U.S. Department of Labor
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U.S. Department of Labor
Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001
IN THE MATTER OF:
WILLIAM HALLIDAY,
ARB CASE NO. 2023-0024
COMPLAINANT,
ALJ CASE NO. 2020-STA-00067
ALJ FRANCINE L. APPLEWHITE
v.
DATE: October 7, 2024
TRANSPORT EXPRESS,
INC.,
and
DAN PIET,
RESPONDENTS.
Appearances:
For the Complainant:
Peter L. LaVoie, Esq. and Paul O. Taylor, Esq.; Truckers Justice
Center; Edina, Minnesota
For the Respondents:
Heather D. Erickson, Esq.; Sanchez Daniels & Hoffman, LLP; Chicago,
Illinois
Before HARTHILL, Chief Administrative Appeals Judge, and THOMPSON,
Administrative Appeals Judge
DECISION AND ORDER AFFIRMING IN PART, VACATING IN PART,
AND REMANDING
HARTHILL, Chief Administrative Appeals Judge:
2
This case arises under the Surface Transportation Assistance Act of 1982
(STAA), as amended, and its implementing regulations.1 William Halliday
(Complainant) filed a complaint with the United States Department of Labor’s
Occupational Safety and Health Administration (OSHA) alleging that Transport
Express and Dan Piet (collectively, Respondents) retaliated against him in violation
of the STAA’s whistleblower protection provisions. Following a hearing, a United
States Department of Labor Administrative Law Judge (ALJ) issued a Decision and
Order Denying Complaint (D. & O.) on March 3, 2023. Complainant appealed to the
Administrative Review Board (ARB or Board). For the reasons explained below, we
vacate the ALJ’s dismissal of Complainant’s complaint and remand for further
proceedings consistent with the Board’s opinion.
BACKGROUND
Complainant, a commercial vehicle driver with 35 years of experience,
worked as a Class A hazmat line-haul driver for Transport Express, a Hazelwood,
Missouri-based trucking company, from July 8 to September 27, 2019.2
Complainant drove loaded trucks from the Wood Dale/Chicago, IL location of
Transport Express to a Dixie Truck Stop in McLean, IL, where he exchanged
trailers with another Transport Express driver who arrived from Hazelwood, MO.3
The other driver and Complainant then drove to their respective Transport Express
sites in Wood Dale and Hazelwood. Complainant’s shift hours were 10 p.m. to 6 a.m.
Complainant’s duties included notifying a supervisor of issues with the equipment
assigned to him and completing inspection reports at the start and end of his shifts:
pickup and delivery reports (P & D reports) and driver’s vehicle inspection reports
(DVIRs).4 He also informed management of safety concerns verbally and in text and
email messages.5
During his 3-month employment tenure, Complainant filed at least 18
written complaints about the safety condition of the trucks Transport Express
assigned to him.6 He made complaints to his direct supervisor and Wood Dale, IL
1
49 U.S.C. § 31105; 29 C.F.R. Part 1978 (2024).
D. & O. at 4. Hazelwood is a suburb of St. Louis, MO. The record sometimes states
Transport Express’s main office is Hazelwood and sometimes states it is in St. Louis.
2
Wood Dale, IL, is located near Chicago. The record refers to the Wood Dale, IL
location of Transport Express as the Wood Dale location and the Chicago location
interchangeably.
3
4
D. & O. at 4; Tr. at 35.
5
JX-1, JX-4.
6
D. & O. at 4.
3
operations manager, Piet, as well as to the Wood Dale second shift operations
manager, Javier Serrano.7 Complainants’ reports included the following:
(1) July 10, 2019: Diesel exhaust fluid tank warning light and buzzer was
on. Complainant’s OSHA complaint states Complainant reported tires that
had exposed belting materials in violation of commercial motor vehicle safety
regulations.
(2)
July 19, 2019: Leak of the rear tandem oil seal.
(3)
July 22, 2019: Complainant’s OSHA complaint states Complainant
reported that his Tablet was malfunctioning, which Respondent denied.
(4)
July 23, 2019: Trailer with two bald tires.
(5)
July 24, 2019: Tire had sidewall puncture and belt showing.
(6)
July 25, 2019: “Hazmat on side - not secured; bald tire.”
(7)
August 1, 2019: Complainant’s OSHA complaint states that he asked
Respondent Piet for paper logs due to his tablet malfunctioning.
(8)
August 9, 2019: “Rear trailer tire, passenger side illegal,” and rear door
driver’s side needed replacement, “cannot lock door.”
(9)
August 10, 2019: Inside tire “illegal.”
(10) August 13, 2019: “Missing power divider toggle switch.”
(11) Undated: “Right rear outside tire - less than 2/32. Illegal.”
(12) August 16, 2019: “Trailer left door rod needs alignment, will not lock.”
Trailer has “no registration.”
(13) August 21, 2019: Needed windshield wipers; “weather strip the door,
lic[ense] plate light out” on trailer.
(14) August 23, 2019: Reefer unit license plate light was out.
(15) August 27, 2019: “Rear tandems on fire, both sides,” right and left.
Needed fire extinguisher. “Possibly brake chambers. 2 flats.”
(16) September 7, 2019: “Bad vibration, pulls to right at 53-65 mph.”
(17) September 20, 2019: ABS warning light was on, “front bumper not
secured, protruding,” “missing rig certification label.”
(18) September 21, 2019: “Pre-existing bumper damage getting worse,”
“tire driver’s side inside tread separating.”
(19) September 23, 2019: “Front bumper ext. not secured, protruding.
Missing rig certification label.”8
On September 23, 2019, Complainant flagged a cracked bumper and an
illuminated ABS warning light on tractor 3072 in a pre-trip DVIR report.9 He
sought paperwork from Serrano confirming that tractor 3072 was safe to drive in
7
D. & O. at 6.
Id. at 4-5, 9-11. The ALJ analyzed 18 of these internal complaints as potentially
protected activity, but, without explanation, did not include the July 22, 2019 complaint in
their analysis. Id.
8
9
DX-1 at 110.
4
case he was pulled over by the police.10 He also told Serrano the tractor’s bumper
needed to be replaced.11 Serrano told Complainant that the bumper on tractor 3072
was secure and offered Complainant an alternative vehicle. Complainant declined
the alternative vehicle and drove tractor 3072 from Wood Dale to McLean the night
of September 23, 2019.12 Complainant submitted a post-trip DVIR report upon his
return to Wood Dale the morning of September 24, 2019, again stating there was an
issue with the “body” of tractor 3072.13 Complainant asked Piet about the bumper
again on September 24, 2019.14
Complainant emailed Piet later the same day, attaching “the applicable
[f]ederal [r]egulation” and stating “[t]his is the identical regulation that you
acknowledged receiving from me last week. You stated that the DVIR inspection
was an internal document and you would look into the regulation.”15 Complainant
wrote, “[a]s you know, in the past 90 days I have already had numerous
maintenance issues.” He listed some issues he had encountered, stating “these are
all inspection issues that are not being done by other drivers.”16 Complainant
further reported that [a]s the regulation states, [t]he Driver is prohibited from
operating the motor vehicle if the carrier fails to make certification.” He stated:
I would appreciate having the defects I recorded on the
DVIR this morning on unit 3072 certified as repaired or
unnecessary in accordance with the regulation below. If
you feel the bumper issue is as you state ‘only plastic’ just
mark the DVIR as unnecessary and sign it. That way I can
produce the document during an inspection if necessary. As
far as the[o]ther violation I documented on the DVIR is the
Rear Impact Guard missing certification. The regulation is
393.86. And, it is a 6 point violation against the driver.[17]
10
Tr. 142-43.
11
Id. 143.
12
Id. at 145, 170, 255-56
13
DX-1 at 111.
14
Tr. at 79-80.
15
JX-1 at 25-26, 28.
16
Id.
17
Id. at 28.
5
Complainant attached information on § 396.11 from the Department of
Transportation’s Federal Motor Carrier Safety Administration (FMCSA) website to
his email to Piet.18
Piet texted Complainant that same day to inform him that his September 24
route was cancelled.19
On September 25, 2019, Complainant filed a complaint with the FMCSA, in
which he alleged, in part, that Transport Express failed to properly repair and
maintain its trucks, refused to make repair certifications required by federal
regulation (§ 396.11), and threatened him with no work if he refused to operate
equipment without DVIR review.20 Complainant received a message cancelling his
route that day as well and another cancellation message on September 26, 2019.21
On September 27, 2019, Piet called Complainant to inform him that
Transport Express no longer needed his services as a second driver due to a
reduction in freight tonnage.22 One or two days later, Complainant received a
formal letter signed by Piet terminating his employment. Alan Redszus, Transport
Express’ owner and general manager, made the final decision to terminate
Complainant’s employment based on feedback he received from Piet and Serrano.23
PROCEDURAL HISTORY
1. OSHA Complaint
Complainant timely filed an OSHA complaint on September 27, 2019, in
which he alleged Transport Express violated the STAA by terminating him after he
submitted internal reports of mechanical defects and informed his supervisor he
would file a Department of Transportation complaint.24 Complainant amended his
complaint on November 14, 2019 to include a refusal to drive his assigned truck for
18
Id. at 25.
