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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

DALE DETIE,

ARB CASE NO. 2024-0041

COMPLAINANT,

ALJ CASE NO. 2022-STA-00038

ALJ SEAN M. RAMALEY

DATE: March 25, 2026

TRANSWOOD, INC.,

and

MARK MILLER,

RESPONDENTS.

Appearances:

For the Complainant:

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

Center; Edina, Minnesota

For the Respondent:

Christopher E. Hoyme, Esq., and Nicholas B. McGrath, Esq.;

Jackson Lewis P.C.; Omaha, Nebraska

Before BURRELL and KIKO, Administrative Appeals Judges

DECISION AND ORDER

This case arises under the Surface Transportation Assistance Act of 1982

(STAA), as amended.1 On May 1, 2024, Administrative Law Judge (ALJ) Sean M.

Ramaley issued a Decision and Order (D. & O.) Denying Whistleblower Complaint.

The ALJ found that while Complainant Dale DeTie established that he engaged in

protected activity when he filed complaints relating to commercial vehicle safety in

(2025).

49 U.S.C. § 31105(a), as implemented by the regulations at 29 C.F.R. Part 1978

April 2021, he failed to establish that he engaged in protected activity by refusing to

operate a commercial vehicle on April 24, 2021. The ALJ further found that

Complainant failed to establish that Respondents TransWood, Inc., and Mark

Miller took any adverse action against him because he engaged in protected activity

and that even if he had, Respondents proved that they would have taken the same

action against Complainant in the absence of any protected activity. We affirm.

BACKGROUND AND PROCEDURAL HISTORY

Complainant worked for Respondent for approximately four months, from

January 2021, until his discharge on April 25, 2021.2 He worked as a truck driver,

filling trucks with gasoline and diesel fuel, and delivering the fuel to convenience

stores and gas stations.3 Complainant received a dispatch sheet at the beginning of

each shift which listed the delivery locations and the type and quantity of fuel to be

delivered.4 Complainant did not have the ability to choose different loads than those

listed on the dispatch sheets he was assigned.5 Drivers were trained to call dispatch

if the amount on the dispatch sheet exceeded the maximum volume.6 To begin a job,

Complainant would personally load fuel into his truck.7 A loading matrix was

available as a reference for drivers to know the weight limits.8

Throughout his employment with Respondent, Complainant had poor

attendance, continually having problems with showing up for work, being on time,

and working his whole shift.9 Several text messages between Complainant and

Walter Hornbeck, lead driver trainer and a supervisor, in January and February

2021 reflect that Complainant was late or absent from work.10 Respondent Miller, a

manager with Respondent, gave Complainant an attendance write-up letter on

March 25, 2021, in which he stated that Complainant had “constant late starts”

which caused delivery delays and that Complainant had been late ten times in

D. & O. at 3.

Id.

Id. at 5.

Id.

Id. at 6-7.

Id. at 6. Walter Hornbeck was a lead driver trainer and a supervisor with

Respondent TransWood. Id. at 5, 8.

March.11 Complainant signed the attendance write-up letter.12 Miller also met with

Complainant in person to address the attendance issues.13 On April 4, 2021,

Complainant received another attendance write-up letter, which Complainant

signed.14 The second write-up reflected that Complainant had called off three times

in three weeks, the first of which was a “no show . . . no notification provided.”15

After this write-up, Complainant refused to work two shifts due to a pay

discrepancy.16 Complainant continued to have attendance problems after the two

write-ups.17

On April 1, 2021, Complainant received a group text from a co-worker that

indicated that loads were overweight.18 After receiving this text, Complainant

began to question the weight of the loads he was being assigned.19 He raised the

issue of overweight loads with Hornbeck, who directed him to weigh his empty truck

on April 2, 2021, and told him that any points Complainant received for a ticket

would not go on his license.20

Although Miller was aware of a general concern among drivers about

overweight loads due to the text message, Complainant did not raise complaints

about overweight loads directly with Miller.21 In response to the group text, Miller

sent out a memorandum to address the concern that trucks would be overweight, in

Id. at 6. Mark Miller, in addition to being a Respondent in this matter, is a manager

with Respondent TransWood. Id. at 3.

Id. at 6.

Id.

Id. at 7.

Id.

