U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 2021 0

In the Matter of:

RODERICK A. CARTER,

COMPLAINANT,

v.

ARB CASE NO.

2018-0078

ALJ CASE NO.

2012-STA-00061

DATE:

SEP 2 6 2019

CPC LOGISTICS, INC.; CPC MEDICAL

PRODUCTS, LLC; and HOSPIRA

FLEET SERVICES, LLC,

RESPONDENTS.

Appearances:

For the Complainant:

Roderick A. Carter, prose, Hopkins, South Carolina

For the Respondents:

Michael F. Harris, Esq.; Harris, Dowell, Fisher & Young, L.C.,

Chesterfield, Missouri

Before: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,

Administrative Appeals Judges

FINAL DECISION AND ORDER

PER CUR!Afvl. This case arises under the employee protection provisions of the

Surface Transportation Assistance Act of 1982 (STAA) as amended. 1 Complainant

49 U.S.C. § 31105(a) (2007); see al~o 29 C.F.R. Part 1978 (2018)(implementing the

STAA).

2

Roderick A. Carter filed a complaint with the Occupational Safety and Health

Administration (OSHA) alleging that Respondents CPC Logistics, Inc., CPC

Medical Products, LLC (collectively CPC) and Hospira Fleet Services, LLC

(Hospira) violated the STM by discharging him from employment. OSHA denied

the complaint and Carter requested a hearing before an Administrative Law Judge

(ALJ). After a hearing, the ALJ dismissed the complaint on the grounds that Carter

failed to prove that his STM-protected activity was a contributing factor in his

discharge. Carter appealed to the Administrative Review Board (Board) and we

affirmed the ALJ's dismissal of Carter's complaint. Carter then appealed our ruling

to the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit determined that the ALJ overlooked evidence indicating

that Carter had reported his need to take breaks from driving to CPC Supervisors

and that this oversight may have adversely affected the outcome of this case. 2 The

court remanded the case to the Board, and the Board remanded the case to the ALJ.

On August 8, 2018, the ALJ issued a Decision and Order on Remand (D. & 0. on

Rem.), again denying the complaint, and Carter appealed the ALJ's decision to the

Board. For the following reasons, we affirm the ALJ's D. & 0. on Remand.

BACKGROUND3

CPC hired Carter on February 27, 2007, as a tractor-trailer driver for a sixman relay crew based in Columbia, South Carolina. The crew transported shipping

containers loaded with medical equipment from Rocky Mount, North Carolina, to

Jacksonville, Florida, and back again to Rocky Mount. An hour before the end of a

trip, one driver would call the relay driver with his estimated time of arrival (ETA)

so that the other driver would be available to drive the tractor-trailer on the next

Carter v. CPC Logistics, Inc; CPC Medical Products, LLC; Hospira Fleet Services,

LLC; Department of Labor, Administrative Review Board, 706 Fed. Appx. 794, 797 (4th Cir.

>

2017).

On remand and as appealed to the Board, the facts of this case remain largely the

same. With the exception of the findings vacated after remand, the ALJ affirmed the

findings of fact in his first Decision and Order and incorporated those findings into his

Decision and Order on Remand. See D. & 0. on Rem. at 2, 5 ("In light of the Fourth

Circuit's opinion, I vacate my previous findings (1) that Mr. Carter never mentioned fatigue

3

breaks to his supervisors and (2) that Mr. Carter's rest breaks were not a factor in the

decision to terminate ... After re-reviewing all of the evidence in the administrative file, I

affirm my other findings of fact in the Decision and Order, and they are incorporated

herein.").

