE MATTER OF

RUBEN A. PEREZ,
Complainant,

GUTHMILLER TRUCKING COMPANY, INC.,
Respondent.

Appearances
Robert Lloyd, Esq.
For the Complainant

Wesley Sizoo, Esq.
For the Respondent

BEFORE: VIVIAN SCHRETER MURRAY
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This proceeding arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. § 2305, which prohibits covered employers from discriminating against employees who have engaged in certain protected activities.

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The present proceeding was initiated by a complaint filed with the Secretary of Labor by Ruben Perez (complainant), a former employee of Guthmiller Trucking Co., Inc. (Guthmiller or respondent). Perez alleges that he was terminated after refusing to drive a truck that was unsafe to drive. Respondent alleges that Perez in fact resigned voluntarily.

On February 25, 1987, the Regional Administrator of the Occupational Safety and Health Administration in San Francisco, California, issued his determination that Complainant had voluntarily resigned and dismissed the complaint. Complainant requested a hearing on this determination on arch 20, 1987 and the Regional Administrator transferred the matter to the Office of Administrative Law Judges. A formal hearing was held on June 12, 1987 in Stockton, California, at which time both parties were represented by counsel.

Issues

The principal issues presented for decision are: whether complainant voluntarily resigned or was discharged by respondent; and (2) if discharged, whether such act constituted a discriminatory firing in violation of § 2305 of the STAA.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Regional Administrator found, and the parties do not dispute, the following three findings:

1. Respondent Guthmiller Trucking Co., Inc., is engaged in interstate trucking operations and maintains a place of business in Union City, California. At all times relevant herein, Respondent was engaged in interstate commerce in the regular course of its business.

2. Respondent is now and, at all times relevant herein, was a person as defined in Section 401(4) of the Act (49 U.S.C. § 2301(4)).

3. During the month of May, 1984, Respondent

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hired Complainant, Ruben Perez, as a driver of a commercial motor vehicle, to wit, a tractor-trailer with a gross vehicular weight rating in excess of 10,000 pounds. Additionally, such vehicle has been used to transport materials determined by the Secretary of Transportation to be hazardous. r. Perez was therefore an employee of an interstate motor carrier subject to 49 U.S.C. § 2301(2)(a).

Background and Controversy

Complainant Ruben Perez was employed as an over the road truck driver with Guthmiller Trucking Co., Inc. (Guthmiller) from May 21, 1984 until February 4, 1986. Prior to working for Guthmiller, Perez had worked as a truck driver for eight or nine years. (TR ).

Perez performed satisfactory work for Guthmiller, as the only items appearing in the record evidencing any deficiency on his part are several reminders to him requesting that daily logs be turned in to the office. (CX IVC-9,11,13). There is no evidence that delayed submission of the aforesaid logs warranted or resulted in any disciplinary action.

At the hearing, Perez testified that he was discharged for complaining to his supervisors about the defective condition of several of respondent's trucks and for ultimately refusing to continue to drive an unsafe vehicle (Truck No. 296) which had a defective driver's door latch and inoperative defroster, (TR 10), as the documentary evidence establishes. Perez alleged that Guthmiller routinely violated state and federal safety regulations. This allegation is supported by some evidence of prior safety citations issued by the Department of Transportation to Guthmiller. (CX IV B). According to Perez, he complained repeatedly to his supervisors of problems he experienced with the equipment, but was consistently ignored. Perez testified that during the last three weeks of his

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employment with Guthmiller, he was assigned to and did drive truck No. 296 several hundred miles during the night and day under conditions which compelled him to repeatedly wipe the interior windshield and to keep hold of the driver's side door to prevent its flying open while the truck was in transit. Perez testified that he reported these specific defects, requested their correction, and was again ignored. (TR 10-16).