19
D. & O. at 6; Tr. at 149.
20
D. & O. at 5.
21
Tr. at 149-50.
22
D. & O. at 6; Tr. at 149-50.
23
Tr. at 287-88.
24
D. & O. at 2.
6
protected reasons.25 OSHA dismissed the complaint on April 23, 2020, upon finding
no reason to believe Respondents had violated the STAA.26
2. ALJ Proceedings
On May 14, 2020, Complainant filed a timely appeal with the Office of
Administrative Law Judges and an ALJ held an evidentiary hearing via video on May
10, 2022, and June 9, 2022.27
Complainant testified regarding the truck defects and his reports of defects,
explaining that seemingly minor defects impacted his “[Federal Motor] CSA record,
driver’s license. It could result in a ticket or a violation, a fine” and signal that “I
don’t inspect the trucks right.”28 Complainant testified that he sought documents
from Transport Express showing repairs were made that he could produce “in case
[he was] pulled over for inspection.”29 Complainant stated he told Piet on September
24, 2019, “about all of the things that have gone on for the last several weeks that to
my knowledge were never repaired and never taken care of.”30 Complainant
testified he filed an FMCSA complaint on September 25, 2019, because “I wasn’t
getting anywhere through normal channels at work trying to get these issues taken
care of.”31
Complainant testified that he received a text message on September 24,
2019, telling him work was cancelled for that night and he thought Piet said the
tractor was going in for repair.32 Complainant stated that on September 27, 2019,
Piet called Complainant and told him that “the work volume had decreased, and
they no longer had the freight tonnage to go up there. And they don’t need the
second driver, and so they were moving in a different direction.”33 Complainant
“took it as a layoff, because he mentioned freight volume. I was under the
impression that when the freight volume came back I was going back. I didn’t view
it as a termination.”34
25
Id.
26
Id.
27
Id.
28
Tr. at 129-30.
29
Id. at 146.
30
Id. at 147.
31
Id. at 148.
32
Id. at 149.
33
Id. at 150.
34
Id.
7
Piet testified that Transport Express “tried to fix everything [Complainant
reported as defective] immediately. Every day it was written up, we tried to fix it.”35
Respondent presented evidence and testimony that it terminated Complainant’s
employment because he had a bad attitude and threatened to leave equipment at
the truck stop. Regarding attitude, Piet testified that he recommended Complainant
be fired because:
[he] had an ongoing attitude with our people. He didn’t like
our personnel. He didn’t like our equipment. He didn’t like
our management. He didn’t seem to get along with
anybody. He didn’t like doing normal truck driver
responsibilities as far as fueling his truck and whatever.
He had made threats on a couple of occasions of leaving our
equipment behind. It always – it kept constant on,
repeating over and over that he didn’t need this job, he
didn’t need to be here. Plenty of jobs out there for him.[36]
Piet also testified that Complainant “had an arrogance about him, that he was
smarter than everybody else, that he knew more than everybody else.”37 Piet
testified that Complainant’s September 24, 2019 email to him reporting
Respondent’s regulatory non-compliance (49 C.F.R. § 396.11) played no part in his
recommendation that Transport Express terminate Complainant’s employment.38
Serrano testified that Complainant called Transport Express’ equipment
“pieces of shit” and “complain[ed] about all our equipment numerous times,39 and
said “he did not need this job, he’s been doing this for many years, he could get a job
anywhere he wants by tomorrow.”40 Complainant explained that he used an
expletive in describing Transport Express equipment because the truck he was
referring to had previously been in a rollover accident but was subsequently placed
back in service even though “[t]he steering wheel shook violently. . . [and] you had
to really grab a hold of it and hold onto it to keep [the truck] between the lines.” 41
35
Id. at 104.
36
Id. at 231-32.
37
D. & O. at 7 (citing Tr. at 83).
38
Tr. at 235.
39
Id. at 38, 41.
40
Id. at 43.
41
Id. at 148.
8
Redszus testified that he decided to fire Complainant because Complainant
“didn’t fit our organization.” He was “very vocal” to supervisors about his
unhappiness with his employment at Transport Express. “Between that portion of
it, there was an attitude that [he] was conveying that he was more knowledgeable
in his responsibilities than anybody within management . . . .” Redszus also noted
they were reviewing his overall performance including his attitude, behavior, “and
the message he was conveying to the supervision that . . . he may not bring a load
back from his meeting point . . . .”42
Regarding Complainant’s threats to leave equipment, Piet and Serrano
testified that Complainant told Serrano that if the other Transport Express driver
he swapped trailers with at McLean brought a trailer without a working license
plate light, he would leave the trailer at the Dixie Truck Stop in McLean.43
However, Serrano further testified that Complainant did not leave equipment at the
Dixie Truck Stop, and that he did not discipline or reprimand Complainant for his
remarks about potentially leaving equipment behind.44
Complainant explained that he was concerned with inoperable license plate
lights on a trailer because they are:
the number one violation for DOT. It’s what gets you pulled
over when the police are driving up and down the road.
Once they see that license plate bulb out in back of the
trailer, you’re pulled over, and that leads to the different
inspections that [can] lead to other issues.[45]
Piet also testified that at some point during Complainant’s employment,
Complainant was unable to refuel his tractor with Transport Express’ method of
payment, paid for fuel himself, and was later reimbursed. Piet testified
Complainant said that if he had any other issues with fueling that he was going to
leave his trailer, “and grab an Uber and bring himself home . . . . F- those people in
St. Louis. I don’t need this anymore.’”46
Complainant acknowledged that he had told Serrano he would leave a truck
at the Dixie truck stop in McLean but explained that he made those remarks in the
context of not wanting to drive defective equipment. He testified that he noted
defects upon inspecting the trailers passed on to him at the truck stop in McLean
42
Id. at 281-82.
43
Id. at 229, 257, 260-61.
44
Id. at 267.
45
Id. at 129. We note that Complainant’s shift hours were at night.
46
Id. at 83-84, 229-30.
9
that had been missed by the previous driver.47 He stated that his comments were
part of “conversations taken out of context of longer statements regarding what I
was supposed to do up at Dixie at the truck stop if I ran out of hours and I couldn’t
get back. It’s these trucks were coming to me that needed repair or couldn’t be
driven. If there were out of service violations, how I was supposed to get home in
the middle of nowhere?”48
3. ALJ Decision
A. Protected Activity
The ALJ determined that Complainant had not engaged in protected activity
involving the refusal to operate a vehicle on September 23, 2019. The ALJ noted
that Complainant wanted paperwork showing that certain conditions (ABS warning
light, cracked front bumper, missing RIG certification sticker) were repaired or that
repairs were unnecessary. Complainant wanted the paperwork “so that he wouldn’t
be penalized if pulled over for inspection.”49 The ALJ found that seeking such
documentation “does not constitute ‘reasonable apprehension of serious injury’ or a
belief that operation of the vehicle would violate safety regulations.”50 The ALJ
further found Complainant had not engaged in protected activity via refusal to
operate because he in fact drove the vehicle on September 23, 2019.51
The ALJ identified at least 18 internal complaints Complainant submitted to
management and determined whether Transport Express responded to or corrected
each one.52 The ALJ acknowledged that internal complaints can constitute
protected activity, but concluded most complaints were not protected because
Transport Express responded to or repaired the concerns.53
The ALJ did, however, find that 5 of Complainant’s safety reports constituted
protected activity because the evidence did not show that Transport Express
47
Id. at 128.
48
Id. at 153.
49
D. & O. at 15.
50
Id.
51
Id.
52
Id. at 4-5, 9-11; see supra, pp. 2-3.
D. & O. at 14 (citing LeBlanc v. Fogelman Truck Lines, Inc., Case No. 1989-STA00008 (Sec’y Dec. 20, 1989)).
53
10
responded to them.54 The ALJ also noted Complainant’s testimony that he told Piet
on September 23, 2019 that he would file the FMCSA complaint if “this stuff isn’t
taken care of.”55 The ALJ also determined Complainant engaged in protected
activity by filing the FMCSA complaint alleging Transport Express’ safety
violations on September 25, 2019.56
B. Adverse Action
The ALJ found that Respondent’s termination of Complainant’s employment
was an adverse action.57
C. Contributing Factor
The ALJ concluded that Complainant’s protected activity of filing the
September 25, 2019 FMCSA complaint was a contributing factor in Transport
Express’ adverse action due to “the close temporal proximity between the complaint
and the Complainant’s termination, and the Complainant’s testimony that he
warned Mr. Piet of his plans.”58 The ALJ did not broach whether Complainant’s
internal safety complaints were a contributing factor in the decision to terminate
him, despite stating earlier that the “uncorrected” crop of those complaints (totaling
5) qualified him for protection under the STAA.59
D. Affirmative Defense
The ALJ found that Transport Express illustrated by clear and convincing
evidence that it would have fired Complainant had he never filed a safety
complaint. The ALJ credited Transport Express managers’ testimony that they
decided to fire Complainant because he displayed an arrogant attitude and twice
threatened to abandon his assigned vehicle, not because of his protected acts of
filing complaints with Respondent and the FMCSA.60
Id. at 15. Specifically, the “safety reports of July 19, 23, 24, 25 and September 21,
2019, which constituted internal complaint (sic) to his managers related to the safety of his
vehicle.” Id.