3

leg. The goal was maintaining a synchronized schedule to keep Hospira's Rocky

Mount facility operational. 1 CPC drivers were required to call in if they experienced

significant delays, and Carter was aware of this policy. 5

Carter started driving on the Columbia-Rocky Mount leg but subsequently

acquired numerous warning letters about logging errors, violations of CPC's call-in

procedures, and an accident in June 2008 that was found to be his fault and cost

more than $4,400.00 in property damage. 6 CPC issued Carter more warning letters

over the next two years, including a five-day suspension in August 2010 when a

CPC audit revealed numerous discrepancies between the time entries in Carter's

hours-of-service logs and the time he recorded on trip reports he submitted to

payroll. 7

In August 2010, CPC assigned Carter to the Columbia-Jacksonville-Columbia

leg and teamed him with Kelvin Gordon, who then drove the Columbia-Rocky

Mount-Columbia leg. The average driving time for each round-trip leg ranged from

10 to 13 hours. Gordon repeatedly complained to Ron Covert, CPC's Regional

Manager, about Carter's excessive delays and lateness reporting to work. Covert

kept a list of the delays reported by Gordon between June 27 and September 28,

2011. This list showed that Carter was taking up to 14 hours to make the same

drive that had taken Gordon 11 to 12 hours. The excessive hours delayed Gordon's

daily 4:00 p.m. start time by about an hour a day. The delay meant that by the end

of the week Gordon could not start his run until 7:00 to 9:00 p.m. on Friday night,

which shortened his time off.B

Transcript (Tr.) 217. The relay team worked five days a week and usually had the

weekends off. Both leg drivers would be home in Columbia for their time off during the

week.

4

Respondent's Exhibits (RX) 1-3. See also RX 6 and 8 (informing Carter that he had

failed to follow proper call-in procedures).

5

6

D, & 0. at 29-30 (describing disciplinary warnings and suspensions Carter received

for violations of law and of CPC policies).

1

RX 13.

RX 35; Tr. 190. Gordon also complained that Carter was supposed to start his run at

2:00 a.m. on Mondays but was frequently late, up to three hours. Gordon gave his ETA

8

times to Carter each afternoon but he was rarely there to take over the tractor-trailer on

time.

4

In August 2011 Gordon sent an e-mail to Covert's supervisor, Divisional

Manager Kenneth Pruitt, relaying his conversation with Carter about the

scheduling problems and the importance of teamwork. During that conversation

Carter had "started to yell and curse" and said that Gordon had done him "a favor"

by complaining to Covert about his time delays because "now I'm gonna take my

breaks and take my time coming back." 9 When Gordon asked Carter if he was

concerned about putting his job in jeopardy, he replied, "Ron [Covert] can't fire me.

If he could he would've by now." 10

Gordon complained further in September 2011 that Carter was "taking over

an hour in breaks on the way down and the same on the way back" and he asked

Covert to "[p]lease intervene." 11 Covert reviewed Carter's logs and found prolonged

periods when Carter was on duty but not driving. Covert asked Carter why he used

so much time not driving and, according to Covert, Carter responded that he

probably had to go to the bathroom or maybe he had not been feeling welJ.12 Covert

then prepared a recap of Carter's hours and forwarded it to Pruitt, who was in

charge of about 600 CPC drivers. 1 3

During his employment with CPC, Carter occasionally informed his

supervisors that he was taking breaks from driving. Carter testified at the hearing

that he told Covert, Pruitt, and a dispatcher that his extended run times were

caused by rest breaks or fatigue breaks. 14 On July 15, 2011, in an e-mail exchange

between Covert and a CPC dispatch supervisor, Covert told the dispatcher that

Carter reported that he had been delayed because he wasn't feeling well and was

entitled to a break.15

9

RX26.

10

Id.

11

Id.

12

Tr. 208.

13

RX 54. The logs show that Carter started taking breaks an hour or two into his shift.

He would drive as little as 16 minutes and as long as three hours before taking a break.

Most breaks came after 60 to 90 minutes of driving. RX 52. Covert disciplined another CPC

driver for similar behavior on the grounds that he was not coming to work "properly

rested." That driver improved his performance. RX 37, Tr. 195, 201.

14

Tr. 30-33.

15

RX 25.

