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Driver Wins Lawsuit After Being Fired Illegally – But There’s More To The Story

New Prime, Inc., (also known as “Prime“) was found guilty of violating the Surface Transportation Assistance Act after firing a driver that had chosen to shut down at the base of Donner Pass during hazardous weather. We were recently notified of this personally by trucking employment law attorney Paul Taylor of Taylor & Associates, Ltd.

In a statement placed in the trucker’s forum on our sister site TruckingTruth, Paul Taylor stated:

In a decision issued on March 15, 2010, Department of Labor Judge Daniel Leland ruled that New Prime, Inc. (also known as “Prime“) illegally fired Cynthia Ferguson because she refused to continue operating a commercial vehicle in hazardous weather. In Ferguson v. New Prime, Inc., Ferguson, a leased driver for Prime, was fired shortly after she refused to driver through Donner Pass in the Sierra Nevada Mountains with a loaded tractor-trailer set during hazardous weather. Paul Taylor of the Truckers Justice Center filed a claim on behalf of Ferguson with the Department of Labor alleging that Prime illegally fired her. Prime alleged that it fired Ferguson because she operated the truck at a deficit.

Judge Leland ordered Prime to reinstate Ms. Ferguson as a driver, pay back wages of more than $ 26,600, pay $ 50,000 as compensation for Ferguson’s emotional distress, and pay $75,000 in punitive damages. Judge Leland also ordered Prime to pay Ms. Ferguson’s attorney fees, and remove unfavorable information from her DAC Report.

Trucker Drivers Are Ultimately Responsible

Truck drivers are held responsible for the safe operation of their vehicle. If a driver gets in an accident, regardless of the cause, the driver is responsible. Whether your load shifts, you have a mechanical failure, you slide off the road in hazardous conditions, or driver error is the cause – it makes no difference. An accident is an accident in the eyes of the law, and the eyes of trucking companies, and a driver must be certain that the truck is safe to operate, the conditions are safe to drive in, and the load is properly secured. You will find circumstances on occasion where a driver is cleared of responsibility for an incident, but this is rarely the case.

Cynthia Ferguson informed Prime that the conditions on Donner were too dangerous to drive, and here is the key excerpt from her Qualcomm:

Driver: 12/26/2008 06:24 DONNER PASS REQUIRES CHAINSAND HAS BEEN CLOSED OFF AND ON FROM YESTERDAY UP TO NOW. I WONT BE TRAVELING ANY FURTHER UNTIL THEY CLEAR THE ROAD

Dispatcher: 12/26/2008 06:58 why didnft you cross it yesterday? you should have been across the country twice by now

Dispatcher: 12/26/2008 07:01 chain up asap

Extenuating Circumstances

We had a long discussion regarding Cynthia Ferguson’s lawsuit between several experienced drivers and attorney Paul Taylor and there were a lot of interesting facts uncovered about Ms Ferguson’s performance as a driver. After 15 years on the road I wouldn’t be doing my duty to make this appear as if Ms Ferguson was an angel and Prime was a ruthless dictator. That doesn’t appear to be the case at all. Ms Ferguson was training a student at the time, “Darla”, and here is an official statement from Cynthia Ferguson’s dispatcher Jeremy Thomas:

“Cynthia told me she trained at her last company and was a good trainer. So far since I have made her a trainer I have had to repower her 3 times on the last 4 loads and the only load she delivered it took her 6 days to move across country and had to be resch (rescheduled) 3 times due to weather. The weather was bad but most trucks pushed thru with little delays. Darla feels comfortable driving in the weather but Cynthia will not give her the chance to do it. While down in the weather Darla would like practice backing and pretrips but Cynthia will not practice with her at all Darla says. Darla says Cynthia seems bipolar and has a terrible attitude in general. I have had complaints from Butlb Olsa Allij and most every one that deals with her says she is very unpleasant to work with. Extremely rude person has not made a paycheck since she came to Prime.”

Is Ms Ferguson’s performance as a driver relevant in this lawsuit? No – not at all. As interpreted by the FMCSA, The Surface Transportation Assistance Act (STAA) 49 C.F.R. Section 392.14 clearly states:

“The driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.”

Then why am I bringing up the driver’s average mileage, performance as a trainer, and attitude if it isn’t relevant to the case?

Many Lessons To Be Learned

There are a number of important lessons to be learned from this situation. It appears that Prime may have intended to fire Ms Ferguson for poor performance and a poor attitude, and this latest incident was the straw that broke the camel’s back. Prime illegally listed Ms Ferguson’s refusal to drive in hazardous conditions as one of the reasons for firing her, but clearly they had a long list of complaints.

The question is, would we be talking about this at all if Prime wouldn’t have illegally listed her decision to shut down as a cause for firing? It appears not. It appears that she was going to be fired for a number of legal reasons, but by listing her refusal to drive in hazardous conditions as one of the causes, Prime broke the law, was rightfully sued, and lost. If not for this, Ms Ferguson may have simply been fired and become one more turnover statistic in the trucking industry.

