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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

NAHUN GUTIERREZ,

ARB CASE NO. 2024-0013

COMPLAINANT,

ALJ CASE NO. 2022-STA-00043

ALJ ANGELA F. DONALDSON

DATE: May 22, 2026

R.B. STEWART PETROLEUM

PRODUCTS, INC.,

JUSTIN FREY, and SAM POGUE,

RESPONDENTS.

Appearances:

For the Complainant:

Peter L. LaVoie, Esq. and Paul O. Taylor, Esq.; Truckers Justice

Center; Edina, Minnesota

For the Respondents:

Kevin Cazalas, Esq.; Buc-cee’s Ltd.; Pearland, Texas; Tashwanda

Pinchback Dixon, Esq.; Balch & Bingham LLP; Atlanta, Georgia

Before KAPLAN and KIKO, Administrative Appeals Judges

DECISION AND ORDER

This case arises under the Surface Transportation Assistance Act of 1982

(STAA), as amended, and its implementing regulations.1 Complainant Nahun

Gutierrez filed a complaint with the United States Department of Labor’s

Occupational Safety and Health Administration (OSHA) alleging that Respondents

R.B. Stewart Petroleum Products, Inc., Justin Frey, and Sam Pogue retaliated

against him for engaging in STAA protected activity. A United States Department

of Labor Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.)

49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2025).

denying Complainant’s complaint. Complainant petitioned the Administrative

Review Board (ARB or Board) for review. For the following reasons, affirm the

ALJ’s D. & O.

BACKGROUND

Complainant was employed by R.B. Stewart Petroleum Products, Inc. (RBS)

from June 27, 2017, to February 21, 2022.2 Complainant’s official title was “Tanker

Driver.”3 As a Tanker Driver, Complainant was responsible for picking up,

transporting, and delivering fuel.4

During a shift that began on February 15 and ended in the early morning

hours of February 16, 2022, Complainant completed multiple deliveries and took

several breaks.5 At approximately 3:46 a.m., while driving back toward RBS’s

terminal, Complainant began experiencing symptoms of fatigue and parked his

truck on the shoulder of a two-lane highway, where he remained for approximately

32 minutes.6

While the truck was parked, Complainant activated the truck’s hazard

flashers but did not place reflective warning triangles behind the truck, and the

truck was not positioned at a sufficient distance from the roadway, in violation of

RBS’s Transportation Policies & Procedures Manual (RBS’s Transportation

D. & O. at 7.

Id.

Id. at 10-11.

Id.

Policies)7 and Department of Transportation (DOT) regulations.8 Once stopped,

Complainant did not notify dispatch or management that he was fatigued or that he

had stopped driving.9 Drivers are permitted to take reasonable breaks during shifts,

but are required to record any break or change in duty status in their driver logs,

and to notify dispatch if a break exceeds approximately 25-30 minutes.10 Moreover,

drivers who cannot complete their shift due to fatigue or illness are required to

notify dispatch, so that dispatch can determine whether the driver could safely

return to RBS’s terminal or, if not, arrange for a replacement driver to take over to

RBS’s Transportation Policies state, in pertinent part:

Reflective Triangles: There are three (3) reflective triangles in

the cab of the truck located in a red plastic box. These triangles

are to be used for mechanical breakdowns or roadside flat tire

repairs, or any other time the vehicle is stopped on the traveled

portion or the shoulder of a highway for any reason other than

necessary traffic stops. These reflective triangles should be

placed in accordance with [DOT] regulations.