54
55
Tr. at 146.
56
D. & O. at 15.
57
Id. at 16.
58
Id.
59
Id.
60
Id. at 17.
11
The ALJ also found that Piet could not be held liable for any alleged STAA
violation.61
Complainant filed a petition for review of the ALJ’s decision with the Board
on March 17, 2023. Both parties filed briefs with the Board.62
JURISDICTION AND STANDARD OF REVIEW
The Secretary of Labor has delegated authority to the ARB to decide appeals
of ALJ decisions under the STAA.63 The Board conducts de novo review of questions
of law in STAA cases, but is bound the factual findings of the ALJ if they are
supported by substantial evidence.64 Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”65
An ALJ must “adequately explain why he credited certain evidence and
discredited other evidence.”66 Although an ALJ “need not address every aspect of [a
party’s claim] at length and in detail,” the findings “must provide enough
information to ensure the Court that he properly considered the relevant evidence
underlying [the party’s] request.”67 The failure to address evidence or resolve
61
Id. at 13-14.
Respondents argued in their responsive briefing that the ALJ erred in finding:
(1) any complaints were protected activity; and (2) the FMCSA complaint contributed to the
decision to terminate Complainant’s employment. Respondent’s Response Brief (Resp. Br.)
at 37-43. We do not consider those arguments because Respondents did not file a crossappeal. See 29 C.F.R. § 1978.110(a) (“The parties should identify in their petitions for
review the legal conclusions or order to which they object, or the objections will ordinarily
be deemed waived.”). A “’party who neglects to file a cross appeal may not use his
opponent’s appeal as a vehicle for attacking a final judgment in an effort to diminish the
appealing party’s rights thereunder.”’ Booker v. Exelon Generation Co., LLC, ARB No. 20220049, ALJ No., 2016-ERA-00012, slip. op at 18-19 n.134 (ARB Sept. 21, 2023) (citing
Batyrbekov v. Barclays Cap., ARB No. 2013-0013, ALJ No. 2011-LCA-00025, slip op. at 8
(ARB July 16, 2014)).
62
Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of
Responsibility to the Administrative Review Board), 85 Fed. Reg. 13,186 (Mar. 6, 2020).
63
29 C.F.R. § 1978.110(b); Dick v. USAA, ARB No. 2022-0063, ALJ No. 2018-STA00054, slip op. at 10 (ARB Apr. 16, 2024) (citing Stokes v. Albertson’s, LLC, ARB No. 20220007, ALJ Nos. 2020-STA-00080, -00082, slip op. at 5 (ARB May 20, 2022)).
64
Stokes, ARB No. 2022-0007, slip op. at 5 (citing Consol. Edison Co. of N.Y. v.
N.L.R.B., 305 U.S. 197, 229 (1938)).
65
66
Sea “B” Mining Co. v. Addison, 831 F.3d 244, 253 (4th Cir. 2016) (citations omitted).
67
Mori v. Dep’t of the Navy, 917 F. Supp. 2d 60, 65 (D.D.C. 2013) (citations omitted).
12
conflicts in the evidence thus requires remand; ultimately, a reviewing court must
be able to “discern what the ALJ did and why he did it.”68
DISCUSSION
The STAA’s whistleblower protection provision provides that a person may
not discharge, discipline or discriminate against an employee regarding the pay,
terms, or privileges of employment because the employee has engaged in statutorily
protected activity.69 Complaints under the STAA are governed by the legal burdens
of proof set forth in the whistleblower protection provision of the Wendell H. Ford
Aviation Investment and Reform Act of the 21st Century (AIR21).70 To prevail on a
STAA complaint, an employee must prove by a preponderance of the evidence that:
(1) they engaged in protected activity; (2) the employer took adverse employment
action against them; and (3) the protected activity was a contributing factor in the
adverse employment action.71 If the employee meets his burden of proof, the
employer may avoid liability by proving by clear and convincing evidence that it
would have taken the same unfavorable action in absence of the protected activity.72
1. Substantial Evidence Supports the ALJ’s Determination That
Complainant’s Refusal to Operate His Assigned Truck Was Not
Protected Activity Under 49 U.S.C. § 31105(a)(1)(B)
The ALJ found that Complainant did not prove the statutory requirements to
invoke protection under the STAA’s “refusal to operate” provision, 49 U.S.C.
§ 31105(a)(1)(B). That provision affords protection to a Complainant who refuses to
operate a vehicle because either (i) the operation violates a regulation, standard, or
order related to safety, health, or security; or (ii) he had a reasonable apprehension
of serious injury to himself or the public because of the vehicle’s condition.73
Printz v. STS Aviation Grp., ARB No. 2022-0045, ALJ No. 2021-AIR-00013, slip op.
at 30 (citation omitted).
68
49 U.S.C. § 31105(a)(1); see also 29 C.F.R. § 1978.102(a) (“No person may discharge
or otherwise retaliate against any employee with respect to the employee’s compensation,
terms, conditions, or privileges of employment because the employee engaged in [protected
activity].”) (emphasis added).
69
70
49 U.S.C. § 31105(b)(1); see 49 U.S.C. § 42121(b).
49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R. § 1978.109(a)-(b); Johnson v. Norfleet
Transp., ARB No. 2020-0037, ALJ No. 2019-STA-00022, slip op. at 5-6 (ARB Jan. 29, 2021)
(citation omitted).
71
49 U.S.C. § 42121(b)(2)(B)(iv); 29 C.F.R. 1978.109(b); Blackie v. Smith Transp., Inc.,
ARB No. 2011-0054, ALJ No. 2009-STA-00043, slip op. at 8 (ARB Nov. 29, 2012) (citation
omitted).
72
73
49 U.S.C. § 31105 (a)(1)(B)(i), (ii).
13
The ALJ found that Complainant did not produce evidence that he refused to
operate a vehicle for protected reasons, and that he in fact operated the tractortrailer set he was assigned on September 23.74 The ALJ further noted that
Complainant sought certification that Transport Express had repaired defects he
had reported or that inspection revealed the repairs were unnecessary before
driving.75 The ALJ found that “[r]efusing to operate a vehicle until documentation is
provided does not constitute ‘reasonable apprehension of serious injury’ or a belief
that operation of the vehicle would violate safety regulations.”76
Complainant argues he engaged in a protected refusal under
§ 31105(a)(1)(B)(i) because he alerted Piet that operation of equipment with defects
that he had marked on a DVIR violated 49 C.F.R. § 396.11’s requirement that such
defects be certified as repaired or noted as unnecessary upon inspection prior to
operation.77 He also argues he engaged in a refusal protected under 49 U.S.C.
§ 31105(a)(1)(B)(ii) because he reasonably apprehended that the defects were
hazardous.78
Prior Board decisions afford protection under the STAA’s “refusal to operate”
provision where the driver refuses to operate the vehicle in the manner instructed
by the employer when such operation “constitutes a violation of any Federal rules,
regulations, standards or orders applicable to commercial motor vehicle safety or
health.”79
74
D. & O. at 15.
75
Id.
76
Id.
Complainant’s Opening Brief (Comp. Br.) at 17; Complainant’s Reply Brief (Comp.
Reply Br.) at 2-5; Complainant’s Petition for Review (Comp. Pet. for Review) at 1-2. 49
C.F.R. § 396.11(a)(3)(i): “Prior to requiring or permitting a driver to operate a vehicle, every
motor carrier or its agent shall repair any defect or deficiency listed on the driver vehicle
inspection report which would be likely to affect the safety of operation of the vehicle.”
49 C.F.R. § 396.11(a)(3)(ii): “Every motor carrier or its agent shall certify on the driver
vehicle inspection report which lists any defect or deficiency that the defect or deficiency
has been repaired or that repair is unnecessary before the vehicle is operated again.”
77
78
Comp. Br. at 16-18; Comp. Reply Br. at 2-5; Comp. Pet. for Review at 1-2.
See Maddin v. Transam Trucking, Inc., ARB No. 2013-0031, ALJ No. 2010-STA00020 (ARB Nov. 24, 2014) (citation omitted), aff’d, TransAm Trucking, Inc. v. Admin. Rev.
Bd., U.S. Dep’t of Lab., 833 F.3d 1206 (10th Cir. 2016). The instant case is distinct from
Maddin, in which the Board found driving the assigned vehicle in a manner contrary to the
employer’s instructions in order to preserve the driver’s health and safety to be a protected
“refusal to operate” under the STAA, stating “[c]ertain refusals or insubordinate acts
arising out of the complainant’s employment as a truck driver may be covered under the
79
14
Nevertheless, substantial evidence supports the ALJ’s determination
Complainant did not engage in activity protected under 49 U.S.C.
