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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

MYKHAYLO HOLOVATYUK,

ARB CASE NO.

2021-0046

COMPLAINANT,

ALJ CASE NO.

2020-STA-00071

DATE: January 12, 2022

EM CARGO, LLC,

RESPONDENT.

Appearances:

For the Complainant:

Mykhaylo Holovatyuk; pro se; Palm Coast, Florida

For the Respondent:

E. Jason Tremblay, Esq., David S. Wayne, Esq., and Alexander L.

Reich, Esq.; Saul Ewing Arnstein & Lehr LLP; Chicago, Illinois

Before: James D. McGinley, Chief Administrative Appeals Judge;

Thomas H. Burrell and Randel K. Johnson, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. Mykhaylo Holovatyuk (Complainant) filed a complaint under

the Surface Transportation Assistance Act of 19821 (STAA), as amended, and its

implementing regulations, alleging that his former employer, EM Cargo, LLC

(Respondent), had violated the STAA’s whistleblower protection provisions by

terminating his employment. After a hearing, an Administrative Law Judge (ALJ)

49 U.S.C. § 31105 (2007).

found that Respondent had not violated the STAA and denied the claim.

Complainant appealed the ALJ’s decision. We affirm.

BACKGROUND

Respondent is a trucking company based in Chicago, Illinois and is owned by

Egidijus Majus.2 The drivers who work for Respondent sign independent contractor

agreements and equipment rental agreements to use trucks owned by Respondent.3

Respondent deducted $1,200 per week from Complainant’s pay for the truck rental.4

On October 12, 2019, Complainant began a route from Pennsylvania that

ended in Orlando, Florida on October 14.5 He then began an intended week-long

break at his home in Florida but did not inform Respondent of his plan to take off

for a week.6 On October 16, a dispatcher for Respondent asked Complainant via text

when he would work again, but Complainant did not respond.7 On October 17, the

dispatcher texted him again, to which Complainant responded “don’t call me when I

have days off if it’s non-emergency situation.”8 On October 17, Majus texted

Complainant telling him he had to start working the next day, to which

Complainant responded that he would return on October 21.9 Majus told

Complainant that he needed to drop off the truck in Chicago or that Respondent

would pick it up in Florida.10 Complainant responded, “If you don’t like something –

Send me notice of lease termination in writing by mail as agreement requires.”11

On October 20, Complainant sent an email to Majus, stating:

Decision and Order (D. & O.) at 3.

Id.

I’m requesting EM Cargo, LLC identification number that I need to fill

out IRS Form SS-8 to establish my employment status in company.

This issue arose, when I got info about company’s different attitude to

drivers. I have to work 4 weeks without days off, 34-h ‘restarts,’ can’t

refuse to haul cheap loads (any load) and can get only 3.5 days of home

time…I came home on 10/14/19 and on 10/17/19 you start to send me

messages, trying to force me put on the road from 10/18/19, threatened

to take back truck, despite on contract provision…So, definitely, you

treat me as employee and this will be a question for IRS, DOL, etc.12

Majus responded that he does not share the requested information over phone or

email and told Complainant to schedule an in-person appointment.13 Complainant

replied that he wanted the information via mail.14 Majus responded, “You will be

terminated from this company due to not making truck weekly payments and not

returning tractor to the terminal location.”15 Complainant replied that Respondent

should send him the notice of termination.16 Complainant and Majus continued to

argue regarding his termination in the email chain, which ended on October 21 with

Majus stating “You need to sign termination documents in order to be eligible to

receive your deposit.”17

Complainant returned the truck to the company lot on October 23rd.18 Majus

testified that he estimates that Respondent lost roughly $5,000 to $6,000 in the

week that Complainant had the truck and did not take on any loads.19 Respondent

created two termination forms. The first, created on October 23, states he was

terminated for “poor communication between driver and dispatch.”20 The second,

created on October 24 when Complainant refused to sign the first, states:

Id. at 4.

Id.

Driver was holding tractor belonging to EM CARGO LLC in Florida

and not coming back on duty. We asked him to return tractor

belonging to EM CARGO LLC in our yard. However, driver refused to

answer to the EM CARGO LLC owner phone calls and was sending

text sms, saying that due to some personal issues he cannot come back

to work as it was required. Due to the poor communication with a

driver, company can no longer afford to work with him.21

In March 2020, Majus received a reference form for Complainant from a

third-party recruiting company.22 In all categories, Majus selected scores of 2 or 3

out of 5 to rate Complainant and stated that he would not recommend Complainant

for a similar role.23 He further wrote that Complainant left the company due to poor

communication skills.24

On December 10, 2019, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA), alleging that Respondent violated the

employee protection provisions of the STAA when it terminated him in retaliation

for refusing to drive over authorized hours of service. On June 1, 2020, OSHA

dismissed the complaint. Complainant filed objections to the findings and requested

a hearing. An ALJ held a hearing on December 8, 2020.

On June 8, 2021, the ALJ issued a Decision and Order Denying the

Complaint. The ALJ considered Complainant’s allegation that he had engaged in

protected activity by emailing Majus about the 34-hour restart rule, a regulation

requiring a driver to be off-duty for 34 or more hours after driving 70 hours within

eight consecutive days.25 The ALJ found it was unclear if Complainant was

referring to specific events in October 2019 or commenting on Respondent generally

failing to abide by the 34-hour rule.26 Based on the circumstances surrounding the

October 20 email, the ALJ found no evidence of a recent violation of the rule, as

Id.

Id. at 5.

Id. at 5, 10.

Id. at 10.

See 49 C.F.R. § 395.3.