Id. at 12-13. RBS’s Transportation Policies also state, “[a] driver who experiences any of the

above [fatigue] warning signs should immediately get off the road and stop where safely

and legally allowed to stop to get rest and to awaken the body and mind[,]” and “[i]n transit

drivers are expected to: . . . [p]lan breaks and stops at reputable and established truck stops

or rest areas where other trucks are present.” Joint Exhibit (JX) 11 at 2; JX-24 at 32, 38; see

D. & O. at 17.

At the time relevant to this case, DOT regulations provided, in pertinent part:

[T]he driver shall, as soon as possible, but in an event within 10

minutes, place the warning devices . . . in the following manner:

(i) One on the traffic side of and 4 paces (approximately 3 meters

or 10 feet) from the stopped commercial motor vehicle in the

direction of approaching traffic; (ii) One at 40 paces

(approximately 30 meters or 100 feet) from the stopped

commercial motor vehicle in the center of the traffic lane or

shoulder occupied by the commercial motor vehicle and in the

direction of approaching traffic; and (iii) One at 40 paces

(approximately 30 meters or 100 feet) from the stopped

commercial motor vehicle in the center of the traffic lane or

shoulder occupied by the commercial vehicle and in the direction

away from the approaching traffic.”

49 C.F.R. § 392.22. The DOT amended this regulation in 2026, in a manner not relevant to

this appeal, to remove the references to liquid-burning flares from the warning device

requires in the Federal Motor Carrier Safety Regulations. Parts and Accessories Necessary

for Safe Operation; Liquid-Burning Flares, 91 Fed. Reg. 7867 (Feb. 19, 2026) (Final Rule).

See D. & O. at 12, 17, 26.

See id. at 7-8, 11.

complete the shift.11 Complainant was aware of these policies and practices and had

previously used the replacement-driver practice on several occasions.12

Shortly after the February 15-16 shift ended, dispatch asked management to

review Complainant’s driving logs because of concerns about the length of the shift

and whether Complainant was “milking the clock.”13 Justin Frey, Regional

Operations Manager, and Sam Pogue, Director of Safety, reviewed the logs and

obtained video footage of Complainant’s 3:46 a.m. stop.14 The video footage showed

that Complainant had stopped on the shoulder of a dark, high-speed roadway for an

extended period without deploying warning devices and in close proximity to

passing traffic.15 Frey and Pogue viewed these actions as serious safety violations

given the hazardous nature of the cargo and the risks posed to the public and

Complainant.16 After reviewing the logs and footage, Frey and Pogue recommended

terminating Complainant’s employment due to unsafe conduct.17 The termination,

however, could not be finalized without approval from RBS’s vice president, who

had final authority over that decision.18 At the time Frey and Pogue recommended

termination, Complainant had not reported that he stopped because of fatigue.19

When Complainant reported for his next scheduled shift, on February 16-17,

RBS’s vice president had not yet responded to the termination recommendation.20

Frey and Pogue therefore arranged for a driver trainer to accompany Complainant

on the shift.21 During this shift, Complainant reported to the driver trainer that he

was fatigued and stopped driving.22 The driver trainer relayed this information to a

supervisor, drove Complainant back to RBS’s terminal as instructed by the

supervisor, and then completed the assigned deliveries.23 Later that evening,

Id. at 8.

Id. at 5, 8.

Id. at 11.

Id. at 11-12.

Id. at 12.

Id. at 12, 14.

Id. at 14.

Id.

Id. at 15.

Id. at 14.

Id.

Id. at 15.

Id.

Complainant sent management an email reporting fatigue symptoms he

experienced during the February 16-17 shift.24

On February 17, management received notice of Complainant’s email and

discussed it internally.25 Management did not forward the email or its contents to

RBS’s vice president because “the decision was already made” to terminate

Complainant based on his conduct during the February 15-16 shift.26 By early

afternoon, RBS’s vice president approved the termination, and human resources

drafted language for the termination notice and emailed the proposed language to

management for approval.27 Later that afternoon, Complainant notified dispatch

that he was ill and would not report to work.28

Complainant was next scheduled to work on Sunday, February 20, but was

instructed not to report due to an ongoing investigation.29 Instead, Complainant

was directed to report the following day because corporate personnel were

unavailable on Sundays.30 On February 21, Frey and Pogue met with Complainant

and terminated his employment.31 The termination notice outlined Complainant’s

conduct during the February 15-16 shift and cited violations of RBS’s

Transportation Policies and DOT regulations.32 Frey and Pogue also considered

Complainant’s prior training and disciplinary history in connection with the

termination decision.33 During the termination meeting, Complainant stated that

he stopped during the February 15-16 shift because he was tired.34

On March 1, 2022, Complainant filed a complaint with OSHA alleging that

Respondents retaliated against him in violation of the STAA.35 On April 4, 2022,

OSHA issued Secretary’s Findings, concluding that there was no reasonable cause

Id. at 16.