On the morning of February 4, 1986, after driving No. 296 from Los Angeles to Modesto under the heretofore described conditions, Perez telephoned Guthmiller's terminal manager, Gary Shoffner, to report his status and to again request that No. 296, particularly the door, be repaired. The complainant testified that Shoffner ignored his request, ordering him to pick up a load in Richmond which was destined for Los Angeles. (TR 16-17). Perez complied, but continued to experience problems with his vehicle. Perez became increasingly frustrated and agitated from attempting to maneuver the vehicle safely along its course while simultaneously holding the door closed, until, by the time he reached Guthmiller's Union City terminal, he found that he could no longer cope physically or mentally and "felt like [he] was having a nervous breakdown" and that he "had to get out of there" to maintain his sanity. (TR 17- 18). He testified that he told Norman Gaio, the shop foreman, that he was "sick and tired" and unable to continue driving.¹ (TR 20). All witnesses agreed that Perez was obviously emotionally agitated. Perez departed the worksite, and the following day sought assistance at the San Joaquin County Mental Health Clinic. (TR 22-23).

Respondent's witnesses deny that Perez ever mentioned experiencing any problems with Guthmiller's vehicles, and further claim that they were unaware that Perez was ill at the time he refused to drive No. 296. (TR 120, 176-177). Guthmiller's witnesses claim that they interpreted his statements and departure as a voluntary resignation

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and accordingly informed Perez of respondent's acceptance of his resignation by letter bearing the signature of Guthmiller's Safety and Personnel Director Wayne Hendrickson and dated the same day (February 4) that complainant departed the Union City yard. (CX ID, TR 177). Guthmiller's agents subsequently refused to respond to complainant's repeated attempts to discuss his employment status despite the fact that they received notice of complainant's illness from the mental health clinic on February 6. (TR 57-63).

The employer denies that Perez repeatedly complained of the defective door latch and inoperative defroster on truck No. 296. Nevertheless, Shoffner admitted remembering a phone conversation with complainant on February 4, notwithstanding his testimony that, as terminal manager, he received hundreds of phone calls from drivers every morning. (TR-172-173). However, he "did not recall" hearing Perez complain about the truck's defects or that he was tired. He did testify, however, to the effect that he might well have overlooked a complaint about the driver's door latch, if the seriousness of the condition were not somehow brought home to him. (TR 169-170). I view this modification as a salve to conscience and the best that Shoffner felt he could do in the presence of his employer. I do not credit Shoffner's testimony with regard to his lack of recall of Perez' complaints of the truck's defects; I do believe that he neglected to afford those complaints the significance and action they deserved when made and probably now regrets the results of that neglect.

Mr. Gaio's testimony for Guthmiller that he was unaware of the truck's problems until the Highway Patrol inspected the truck in April of 1986, (TR 116-117), is undermined by the evidence of repair records showing that parts were ordered and repairs made to the door latch in March, 1986. (CX IVC 15-17). The date of these records in the contextual sequence of events compels the

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conclusion that it was indeed Perez' complaints of the truck's condition which motivated Guthmiller's agents to arrange repair of the defective door latch in March, 1986. I therefore do not credit Mr. Gaio's testimony in evaluating the evidence. Rather, I am persuaded by complainant's testimony that he repeatedly complained of the truck's hazardous condition for reasons previously stated and additionally because the defects were serious, impeded driving, imposed strain on the driver and compelled extraordinary effort on the driver's part to compensate for the defects. It is reasonably expected that any driver and especially an experienced truck driver would diligently and immediately seek correction of the significant defects here proved to have existed. Furthermore, reports of the California Highway Patrol and the Department of Transportation provide respondent with a prior history of neglect and failure to maintain his equipment in accordance with applicable safety standards and safety requirements. (CX IV B, IV C). This past pattern of neglect lends support to complainant's assertions that his supervisors ignored his pleas for repairs.

Respondent does not deny that Perez drove truck No. 296 under the conditions described nor does he deny the seriousness of the truck' defects at the time. That truck No. 296, driven under the conditions previously described was, at all during its operation, a threat to the life and safety of its driver, and to every other driver and pedestrian in its proximity, cannot be doubted. To find that the complainant did not in fact report or complain about these hazardous defects, on this record, is tantamount to concluding that he is devoid of the slightest modicum of common sense, is heedless of his own welfare and that of others and is consequently totally irresponsible and therefore unfit to drive any truck on public roads. Such conclusion receives no support from the evidentiary facts. The complainant is an experienced driver of heavy trucks, who performed to the employer's satisfaction for approximately two

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years prior to this incident; managed by extraordinary effort to avoid catastrophe while operating truck No. 296; and even after his rejection by the company and during his related illness, reported the aforesaid hazardous vehicular defects to the state police.