Having Success As A Truck Driver

The trucking industry is an incredibly tough place to make a living, and being a truck driver is one of the most demanding jobs you will ever find anywhere. It often requires:

  • Sacrificing time at home with family and friends
  • A relentless work ethic
  • Strong character
  • Courage
  • Patience
  • The ability to continuously adapt to a large variety of ever-changing circumstances
  • Compromise
  • People skills
  • A great attitude
  • Street smarts
  • Elite driving skills
  • Outstanding judgment
  • Relentless attention and focus

….and a whole lot more. I drove for 15 years and I never worked in the office of a trucking company or in management for a single day of my life. I’m blue collar all the way, raised in an extended family of steel workers, auto workers, farmers, mechanics, and carpenters. I was raised in a small town, with small town values of working hard, treating people well, and taking pride in all you do. I had the greatest parents in history and I thank my lucky stars every day of my life for all the success I’ve had because of everything they’ve taught me. Nobody is more lucky than I.

But nothing I’ve done was more difficult than trucking. You have to stand up for yourself. You have to know when to stand your ground, and know when to compromise and take one for the team. You’ll find that most of the time you’ll have to go it alone, because the truth is it’s rare that anyone will ever have your back as a driver – except maybe in this case a lawyer like Paul Taylor, who is “the third generation of a trucking family” as he mentions on his website. He did an excellent job here in defending Cynthia and this case will serve as a precedence for all drivers forever forward. A dispatcher should never, ever question a driver’s decision to shut down for safety reasons.

But understand that the trucking industry has a lot of gray areas, a lot of unwritten rules, a lot of high expectations, and a lot of difficulties to overcome. You saw the list of what it takes to make it in this industry, and that never changes no matter how long you’ve been a driver. Understand the circumstances in this particular case, and always keep in mind what a privilege it is for all of us to be alive and healthy in this great country with the opportunity to pursue whatever career we feel suits us best.

Don’t take that for granted. Don’t stop appreciating what you have. Work hard. In fact, work damn hard! Treat people well. Be smart, be safe, and be the best you can possibly be at everything you do. We’re all guilty of coming up short at times in our lives with nobody but ourselves to blame. But here we are with yet another new day and a fresh chance to make up for those times. Take advantage of that opportunity and make the most of it.

Carpe diem – and do it with pride.

Links:
Forum discussion between drivers and attorney Paul Taylor
Law Office of Taylor & Associates, Ltd.
Cynthia Ferguson Vs New Prime, Inc case documents

I’d love to hear everyone’s comments regarding this situation, but please make sure you understand the circumstances well before commenting. Take a few minutes to examine the links above and then let us know what you think.

Comments

8 Comments

  1. mark says:

    Hi, Brett
    Yea!!! Cynthia !!!! What does Prime want for $.35 a mile?
    I do agree with you though this job Ain't for everyone for sure ! I started driving in 1977 and when I compare what most of these companies in 2010 are paying AND EXPECTING ( you know push push push) to what I made in 1977 makes me sick to my stomach , I get paid above average at my job now but I move at my own pace, and am too old and smart to be threatened ! But it pisses me off when I see these companies taking advantage of young drivers, making them scared of losing thier job , if we were paid even close to what we were worth, (requierments you stated above ) then I may cry a tear for Prime.
    Untill then Cynthia you GO GIRL !! Now I gotta find how to fight CSA 2010.
    Thanks Brett ,great site
    Mark

    • dawn says:

      I got my cdl in 2006 and started at crst and then went on to go solo. I went to a company out of omaha and made all my appointments on time and was never late and no incidents, but was told by the supervisor there that they are letting me go because i don't fit in since then i have filed a charge with the eeoc. They never called me by my name they always called me girl and the fleet manager was very cruel to me. since then i have stayed away from truck driving.

  2. Hoss says:

    Just goes to show you what goes around comes around, Prime got it start in business by finding a flaw in a contract with Midwestern Distribution we use to call them Dollar truck, because you could buy a truck for a dollar and go to work for them till it was paid for, Prime founders found a flaw in the contract and took advantage of the situation, and scored high against Midwestern, and started what is now prime Inc.
    funny how thing work out in life, guess it was prime's turn to pay the piper.

  3. Creid says:

    Your corporate mentality is showing again. Heres the deal.
    She was a trainer. They dont make you a trainer because youre "underperforming". What was going on here was prime was pushing her, as a lot of these companies do, to run illegal as hell and use the trainee as a team driver. And if youd been a trainer you would know that NO trainer spends hours in parking lots teaching trainees to back. YOu dont have time youre either sleeping or running.

    So in the end a company with probably the worst reputation in the business was not only trying to force a driver to break the law (and one of the smart laws) they wanted her to drive one of the most dangerous roads in the country in conditions that were unsafe. In your post you place the dispatchers decision that she should run above the Driver? Im starting to have problems believing you ever drove a truck.