Id.

Id. at 16-17.

Id. at 17.

Id.

Id. at 3.

to believe a violation occurred and dismissed the complaint.36 Complainant filed

objections to the Secretary’s Findings and requested a hearing before the Office of

Administrative Law Judges (OALJ).37

The ALJ held a formal hearing on January 11-12, 2023.38 On December 28,

2023, the ALJ issued a D. & O., finding that Complainant’s protected activity was

not a contributing factor in his employment termination and, in the alternative,

Respondents would have terminated Complainant absent his protected activity.39

Complainant filed a timely petition for review with the Board. Both parties

filed briefs.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to review appeals

from ALJ decisions and to issue agency decisions in cases arising under the STAA.40

In STAA cases, the Board reviews questions of law presented on appeal de novo, but

is bound by the ALJ’s factual findings if they are supported by substantial

evidence.41 Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”42 Under this standard, the

“threshold for such evidentiary sufficiency is not high.”43 When reviewing decisions

under a substantial evidence standard, the Board is precluded from “deciding the

facts anew, making credibility determinations, or re-weighing the evidence.”44

See id.

Id.

Id. at 2.

Id. at 28.

Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of

Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB

decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020).

29 C.F.R. § 1978.110(b); Halliday v. Transp. Express, Inc., ARB No. 2023-0024,

ALJ No. 2020-STA-00067, slip op. at 11 (ARB Oct. 7, 2024) (citing Dick v. USAA, ARB No.

2022-0063, ALJ No. 2018-STA-00054, slip op. at 10 (ARB Apr. 16, 2024)).

Halliday, ARB No. 2023-0024, slip op. at 11 (citing Stokes v. Albertson’s, LLC,

ARB No. 2022-0007, ALJ Nos. 2020-STA-00080, -00082, slip op. at 5 (ARB May 20, 2022)).

Biestek v. Berryhill, 587 U.S. 97, 103 (2019).

Dick, ARB No. 2022-0063, slip op. at 16 n.116 (quoting Clem v. Comput. Scis. Corp.,

ARB No. 2020-0025, ALJ Nos. 2015-ERA-00003, -00004, slip op. at 13 (ARB Mar. 10,

2021)).

DISCUSSION

1. Governing Law

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 protected activity.45 To prevail

on a STAA claim, a complainant must prove by a preponderance of the evidence

that: (1) he engaged in activity that STAA protects; (2) his employer took adverse

action against him; and (3) his protected activity was a contributing factor in the

adverse action.46 If the complainant meets this burden of proof, the respondent may

avoid liability if it establishes an affirmative defense, proving by clear and

convincing evidence that it would have taken the same adverse action in the

absence of the complainant’s protected activity.47

2. Complainant’s Alleged Protected Activity Did Not Contribute to His

Employment Termination

To prove causation in a STAA whistleblower case, a complainant must prove

that his protected activity was a contributing factor in the adverse action taken

against him.48 The Board has noted that this is a relatively low standard for an

employee to meet—the activity need only play some role and “need not be

‘significant, motivating, substantial or predominant.”49 Complainants may meet

their evidentiary burden for the contributing factor element with circumstantial

evidence.50 Circumstantial evidence may include, but is not limited to, temporal

proximity, inconsistent application of an employer’s policies, pretext, shifting

explanations by the employer, or antagonism.51 While the Board recognizes that

49 U.S.C. § 31105(a)(1); see also 29 C.F.R. § 1978.102(a). STAA complaints are

governed by the legal burdens of proof set forth in the employee protection provisions of the

Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21).

