Whistleblower Complaint

Complaint in the Matter of CLIENT v. EMPLOYER

GENERAL ALLEGATIONS

At all times material to this complaint, Respondent EMPLOYER (COMPANY) was and is at all times a California business entity, organization unknown, qualified and doing business in the State of California, having its principal place of business at MAIN OFFICE, and Respondent was operating a Terminal at LOCAL TERMINAL.

At all times material to this complaint, VP-RISK, was acting within the scope and course of his employment for Respondent COMPANY as COMPANY's Vice President in Charge of Human Resources and Risk Management, and VP-RISK, occupied a supervisory position over MANAGER, SUPERVISOR, and Petitioner CLIENT.

At all times material to this complaint, VP-RISK, was a retired California Highway Patrol Commander who had retired from his position as Commander of the CHP Division stationed in CITY, California. Also at all times material to this complaint, VP-RISK, spent many of his off-duty hours fraternizing and socializing with active and retired California Highway Patrol Officers, including active officers stationed in CITY, California.

At all times material to this complaint, DIVISION VP was acting within the scope and course of his employment for Respondent COMPANY as COMPANY's Vice President in Charge of COMPANY's Northern Division, which includes COMPANY's Terminal at CITY, California, ("LOCAL TERMINAL") and DIVISION VP occupied a supervisory position over MANAGER, SUPERVISOR, and Petitioner CLIENT.

At all times material to this complaint, DIVISION VP, was the father-in-law of MANAGER and spent many hours together off-duty and socializing with MANAGER. Petitioner is informed and believes, and thereupon alleges, that many of the communications he had made privately to MANAGER were communicated to DIVISION VP during these off-duty conversations.

At all times material to this complaint, MANAGER was acting within the scope and course of his employment for Respondent COMPANY as COMPANY's Terminal Manager at LOCAL TERMINAL, occupying a supervisory position over SUPERVISOR and Petitioner CLIENT.

At all times material to this complaint, SUPERVISOR was acting within the scope and course of his employment for Respondent COMPANY as COMPANY's Lead Dispatcher at the LOCAL TERMINAL, occupying a supervisory position over Petitioner CLIENT.

At all times material to this complaint, Respondent COMPANY's LOCAL TERMINAL Manager, MANAGER, and COMPANY's LOCAL TERMINAL Lead Dispatcher, SUPERVISOR, were mutual friends and spent many hours together off-duty and socializing with each other. Petitioner is informed and believes, and thereupon alleges, that many of the communications he had made privately to either MANAGER or to SUPERVISOR were communicated to the other person during these off-duty conversations.

Petitioner CLIENT was hired on or about June 9, 1992, by Respondent COMPANY as a Truck Operator working out of COMPANY's LOCAL TERMINAL. Petitioner at the time of hiring and until June 1, 1995, was protected by a UNION Collective Bargaining Agreement.

By March 1994, Petitioner CLIENT was promoted to the position of dispatcher at Respondent COMPANY's LOCAL TERMINAL, and he continued to be an active member of the UNION.

On or about June 1, 1995, Petitioner CLIENT and other dispatchers at COMPANY's LOCAL TERMINAL, were told by Respondent COMPANY to discontinue their membership with the UNION in exchange for continued employment as a dispatcher for Respondent COMPANY. Petitioner occupied this position as a non-unionized dispatcher for Respondent until his termination on or about March 19, 1997.

At all times material to this complaint, Respondent COMPANY had installed a computer device ("CADEC") in most, if not all, of Respondent's vehicles operating out of Respondent's Terminal in CITY, California. CADEC was intended to keep track of the vehicle operator's speed, on-duty time, driving time, and time spent sleeping in the vehicle's berth if the vehicle was so equipped. The CADEC information was transmitted directly to Respondent COMPANY's HEADQUARTERS.