Id. at 7-8, 16. While not explained further, presumably knowing the weight of an

empty truck and then of the fuel being loaded onto the truck, would allow a driver to

appropriately load a legal weight of fuel onto a truck.

Id. at 15 (the ALJ found “that there [wa]s insufficient evidence that Complainant

filed complaints directly with Mr. Miller.”).

which he stated that if drivers were “not comfortable hauling over 7500 ULSD and

8500 gasoline then by all means continue to haul this size load.”22

On April 24, 2021, Complainant began his shift, fueled up his truck to the

fuel level listed on the dispatch sheet, drove the truck back to the terminal, and left

to go home. He did not notify dispatch or anyone at Respondent before leaving.23 He

did not raise concerns with dispatch about the load being overweight, did not seek a

lighter load, and did not fill the tanker to a weight that would have been within the

allowable weight limits.24 About 40-45 minutes after he left, he texted Hornbeck

and said, “Hey Walter, I took off early because of the load weight. Still unsure about

it. Just worried about points. Didn’t have anything on the dispatch sheet that

wasn’t.”25 Hornbeck responded to Complainant in part “Dale you don’t even bother

to talk to the dispatchers . . . taking off and gone home due to this gotta stop.”26

The next day, April 25, 2021, Miller fired Complainant.27 In the text

exchange between Complainant and Miller, Miller told Complainant that “walking

off last night without even speaking to dispatch was job abandonment.”28

Complainant responded, in part “I told Walter there’s another issue my check before

last is short again also I’ve been overcharged on my physical,” and “[s]o I’m fired

because of the lack of transparency and being short on my check and complaining

about it I got to work and I don’t get paid you see the dilemma.”29

In this text exchange, Complainant never mentioned overweight loads and

did not dispute that he failed to tell dispatch before he left.30 The text ended with

Complainant disputing that he walked off the job and that he had only had a “no

show” once, and Miller indicating that they could discuss the next day if

Complainant wanted to provide documentation to support his statements.31 Miller

Id. at 8. A greater amount of weight was allowed in certain geographical areas, but

the lesser amount was legal regardless of the geographical area being driven in. Id. at 8-9.

Id. at 9, 17.

Id. at 17.

Id. at 10, 17.

Id. at 10.

Id. at 14, 17.

Id. at 17.

Id. at 10-11, 17.

Id. at 11, 17.

Id. at 11.

followed up with Complainant the next day and told him that he would be in the

office, but Complainant did not respond.32 Miller signed Complainant’s final writeup, which stated “abandoned job, Drove back to yard from Phillips, parked truck

and left without contacting dispatch. Either by phone or by simply walking into

office to discuss with dispatcher on duty,” and indicated Complainant was

“Terminated for Job Abandonment.”33

Complainant filed a complaint with the Occupational Safety and Health

Administration (OSHA) on June 14, 2021.34 On March 10, 2022, OSHA dismissed

the complaint because it was unable to find reasonable cause to believe a violation

occurred.35 Complainant filed objections with the Office of Administrative Law

Judges and an ALJ was assigned.36

The ALJ held a videoconference hearing on May 15, 2023.37 The ALJ found

that Complainant proved he filed protected complaints about overweight loads with

a supervisor, Hornbeck.38 However, with regard to the alleged refusal to drive

because operating the vehicle would violate a regulation related to commercial

motor vehicle safety, the ALJ found that Complainant did not establish that he

refused to operate his vehicle due to weight concerns.39 With regard to a refusal to

drive because the employee had a reasonable apprehension of a serious injury to the

employee or the public because of the vehicle’s condition, the ALJ found that

Complainant did not seek correction and could not qualify for protection.40

Regarding contributing factor causation, the ALJ found that the protected

safety complaints did not contribute to Complainant’s firing and that Complainant

was fired for abandoning his job without notice.41 In the alternative, the ALJ found

that Respondent would have fired Complainant absent protected activity for both

Id. at 11.

Id. at 12.

Id. at 2.

Id.

Id. at 15.

Id. at 17.

Id.

Id. at 20.

attendance problems and walking off the job without notifying dispatch on April 24,

2021.42 Thus, the ALJ denied the complaint.

On May 10, 2024, Complainant filed a Petition for Review with the

Administrative Review Board (ARB or Board). The parties each filed briefs.