5

CPC's submission to OSHA in response to Carter's complaint indicates that

he mentioned fatigue breaks to two supervisors when questioned about his

performance and claimed that he often got sleepy while performing his driving

duties. 16 Carter had also asked Pruitt in a phone conversation if he could stop

driving if he was sleepy and told Pruitt that he was allowed by the DOT to take rest

breaks if he needed them.17

On August 6, 2011, Covert, with Pruitt's approval, sent a general

memorandum to all Columbia drivers about reporting to work within an hour of the

ETA of their partner; taking too frequent, extended rest breaks; making late

deliveries; and ignoring the 2:00 a.m. Monday starting time. 18 After issuance of this

letter, Carter's turnaround time got worse. One week before his discharge, Covert

issued Carter a disciplinary letter regarding his failure to be available for work

assignments. rn

Pruitt compared Carter's manifest times with the logs of two other drivers on

the Columbia team during July, August, and September 2011. Based on Carter's

average times over those months, Pruitt recommended to his supervisor, Harold

Wallis, Jr., vice president of CPC's eastern operations, that CPC fire Carter. Wallis

reviewed Gordon's complaints about schedule delays and Carter's disciplinary

history, particularly the warning letter concerning his falsification of his logs. 20

Wallis concluded that the progressive disciplinary process had failed to

correct Carter's insubordination toward his managers and dispatchers, his violation

of CPC's call-in policy, or his excessive hours in driving the Columbia-JacksonvilleColumbia run, and approved Carter's discharge. On October 5, 2011, CPC issued

Carter a letter terminating his employment due to his "continued poor job

performance and insubordinate behavior." The letter stated that Carter

"continuously delayed runs without reasonable explanation" and had "shown a

pattern of insubordination." Carter's work record revealed more than 25 violations

16

Complainant's Exhibit (CX) 3 at 8.

i1

Id.

18

RX 28.

19

RX 31.

20

Tr. 249-251.

6

within the past 30 months for which he was disciplined, which showed "a complete

disregard for improvement." 21

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Board to issue final

agency decisions in review or on appeal of matters arising under the STAA.22 The

ARB reviews questions of law presented on appeal de novo, but is bound by the

ALJ's factual determinations if they are supported by substantial evidence.23 We

uphold an ALJ's credibility findings unless they are "inherently incredible or

patently unreasonable." 24

DISCUSSION

The STAA provides that a person may not "discharge," "discipline," or

"discriminate" against an employee "regarding pay, terms, or privileges of

employment" because the employee has engaged in certain protected

activities. 25 The legal burden of proof set forth in the employee protection provision

of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century

(AIR 21) governs STAA complaints. 26 To prevail on a STAA claim, a complainant

must prove by a preponderance of the evidence that he engaged in protected

activity, that his employer took an adverse employment action against him, and

that the protected activity was a contributing factor in the unfavorable personnel

21

RX 36.

22

Secretary's Order No. 1-2019 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019); 29

C.F.R. § 1978.ll0(a).

29 C.F.R. § 1978.ll0(b); Lachica u. Trans-Bridge Lines, ARB No. 10-088, ALJ No.

2010-STA-027, slip op. at 2, n.3 (ARB Feb. 1, 2012).

23

Mizusawa u. United Parcel Seru., ARB No. 11-009, ALJ No. 2010-AIR-0ll, slip op. at

3 (ARB June 15, 2012) (quoting Jeter u. Avior Tech. Ops., Inc., ARB No. 06-035, ALJ No.

2004-AIR-030, slip op. at 13 (ARB Feb. 29, 2008)).

24

25

49 U.S.C. § 31105(a)(l).

20

49 U.S.C. § 31105(b)(l); see 49 U.S.C. § 42121.

7

action. 27 Failure to establish any one of these elements requires denial of the

complaint. 28

The STAA protects an employee who makes a complaint "related to a violation

of a commercial motor vehicle safety or security regulation, standard or order." Id. In

addition, it is a STAA violation for any person to retaliate against a driver who refuses

to operate a commercial motor vehicle when the driver's ability or alertness is

impaired due to fatigue, illness, or other cause. 29

Carter engaged in STAA-protected activity and CPC subjected him to an

adverse employment action by discharging him from employment. The issue before

us on appeal is to determine if, after his reconsideration of the evidence, the ALJ's

reiteration of his conclusion that Carter's protected activity did not contribute to his

discharge is supported by the record.