§ 31105(a)(1)(B).80 There is no evidence Complainant refused to operate an assigned
vehicle or that he refused to operate the vehicle under the conditions set out by
Transport Express. Although Complainant testified that on the night of September
23, 2019, he told Serrano he would not operate his assigned tractor-trailer unless
Transport Express gave him a copy of the DVIR,81 Complainant drove tractor 3072
from Wood Dale to McLean, IL, that night despite being offered an alternative
tractor before heading out on his route. He also returned from McLean to Wood
Dale with his assigned haul in the early morning of September 24, 2019.82
Moreover, there is no indication that Complainant engaged in a “refusal to
operate” protected under the STAA after returning to Wood Dale on September 24,
2019, the last day he performed work for Transport Express. Complainant testified
that he informed Piet he would file an FMCSA complaint if the DVIR-reported
defects were not repaired or certified as not needing repair upon his return to Wood
Dale the morning of September 24, 2019.83 He did not testify, however, and there is
no evidence to suggest, that Complainant informed management he would not drive
a tractor or haul a trailer because of unaddressed defects he had marked on a DVIR
on September 24, 2019.84 His September 24, 2019 email to Piet asked for DVIR
certification in compliance with 49 C.F.R. § 396.11, and did not contain a refusal to
drive in the manner instructed if such certification was not provided.85 Respondents’
cancellation of Complainant’s line hauls from September 24 through September 26,
2019 and his subsequent firing meant that there was no assigned equipment for
Complainant to refuse to drive as of September 24.
‘refusal to operate’ clause even where the activity does not strictly constitute a refusal to
operate the vehicle.” Maddin, ARB No. 2013-0031, slip op. at 8.
80
See 49 U.S.C. § 31105 (a)(1)(B)(i).
81
Tr. at 142.
82
Id. at 147, 170, 226, 254-56, 265.
83
Id. at 146.
84
Id. at 133-85.
CX-1 at 25-28. Complainant’s September 24, 2019 email to Piet constituted a
separate internal complaint to Transport Express. Id. We do not review whether it was
entitled to protection under §31105(a)(1)(A), the STAA’s the complaint provision, since
Complainant contends in his petition for review and initial brief that the email was entitled
to protection under the refusal provision of the STAA, §31105(a)(1)(B). Comp. Pet. for
Review at 1-2; Comp. Br. at 16-18; Comp. Reply Br. at 2-5. We note that while an
employee’s relayed objection to operation of assigned equipment in the manner instructed
may fall short of the definition of “refusal” under §31105(a)(1)(B), the expression of such an
objection to operation is properly analyzed and can be protected under §31105(a)(1)(A).
85
15
It is therefore unnecessary to evaluate whether Complainant refused to
operate due to a “reasonable apprehension of serious injury to the employee or the
public because of the vehicle’s hazardous safety or security condition” and thus
whether Complainant sought from Transport Express and was “unable to obtain,
correction of the hazardous safety or security condition” qualifying him for
protection under 49 U.S.C. § 31105(a)(1)(B)(ii).86
Accordingly, we affirm the ALJ’s determination Complainant did not engage
in refusal-to-operate protected activity under 49 U.S.C. § 31105(a)(1)(B).
2. The ALJ Erred as a Matter of Law in Finding Complainant’s Internal
Complaints Were Not Protected Activity When Respondent Corrected
the Defects
The ALJ found only five internal complaints protected because they were
associated with conditions that were uncorrected by Transport Express.87 However,
the ALJ relied on the provision of the STAA which applies to a refusal to operate
unsafe equipment.88 Accordingly, the ALJ asserted that “[t]o qualify for protection
under section 2305(b), the employee must have sought from his employer, and have
been unable to obtain, correction of the unsafe condition.”89 Thus, the ALJ deemed
Complainant’s initially protected safety reports unprotected once Respondent made
corrections.
Complainant argues that the ALJ committed legal error in so doing and that
all of his internal safety complaints about defects and regulatory violations were
protected under 49 U.S.C. § 31105(a)(1)(A), regardless of whether Transport
Express corrected the issues.90 We agree. Under a plain reading of that provision,
49 U.S.C. § 31105(a)(2) (“Under paragraph (1)(B)(ii) of this subsection, an employee’s
apprehension of serious injury is reasonable only if a reasonable individual in the
circumstances then confronting the employee would conclude that the hazardous safety or
security condition establishes a real danger of accident, injury, or serious impairment to
health. To qualify for protection, the employee must have sought from the employer, and
been unable to obtain, correction of the hazardous safety or security condition.”).
86
87
D. & O. at 14-15.
Id. at 15. The decision cites Section 2305(b) of the STAA (see 49 U.S.C. § 2305(b)
(1983): https://www.govinfo.gov/content/pkg/STATUTE-96/pdf/STATUTE-96-Pg2097.pdf
(page 61)).
88
89
D. & O. at 15.
Comp. Br. at 14-16. Comp. Reply Br. at 8. While Complainant mentions in his reply
brief that his complaints about “regulatory violations” were protected under 49 U.S.C.
§ 31105(a)(1)(A), his Petition for Review and initial brief both argue these complaints were
protected under the refusal provision, 49 U.S.C. § 31105(a)(1)(B). See, infra note 148.
90
16
complaints are protected without any requirement to seek and fail to obtain
correction of the unsafe condition.91
The ALJ committed legal error by conflating the requirements of §
31105(a)(1)(A) (applicable to internal complaints) with § 301105(a)(1)(B)(ii)
(applicable to refusals to operate a vehicle).92 The requirement that an employee
attempt and be unable to “obtain, correction of the unsafe condition” applies only to
refusals to operate equipment under § 301105(a)(1)(B)(ii).93 Under that section, an
employee must demonstrate a “reasonable apprehension of a serious injury” to
themselves or the public due to the vehicle’s hazardous safety or security
condition.94 In contrast, internal complaints retain protection under §
31105(a)(1)(A) despite an employer’s corrective action so long as those complaints
are grounded in a reasonable belief.
The majority of cases cited by Respondent and the ALJ do not stand for the
proposition that correction eliminates protection for safety complaints under that
provision.95 Patey v. Sinclair Oil Corp., LeBlanc v. Fogleman Truck Lines, and Bates
v. Kasbar, Inc., addressed the correction of defects under the STAA’s refusal to
operate provision.96 Williams v. Capitol Entertainment Services, Inc. is inapposite
because the complaints that were found unprotected concerned “day to day requests
for additional inventory” which were “distinct from safety-related complaints”
protected under the STAA, not because of any remedial action by employer.97
91
49 U.S.C. § 31105(a)(1)(A).
49 U.S.C. §§ 31105(a)(1)(A), 301105(a)(1)(B)(ii). Pursuant to § 301105(a)(1)(B)(ii)
“[a] person may not discharge an employee, or discipline or discriminate against an
employee regarding pay, terms, privileges of employment” when “the employee refuses to
operate a vehicle because the employee has a reasonable apprehension of serious injury”
due to the vehicle’s hazardous safety or security condition. “To qualify for protection [under
§ 301105(a)(1)(B)(ii)], the employee must have sought from the employer, and been unable
to obtain, correction of the hazardous safety or security condition.” 49 U.S.C. §31105(a)(2).
92
93
49 U.S.C. §§ 31105(a)(2), 301105(a)(1)(B)(ii).
94
49 U.S.C. § 301105(a)(1)(B)(ii).
95
Resp. Br. at 36-37; D. & O. at 15.
Patey v. Sinclair Oil Corp., ARB No. 1996-0174, ALJ No. 1996-STA-00020, slip op. at
1-2 (ARB Nov. 12, 1996); LeBlanc v. Fogleman Truck Lines, Inc., Case No. 1989-STA-00008,
slip op. at 5 (Sec’y Dec. 20, 1989); Bates v. Kasbar, Inc., ALJ No. 1985-STA-00011, slip op.
at 2-3 (ALJ Mar. 7, 1986).
96
Williams v. Capitol Ent. Servs., Inc., ARB No. 2005-0137, ALJ No. 2005-STA-00027,
slip op. at 7-8 (ARB Dec. 31, 2007).
97
17
Williams v. U.S. Department of Labor is distinguishable on the facts.98
The complainant in Williams made numerous complaints of environmental
contamination over a period of years, some of which constituted protected activity.
However, complaints that were made after the complainant became aware of
corrective measures and inspections showing no contamination were not protected
because, the complainant lacked a “reasonable perception” of a violation at the time
she made them.99 Here, in contrast, Complainant complained of violations before
they were corrected, and if he demonstrates a reasonable belief at the time he made
the complaints, his complaints are protected under a plain reading of 49 U.S.C.