The employer might choose to view the complainant's reports to the highway patrol as retaliation against the employer for his rejection. I do not. I consider it the only alternative that the complainant had as a responsible citizen to safeguard the public and other drivers. An irresponsible driver bent on retaliation could have left the employer to his ultimate liability for any future accident involving truck No. 296, which was certainly foreseeable if its hazardous defects were not corrected. I credit the complainant's testimony which is consistent with the facts, with common sense and with his lingering sense of outrage at the treatment accorded him by the employer herein.

In order for complainant to prevail under this statute he must establish by a preponderance of the evidence that the termination of his employment at and by Guthmiller was the result, direct or indirect, of his refusal to drive or continue to drive a vehicle so defective as to constitute a bona fide danger to health and safety after having unsuccessfully sought from the employer correction of the unsafe and hazardous condition. Complainant must also present evidence sufficient to raise and support against any rebuttal offered, the inference that the protected activity was the likely cause for his discharge. See Dartey v. Zack Co., 80-ERA-2 (Dept. of Labor, 1983).

Respondent argues that complainant is precluded from prevailing in this proceeding because he voluntarily resigned on February 4 when he left the jobsite stating, "I quit," and refusing to discuss his problems with his supervisors. Complainant denies that he said he was quitting, claiming that he told his supervisors that he couldn't drive

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and that he was "sick and tired." (TR 20).

In general, under protective legislation and labor contracts, an involuntary resignation or retirement constitutes an adverse action by the employer. Gratehouse v. U.S., 512 F.2d 1104, 206 Ct. Cl. 288 (1975). See for example, Age Discrimination in Employment Act Amendments of 1978, 29 U.S.C. § 626(c).

Where there would appear to have been a voluntary resignation the burden is on the employee to present evidence to the contrary (or to rebut the presumption where one exists), Gratehouse, supra. Apart however from from acts of coercion, duress and misrepresentation, which if proven, will always vitiate voluntariness, Leone v. U.S., 204 Ct. Cl. 334 (1974), the test of whether or not a resignation or retirement is voluntary depends upon consideration of the "actual mental condition (state of mind) of the employee at the time, and not upon whether or not the officials accepting the resignation were aware of the employee's condition." Mangi v. U.S., 198 Ct. Cl. 489 (1972). "The court must look to whether factors operating on his (the employee's) decision-making process made a voluntary decision impossible" and not upon what his condition was perceived to be. Perlman v. U.S., 490 F.2d 928, 203 Ct. Cl. 397 (1974). While the aforesaid court views "freedom of choice" from a somewhat different perpective there is no question that a genuine mental "quandary" arising from the overall circumstances, at the relevant time, is deemed to preclude free choice. Id. at 933.

In the instant case, whether or not Perez actually uttered the words "I quit," as alleged by respondent, is of negligible importance in the overall circumstances. All witnesses agree that Perez was manifestly emotionally agitated on the day he departed the worksite. Shoffner was aware that Perez' recent comments (prior to the February 4 incident) had been at least unusual, indicating

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some belief that respondent was prejudiced against him (Perez). (TR 183-184). Perez, own testimony at trial indicated a belief that he was held in low esteem by his employer, i.e., his complaints were disregarded and he was left sitting in the yard waiting while newly acquired trucks were being adapted and serviced. (TR 51, 92-93). There can be little doubt that Perez' emotional state on February 4, representing the cumulative and combined effects of extreme fatigue and continued frustration, which the respondent ignored as completely as he had the complainant's repeated requests for repairs of the defective truck, affected Perez' decision-making process in a way that precluded his ability to make a reasoned decision.

Perez, however, wanted to keep his job. Respondent does not deny that Perez contacted Guthmiller within a day or so after his departure in an attempt to clarify and confirm his employment status and made repeated attempts thereafter. Additionally, the clinic which was treating Perez for an anxiety reaction immediately notified respondent of Perez' condition and that he was unable to work. (TR 55, CX Ill A, RX H).