On remand the ALJ reconsidered his rulings on Carter's asserted

justifications for his delayed deliveries. The ALJ affirmed his ruling that Carter

engaged in STAA-protected activity on July 15, 2011, when he refused to drive due

to illness. The ALJ vacated his previous findings that Carter never mentioned

fatigue breaks to his supervisors and instead found that "Carter told Mr. Covert

and Mr. Pruitt that his extended run times were caused by rest breaks." 30 And the

ALJ acknowledged CPC's statement to OSHA, which contains several statements

admitting that Carter informed CPC of his right to refuse to drive if his alertness

was impaired.31

21

49 U.S.C. § 4212l(b)(2)(B)(iii).

Luckie u. United Parcel Seru. Inc., ARB Nos. 05-026, -054; ALJ No. 2003-STA-039,

slip op. at 6 (ARB June 29, 2007). CPC did not dispute the ALJ's findings that Carter

established that he engaged in protected activity and that his discharge was an adverse

action. We affirm these findings. Jackson v. Union Pac. RR Co., ARB No. 13-042, ALJ No.

2012-FRS-0l 7, slip op. at 5 (ARB Mar. 20, 2015).

28

29

49 U.S.C. § 31105(a)(l)(B)(i); 29 C.F.R. § 1978.102(a), (c)(l)(i).

D. & 0. on Rem. at 3. While CPC had no rule that drivers were required to contact

the company every time they took a rest break, company rules did require drivers to report

significant delays. Id. at 5.

30

See CX 3 at 8, 13-14 ("Mr. Carter told Mr. Covert that he ran late because he got

sleepy and had to pull over to rest ... Mr. Carter asked CPC Division Manager Ken Pruitt

over the phone whether Mr. Pruitt was saying he couldn't stop if he was sleepy ... Mr.

Carter said that he was allowed by the DOT to take rest breaks if he needed them ... Mr.

Carter also accused CPC of not caring about safety and threatened to report CPC ... Thus,

CPC knew Mr. Carter had verbally claimed that he often got sleepy while performing his

31

8

The Fourth Circuit identified CPC's position statement to OSHA as

containing evidence concerning conversations that the ALJ may have overlooked in

his first decision.3 2 The ALJ on remand discussed two conversations that Carter had

with supervisors and found that Carter's additional statements to CPC to the effect

that his delays were a result of fatigue breaks were untruthful for several reasons.

D. & 0. on Rem. at 3. First, the ALJ found it unbelievable that Carter suffered

fatigue on nearly every run he made. Second, the ALJ found that Carter delayed his

runs to annoy and harass his partner and disrupt his partner's schedule. D. & 0. on

Rem. at 3-4. Third, the ALJ found that Carter's untruthfulness was further

evidenced by the fact that he admitted that he never recorded his rest breaks on his

trip manifests despite his obligation to do so. 33 With the exception of July 15, 2011,

Carter failed to inform CPC contemporaneously with any bouts of fatigue or

illness. 34 We affirm the ALJ's findings that Carter's claim of having made additional

statements concerning fatigue to CPC were not credible. We therefore affirm the

ALJ's ruling that the only recorded incident of STM-protected activity in this case

occurred on July 15, 2011.35

After his review of the evidence, the ALJ again concluded that Carter failed

to prove by a preponderance of the evidence that his STAA-protected activity was a

contributing factor in CPC's decision to discharge him, and we agree. The ALJ again

driving duties and therefore needed frequent rest breaks, and that Mr. Carter had referred

to the DOT when stating he was entitled to such breaks.").

"'

The Fourth Circuit did not identify specifically the evidence that the ALJ overlooked

beyond a description of the conversations and that at least one of the conversations was

referenced in CPC's statement to OSHA.