§ 31105(a)(1)(A)(i). Accordingly, applying the plain text of that provision, the Board
has found complaints protected under the STAA even after the employer addressed
and remedied the concerns.100
To the extent that Carter v. Marten Transport, Ltd. has been read to mean
that the protected activity of complaining about a safety defect loses its protected
status after being corrected, that reading is incorrect and does not comport with the
statutory and regulatory text. In that case, the Board found some internal
complaints unprotected under the STAA. The Board stated that “once an employee’s
concerns are addressed and resolved, it is no longer reasonable for the employee to
continue claiming a safety violation, and activities initially protected lose their
character as protected activity.”101 Carter v. Marten Transport relied on Patey v.
Sinclair Oil Corp. and Williams v. U.S. Dep’t of Labor in articulating this theory.102
As Patey is unique to the refusal context and Williams v. U.S. Dep’t of Labor is
distinguishable on the facts discussed above, we decline to apply that reasoning.103
In sum, neither Carter v. Marten Transport nor Williams stand for the proposition
that protected activity is rendered unprotected simply because the employer
addresses the complained of conditions.
98
157 F. App’x 564, 2005 WL 3087895 (4th Cir. 2005).
99
Williams, 157 F. App’x 564, 2005 WL 3087895 at *568-70.
Carter v. GDS Transp., Ltd., ARB No. 2008-0053, ALJ No. 2008-STA-00009, slip op.
at 4 (ARB Feb. 27, 2009).
100
Carter v. Marten Transp., Ltd., ARB Nos. 2006-0101, 159, ALJ No. 2005-STA-00063,
slip op. at 9 (ARB June 30, 2008).
101
102
Id. at 9.
Id.; cf. Malmanger v. Air Evac EMS, Inc., ARB No. 2008-0071, ALJ No. 2007-AIR00008, slip op. at 8-9 (ARB July 2, 2009) (affirming the ALJ finding that Complainant
lacked a reasonable belief in a violation when he knew that the conditions he complained of
had been resolved years prior).
103
18
3. The ALJ Erred in Failing to Assess Complainant’s Reasonable Belief
When reviewing whether an employee’s activity is protected under 49 U.S.C.
§ 31105(a)(1)(A), the factfinder applies the reasonable belief standard.104 The
employee “need not prove an actual violation of a motor vehicle safety regulation,
standard, or order, but must at least be acting on a reasonable belief regarding the
existence of an actual or potential violation.”105 The belief that a complaint is
related to a violation is reasonable if it is “subjectively held and objectively
reasonable.”106 “To prove subjective belief, a complainant must prove that [they]
held the belief in good faith.”107 The subjective component of the reasonable belief
test is satisfied where the employee actually believed that the conduct they
complained of related to a violation of a commercial motor vehicle safety or security
regulation, standard, or order.108 Complainant is to demonstrate via a
preponderance of the evidence that “a reasonable person of similar experience,
training, and factual knowledge would objectively believe that a violation has
occurred.”109
The ALJ did not examine whether Complainant reasonably believed that the
defects he internally complained of related to an actual or potential violation of a
motor vehicle safety regulation, standard, or order. As such, the ALJ’s
determination that only some of the internal complaints were protected is the
product of error.110
We vacate the ALJ’s determination on Complainant’s internal complaints
and remand for the ALJ to conduct the reasonable belief analysis as to all 18 of
them. The ALJ is to thoroughly review the evidence and reach findings supported
Scott v. E.O. Habhegger Co., ARB No. 2023-0027, ALJ No. 2019-STA-00048, slip op.
at 10 (ARB Mar. 14, 2014) (citing Dick v. J.B. Hunt Transp., Inc., ARB No. 2010-0036, ALJ
No. 2009-STA-00061, slip op. at 6 (ARB Nov. 16, 2011)).
104
105
Dick, ARB No. 2010-0036, slip op. at 6 (citation omitted).
Mazenko v. Pegasus Aircraft Mgmt., LLC, ARB No. 2021-0032, ALJ No. 2019-AIR00001, slip op. at 14 (ARB June 18, 2024) (citing Pettit v. Delta Airlines, Inc., ARB No.
2021-0014, ALJ No. 2018-AIR-00041, slip op. at 12 (ARB Mar. 29, 2022)).
106
Id. (citing Burdette v. ExpressJet Airlines, Inc., ARB No. 2014-0059, ALJ No. 201400059, slip op. at 5 (ARB Jan. 21, 2016)).
107
Gilbert v. Bauer’s Worldwide Transp., ARB No. 2011-0019, ALJ No. 2010-STA00022, slip op. at 7 (ARB Nov. 28, 2012); Bailey v. Koch Foods, LLC, ARB No. 2010-0001,
ALJ No. 2008-STA-00061, slip op. at 9 (ARB Sept. 30, 2011).
108
Morell v. DLH Holdings Corp., ARB No. 2023-0030, ALJ No. 2020-SOX-00005,
slip op. at 11 (ARB Sept. 23, 2024) (citing Schaefer v. New York Cmty. Bancorp, Inc., ARB
No. 2022-0050, ALJ Nos. 2018-SOX-00048, -00051, slip op. at 13-14 (ARB June 22, 2023)).
109
110
D. & O. at 15.
19
by substantial evidence. The inquiry is not whether Respondent corrected the
conditions underlying the internal complaints, but whether 1) Complainant believed
a condition related to a violation of a commercial motor vehicle safety or security
regulation, standard, or order existed or would occur as a result of the conditions he
complained of in good faith,111 and 2) considering the knowledge available to
Complainant at the time he filed his complaints, a reasonable person with similar
training and experience to that of Complainant would conclude a violation had or
would occur when Complainant submitted them.112
Although it is the ALJ’s role as fact finder to make these determinations on
remand, we note that the record contains ample evidence that could demonstrate
Complainant’s subjective and objectively reasonable belief that the internal
complaints related to a violation of a commercial motor vehicle safety or security
regulation, standard, or order at the time he reported them and were therefore
protected under 49 USC § 31105(a)(1)(A).
The conditions Complainant complained of included a rear tandem fire,113
unsecured hazmat,114 illuminated ABS warning light,115 cracked bumper,116
111
Dick, ARB No. 2010-0036, slip op. at 6; Mazenko, ARB No. 2021-0032, slip op. at 14.
Gilbert, ARB No. 2011-0019, slip op. at 7; Bailey, ARB No. 2010-0001, slip op. at 910; Sylvester v. Parexel Int’l LLC, ARB No. 2007-0123, ALJ Nos. 2007-SOX-00039, -00042,
slip op. at 14 (ARB May 25, 2011).
112
August 27, 2019 internal complaint: “Rear tandems on fire, both sides, right and left.
Need fire extinguisher. “Possibly brake chambers. 2 flats.” D. &. O. at 4. Complainant
testified another driver pointed to the back of his trailer while he was pulling into the Dixie
truck stop. When he pulled over, he observed that wheels, brake chambers or bearings were
on fire. He used a fire extinguisher to put out the fire. D. & O. at 5.
113
July 25, 2019 internal complaint: “Hazmat on side - not secured; bald tire.” D. & O.
at 5. Complainant testified that the hazmat he hauled for Transport Express “was never
braced, never secured.” Tr. at 134. He noticed upon opening the trailer doors at the end of a
haul that the hazmat “was either on the right-hand side, in the middle of the trailer -- it
had slid around a little bit.” Tr. at 131. It was Complainant’s “understanding that the
freight is to be . . . braced and packaged in such a way that it prevents motion side to side
and front to back.” Tr. at 131, 133; D. & O. at 5.
114
On September 20, 2019, Complainant reported the ABS (anti-lock brake system)
warning light on his assigned trailer was on. D. & O. at 5. Complaint testified that an ABS
light that was on indicated “the ABS system is not operable. Not operating sufficiently.”
Tr. at 141: 19-20. “And if it’s not working, I may not have brakes.” Tr. at 141: 11-13.
115
On September 20, 21, and 23, 2019, Complainant reported a damaged or protruding
front bumper. D. & O. at 5. During the hearing, Complainant stated he reported the
condition because he was concerned that if the bumper “split all the way down and the rest
of it vibrated it off, it could go into somebody’s windshield or get sucked up underneath the
engine compartment of a truck, or -- I thought it posed a hazard.” Tr. at 144: 5-24.
116
20
vibration,117 faulty tires,118 and inoperable license plate lights.119 It could be
determined that because Complainant attested to his good faith belief that the
reported conditions related to an actual or potential violation, the subjectiveness
element of the reasonable belief test has been met. It could also be deduced on the
current record that a reasonable person in similar factual circumstances and with
similar knowledge then available to Complainant (a commercial motor vehicle
driver with 35 years of experience and a Class A license with endorsements for
tanker, hazmat, doubles, triples and passengers) would have believed the conditions
he reported posed an actual or potential violation, and that Complainant’s belief
was therefore objectively reasonable.120
4. The ALJ Erred as a Matter of Law in Failing to Conduct the
Contributing Factor Analysis with Regard to Complainant’s Internal
Complaints
Under the legal burdens of proof in the whistleblower protection provisions of
AIR21, which govern STAA claims, a complainant must show by a preponderance of
the evidence that they engaged in activity that the STAA protects and that the
protected activity was a contributing factor in the employer’s unfavorable personnel
action.121
September 7, 2019 internal complaint: “Bad vibration, pulls to right at 53-65 mph.”