That complainant's "anxiety reaction, characterized by hyperventilation and depression," (CX IIID-1), was precipitated by and largely due to the previously described work conditions cannot, on this record, be reasonably denied. The employer had reason to perceive that relationship. Yet, Hendrickson wrote the letter interpreting complainant's conduct as a resignation on the very same day complainant left the Union City yard, (CX ID) and subsequently Guthmiller remained impervious not only to the complainant's attempts to explain his situation but to clear medical evidence that provided adequate explanation, if not in itself, in combination with facts already known to the employer.

It is clear on the testimonial evidence alone,

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which is fully consistent with the medical evidence, that Perez' mental processes. precluded reasoned consideration at the time that he allegedly offered the words "I quit" and further, that his state of mind was manifest and obvious to all witnesses.

I conclude therefore that any seeming or stated resignation by Perez, at the time in the circumstances as established, was not voluntary. The employer's insistence on acceptance of such resignation and persistent refusal to speak with or listen to Perez, particularly after receipt of a medical report confirming relevant eye witness observations of his own agents, constituted an adverse action in the nature of involuntary discharge.

Congress enacted § 405 of the STAA, 49 U.S.C. § 2305, with the intent to promote safety on the highways by protecting employees from discriminatory treatment due to an employee's participation in protected activity.

No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition. 49 U.S.C. § 2305(b)

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Complainant has established his prima facie case by showing that he was constructively discharged for ultimately refusing to drive truck No. 296, whose unsafe condition, as described by complainant, is fully documented and is beyond reasonable doubt. The complainant had formerly and frequently requested repair of the described defects, which requests were ignored by Guthmiller until he was compelled to make the repairs. (See California Highway Patrol records, repair records, the Department of Transportation investigation report). While the driving and general public escaped harm during the operation of this 40,000 pound vehicular hazard largely through the action of Perez, both as driver and subsequent reporter of the defects, Perez himself sustained substantial economic and emotional harm, in part due to Guthmiller's safety violations and in part to the employer's ultimate adverse action. (See San Joaquin Mental Health Clinic records.)

Evidence of the truck's hazards and complainant's illness are substantial and uncontradicted. The Highway Patrol report and prior records noting that No. 296 was placed out of service due to the identical hazardous conditions which the complainant reported and for which he repeatedly sought correction and the clinic's letter stating that Perez was unable to work due to emotional illness support the aforesaid conclusions. There is no question but that the defective truck (No. 296) consituted a bona fide danger to health and human safety within the meaning of the Act. It is also reasonable to conclude that as a direct result of coping with the truck's defects, Perez' fatigued and agitated state rendered him an unfit driver at that particular time on February 4 when he departed the Union City yard. I find therefore that Perez engaged in protected conduct not only when he

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refused to drive truck No. 296 because he reasonably apprehended serious injury to himself and/or others but on every prior occasion that he reported the unsafe condition of the truck, which repetitious and unwelcome reports undoubtedly motivated the employer to sever the employment relationship. No other valid or rational basis for the employer's conduct is presented.

The relevant probative evidence establishes, and I accordingly find, that respondent, by his agents and because of Perez' complaints, was aware of the hazardous defects of truck No. 296, which the complainant refused to continue to drive primarily because it was an unsafe vehicle and secondarily because he perceived his then emotional and physical state as a condition which would adversely affect his driving ability. The credible evidence and reasonable inferences arising therefrom establish that complainant previously sought, but was unable to obtain, correction of the unsafe condition from his employer, as is required under Section 2305(b).

On the record as a whole I find that Perez's participation in protected conduct was the motivating factor in his termination. Cohen v. Fred Mayer, Inc., 686 F.2d 793 (9th Cir. 1982). See also, Dartey v. Zack Co., supra.

Here, respondent issued a termination letter immediately upon complainant's participation in protected conduct and offers no evidence of any previously-existing legitimate cause to discharge complainant. The temporal relationship between complainant's protected conduct and his subsequent discharge, in absence of any other motive for the discharge, gives rise to a reasonable inference that Perez' protected conduct was, as previously indicated, the substantial motivating factor for his dismissal. Complainant thereby establishes his prima facie case of discriminatory discharge in violation of Section 2305(b). The burden of presenting sufficient evidence to rebut now shifts to the

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employer, who may show that he had some legitimate non-discriminatory reason for terminating the employee. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir. 1984).