Throughout Petitioner CLIENT's employment for COMPANY, Petitioner performed his job, first as a truck driver and later as a dispatcher, in a capable and competent manner. Several times during his employment for Respondent COMPANY, persons operating within the scope and course of their employment for Respondent indicated to Petitioner that Petitioner was capable to assume the responsibilities of a Terminal Manager, and that Petitioner at some time would probably be allowed to do so. These indications to Petitioner included but were not limited to:

(a) On promotion to Petitioner's position as dispatcher, Respondent COMPANY's Terminal Manager at CITY, California, MANAGER, told Petitioner that MANAGER wanted Petitioner "to learn the whole operation in case anything happens to me [MANAGER]."
(b) Petitioner received several compliments on Petitioner's organizational ability and management of documentation by Respondent's Personnel Office at HEADQUARTERS. Among the compliments received from Respondent's Personnel Office were that "things run much smoother when you [Petitioner] are handling the paperwork."
(c) Requests for Petitioner to relieve the Terminal Manager of Respondent's NEVADA TERMINAL, for a period of up to three weeks while that Manager took his vacation.
(d) MANAGER approached Petitioner to inquire into Petitioner's desire to occupy the Terminal Manager position for SISTER COMPANY which operated a terminal in CITY, California. SISTER COMPANY is and was at all times material to this complaint, a sister organization of Respondent COMPANY.

STATEMENT OF FACTS

Sometime in 1994, Respondent COMPANY's Lead Dispatcher at the LOCAL TERMINAL, SUPERVISOR, was trying to leave the office early, and he approached Petitioner CLIENT and asked Petitioner to falsify a "wash-out tag" for a milk tanker that was being dispatched to NEVADA TERMINAL. Petitioner CLIENT refused to do so, and SUPERVISOR told Petitioner to "get with the program or move on down the road." Petitioner still refused to comply, and in fact, Petitioner approached their mutual supervisor, MANAGER, to tell MANAGER about the problem. Petitioner was told by MANAGER that the milk operations were none of Petitioner's concern, and that the responsibility for the milk operations was assigned to SUPERVISOR. Immediately after these conversations concerning Petitioner's refusal to falsify the milk tanker "wash out tags," Petitioner was subjected to a hostile working environment by the actions and comments of COMPANY's Lead Dispatcher at the LOCAL TERMINAL, SUPERVISOR.

Sometime in 1994, Petitioner CLIENT approached the LOCAL TERMINAL Manager, MANAGER, about truck operators being dispatched for hours on-duty and hours driving which exceeded federal and state limits for on-duty and driving time. MANAGER then directed Petitioner to make copies of the truck operators worksheets whenever Petitioner noted a violation, and Petitioner was further told to leave the copies on MANAGER's desk for MANAGER's review.

Petitioner CLIENT complied with MANAGER's directive by making copies of the truck operators' worksheets which showed several violations of federal and state limits for on-duty time and driving time. Petitioner continued complying with MANAGER's request until Petitioner was removed from his duty of checking the truck operators' worksheets, which removal occurred sometime on or about January 1, 1997.

On or about October 31, 1996, Petitioner CLIENT showed up for work at the LOCAL TERMINAL and Petitioner notified his immediate supervisor, SUPERVISOR, that Petitioner was sick, and that Petitioner felt that he should have stayed home. Later during the workshift on October 31, 1996, SUPERVISOR received a call from Respondent's HEADQUARTERS, concerning a dispatching error that occurred the night before, hours after Petitioner had left work. SUPERVISOR asked Petitioner about the dispatching error, and Petitioner told SUPERVISOR that Petitioner had nothing to do with the dispatch in question. SUPERVISOR angrily told the person calling from Respondent's HQ Headquarters that "The night shift don't know nothing." Petitioner asked SUPERVISOR what SUPERVISOR meant by that statement, to which SUPERVISOR began yelling wildly and irrationally at Petitioner, rising from his seat and stepping menacingly towards Petitioner. Petitioner was seated approximately 4 to 6 feet away, and Petitioner instantly rose from his chair to meet SUPERVISOR's approach. As Petitioner rose, Petitioner's legs knocked back the rolling chair Petitioner was seated in, and the chair quickly moved towards a secretary, SECRETARY, who was working at a seat located behind Petitioner. Petitioner turned towards SECRETARY and told her to tell the LOCAL TERMINAL Manager, MANAGER, that Petitioner was leaving work early due to illness.