49 U.S.C. § 31105(b)(1); 49 U.S.C. § 42121(b).

49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1978.109(a); Halliday, ARB No. 20230024, slip op. at 12 (citations omitted).

49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1978.109(b); Halliday, ARB No. 20230024, slip op. at 12 (citations omitted).

49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1978.109(a); Halliday, ARB No. 20230024, slip op. at 12 (citations omitted).

Dick, ARB No. 2022-0063, slip op. at 14 (citing Simpson v. Equity Transp. Co., ARB

No. 2019-0010, ALJ No. 2017-STA-00076, slip op. at 9 (ARB May 13, 2020)).

Halliday, ARB No. 2023-0024, slip op. at 22 (citing Williams v. QVC Inc., ARB No.

2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12 (ARB Jan. 17, 2023)).

Id.

temporal proximity is an important part of a case based on circumstantial evidence,

and is often the most persuasive factor, the causal inference that temporal

proximity gives rise to may be severed by a legitimate intervening event, especially

one undertaken by the complainant.52

Although the ALJ determined that Complainant engaged in protected

activity by ceasing to operate his vehicle due to fatigue and by reporting fatigue and

illness to Respondents, the ALJ concluded that Complainant failed to establish that

his protected activity was a contributing factor in the decision to terminate his

employment.53 The ALJ found that management terminated Complainant’s

employment after reviewing driver logs and video footage showing that he stopped

his truck on the shoulder of a highway while transporting hazardous materials,

failed to place required reflective warning devices, failed to position the vehicle a

safe distance from the roadway, and failed to notify dispatch or request assistance.54

The ALJ determined that these actions were viewed as serious safety violations and

that Respondents’ decision to terminate Complainant was made before Complainant

reported fatigue symptoms, stopped driving during the February 16-17 shift, or

called in sick on February 17.55

On appeal, Complainant argues that the ALJ misapplied the contributing

factor standard and failed to give proper weight to the evidence showing that his

protected activity contributed to his termination.56 Complainant further contends

that Respondents knew about his protected activity before deciding to terminate his

employment and that the temporal proximity between his protected activity and

termination was not negated by intervening events because the events were

inextricably intertwined with the protected activity.57

The Board disagrees. The ALJ thoroughly discussed the record evidence and

explained her factual findings in support of her legal conclusions. Substantial

evidence supports the ALJ’s finding that any protected activity in which

Complainant engaged in did not contribute to his termination.

Bush v. Donato’s Pizza, ARB No. 2024-0009, ALJ No. 2022-TAX-00006, slip op. at 8

(ARB Dec. 30, 2025) (citing Jones v. Exclusive Jets, LLC, ARB No. 2023-0035, ALJ No.

2022-AIR-00003, slip op. at 16 (ARB Dec. 31, 2024)).

D. & O. at 23-27.

Id. at 25-27.

Id. at 24-27.

Complainant’s Brief on Review (Comp. Br.) at 15-26.

Id. at 16-26.

First, Respondents lacked knowledge of Complainant’s alleged protected

activity during the February 15-16 shift when he stopped on the shoulder of the

highway. Complainant did not communicate to dispatch or management that he

had stopped driving due to fatigue until the termination meeting five days later.58

Although management reviewed video footage of the stop and could have inferred

that Complainant was resting or sleeping, such inference does not establish

knowledge that he was refusing to drive because of fatigue or otherwise engaging in

protected activity. Drivers routinely took breaks throughout their shift for reasons

unrelated to protected activity.59 Further, when a driver took an extended break or

was unable to complete a shift due to fatigue or sickness, the driver was expected to

call dispatch.60 A refusal is protected only if it provides sufficient context to put the

respondent on notice that it is grounded in an actual or perceived safety or

regulatory violation.61 Here, Complainant provided no explanation until the

termination meeting, and the surrounding circumstances did not place Respondents

on notice or indicate that Complainant was refusing to drive based on an actual or

perceived safety or regulatory violation.