JURISDICTION AND STANDARD OF REVIEW

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

agency decisions in STAA cases.43 The Board reviews an ALJ’s factual

determinations under the substantial evidence standard.44 The Board reviews the

ALJ’s legal conclusions de novo.45

DISCUSSION

To prevail on a STAA retaliation complaint, a complainant must prove by

preponderance of the evidence that: (1) he engaged in protected activity; (2) he

suffered an unfavorable personnel action; and (3) the protected activity was a

contributing factor in the unfavorable personnel action.46 If the complainant 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.47 STAA protected activity includes refusing to

Id. at 21.

Holovatyuk v. EM Cargo, LLC, ARB No. 2021-0046, ALJ No. 2020-STA-00071, slip

op. at 8 (ARB Jan. 12, 2022) (citing Secretary’s Order No. 01-2020 (Delegation of Authority

and Assignment of Responsibility to the Administrative Review Board), 85 Fed. Reg. 13186

(Mar. 6, 2020)).

Id. (citations omitted).

Id. (citation omitted).

See 49 U.S.C. § 31105(a) (“A person may not discharge an employee, or discipline or

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

because” the employee engages in activities protected by the STAA.); § 31105(b) (“All

complaints initiated under this section shall be governed by the legal burdens of proof set

forth in section 42121(b),” which provides at (2)(B)(iii) that a complainant must

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

action alleged in the complaint.”); 29 C.F.R. § 1978.109(a) (“A determination that a

violation has occurred may be made only if the complainant has demonstrated by a

preponderance of the evidence that protected activity was a contributing factor in the

adverse action alleged in the complaint.”).

See 49 U.S.C. § 31105(b) (“All complaints initiated under this section shall be

governed by the legal burdens of proof set forth in section 42121(b),” which provides at

operate a commercial motor vehicle because doing so would violate a regulation,

standard, or order of the United States related to commercial motor vehicle safety

or health.48

1. Protected Activity

Complainant contests the ALJ finding that he did not refuse to drive under

49 U.S.C. §31105(a)(1)(B)(i), which concerns a refusal to operate a vehicle because

operating the vehicle would violate a regulation, standard, or order of the United

States related to commercial motor vehicle safety, health, or security.49

Complainant argues that the ALJ improperly relied on the fact that Complainant

did not contact his dispatcher about his refusal because his report to Hornbeck after

he left was enough to communicate his refusal and reasoning to a supervisor under

the STAA.50

(2)(B)(iv) that “[r]elief may not be ordered under subparagraph (A) if the employer

demonstrates by clear and convincing evidence that the employer would have taken the

same unfavorable personnel action in the absence of that behavior.”); 29 C.F.R.

§ 1978.109(b) (“[R]elief may not be ordered if the respondent demonstrates by clear and

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

protected activity.”). This is generally referred to as the “same action defense” or an

employer’s affirmative defense.

49 U.S.C. § 31105(a)(1)(B)(i). Other STAA-protected activities not directly relevant

in this appeal include filing a complaint about a violation of a commercial motor vehicle

safety or security regulation, standard, or order (§ 31105(a)(1)(A)(i)), which the ALJ found

Complainant did engage in and has not been challenged on appeal (D. & O. at 15-16), and

refusing to operate a vehicle because the employee has a reasonable apprehension of

serious injury to the employee or the public because of the vehicle’s hazardous safety or

security condition (§ 31105(a)(1)(B)(ii)). Regarding § 31105(a)(1)(B)(ii), “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.” 49 U.S.C.

§ 31105(a)(2).

Complainant’s Opening Brief (Comp. Br.) at 16-20. Complainant has not argued on

appeal that he engaged in protected activity by refusing to operate a vehicle because he had

a reasonable apprehension of a serious injury to the employee or the public because of the

vehicle’s unsafe condition, and so we consider it waived. A party typically waives any

arguments it does not specifically raise. See 29 C.F.R. § 1978.110(a) (“The parties should

identify in their petitions for review the legal conclusions or orders to which they object, or

the objections may be deemed waived.”).

Comp. Br. at 19.