Later on or about October 31, 1996, Respondent's LOCAL TERMINAL Manager, MANAGER, called Petitioner CLIENT to inquire as to what happened. Petitioner offered to come back to work to complete his duties for the day, but MANAGER and Petitioner instead agreed to meet at a restaurant to discuss the day's previous events. MANAGER and Petitioner met at a local restaurant, and Petitioner notified MANAGER that the work environment was intolerable. Petitioner stated to MANAGER that MANAGER expected Petitioner to organize the truck operators' paperwork in order to comply with all applicable laws. Petitioner further stated to MANAGER that his job was complicated, if not made impossible, by the fact that the other dispatchers, and in particular, SUPERVISOR, failed to dispatch the truck operators in accordance with the applicable laws. Petitioner then again requested that MANAGER assert his authority in order to have the other dispatchers comply with the legal limits for truck operators' on-duty and driving time. Petitioner was at no time reprimanded during this meeting, nor in the weeks following, for leaving work early on October 31, 1996.

On or about Thursday, February 27, 1997, Petitioner CLIENT showed up for work at Respondent's LOCAL TERMINAL and Petitioner again notified his immediate supervisor, SUPERVISOR, that Petitioner was sick, and that Petitioner felt that he should have stayed home. At approximately 3:00 p.m., SUPERVISOR stated that SUPERVISOR was leaving and turning over operations to Petitioner. At that time, a call was received by the office from HEADQUARTERS, inquiring about a load was going to be transported to HEADQUARTERS. SUPERVISOR told Petitioner to send a certain truck operator to pick up the load. Petitioner replied to SUPERVISOR that the driver already had been on-duty for twelve hours, and would not be able to complete the transportation within legal limits. SUPERVISOR then angrily picked up the dispatch radio transmitter, and SUPERVISOR told the driver to pick up the load and transport it to HEADQUARTERS. The driver replied that the driver already had too many hours on-duty. On hearing this, SUPERVISOR became irrationally angry and extremely agitated, and instructed Petitioner to handle the driver. Petitioner told SUPERVISOR that SUPERVISOR's practices had become intolerable, and Petitioner again told the secretary, SECRETARY, that Petitioner was leaving work early due to illness.

On or about Friday, February 28, 1997, Petitioner CLIENT showed up for work at Respondent's LOCAL TERMINAL and was told by Respondent's Lead Dispatcher at LOCAL TERMINAL, SUPERVISOR, that there was no need for Petitioner to work that day, and that Respondent's LOCAL TERMINAL Manager, MANAGER, would meet with Petitioner on Monday, March 3, 1997.

On or about Monday, March 3, 1997, Petitioner arrived at Respondent's LOCAL TERMINAL for the meeting with Respondent's LOCAL TERMINAL Manager, MANAGER. At the meeting, MANAGER told Petitioner that Petitioner should not return to his duties until the situation was reviewed by MANAGER and VP-RISK, Respondent's Vice President of Human Resources and Risk Management. Petitioner told MANAGER that Petitioner wanted to talk to VP-RISK, upon which MANAGER telephoned VP-RISK, and handed the telephone to Petitioner. Petitioner told VP-RISK, about the on-going illegal conduct at the LOCAL TERMINAL. Petitioner told VP-RISK, that Petitioner had information about the overworking of Respondent's truck operators which Petitioner would take to the California Highway Patrol if the illegal conduct was not corrected. Petitioner also told VP-RISK, about the on-going falsification of milk tanker "wash out tags". VP-RISK, then told Petitioner not to notify authorities, but instead, to bring the information to VP-RISK VP-RISK further acknowledged that there were serious problems at the LOCAL TERMINAL, but he assured Petitioner that "we'll clean up our own problems."

After Petitioner's conversation with VP-RISK, on March 3, 1997, MANAGER directed Petitioner to bring the information about the wrongdoing to MANAGER, and that MANAGER would then forward the information to VP-RISK

During the week or so following March 3, 1997, MANAGER did not show up for work due to illness. Petitioner was also still ill, but Petitioner tried on several occasions to contact MANAGER so that Petitioner could drop off some of the requested information. Petitioner also contacted various governmental agencies and governmental personnel, including the California Highway Patrol Division located at CITY, California, and the California Department of Food and Agriculture, to inquire about Petitioner's rights and the gravity of Respondent's on-going illegal conduct.