Second, assuming for the sake of argument that Respondents knew or should

have known that the stop constituted protected activity, intervening events severed

any causal connection between the protected activity and termination. Specifically,

during this stop, Complainant parked the truck on the shoulder of a dark, highspeed highway and failed to place the required reflective triangles behind the

vehicle.62 These choices were independent and serious safety violations that created

a hazard to Complainant and the public, particularly given the nature of cargo.63

Complainant has argued that Respondent’s reason for taking adverse action against

him is “inextricably intertwined” with Complainant’s protected activity, but that

fact alone could not establish causation.64 The relevant inquiry is whether the

protected activity itself influenced the decision-makers.65 Here, substantial evidence

D. & O. at 15, 17, 24-26.

Id. at 7-8.

Id. at 8.

See Sharpe v. Geiger Excavating, Inc., ARB No. 2024-0038, ALJ No. 2023-STA00027, slip op. at 6 (ARB Apr. 29, 2026) (evaluating a refusal to drive claim in the context of

protected activity analysis, though the same reasoning applies here) (citations omitted).

D. & O. at 11-13, 24-26.

Id. at 12, 14, 26.

The Board has maintained that the “inextricably intertwined” or “chain-of-events”

analysis cannot substitute for contributing factor causation. Klinger v. BNSF Ry. Co., ARB

No. 2019-0013, ALJ No. 2016-FRS-00062, slip op. at 9 (ARB Mar. 18, 2021) (holding that

reliance on an “inextricably intertwined” theory constitutes legal error).

See id. (citing Riddell v. CSX Transp., Inc., ARB No. 2019-0016, ALJ No. 2014-FRS00054, slip op. at 21 n.13 (ARB May 19, 2020) (“Even in situations in which both the

supports that management was not influenced by the stop itself, but by the manner

in which Complainant stopped—namely, his choice of an unsafe location and his

failures to take required safety precautions during the stop.

Third, with respect to Complainant’s reports of fatigue symptoms, decision to

cease driving during the February 16-17 shift, and his February 17 call-out,

substantial evidence supports the ALJ’s finding that those protected activities were

not a contributing factor in his termination because Respondents had already

decided to terminate Complainant based on their investigation into his February

15-16 conduct. This finding is supported by credible testimony and

contemporaneous documentary evidence. Specifically, Frey and Pogue credibly

testified that, after reviewing the video of the incident, they concluded that

termination was warranted and recommended that course of action to RBS’s vice

president before any protected activity occurred after Complainant’s February 15-16

shift.66 Their testimony was corroborated by emails detailing management’s

investigation into Complainant’s February 15-16 shift, driver logs, and video

footage.67

Although management reviewed and discussed Complainant’s fatigue email

before RBS’s vice president approved the recommended termination, they did not

forward the email or convey its content to him.68 Moreover, once RBS’s vice

president approved the termination, human resources drafted and emailed the

proposed termination language to managers before Complainant later called in sick

that same day and before he first explained that his February 15-16 shift stop was

attributable to fatigue.69

protected activity and the employer’s non-protected reason for adverse action arise from the

same bundle of events or situations in which the protected activity incidentally initiated the

sequence that resulted in the adverse action, the ALJ, as the fact-finder, must still decide

whether the protected activity ‘contributed to’ the adverse decision.”).

D. & O. at 11-12, 23-24.

Id.

In Complainant’s Reply Brief, he argues that the law does not permit an employer to

insulate itself from liability by creating “layers of bureaucratic ignorance” between a

whistleblower’s direct line of management and the final decision-maker. Comp. Reply at 5.

Complainant did not raise this argument before the ALJ or in his opening brief before the

ARB. The Board does not typically consider arguments raised for the first time in a reply

and declines to do so here. Thibodeau v. Wal-Mart Stores, Inc., ARB No. 2017-0078, ALJ

No. 2015-SOX-00036, slip op. at 19 n.100 (ARB Dec. 17, 2020) (citation omitted).