D. & O. at 5. Complainant testified the “steering wheel shook violently. You really had to
grab a hold of it and hold onto it to keep it between the lines.” Tr. at 148: 6-11.
117
Complainant reported faulty tire conditions at least eight times, including on July
10, 23, 24, August 9, 10, 27, and September 21, 2019. D. & O. at 4-5. Complainant testified
that he understood the DOT “requires 2/32 of inch tread depth” such that he believed the
tire depths he complained of on July 23 and August 9, 2019 were DOT violations. Tr. at
124: 4-18, 127: 24 – 128: 8. He also explained he reported a tire that had “exposed belting
materials in violation of commercial motor vehicle safety regulations” on July 10, 2019 after
noticing “a piece of steel belt protruding from the sidewall of the tire, up where the tread is”
which he believed, based on his prior experiences, could lead the tire to “blow up”, impact
the distribution of the load in the trailer, and potentially cause a crash. Tr. at 123: 15-25;
124: 19 - 125: 21.
118
On August 21 and 23, 2019, Complainant reported the license plate lights on his
assigned equipment were out. D. & O. at 4. He testified that an inoperable license plate
light could lead to a DOT inspection, which could affect his “CSA record, driver’s license.
It would result in a ticket or a violation, a fine and the loss of one or two Federal Motor
Carrier points.” D. & O. at 5.
119
120
D. & O. at 5.
49 U.S.C. § 42121(b)(2)(B) (text of AIR21’s burdens of proof); 49 U.S.C. § 31105(b)(1)
(“All complaints initiated under this section shall be governed by the legal burdens of proof
set forth in section 42121(b).”).
121
21
Although the ALJ found that Complainant’s protected activity of filing a
FMCSA complaint was a contributing factor in Transport Express’ decision to
terminate his employment, Complainant contends on appeal that the ALJ erred in
failing to evaluate whether his internal complaints also contributed to their
decision.122 We agree. The ALJ stopped short of conducting the analysis as to
whether any of Complainant’s protected internal complaints contributed to
Respondents’ adverse action. This was legal error. “To properly evaluate whether
protected activity contributed to [the employer’s] decision to terminate [the
employee’s] employment, all instances of protected activity must be thoroughly
assessed.”123
On remand, the ALJ shall fully review the record and determine whether
Complainant’s internal complaints were a contributing factor, i.e. played some role,
any role, in Transport Express’ decision to terminate his employment and explain
how the arguments and evidence were credited and discredited.124 Specifically, the
ALJ should consider the evidence discussed below.
A. Direct Evidence: Respondent’s Explanations
We note that Respondents’ own explanations for firing Complainant provide
support for the conclusion that the internal complaints were a contributing factor.
For instance, Complainant’s direct supervisor, Piet, testified that he recommended
Complainant’s employment be terminated in part because Complainant “didn’t like
our equipment.” Second shift operations manager Serrano explained that in calling
Transport Express equipment “pieces of shit”, Complainant had “complain[ed] about
all our equipment numerous times.”125 Among the reasons Redszus gave for
approving Complainant’s employment termination was that he was “getting
feedback that [Complainant] wasn’t happy with his tenure at Transport Express,
and he was very vocal about it to the supervision. Between that portion of it there
122
Comp. Pet. for Review at 1.
Williams, ARB No. 2005-0137, slip op. at 8; see also Booker, ARB No. 2022-0049, slip
op. at 29 (“Because we conclude that the ALJ’s finding as to contributing factor is
insufficient to show that he considered or weighed evidence by the appropriate burden of
proof, we remand this matter to the ALJ to fully analyze the record and make revised
findings on the issue of contributing factor in such a way that explains how the ALJ
credited and discredited the parties’ arguments and the supporting or undermining
evidence.”).
123
Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ No. 2014-FRS-00154, slip
op. at 52 (ARB Sept. 30, 2016) (reissued with full dissent, Jan. 4, 2017).
124
125
Tr. at 38, 41, 231-32.
22
was an attitude that [Complainant] was conveying that he was more knowledgeable
in his responsibilities than anybody within management and supervision.”126
B. Circumstantial Evidence: Pretext, Shifting Explanations and Temporal
Proximity
In addition to direct evidence, a complainant may establish the contributing
factor element by circumstantial evidence.127 “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.”128
Here again, we note that there is evidence in the record of pretext and
shifting explanations, which could also support the conclusion that Complainant’s
numerous internal complaints contributed to management’s decision to terminate
his employment. Respondents admitted they did not warn or discipline
Complainant about his remarks or attitude or share with Complainant the genuine
basis for their dissatisfaction with his job performance at any point during his
employment or upon its termination.129
Instead, in cancelling Complainant’s hauls on September 24, 25, and 26,
2019, Piet told Complainant that Transport Express “didn’t have any equipment for
him.”130 Complainant testified he received messages from Piet cancelling his work
on those days because “the tractor was going for repair.”131 Piet stated he in fact
cancelled Complainant’s work but did not terminate Complainant until September
27, 2019, because Transport Express was contemplating firing Complainant and
“[w]e needed to make sure that we could cover – if we did let Mr. Halliday go, we
needed to cover the shift.”132
Piet then called Complainant on September 27, 2019, and told him that his
services as a second line haul driver were no longer needed due to a reduction in
freight tonnage.133 A few days later, Complainant received a letter dated September
126
Id. at 282 (emphasis added).
Williams v. QVC, Inc., ARB No. 2020-0019, ALJ No. 2018-SOX-00019, slip op. at 12
(ARB Jan. 17, 2023) (citing Palmer, ARB No. 2016-0035, slip op. at 55).
127
Id. (citing Acosta v. Union Pac. R.R. Co., ARB No. 2018-0020, ALJ No. 2016-FRS00082, slip op. at 8-9 (ARB Jan. 22, 2020) (citations omitted)).
128
129
Tr. at 14-46, 49-110, 133-85, 197-251, 252-66.
130
Id. at 88.
131
Id. at 149-50.
132
Id. at 88.
133
Id. at 150.
23
27, 2019, which terminated his employment effective that day “due to current work
volume and staffing.”134 On the record before us, this shifting explanation could
reasonably be viewed as showing pretext given that less than a week later
Respondents posted Complainant’s position on Indeed.com, belying its assertion
that Complainant was let go due to a lack of work.135
Respondent’s explanations for Complainant’s removal from Respondent’s line
haul operation thus shifted from a lack of equipment on September 24-September
26, 2019, to a reduction in freight volume on September 27, 2019, and finally, by the
time of the ALJ hearing, to his attitude and remarks about leaving equipment
behind. This is a strong indicator that Respondent’s reasons were pretextual.
Further, close temporal proximity exists between the internal complaints,
and Complainant’s termination.136 Complainant’s last report of an equipment defect
was registered on September 23, 2019, when he emailed his concern Transport
Express’ handling of DVIRs failed to comply with DOT regulations on September
24, and he filed an FMCSA complaint the next day. From September 24 through
September 26, he was told not to report to work, and on September 27, Complainant
was relieved of his duties. Thus, the last of Complainant’s internal complaints
plausibly protected under § 31105(a)(1)(A) occurred only four days before
Respondent ended his employment.
Considering Respondents’ testimony indicating the complaints played some
role in the decision to terminate, the arguably pretextual and shifting explanations
for firing Complainant, and the close temporal proximity between the internal
complaints and the termination, we note that the ALJ on remand could find that
Complainant’s protected activity of submitting internal complaints was a
contributing factor in the decision to fire him.
134
Id. at 151-52; CX-2.
135
CX-5; Tr. at 117-19.
The ALJ summarily concluded that temporal proximity plus knowledge “suffice to
show causation under the Act.” D. & O. at 16. We note that the fact finder may find
causation established where temporal proximity (and knowledge) exists, but such a finding
is not required. Palmer, ARB No. 0016-0035, slip op. at 51, 56. In other words, temporal
proximity may “suffice” in a particular case but ALJs should consider temporal
proximity/knowledge together with any other relevant evidence, and make that finding on
whether Complainant met their burden to show via a preponderance, i.e., that it is more
likely than not, that the protected activity was a contributing factor. Id. at 56; see also
Huang v. Greatwide Dedicated Transp. II, LLC, ARB No. 2019-0053, ALJ No. 2016-STA00017, slip op. at 8-9 (ARB May 27, 2021) (internal citations omitted).