On or about March 11, 1997, MANAGER had returned to work, and Petitioner came to the LOCAL TERMINAL to give MANAGER some of the requested information. Because Petitioner had been planning to get married for several months, Petitioner then asked MANAGER if Petitioner would be allowed to take the rest of the week off as vacation time. MANAGER told Petitioner that it would be alright for Petitioner to take the week off as vacation time, and that MANAGER and Petitioner would deal with the situation when Petitioner returned from his vacation. MANAGER further assured Petitioner that MANAGER would go over the situation with VP-RISK, while Petitioner was away.

Petitioner is informed and believes and thereon alleges that on or about March 14, 1997, Respondent was contacted by the California Department of Food and Agriculture concerning allegations of falsified "wash out tags" on Respondent's milk tankers.

On or about March 21, 1997, Petitioner returned from his wedding vacation and found a letter from VP-RISK, dated March 19, 1997, in which Petitioner was informed that Petitioner was terminated as of March 19, 1997.

The policy concerning time limits for hours on-duty and hours driving is fundamental, and the policy is beneficial to the public or a large class of persons by way of protecting the health and safety of those using public roadways from the dangerous operation of huge vehicles by tired or drugged truck operators. The policy is embodied in various statutes and regulations, including but not limited to: The Commercial Motor Vehicle Safety Act (49 USC § 31105, et seq.); and California Vehicle Code Sections 34500, et seq.

The policy concerning the verity and safeguarding of milk tanker "wash out tags" is fundamental, and the policy is beneficial to the public or a large class of persons by way of protecting the health and safety of those consuming dairy products by ensuring that dairy products are free of bacterial contamination. The policy is embodied in various statutes and regulations, including but not limited to: The Pasteurized Milk Ordinance, Item 12p (U.S. Dept. of Health & Human Services); Title 3 of the California Code of Regulations Section 480.7; and California Food & Agriculture Code Section 34801, et seq.

Petitioner informed his supervisors before any discipline had been directed towards Petitioner of Petitioner's objection to and/or refusal to participate in Respondent's actions which were in violation of the foregoing policies.

Respondent with full knowledge of Petitioner's objections to and/or refusal to participate in Respondent's illegal activities and with full knowledge of the type and scope of the on-going illegal conduct proscribed by the foregoing policies, did terminate Petitioner's employment wilfully, maliciously, with intent to oppress, and in violation of public policy, actually and proximately causing Petitioner damages which are as yet undetermined.

CAUSE OF ACTION CONSTRUCTIVE TERMINATION IN VIOLATION OF PUBLIC POLICY
Motivated by competition for financial gain, Respondent had created and/or knowingly permitted the on-going illegal activities at the LOCAL TERMINAL, including but not limited to the overworking of truck operators and the on-going falsification of milk tanker "wash out tags".

On or before October 31, 1996, Petitioner notified MANAGER as Respondent's agent that the working conditions at the LOCAL TERMINAL had become intolerable, and in particular, that SUPERVISOR needed to be directed to dispatch the truck operators in compliance with the applicable laws.

In spite of this notification which occurred on or before October 31, 1996, Respondent did nothing to remedy either the illegal overworking of drivers or the illegal falsification of milk tanker "wash out tags," and these illegal activities continued until February 27, 1997, when Petitioner left work early after an argument with SUPERVISOR over SUPERVISOR's order to Petitioner commanding Petitioner to illegally dispatch a truck operator.

At the time of Petitioner's leaving work early on or about February 27, 1997, sufficient communications had been made by Petitioner to Respondent and its agents that would have put a reasonable employer on notice that a reasonable person in Petitioner CLIENT's position would have been compelled to walk-off his job or resign.