    Ive run some of the iciest most dangerous roads in the country. I've run during blizards and ice storms when the roads were empty. But this is the deal: when i told dispatch i was shutting down because it was dangerous thats it. No bullshit. No nothing. If there had been my dispatcher would have had a nice qualcomm conversation with the nearest dmv officer or trooper.

    Perhaps you need to stop posting about trucking as it appears youve forgotten what its like . Being an office monkey can do that to you

    • Brett Aquila says:

      Creid, you're having problems believing I ever drove a truck? I drove 15 years – so you're not very perceptive for starters. But what the hell, I'll humor ya.

      What was going on here was prime was pushing her, as a lot of these companies do, to run illegal as hell and use the trainee as a team driver

      Really? I'm not sure where you're getting your facts (or assumptions, or propaganda) from, but here's a quote from Prime:

      So far since I have made her a trainer I have had to repower her 3 times on the last 4 loads and the only load she delivered it took her 6 days to move across country and had to be resch (rescheduled) 3 times due to weather. The weather was bad but most trucks pushed thru with little delays.

      Does that sound like they were making her run illegal? She had just become a trainer and almost every load was repowered, except the one she hung onto for SIX DAYS, with that one being rescheduled three times of course. She actually delivered one load out of 4 – just amazingly awful.

      Heres the deal. She was a trainer. They dont make you a trainer because youre "underperforming". NO trainer spends hours in parking lots teaching trainees to back. You dont have time youre either sleeping or running

      Even the lawyer that represented Cynthia stated that statistics from Prime showed that "Cynthia averaged 1,699 miles per week during her 4 months with Prime" before becoming a trainer. 1699 miles a week??? Awful – just awful. Does that sound like a hard-working driver that's either sleeping or running? A hell of a lot of sleeping I'll tell ya that. You think they made her a trainer because she was overperforming??? Maybe by your standards 1699 miles a week is some good hard running – but not by my standards.

      So in the end a company with probably the worst reputation in the business was not only trying to force a driver to break the law (and one of the smart laws)

      Prime has the worst reputation in the business? Really??? And what facts would you say backs up that claim? Ridiculous. I never worked for Prime, but they're not even close to having the worst reputation in the business – baseless statement. And exactly what law were they forcing her to break? None. Prime was the one that broke the law by listing Cynthia's refusal to drive as a reason for firing her. They had a long, legitimate list of reasons to fire her and would have done so legally if they wouldn't have included her refusal to drive on the list of reasons. They weren't trying to make her break any laws. Nice try, though.

      In your post you place the dispatchers decision that she should run above the Driver? Im starting to have problems believing you ever drove a truck.

      I never said I supported the dispatcher's decision that she should run. Re-read the article if you must. I even quoted the STAA which states "The driver is clearly responsible for the safe operation of the vehicle and the decision to cease operation because of hazardous conditions.” What I did say was that they had a long, legitimate list of reasons to fire her and if they wouldn't have illegally listed her refusal to drive as one of them she would have been legally fired and we wouldn't be having this conversation.

      Perhaps you need to stop posting about trucking as it appears youve forgotten what its like . Being an office monkey can do that to you

      Well, after 15 years I certainly haven't forgotten, and I've never worked in an office – but again, nice try. Real perceptive.

      Look Creid – you can attack me all you like. And if you feel that I'm a "company guy with a corporate mentality" because I won't vehemently defend every action of every trucker in America like some trucker's evangelist then so be it. But the bottom line is that there are a number of lazy drivers with horrible attitudes, and this woman was one of em. She deserved to be fired, but not for refusing to drive over the pass in bad weather. She was an owner operator and her company stated:

      …most every one that deals with her says she is very unpleasant to work with. Extremely rude person has not made a paycheck since she came to Prime.”

      As an owner operator, she hasn't made a paycheck in 4 months. It sounds to me like they did indeed make her a trainer because she was underperforming and hoped that running team would make her truck profitable – but alas, even that didn't get her lazy ass moving. But hey, if you want to defend a lazy trucker with a horrible attitude then be my guest.

  4. Renee' says:

    She should sue the trainee too, for saying she was bi-polar, or is it that the trainee left psychiatric medicine for truck driving.
    Always interesting when someone mentions or states, labels another person, has some sort of mental disorder.
    Unbelievable that the dispatcher/manager, would have the ignorance, to quote the trainee, on this appalling opinion. All involved should be let go, and this company needs to be watched closely by the authorities. From the owner, down to the oil man.

  5. Richard says:

    Most interesting and yes Prime was wrong! I drove for 10 years and been over Donner Pass a number of times including in the winter. You know that little green handbook you get from the company? When they say you're going to be fired for refusing to drive in unsafe conditions, just pull out that book, flip open the page where the law is and show it to them.

    But it also sounds like Cynthia ain't no choir girl either. 3 out of 4 successive loads had to be rescheduled and or repowered? Neither is the dispatcher. Like most dispatchers who have never driven have no clues what it's all about.

    Good article. I hope a few companies out there learn from this experience.

  6. will says:

    Managers at trucking companies are quick to fire and force drivers into situations that are unsafe. Because one person feels it's a good day to drive, another does not. Prime got off light.

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