136
24
5. The ALJ’s Determination that Respondents Clearly and Convincingly
Demonstrated They Would Have Terminated Complainant in the
Absence of His Protected Activity Contains Error and is Unsupported by
Substantial Evidence
Once a complainant proves their protected activity was a contributing factor
in the employer’s adverse action, the employer may avoid liability if the employer
demonstrates by clear and convincing evidence that “in the absence of” the
protected activity, it would have taken the same adverse action.137 “‘Clear’ evidence
means the employer has presented evidence of unambiguous explanations for the
adverse actions in question.”138 “‘Convincing’ evidence has been defined as evidence
demonstrating that a proposed fact is ‘highly probable.’”139 “The burden of proof
under the ‘clear and convincing’ standard is more rigorous than the ‘preponderance
of the evidence’ standard and denotes a conclusive demonstration, i.e., that the
thing to be proved is highly probable or reasonably certain.”140
Substantial evidence is “relevant evidence that a reasonable mind would
accept as adequate to accept an agency’s conclusion.”141 Further, “[t]he
substantiality of evidence must take into account whatever in the record fairly
detracts from its weight.”142 As such, the fact finding must have sufficient
contextual strength. A finding of fact lacks contextual strength and substantial
evidence if “the [adjudicator] ignores, or fails to resolve, a conflict created
by countervailing evidence” or “if it is overwhelmed by other evidence or if it really
constitutes mere conclusion.”143
The ALJ determined Respondents illustrated by clear and convincing
evidence they would have fired Complainant had he never filed a safety complaint,
because he displayed an arrogant attitude and twice threatened to abandon his
137
Palmer, ARB No. 2016-0035, slip op. at 56-57 (citing 49 U.S.C. § 42121(b)(2)(B)(iv))).
Speegle v. Stone & Webster Constr., Inc., ARB No. 2013-0074, ALJ No. 2005-ERA00006, slip op. at 11 (ARB Apr. 25, 2014).
138
139
Id.
Id. (citing Williams v. Domino’s Pizza, ARB No. 2009-0092, ALJ No. 2008-STA00052, slip op. at 5 (ARB Jan. 31, 2011)).
140
Poulter v. Central Cal Transp., LLC, ARB No. 2018-0056, ALJ No. 2017-STA-00017,
slip op at 12 (ARB Aug. 18, 2020) (citations omitted).
141
Id. (citing Dalton v. Copart, Inc., ARB No. 2001-0020, ALJ No. 1999-STA-00046, slip
op. at 7 (ARB July 19, 2001)).
142
Id. (quoting Bobreski v. J. Givoo Consultants, Inc. ARB No. 2013-0001, ALJ No.
2008-ERA-00003, slip op. at 13-14 (ARB Aug. 29, 2014)).
143
25
assigned vehicle.144 Complainant argues that: the ALJ erred in reaching the
affirmative defense determination; in failing to find his remarks that he would
“refuse to operate future non-compliant equipment were made in the context of his
protected activity;” and, that his “expressions of attitude” were in and of themselves
protected under 49 U.S.C. § 31105.145 He further posits that complainants must be
afforded leeway in expressing their safety concerns, consistent with Board
precedent.146
We agree that the ALJ’s affirmative defense analysis is flawed. First, as the
ALJ did not thoroughly factor into their review the protected activity which
contributed to the decision to terminate Complainant, that analysis is based on
error. On remand, the ALJ may find that all 18 of Complainant’s safety complaints
were protected activity and should therefore also be factored into reviewing whether
Respondents met the high burden of proving their defense under the clear and
convincing standard.147
Second, as detailed below, the ALJ’s analysis lacks acknowledgment of, and
does not contend with, evidence which fairly detracts from the weight of the
portions of testimony cited to support the finding Respondents met their evidentiary
burden. It thus is unsupported by substantial evidence.
Third, the affirmative defense analysis lacks the requisite evaluation of
whether Complainant was entitled to leeway in communicating his complaints and
in remarking on not driving potentially defective equipment.
A. Complainant’s “Attitude” Was Potentially Linked to Protected Activity
The ALJ failed to contend with Respondents’ testimony potentially linking
the assertions that Complainant was terminated for his poor attitude with his
D. & O. at 17. Specifically, the ALJ relied on the following: Piet and Redszus decided
to fire Complainant because of his attitude and his threats to abandon his truck and trailer,
not because of his safety complaints; Piet and Serrano’s testimony that Complainant had
arrogant behavior and twice threatened to abandon his tractor-trailer at the Dixie truck
stop; Piet’s testimony that Complainant projected an “attitude” that he knew more than his
peers or supervisors; and Serrano’s testimony that Complainant frequently said he did not
need his job with Transport Express and could get another job any time he chose. Id.
144
145
Comp. Pet. for Review at 2; Comp. Br. at 25.
Comp. Br. at 25 (citing Formella v. Schnidt Cartage, Inc., ARB No. 2008-0050,
ALJ No. 2006-STA-00035 (ARB Mar. 19, 2009)).
146
See 49 U.S.C. §§ 31105(b)(1), 42121(b)(2)(B)(iv) (AIR21); 29 C.F.R. § 1978.109(b)
(employer must demonstrate it would have taken the same unfavorable personnel action in
the absence of the protected behavior).
147
26
protected activity.148 In Piet’s testimony, he stated that he recommended
Complainant’s employment be terminated in part because Complainant “had an
ongoing attitude with our people. He didn’t like our personnel. He didn’t like our
equipment. He didn’t like our management.”149 Likewise, Serrano testified that
when Complainant called Transport Express equipment “pieces of shit” he had also
“complain[ed] about all our equipment numerous times.”150 And, Redszus testified
that he made the final decision to terminate Complainant because he was “getting
feedback [from Piet and Serrano] that [Complainant] wasn’t happy with his tenure
at Transport Express, and he was very vocal about it to the supervision. Between
that portion of it there was an attitude that [Complainant] was conveying that he
was more knowledgeable in his responsibilities than anybody within management
and supervision.”151
When reviewed in its entirety, Respondents’ testimony tends to indicate that
the Complainant’s dissatisfaction with Transport Express and its’ equipment, as
well as the manner with which Complainant expressed that dissatisfaction,
comprised the “attitude” that management found objectionable.
As the decision does not explain the conclusions drawn from the entirety of
Respondents’ testimony, the affirmative defense determination lacks contextual
strength, and is unsupported by substantial evidence. We remand for the ALJ to
analyze whether, in light of the entire testimony, Respondent demonstrated clearly
and convincingly that they would have terminated Complainant had he not engaged
in any protected activity.
B. The ALJ Failed to Consider Additional Countervailing Evidence
Direct or circumstantial evidence can clearly and convincingly show that
Respondents would have taken the adverse action in the absence of Complainant’s
protected activity. Circumstantial evidence “can include, among other things: (1)
evidence of the temporal proximity between the non-protected conduct and the
adverse actions; (2) the employee’s work record; (3) statements contained in
relevant office policies; (4) evidence of other similarly situated employees who
suffered the same fate; and (5) the proportional relationship between the adverse
actions and the bases for the actions.”152 It could be concluded that the lack of such
direct or circumstantial evidence showing Respondents would have still fired
The ALJ granted “great weight” to Respondents’ testimony, having found Piet,
Serrano and Redszus “credible.” D. & O. at 12.
148
149
Tr. at 232 (emphasis added).
150
Id. at 38, 41.
151
Id. at 282, 287-88 (emphasis added).
152
Speegle, ARB No. 2013-074, slip op. at 11.
27
Complainant, beyond their own bald testimony, illustrates Respondents’ failure to
meet their evidentiary burden to establish their affirmative defense and avoid
liability in the instant claim.153 Respondents’ pretextual and shifting explanations
for the adverse action, and the temporal proximity between that action and the
protected activity could be concluded to further militate against a finding
Respondents met their evidentiary burden.154 On remand, the ALJ must consider
all the evidence and countervailing evidence, discussed supra, Section 4, in
assessing whether Respondents establish their affirmative defense by clear and
convincing evidence.
C. Complainant is Entitled to Leeway When Voicing Safety Complaints
It shall also be evaluated on remand whether Complainant’s attitude
remained within “the leeway to which a whistleblower is entitled when voicing a
safety complaint” and thus stayed within the bounds of protected activity.155 The
Board and the Seventh Circuit have established that STAA complainants are
entitled to some leeway or latitude for impulsive behavior in making their safetyrelated complaints, such that they do not lose the protection of the statute when
they “stray beyond the boundaries of workplace propriety.”156
“The right to engage in activity protected by the STAA ‘permits some leeway
for impulsive employee behavior.’”157 The employee’s “entitlement to some
indulgences for the manner in which he engages in protected activity ‘must be
balanced against the employer’s right to maintain order and respect’” such that
“’flagrant’, ‘indefensible,’ ‘abusive,’ or ‘egregious’” misconduct will not be overlooked,
while modest improprieties will be.158
See Bobreski, ARB No. 2013-0001, slip op. at 28. In Bobreski, the Board found
reliance on evidence from “bald testimony” fails to meet the substantial evidence test when
such evidence is overwhelmed by other evidence, is uncorroborated, or “really constitutes
mere conclusion.” Id., slip op. at 30.
153
154
See supra pp. 22-23.
Formella v. Schnidt Cartage, Inc., ARB No. 2008-0050, ALJ No. 2006-STA-00035,
slip. op. at 5 (ARB Mar. 19, 2009).
155
Formella v. U.S. Dep’t of Lab., 628 F.3d 381, 391 (7th Cir. 2010) (citing Dreis v.