Respondent offers no relevant rebuttal evidence regarding significant deficiencies in complainant's work record or any other justifiable pre-existing reason for complainant's termination. Respondent does offer evidence of threatening phone calls that complainant allegedly made after the date of his constructive discharge, arguing that such threats constitute sufficient cause for his termination.

Respondent's argument lacks merit in several respects. The overall evidence regarding complainant's alleged threatening phone calls indicates that such calls were made between February 25 and March 1, 1986. (RX C,E). David Rich's testimony and memo record the date as February 1 (RX D, RE 139-147), but this is obvious error since the alleged call was clearly made in response to and after complainant's constructive discharge which had not yet taken place on February 1. If complainant's employment was terminated as of February 4, 1986, as Hendrickson's letter indicates and respondent's subsequent refusal to respond to Perez' communications implies, these threats were made after he was terminated and while he was being treated for an emotional disorder largely due to the employer's unlawful practices, and I so find. Furthermore, if any hysterical threats were made, and they may have been, they were not taken seriously by their recipient David Rich, who did not alert his superiors to any threats of harm to person or property until two days after he received the call. (TR 144). Assuming that some threat was made by Perez, the lack of concern displayed by respondent is understandable, from the context and circumstances in which the threat or threats were allegedly made. Perez was attempting again to communicate with his employer, was frustrated by his inability to do

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so and was allegedly crying and sobbing at least part of the time. (TR 146). Moreover, Perez had no history of threatening conduct and it may be fairly concluded that the employer did not consider his property or his agents in jeopardy. If he had, he would undoubtedly have notified the proper authorities or taken some action to secure himself from harm. He did not. Such threats, apparently regarded as idle by the employer and coming, in time, after the fact of termination, whether or not uttered by Perez as alleged, cannot be considered a legitimate motive for a constructive discharge which preceded the alleged threats.

Accordingly, I find that complainant has established that he was discriminatorily discharged from his employment in violation of 49 U.S.C. § 2305(b) and is entitled to appropriate remedies as provided under § 405(B) (ii) and (iii) of the Act, that is, reinstatement and compensation, including back pay, compensatory damages, and all costs and expenses including reasonable attorney's fees, to be assessed against respondent Guthmiller.

I have considered Perez' reinstatement with Guthmiller in light of the stated doubt of Dr. Patricia White with regard to whether Perez should return to the occupation of truck driving (Complainant's Proposed Remedies, 2). Doubt is in the nature of speculation, it is neither a surety nor a probability. Moreover, on this record such comment in the nature of a forecast or predicition is regarded as premature. It is conceivable, in this instance that the complainant's legal remedy may effect a psychological cure. One of the remedies afforded to a prevailing complainant under the Act is reinstatement to his former employment. It may be that Perez will decline to avail himself of the opportunity to return to Guthmiller's employ but he is entitled to reinstatement in that employment and to make whatever choice that may involve.

Complainant is entitled to compensation for economic loss incurred as a result of his unlawful

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termination. While back wages are not usually awarded for periods during which an employee is unable to work because of illness or injury, in this instance, back wages are at least an appropriate measure of the extensive economic loss and psychological harm sustained by the complainant as a result of the effect of the physical and emotional stress imposed on him as a direct consequence of the employer's violations of the Act. To hold otherwise in this case would allow the employer to use the effects of his own unlawful conduct as a shield against liability.

On December 18, 1987, both parties were requested to submit evidence and argument pertaining to complainant's average monthly wage and economic losses sustained. Respondent submitted evidence only of complainant's 1986 wages, (Respondent's Post Hearing Submission), which corroborated complainant's calculations. Complainant presented additional wage information for the years 1984 and 1985 in support of his calculation of Perez' average monthly wage during his employment with Guthmiller, in the amount of $2,310.90. Since respondent was given the opportunity but presented no evidence contradicting the accuracy of complainant's calculation, I find that complainant is entitled to compensation measured by past wages at the rate of $2,310.90 per month for the period of February 5, 1986 to the date he received his doctor's release to return to work and first resumed employment with another employer in April of 1987. Since the exact date of Perez' return to work is not in the record, compensation will be calculated to April 17, 1987, encompassing a period of 14.5 months. (TR 25). Perez is accordingly due $33,508.05 for compensation of economic damage sustained.