As a direct and proximate result of Respondent's actual knowledge of and failure to correct the on-going illegal activities, Petitioner was compelled to jeopardize his employment with Respondent by leaving work early, giving Respondent a pretextual rationalization for terminating Petitioner's employment, and which resulted in Petitioner's damages which are as yet undetermined.
CAUSE OF ACTION RETALIATORY TERMINATION FOR REFUSING TO PARTICIPATE IN EMPLOYER'S UNLAWFUL CONDUCT
In discharging Petitioner CLIENT, Respondent was motivated in whole or in part by a desire to punish Petitioner for interfering with and/or refusing to participate in Respondent's profitable illegal activities.
CAUSE OF ACTION RETALIATORY TERMINATION FOR REPORTING ILLEGAL ACTIVITIES TO PUBLIC AGENCIES IN VIOLATION OF LABOR CODE § 1102.5
At all times material to the complaint, Labor Code Section 1102.5(b) provided: "No employer shall retaliate against and employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of a state or federal statute."

Labor Code Section 1103 makes a violation of Labor Code Section1102.5 a misdemeanor.

In discharging Petitioner CLIENT, Respondent has violated Labor Code Section 1102.5.
CAUSE OF ACTION BREACH OF IMPLIED-IN-FACT CONTRACT AND THE COVENANT OF GOOD FAITH & FAIR DEALING
Petitioner began his employment with Respondent as a member of the UNION, protected by a Collective Bargaining Agreement. The Collective Bargaining Agreement between Respondent and the UNION included provisions for absence due to illness and provisions for progressive discipline.

Upon Petitioner's promotion to the position of dispatcher at the LOCAL TERMINAL in March of 1994, Petitioner and other dispatchers at the LOCAL TERMINAL were allowed to continue their membership with the UNION.

In May of 1995, Petitioner and the other dispatchers at the LOCAL TERMINAL were notified by Respondent that they would have to discontinue their membership with the UNION in order to retain their position as dispatchers. In Respondent's letter to Petitioner dated May 25, 1995, the only modifications noted were Petitioner's salary, a prohibition against discussing salaries with anyone except Petitioner's supervisor, a change in health insurance providers, vacation time, pension plan, and profit sharing and vesting. This letter contains no language concerning at-will employment, nor did Respondent ever communicate to Petitioner that his employment was at-will. Furthermore, Respondent did not communicate any policies concerning absence due to illness in the letter dated May 25, 1995, nor did Respondent communicate any such policy to Petitioner up to and including the date of Petitioner's termination. Furthermore, Respondent did not communicate that there had been any change of policy concerning progressive discipline, but in fact, continued to send disciplinary letters via certified mail to certain dispatchers after June 1, 1995.

Respondent had an implied-in-fact contract with Petitioner, due to the fact that Petitioner detrimentally relied on Respondent's representations and failure to represent changes in Petitioner's rights and responsibilities after Petitioner withdrew from the UNION.

Respondent's previous employment practice was that Respondent would send three disciplinary letters via certified mail to an employee before Respondent would consider terminating that employee.

Petitioner at no time received any disciplinary letter from Respondent via certified mail concerning activity that Respondent considered inappropriate.

Petitioner at no time received any inter-office memorandum or employee handbook advising Petitioner of Respondent's policies concerning absence due to illness.

Respondent did not make a good faith investigation into Petitioner's complaints about the on-going illegal activities, nor did Respondent evaluate its own CADEC information or lack thereof, but instead Respondent relied on representations concerning Petitioner by the alleged wrongdoers in making Respondent's determination to summarily terminate Petitioner.
CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Respondent's termination of Petitioner for reporting illegal activities to his supervisors and/or governmental agencies was extreme and outrageous conduct intended to cause, or done in reckless disregard of causing, severe and aggravated emotional distress to Petitioner. As a direct and proximate result of his termination by Respondent, Petitioner did suffer severe and aggravated emotional distress for which he sought medical treatment.

WHERFORE, Petitioner prays for:

1) General damages in amounts according to proof;
2) Medical and related expenses in amounts according to proof;
3) Lost earnings, earning capacity, and benefits, past and future, in amounts according to proof;
4) Out-of-pocket expenses and other consequential damages;
5) Interest, including pre-judgment interest, as allowed by law;
6) Exemplary and punitive damages where applicable in amounts according to proof;
7) Attorney's fees pursuant to Code of Civil Procedure Section 1021.5 and any other applicable laws; and
8) Such other relief as the Tribunal may deem proper.

DATED: June 16, 1998
MACHADO & COUSINS

Troy Kevin Spears
Attorney for Petitioner.