Tr. 65 ("I never, even when I was doing the other leg, for four and a half years of

being there, I never put down that I stopped and took a rest break.").

33

See D. & 0. on Rem. at 5 ("Mr. Carter may have told his supervisors that his long

run times were caused by fatigue breaks, see CX 3, but Mr. Carter did not make those

statements while he was suffering from a bout of fatigue. Because the statements were not

made contemporaneous with any bout of fatigue, and I find Mr. Carter to be generally noncredible, I find those statements were merely post hoc excuses and give them no probative

weight.").

34

35

In his Petition for Review Carter asserts that, in addition to July 15, 2011, he

engaged in STAA-protected activity on September 9, and October 4, 2011. Petition for

Review at 8. However, he did not indicate what he did or said on those days that would

constitute protected activity. We note that we issued a briefing order after receipt of

Carter's Petition for Review but he did not file a brief identifying record evidence

supporting this assertion.

9

found that Carter was delayed by more than an hour on nearly all of his runs for

three months prior to his discharge. The D. & 0. included several charts

summarizing the start and end times for each run by Carter and Gordon during the

period from June 27, 2011, through October 5, 2011, and summarizing the times it

took Carter to complete round trips compared to the times it took similarly situated

drivers to complete similar trips on the same days. 36 The ALJ reexamined this

evidence on remand:

There were 44 days on which Mr. Carter and the team 1

driver drove the Jacksonville route. Decision and Order at

38. On 39 of those days, the team 1 driver made the run in

less time than Mr. Carter did, averaging about 67 minutes

less than it took Mr. Carter. Id. On each of the five days on

which Mr. Carter took less time than the team 1 driver did,

the team 1 driver was delayed in Jacksonville for one to

three hours. Id. at 38-39. And, there were 44 days on which

Mr. Carter and the team 2 driver (Walter Moore) drove the

Jacksonville route. Id. at 39. On 38 of those days, Mr.

Moore completed the trip in an average of 111 minutes less

time than it took Mr. Carter. Id. On the other six days, Mr.

Moore took longer than Mr. Carter, but Mr. Moore was

waiting for the train at the Jacksonville railyard on each of

those days. Id.37

CPC's admission that Carter's breaks from driving were a factor in the

decision to fire him does not establish that CPC violated the STAA because, with

one exception, Carter failed to prove that those breaks constituted STAA-protected

activity. The evidence he offered in support of his alleged protected activity was not

credible to the finder of fact. Instead, the overwhelming evidence shows that Covert

reviewed Carter's job performance and Wallis made the decision to discharge Carter

based on his disciplinary history, his failure to improve his performance, and his

unexplained delays on the Jacksonville run. In sum, we agree with the ALJ's

conclusion that CPC's termination of Carter's employment did not violate the

STAA. 38

,16

D. & 0. at 31-38.

37

D. & 0. on Rem. at 3.

38

Id. at 7, citing Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 987-88 (4th Cir. 1993)

("An employer obviously remains free to sanction an employee for chronically tardy conduct

10

CONCLUSION

In accordance with the Fourth Circuit's ruling, we have examined the record

to determine if Carter's STAA-protected activity was a contributing factor in his

discharge from employment. The record fully supports the ALJ's conclusion that

Carter engaged in STAA-protected activity by refusing to drive due to illness. The

record also supports the ALJ's conclusion that Carter's protected activity did not

contribute to his discharge. Carter was discharged because of his unexplained

delays, disciplinary history, and failure to improve his performance. Accordingly,

the ALJ's Decision and Order on Remand denying Carter's complaint is

AFFIRMED, and the complaint is hereby DENIED.39

SO ORDERED.

or indeed for any action not protected by the STAA. The STAA protects only a driver who

may unexpectedly encounter fatigue on the course of a journey; it obviously does not protect

delays unrelated to the statutory purposes of public and personal safety." (emphasis

added)).

39

29 C.F.R. § 1978. llO(e).