Judge rules Prime should pay driver $151,600, reinstate her job

| Tuesday, April 06, 2010

Nine-year trucking veteran and OOIDA Member Cynthia Ferguson of Oakdale, MN, was on Interstate 80 near Fernley, NV, on Christmas Day in 2008. That was when she encountered near-blizzard conditions and black ice, and received word there were treacherous road conditions on Donner Pass, where she was headed.

Ferguson told Land Line that on the following morning she tried driving again and made it another 40 miles to Sparks, NV, before she was forced to shut down again because of bad weather.

She said that she expressed her reservations via Qualcomm messages to her dispatch manager at New Prime Inc, based out of Springfield, MO, about crossing Donner Pass in these hazardous weather conditions. She advised her DM, Jeremy Thomas, that she was planning to shut down until road conditions improved.

After she relayed this information to Thomas, he sent her a Qualcomm message ordering her to “chain up ASAP.” She had informed him that the DOT offices in Nevada and California advised her to shut down as Donner Pass had been closed on and off all that day.

After Ferguson refused to move, Thomas fired responses back via Qualcomm messages, asking her “Why didn’t you cross it (Donner Pass) yesterday? You should have been across the country twice by now.”

No stranger to driving in bad weather, Ferguson said she felt that her life, as well as the lives of her trainee in the truck with her and others on the road, would have been in danger had she driven on Donner Pass during hazardous weather conditions.

“I don’t just shut down at the sound of bad weather, but I had other lives to worry about,” she said.

A few days later, on Jan. 1, 2009, Ferguson was notified that her lease with Prime had been terminated, a few days after Thomas filed an incident report recommending that she be terminated.

Ferguson’s attorney, Paul O. Taylor of Burnsville, MN, told Land Line that he then filed a complaint against Prime under Section 405 of the Surface Transportation Assistance Act of 1982, “which prohibits trucking companies from firing drivers for refusing to drive in violation of commercial vehicle safety regulations.”

On March 15, U.S. Department of Labor Administrative Law Judge Daniel Leland ruled that New Prime Inc. did in fact illegally fire Ferguson because she refused to continue driving in hazardous weather conditions.

“The judge found that Prime retaliated against Cynthia for refusing to drive and found it significant that her DM’s compensation was based on Cynthia rolling, even if driving conditions were bad,” Taylor said.

The judge stated in his recommended ruling that Thomas’ response to “chain up ASAP” was “clearly designed to pressure complainant (Ferguson) into driving through Donner Pass despite its normally unsafe features and the snow she was encountering, which made driving through the pass even more hazardous.”

“This is consistent with Thomas’ testimony that his compensation was tied to timely deliveries,” Judge Leland wrote in the recommended ruling. During the trial, Thomas testified that he was docked $100 for every late load.

“If the load is delivered late and there’s no good excuse for it, then Prime will fine me $100,” Thomas testified at trial.

The judge also recommended that the DOL order Prime to reinstate Ferguson as a driver; pay $76,600 in back wages and for her emotional distress; and pay $75,000 in punitive damages. The judge also recommended the DOL order Prime to pay her attorney fees and “expunge all information pertaining to (Ferguson’s) wrongful discharge from her personnel records.”

The decision also recommended that Prime be ordered to post a copy of the recommended decision and order at all of its terminals for “90 consecutive days in all places where employee notices are customarily posted.”

Taylor said he was pleased with the judge’s recommendations in this case.

“This is a really high award of punitive damages in this case. They are usually pretty reluctant to award damages so this shows what the judge thought about Prime’s retaliation,” Taylor said.

As for Ferguson, she said she just wants to return to trucking and has contacted Prime about reinstating her as a driver. She said she has yet to receive an answer back to her request.

“I have seen this happen to so many drivers who are forced to drive in bad weather conditions and are afraid to refuse,” she said.

The recommended decision and order was forwarded to the Department of Labor for review on March 15. Parties have 30 days to file briefs in support of or in opposition to of the recommendation. However, according to the order Prime was to reinstate Ferguson upon receipt of the recommendation.

– By Clarissa Kell-Holland, staff writer
clarissa_kell-holland@landlinemag.com

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