D. & O. at 16, 23-24.

It is a central to the concept of causation, that for an act to cause an outcome,

the act must occur first. Accordingly, the Board affirms the ALJ’s finding as it

supported by substantial evidence.

3. Respondents Demonstrated by Clear and Convincing Evidence They

Would Have Terminated Complainant’s Employment in the Absence of

His Protected Activity

If a complainant demonstrates that his protected activity was a contributing

factor in the adverse action, the respondent may avoid liability if it demonstrates by

clear and convincing evidence that it would have taken the same adverse action in

the absence of the complainant’s protected activity.70 The Board has previously held

an employer satisfies this burden when it shows that it is “highly probable” it would

have taken the action in the absence of protected activity.71

The ALJ concluded that even if Complainant had met his burden to show

contributing factor causation, Respondents would still have avoided liability

because they showed by clear and convincing evidence that they would have taken

the same action regardless of any protected activity.72 Specifically, the ALJ found

that: (1) the termination was based on serious safety violations during the February

15-16 shift; (2) there was no evidence of retaliatory animus or pretext; and (3)

credible testimony established that Complainant would not have been terminated

had he followed required safety procedures or contacted dispatch for assistance.73

On appeal, Complainant argues that the ALJ erred by failing to give proper

weight to evidence and by improperly relying on her causation findings, which do

not satisfy the heightened clear and convincing standard.74 Complainant also

argues that Respondents failed to present evidence of consistent discipline for

similar policy violations and lacked a legitimate business justification for the

termination.75 Complainant further argues that Respondents’ policy concerning

reflective triangles for longer stops is arbitrary and illogical, and that under the

circumstances, he made the best decision available because he could neither

continue driving lawfully nor park the truck at a safer location.76

29 C.F.R. § 1978.109(b).

Simpson, ARB No. 2019-0010, slip op. at 9 (citing Palmer v. Canadian Nat’l Ry.,

ARB No. 2016-0035, ALJ No. 2014-FRS-00154, slip op. at 52 (ARB Jan. 4, 2017)).

D. & O. at 27-28.

Id. at 28.

Comp. Br. at 27-29.

Id. at 28-30.

Id. at 31-32.

Again, the Board disagrees. The ALJ’s finding that Respondents would have

terminated Complainant’s employment in absence of his protected activity is

supported by substantial evidence. Respondents terminated Complainant’s

employment because he created a serious hazard by stopping on the shoulder of a

dark, high-speed roadway while hauling hazardous materials, parking too close to

the travel lane, and failing to timely deploy reflective triangles, in violation of

company policy and safety regulations.77 The ALJ reasonably credited testimony

from Frey and Pogue that Complainant would not have been terminated had he

stopped safely, contacted dispatch, or properly used warning devices.78 That

testimony was supported by evidence that Respondents routinely accommodated

fatigued drivers without discipline by allowing rest, arranging relief drivers, or

transporting drivers back to the terminal.79 Complainant even acknowledged he had

previously used those options.80

In addition, Respondents’ explanation remained consistent and was

corroborated by company policies, training materials, logs, video footage, and the

termination notice.81 Respondents had established fatigue-reporting and roadsidesafety procedures, trained drivers on them, and Complainant knew those

procedures.82

Finally, as noted by the ALJ, there was no evidence of retaliatory animus,

hostility to fatigue complaints, shifting explanations, inconsistent enforcement, or

any other signs of pretext.83 Accordingly, the Board affirms the ALJ’s finding as it is

supported by substantial evidence.

Id. at 14, 17, 28.

Id. at 12-14, 28.

Id. at 13-14, 28.

Id. at 5, 8, 28.

Id. at 7-8, 11-13, 28.

Id. at 5, 7-8, 28.

Id. at 28.

CONCLUSION

For the reasons stated above, we AFFIRM the ALJ’s D. & O. Accordingly,

Complainant’s complaint is DENIED.

SO ORDERED.

ELLIOT M. KAPLAN

Administrative Appeals Judge

PHILIP G. KIKO

Administrative Appeals Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.