It is apparent that Perez has sustained significant damage beyond economic loss, of a nature which has much impressed federal courts. In Rogers v. Exxon Research and Engineering Co., 404 F. Supp. 324 (D.C. 1975), the district court in

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awarding compensatory damages for pain and suffering stated "the out of pocket loss occasioned by such discrimination is often negligible in comparison to the physiological and psychological damage caused by the employer's unlawful conduct." Since the Age Discrimination Act does not provide such remedy, the Third Circuit reversed. 550 F.2d 834 (3d Cir. 1977). However, a number of courts rejected the Third Circuit's analysis in Rogers and continue to follow the district court. See e.g., Bertrand v. Orkin Exterminating Co., 432 F. Supp. 952 (D.C. 1977); Coates v. National Cash Register Co., 433 F. Supp. 655 (D.C. 1977). The damage considered by these courts is largely to self esteem and to the diverse and profound effects thereof, a loss which the complainant herein has also sustained.

Since provision for compensatory damages is made under § 405 (B)(iii) of the Act, apart from the provision for compensation including back pay, terms, conditions and privileges of employment under § 405(B)(ii), it is assumed that compensation for other than economic loss is contemplated by the legislation.

The observations of the District Court in Rogers find valid application in this case. However no claim for compensatory damages in the nature of pain and suffering have been made by the complainant, notwithstanding a post hearing request for all damage claims. Accordingly, no award of such compensatory damages is made. However, the Secretary may nevertheless deem an award for pain and suffering appropriate. In such event, the award of an additional $20,000 is suggested as the minimum award reasonable in the circumstances.

Complainant offered no other evidence of compensable loss sustained as result of respondent's discriminatory conduct. His request for exemplary damages is denied. Although Congress considered provision for an award of such damages,

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enacted legislation did not include a provision for the award of exemplary damages, which is generally viewed as a penalty, notwithstanding authority to the contrary.

An award of reasonable attorney's fees and costs shall be granted upon submission of an itemized fee petition which sets forth with particularity the nature of each necessary legal service provided, the time in hours attributed thereto, and the hourly rate charged for such services.

Psychiatric Report by Dr. Patricia White

On March 3, 1988, the date on which this decision would otherwise have issued, Guthmiller moved to reopen the record for admission and consideration of a full report of psychiatric evaluation prepared by Dr. Patricia White, a Board certified psychiatrist, dated December 10, 1987, which was apparently generated at the request of complainant's counsel for submission in a related matter (presumably a workers' compensation claim).

On March 10, 1988, the complainant filed his objection to admission of the aforesaid psychiatric evaluation on grounds that the original report, as opposed to that submitted by Guthmiller, was devoid of marginal comments, but did not otherwise object to the admission of such report.

I consider this report merely suggestive and apart from its bearing on damages, largely irrelevant to the central issues of this case. However, absent objection by the complainant, I grant the respondent's motion to reopen the record for admission of a clean copy of Dr. White's psychiatric evaluation, which is hereby admitted into evidence and marked Joint Exhibit 1.

This medical report requires placement in its proper context.

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1. Dr. Patricia White is not and has never been the complainant's treating physician although she did evaluate the complainant on five occasions between September 25, 1987 and October 28, 1987.

2. The treating physicians from February 5, 1986 through September 15, 1987, principally Drs. Malloy and Gleason, respectively, diagnosed a generalized anxiety disorder or depressive neurosis. (Jt. Ex. 1 at 4). Psychological testing as late as October 9, 1987 supports a diagnosis of generalized anxiety disorder. (Jt. Ex. at 4-5). As late as March, 1987 following a brief hospitalization, Mr. Perez' diagnosis was Adjustment Disorder with disturbance of mood and conduct. (Jt. Ex. 1 at 13).

3. "None of the examiners" (including treating physicians) as Dr. White states, in her report "found Mr. Perez to be expressing frankly delusional thinking or experiencing hallucinosis". (Jt. EX. 1 at 12).

4. Neither Dr. Gleason nor Dr. Malloy who treated the complainant for well over a year concur in the diagnosis of Dr. White.

5. Dr. White records no significant current medical findings indicative of mental incompetence or impaired capacity for responsible employment.

Dr. White's diagnosis "Delusional, paranoid disorder, Persecutory type," is highly suggestive in its language and even more so by extrapolation, particularly as to the term "delusional".