However, the ALJ found that there was “no evidence that Complainant

questioned the assigned weight prior to walking off the job.”51 The ALJ noted that

Complainant failed to contact dispatch, not only as evidence that Complainant

failed to communicate with Respondent about his refusal, but as evidence that he

did not leave the worksite that day because of an overweight load. We view the

ALJ’s statement as reasoning that if there had been an overweight load, under

Respondent’s training practices, Complainant would have and should have called

dispatch about it, and since he did not, this provided support to the ALJ’s finding

that Complainant did not leave because of an overweight load.

Further, when Miller texted Complainant the next day stating that

Complainant had walked off without speaking to dispatch and labeling that job

abandonment, Complainant did not dispute that he walked off without speaking to

dispatch and did not state to Miller that his reason for leaving had anything to do

with load weight.52 Instead, he referenced a short paycheck.53

Moreover, Complainant filled the truck to the amount on the dispatch sheet

and then drove it back to the terminal. As noted by the ALJ, Complainant did not

have to fill the truck to an amount he considered to be overweight—under the

Respondent’s policies, he was permitted to fill it to an amount that was always

legally permissible, regardless of geographical location.

Weighing all of the evidence, the ALJ concluded that Complainant failed to

meet his burden to establish that he refused to operate his vehicle because of

concerns he had about an overweight load. This amounts to a finding by the ALJ

that Complainant did not have a reasonable (subjective or objective) belief that

there would have been a violation had he operated his vehicle.54 For the reasons

given by the ALJ, the ALJ’s findings are supported by substantial evidence in the

record and are affirmed—Complainant failed to prove that he engaged in protected

activity under the refusal-to-operate provisions of the STAA.

D. & O. at 17.

Id.

See Berg v. S&H Express, ARB No. 2017-0075, ALJ No. 2015-STA-00014, slip op. at

5 (ARB June 4, 2020) (citing Jeanty v. Lily Transp. Corp., ARB No. 2019-0005, ALJ No.

2018-STA-00013, slip op. at 4-5 (ARB May 13, 2020)) (“Under [49 U.S.C. §

31105(a)(1)(B)(i)], the protection afforded includes refusals where the operation of a vehicle

would violate safety laws under the employee’s reasonable belief of the facts at the time she

refuses to operate a vehicle, and the reasonableness of the refusal must be subjectively and

objectively determined.”).

We note one error by the ALJ regarding protected refusals. The ALJ stated as

an additional reason for finding no protected activity that Complainant did not

qualify for protection because he did not seek correction under § 31105(a)(2). This

provision only applies to one half of the refusal provision—§ 31105(a)(1)(B)(ii)’s

refusal for a reasonable apprehension of serious injury to the employee or the public

because of the vehicle’s hazardous safety or security condition—and does not apply

to § 31105(a)(1)(B)(i)’s refusal because operating the vehicle would violate a

regulation, standard, or order of the United States related to commercial motor

vehicle safety, health, or security.55

Although refusal because there would be a violation does not require that the

employee give the employer the opportunity to correct, we clarify that the employee

must still communicate the refusal to the employer. It would make little sense if an

employee was protected in refusing to operate a vehicle when he or she simply

leaves the worksite and goes home. The statutory language logically presupposes

some form of communication of the refusal in its statement that “[a] person may not

. . . discriminate against an employee . . . because the operation violates a

regulation, standard or order of the United States related to commercial motor

vehicle safety, health, or security.”56 For one action to be “because” of the other, a

communication of the refusal is necessary.57 In this matter, while Complainant

arguably satisfied the communication requirement in his message to Hornbeck after

he left, Complainant’s argument that he engaged in a protected refusal under 49

U.S.C. § 31105(a)(1)(B)(i) fails for another reason.

An additional requirement for protection under 49 U.S.C. § 31105(a)(1)(B)(i),

is that Complainant had to prove that he reasonably believed that operating the

49 U.S.C. § 31105(a)(2); Juarez v. Ready Trucking Co., Case No. 1986-STA-00027,

slip. op. at 2-3 (Sec’y July 7, 1988) (“The requirement that the employee seek correction of

the unsafe condition applies only . . . where the refusal to drive is based on a reasonable

apprehension of injury due to the unsafe condition of the vehicle. It does not apply to the

refusal to drive in violation of a Federal safety rule or regulation.”).