Krump Mfg. Co. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976)).
156
Formella, 628 F.3d at 391 (citing Combs v. Lambda Link, ARB No. 1996-0066, ALJ
No. 1995-CAA-00018, slip op. at 4 (ARB Oct. 17, 1997)).
157
Formella, 628 F.3d at 391 (internal citations omitted). The Seventh Circuit upheld
the Board’s determination the Complainant in Formella exceeded the leeway to which he
was entitled in voicing his concern his assigned vehicle was unsafe and refusing to drive it
when he shouted his objections to managers in a tone and manner which was “’in your face,’
intimidating, and antagonizing.” Id. at 393.
158
28
The ALJ also credited the managers’ testimony that they decided to fire
Complainant partly because he twice threatened to abandon his assigned vehicle,
and not because of his safety complaints.159 Respondents’ witnesses testified
Complainant stated he would not bring a load back from the McLean truck stop if
the other driver he swapped trailers with brought him another trailer with a nonworking license plate light.160
Piet testified that while complaining to Piet after not being able to pay for
fuel with Transport Express’ payment method, Complainant said if he had “any
other issue with fueling and he can’t get his fuel, that he’s going to leave the trailer
right where it is, the tractor trailer sit (sic) where it is taken (sic), and grab an Uber
and bring himself home…F- those people in St. Louis. I don’t need this anymore.’”161
The ALJ’s finding on Complainants “threats” lacks sufficient contextual
strength and is not supported by substantial evidence. According to Serrano,
Complainant’s statement he would not operate equipment with an inoperable
license plate light was uttered when he complained to Serrano about and needed
assistance with closing a trailer’s doors that could not be closed on uneven ground.
The remark could be construed as having been made within the context of protected
activity.162
159
D. & O. at 17.
160
Tr. at 229, 257, 260-61.
161
Id. at 83-84, 229-30.
162
D. & O. at 11 (citing RX-5).
29
Complainant had also filed two earlier internal complaints about inoperable
license plate lights on two other pieces of equipment, such that it arguably would
not have been unexpected for Complainant to encounter Transport Express
equipment with this defect.163 As noted above, the protected nature of complaining
about an inoperable license plate light on a trailer may have been established via
Complainant’s testimony that he reasonably believed the defect was a DOT
violation.164
Complainant’s remarks about being unable to operate defective equipment
might be found to have occurred, at least in part, within the context of his protected
activity. Without indication the ALJ considered this context in reaching the
affirmative defense finding, the latter is unsupported by substantial evidence.
Further, the remark may have been entitled to protection as it may have fallen
within the leeway to which Complainant was entitled in voicing his safety concerns,
and in and of itself been protected under the STAA. On remand, the ALJ shall
evaluate whether Complainant’s remarks on potentially refusing to operate
equipment fell within the bounds of protected activity by way of context and the
latitude afforded STAA complainants in expressing safety concerns.
Lastly, it is unclear whether Complainant’s remark about leaving his truck
behind if he had trouble paying for fuel with Transport Express’ fuel card was made
in the context of protected activity. If the ALJ determines that Complainant’s
statement is protected activity, the ALJ must explain whether Respondents clearly
and convincingly showed that they would have still taken the same action absent
the protected activity. If the ALJ finds that Complainant’s statement is not
protected, they must explain whether and how Respondents clearly and
convincingly showed it would have taken the same action for the singular remark
about fuel payment.
Complainant noted in a P & D report on August 21, 2019, that the “lic[ense] plate
light [is] out” on trailer #5315. D. & O. at 4. JX-2 at 15. Tr. at 138-39. Complainant also
submitted a P & D report/complaint on August 23, 2019, that the license plate light was out
on a reefer unit. D. & O. at 4, 10; CX-7 at 62.
163
Complainant testified an inoperable license plate light “is the number one violation
for DOT. It’s what gets you pulled over when the police are driving up and down the road.
Once they see that license plate bulb out in back of the trailer, you’re pulled over, and that
leads to the different inspections that lead to other issues.” Tr. at 129. We note that a
complaint motivated in part by the employee’s concern about the impact a violation can
have on the employee’s driving record may still be a complaint “related to a violation of a
commercial motor vehicle safety or security regulation, standard, or order” and be afforded
protection under §31105(a)(1)(A).
164
30
6. The ALJ Did Not Err as a Matter of Law in Finding That Respondent
Dan Piet Was Not Subject to Individual Liability
The ALJ found that because Piet was not a “joint employer” and “does not
have the power to hire and/or fire,” he thereby lacked the requisite control to make
him individually liable under the STAA.165 Although this case does not present an
issue involving a joint-employer arrangement, we agree that Complainant’s direct
supervisor, Piet, was not subject to individual liability under the STAA.
Under the plain language of the anti-discrimination provision of the STAA, a
“person,” such as a manager like Piet, can be held liable if they “discharge an
employee, or discipline or discriminate against an employee regarding pay, terms,
or privileges of employment.”166
To determine individual liability under the STAA, the inquiry is whether the
person had the authority to make decisions regarding pay, terms, or privileges of
employment.167 Here, the ultimate decision whether Complainant’s employment
was terminated rested with Redszus.168 Piet recommended that Complainant be
fired and Redszus, Transport Express’ owner and general manager, relied on the
information Piet supplied to him about Complainant, but final approval of firing
Complainant emanated from Redszus.169 For these reasons, substantial evidence
supports the ALJ’s determination that Piet lacked the requisite authority over
Complainant’s employment status and, thus, could not be held individually liable.
165
D. & O. at 13-14.
49 U.S.C. § 31105(a) (emphasis added); see also 49 U.S.C. § 31105(b)(3)(A)
(individual liability provision). A “person” is defined as “one or more individuals,
partnerships, associations, corporations, business trusts, legal representatives, or any other
organized group of individuals.” 29 C.F.R. § 1978.101(k) (emphasis added).
166
See Anderson v. Timex Logistics, ARB No. 2013-0016, ALJ No. 2012-STA-00011, slip
op. at 8-9 (ARB Apr. 30, 2014) (citations omitted) (finding operations manager not liable
under STAA despite his recommendation the employee be fired because he lacked the
ability to make the “final decision” to terminate, which belonged to the sole owner); see also
Smith v. Lake City Enters., Inc., ARB Nos. 2008-0091, 2009-0033, ALJ No. 2006-STA00032, slip op. at 9 (ARB Sept. 24, 2010) (reissued Sept. 28, 2010) (affirming the ALJ
conclusion that a manager who was the spouse of and advisor to the president and sole
shareholder not subject to individual liability under the STAA because the president made
the decisions to hire and fire complainant).
167
168
Tr. at 87, 231-32, 235, 279, 287-88.
169
Id.
31
CONCLUSION
For the foregoing reasons, we AFFIRM the ALJ’s finding Complainant did
not engage in a protected refusal to operate, AFFIRM the ALJ’s finding
Respondent Dan Piet is not subject to individual liability, and VACATE the ALJ’s
dismissal of Complainant’s complaint. More specifically, we VACATE the ALJ’s
finding concerning whether Complainant’s internal complaints were protected
activity and REMAND for the ALJ to conduct the proper analysis as to whether
they are protected, and, if found to be protected, to determine whether those
complaints were a contributing factor in Respondent’s decision to terminate
Complainant’s employment. We VACATE the ALJ’s finding Respondents
established their affirmative defense, and REMAND for further proceedings
consistent with the Board’s opinion.
SO ORDERED.
_____________________________________
SUSAN HARTHILL
Chief Administrative Appeals Judge
_____________________________________
ANGELA W. THOMPSON
Administrative Appeals Judge
CERTIFICATE OF SERVICE
ARB-2023-0024 William Halliday v. Dan Piet and Transport Express (Case No: 2020-STA-00067)
I certify that the parties below were served this day.
10/07/2024
(DATE)
Heather Erickson
333 West Wacker Drive
Suite 500
Chicago, IL 60601
--Electronic
Mr. Paul Otto Taylor
5100 Edina Industrial Boulevard
Suite 230
Edina, MN 55439
--Electronic
Peter Lawrence LaVoie
5100 Edina Industrial Blvd., Suite 230
Edina, MN 55439
--Electronic
William Halliday
527 W. Weathersfield Way Court
Schaumburg, IL 60193
--Certified
Hon. Stephen R. Henley
Chief Administrative Law Judge
Office of the Administrative Law Judges
800 K Street, N.W., Suite 400
Washington, DC 20001-8002
Thomas O. Shepherd, Jr., Esq.
Clerk of the Appellate Boards
Assistant Secretary, Occupational Safety and Health
Administration (OSHA)
U.S. Department of Labor
200 Constitution Ave, NW
Room: S-2315
Washington, DC 20210
--Electronic
Mark Lerner
U.S. Deptartment of Labor/OSHA
200 Constitution Avenue
S-4004
Washington, DC 20210
--Electronic
U.S. Department of Labor, Office of Administrative
Law Judges
200 Constitution Avenue, N.W.
Room S-4325
Washington, DC 20210
--Electronic
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