A delusion is medically defined as a "false belief, which cannot be corrected by reason. It is logically founded and cannot be corrected by argument or persuasion or even by the evidence of the patient's own senses."²

Dr. White states:

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From the information presently available to me, it appears highly probable that Mr. Perez' psychiatric disorder developed in response to his perceptions of job harassment during the course of his employment with Guthmiller Trucking Company. The working environment, including Mr. Perez' relationship with other employees and supervisors, was a "proximate cause" of his psychiatric disorder without which he would not have developed the disorder at this particular time. (Jt. Ex. 1 at 3). (emphasis supplied)

The questions raised here are: Is reference made to normal sense perceptions or to disordered perceptions, what is meant by "job harassment," and what if any relevance does it have to this proceeding, under the STAA.

However Dr. White defines "job harassment", she clearly does not refer to the hazardous truck defects of which Perez complained to his employer, since she acknowledges (and our record proves) that such defects in fact existed. (Jt. Ex. 1 at 15). It follows that in this vital respect the complainant's perceptions were entirely normal. Neither the defects, his complaints, the employer's disregard of such complaints or Perez' constructive discharge were the products of disordered perceptions. They were factual events well established on this record. Additionally, there is not a scintilla of evidence, medical or otherwise prior to Dr. White's December 1987 opinion to suggest the contrary. Even if that opinion, in respect of its "Delusional" aspect has any validity, which I doubt on the basis of the non-concurring medical evidence and opinion, it speaks to a state first evidenced more than one year after the relevant events herein had concluded, and can be accorded no retroactive significance.

It is relevant to note that even while

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acknowledging the legitimacy of Perez' complaints with regard to working hours and truck defects, Dr. White is apparently unable to appreciate or conceive that the complainant may have been illegally treated by his employer. This is suggested by her own statement possibly influenced by reported hearsay, input by the employer (Jt. Ex. 1 at 12, 13),

". . . however as time passed Mr. Perez began to believe more and more that he was being singled out for discriminatory, harassing and even illegal treatment by his employer and he linked this maltreatment to his having complained so openly and repeatedly in the immediate past".

(emphasis supplied)

The fact is, based on the evidentiary record herein, that Perez was the recipient of illegal treatment by his employer. That such treatment precipitated exaggerated perceptions of the employer's harassment may be true, but such effect speaks only to damages sustained; response not cause.

Dr. White's report significantly documents the complainant's perceptions of loss of self-esteem and self-confidence as well as his tension emotional distress, and fatigue, notes Perez' lack of concern for monetary gain and concludes that "there is no evidence clinical or otherwise of pre-existing psychological impairment." (Jt. Ex. 1 at 15). In this respect, Dr. White's report confirms my impression of Perez; as a man seeking justification rather than revenge or monetary gain and fully supports the findings herein with regard to the psychological damage sustained.

This report also contains much medically privileged information, which also has no real bearing on decision in this matter and though it tends to impugn the character of the complainant, falls far short of impacting on his credibility. The occasional,

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vices of the complainant, which are notoriously if unfortunately common, are not here at issue.

I conclude therefore that Dr. White's evaluation provides no basis for change or alteration of any of the prior findings or conclusions.

Wherefore, the following Order is recommended:

1. Respondent Guthmiller shall pay to the Complainant Ruben Perez the sum of $33,508.05 in compensation for economic loss plus interest at the applicable rate pursuant to 28 U.S.C. § 1961 (1982).

2. Guthmiller shall reinstate Perez, if Perez so wishes, to his former position as truck driver with all benefits, conditions and privileges of employment to which he would be entitled had he not been discharged.

3. Respondent shall expunge from its records all material and references, if any, relative to complainant's constructive discharge and shall not publish such information in any form.

4. Counsel for the complainant shall file his fee petition, in the Office of Administrative Law Judges, within 10 days of the issuance of this order with service on respondent. Respondent shall file an objections to such fee petition within 10 days of service.

[ENDNOTES]

¹Respondents' witnesses testified that Perez mentioned nothing about illness but instead made a profane remark and exclaimed, "I quit!" before departing the worksite. (TR 114).

²Dorland's Medical Dictionary, 24 ed., (W.B. Saunders Co. (1965)).