49 U.S.C. § 31105(a)(1)(B)(i) (emphasis added).

See Berg, ARB No. 2017-0075, slip op. at 5(“To be protected, a refusal must be based

on a reasonable concern . . . and employees must communicate [it] . . . to the employer.”);

see also Calhoun v. U.S. Dep’t of Lab., 576 F.3d 201, 213 (4th Cir. 2009) (internal quotations

and citations omitted) (“[H]owever broadly we construe the statute, [c]learly there is a point

at which an employee’s concerns and comments are too generalized and informal to

constitute” protected activity under the STAA.). While this language concerns the STAA’s

complaint clause, the logic follows for the refusal clause as well, that a “silent departure”

does not suffice for engaging in protected activity.

vehicle would have violated a regulation, standard, or order of the United States

related to commercial motor vehicle safety or health. The ALJ concluded that

Complainant did not have this belief when he left Respondent’s premises on April

24, 2021.58 As we have stated, this finding is supported by substantial evidence, and

we note that it is conclusive on the issue. On appeal, Complainant has pointed to no

evidence supporting that if he had driven the dispatched load on April 24, 2021, he

reasonably believed it would have been a violation. Indeed, Complainant’s own text

about the dispatch he was assigned that he claims as protected activity, shows a

lack of confidence about whether there would have been a violation—“still unsure

about it [the load weight].”59 The ALJ’s protected activity finding that there was no

protected refusal to operate is affirmed.

2. Contributing Factor Causation

Complainant also contested the ALJ’s finding that he failed to prove

contributing factor causation based on his argument that he engaged in a protected

refusal to operate under the STAA.60 However, because we affirm the ALJ’s

protected activity finding regarding the alleged refusal, Complainant’s argument

fails. The ALJ’s findings that Complainant failed to prove contribution are

supported by substantial evidence in the record. Specifically, substantial evidence

supports the ALJ finding that Miller fired Complainant because Complainant

abandoned his job without notice and not for any reports about overweight loads.

The ALJ’s finding that Complainant failed to prove contributing factor causation is

affirmed.

3. Respondent’s Same Action Defense

Complainant argues that Respondents could not make a conclusive

demonstration that it was “highly probable or reasonably certain” that they would

have fired Complainant in the absence of protected activity and that Respondent’s

motivations in terminating Complainant were not legitimate.61 We disagree. Again,

D. & O. at 17 (finding that Complainant failed to prove “that he refused to operate

his vehicle on April 24, 2021, due to weight concerns.”).

Id. at 10; Complainant’s Exhibit 1.

Comp. Br. at 20-24.

Id. at 26, 28. Complainant also appears to object to the ALJ making alternative

findings on Respondents’ affirmative defense. Comp. Br. at 24. The ALJ acted within his

discretion to consider arguments asserted before him and which were supported by the

record.

Complainant’s arguments hinge on an inapposite conclusion that the ALJ was

incorrect with respect to refusal-to-operate protected activity on April 24, 2021.

However, we have affirmed this ALJ finding.

The ALJ found that had Complainant 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.62 That is to say, Respondents showed by

clear and convincing evidence that they would have fired Complainant because he

walked off the job without notifying dispatch in violation of Respondent’s policy, and

because of his prior attendance issues, which were numerous in a four-month period

of time.63 Indeed, it appears that from January to April 24, 2021, Complainant had

two attendance write-up letters showing that Complainant “had constant late starts

and had been late ten times in March,” and “that he had called off three times in

three weeks, the first of which was a ‘no show . . . no notification provided.’”64

Substantial evidence in the record includes Complainant’s attendance and no-show

issues as supported by texts, write-ups, and Miller’s credible testimony about

them.65 Because substantial evidence supports the ALJ’s finding regarding

Respondents’ same action defense, it is affirmed.

D. & O. at 20.

Id. at 19 (stating that there was no dispute “that Complainant left work on April 24,

2021 without notifying dispatch, which violated company policy.”), 21.

Id. at 20.

Id. (citing Hearing Transcript at 120-21, 191; Respondents’ Exhibit (RX) 5; RX 6).

CONCLUSION

Because Complainant failed to prove several required elements of his STAA

claim and because we affirm the ALJ’s alternative finding that Respondents proved

that they would have taken the same action absent any protected activity, we

AFFIRM the ALJ’s Decision and Order Denying Whistleblower Complaint.

SO ORDERED.

PHILIP G. KIKO

Administrative Appeals Judge

THOMAS H. BURRELL

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.