D. & O. at 7-8.

Complainant had already not worked for over 34 hours before emailing

Respondent.27

The ALJ therefore considered whether Complainant was generally

commenting that Respondent did not allow him to take required time off. The ALJ

noted that Complainant had only mentioned the 34-hour rule once in the entire

email chain without providing any additional information.28 The ALJ found that

that the entire context of the email was too vague to establish Complainant was

making a safety complaint and that he was emailing Majus only because of a

dispute over his employment status.29 Thus, the ALJ found Complainant failed to

prove he had engaged in a protected activity.30

The ALJ discussed the rest of Complainant’s claim arguendo. The ALJ

considered the three adverse employment actions alleged by Complainant. The ALJ

found that Complainant’s termination was an adverse action and also found that

Majus’ negative evaluation on the reference form was an adverse action because it

could have prevented Complainant from finding employment.31

The ALJ considered Complainant’s allegation that Respondent failed to pay

required interest32 on an escrow account holding a security deposit from

Complainant. The independent contractor agreement stated that Complainant

“agrees and authorizes” Respondent to “withhold escrow/security deposit funds” at a

minimum of $2,500.33 The lease agreement also provided that Complainant “shall

deposit” a first payment of $2,500.34 Majus, however, testified that drivers were not

required to pay any security deposit and that there was no escrow account.35

Id. at 8.

Id.

Id. at 9.

Id. at 9, 11.

Carriers must pay interest on escrow funds on a quarterly basis if the leasing

agreement requires them. 49 C.F.R. § 376.12(k).

D. & O. at 9.

Id.; Joint Exhibit (JX) 2.

D. & O. at 9.

Further, Complainant’s checking account statements did not show a withdrawal of

$2,500 around the start of his employment, and indicated that Respondent’s last

payment to Complainant on January 10, 2020 was $2,024.63—equal to the pay he

had earned during his final week of work.36 The ALJ therefore found that

Complainant failed to prove the alleged adverse action.37

The ALJ then considered whether Complainant’s reference to the 34-hour

rule in the October 20th email contributed to the adverse employment actions. For

the termination, the ALJ found temporal proximity between the reference and the

termination but found that several other factors undercut its weight.38 On October

17th, Complainant told Majus to “send me termination documents if you want” after

Majus asked him when he would restart work and return the truck.39 On October

18th, Majus told Complainant, “I can terminate you whenever I decide.”40 The ALJ

found this demonstrated that both parties already had contemplated ending the

employment relationship.41

Further, the ALJ noted that Majus referenced his issue with Complainant

failing to return the truck in the same email that terminated him and that the 34hour rule is referenced only once in an email requesting tax information.42 The ALJ

found that Respondent’s general premise for firing Complainant was the same, even

if it used different wording at times.43 Though Complainant argued he did not have

to inform Respondent of his vacation because he was an independent contractor, the

ALJ stated that failing to notify an employer about taking time off has

consequences and that Respondent reasonably needed to know about his vacation to

Id. at 10; JX 10, 11.

D. & O. at 10.

Id. at 12. The termination occurred on the same day as the email. Id.

Id.

Id. at 13.

plan accordingly.44 The ALJ therefore found that Complainant failed to prove his

reference to the 34-hour rule contributed to his termination.45

The ALJ then considered whether his reference to the 34-hour rule

contributed to his poor reference. The ALJ noted there was less temporal proximity

because Majus filled out the reference form five months after Complainant’s

October 20th email.46 Majus also listed only Complainant’s communication skills as

a reason for his termination and does not mention any protected activity.47 The ALJ

remarked that it was understandable for Majus to rate Complainant low in areas

such as “reliability” and “communications” after his actions.48 The ALJ therefore

found that Complainant failed to prove his alleged protected activity contributed to

his poor evaluation.49

Lastly, the ALJ considered whether Respondent proved that it would have

terminated Complainant in the absence of his alleged protected activity. The ALJ

found that the decision to fire him was reasonable and expected given the loss of

revenue by not having the truck on the road.50 The ALJ therefore found that

Respondent proved its affirmative defense by clear and convincing evidence.51

Id.

Id. at 13-14.

Id.

Id. at 14-15.

Id. at 15.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated his authority to the Administrative

Review Board to issue final agency decisions in STAA cases.52 The Board reviews an

ALJ’s factual determinations under the substantial evidence standard. 53 The Board

reviews the ALJ’s legal conclusions de novo.54

DISCUSSION

The STAA whistleblower statute provides that an employer may not

discharge or otherwise retaliate against an employee for making a complaint about

the existence of a commercial motor vehicle safety violation.55 To prevail on a STAA

complaint, the complainant must prove by a preponderance of the evidence that (1)

they engaged in a protected activity, (2) that the employer took an adverse

employment action against them, and (3) that the protected activity was a

contributing factor to the adverse employment action.56 If the complainant

successfully meets their burden, the employer may avoid liability by demonstrating

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

in the absence of the protected activity.57

Complainant contests several of the ALJ’s findings, including the finding that

he failed to prove that had he engaged in a protected activity. Complainant

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

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

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

29 C.F.R. § 1978.110(b) (2020). Substantial evidence is “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Menter

v. N. Cty. Transp., ARB No. 2005-0104, ALJ No. 2004-STA-00061, slip op. at 1-2 (ARB

Oct. 24, 2007).

Olson v. Hi-Valley Constr. Co., ARB No. 2003-0049, ALJ No. 2002-STA00012, slip op. at 2 (ARB May 28, 2004).

49 U.S.C. § 31105(a)(1)(A) (2007).

29 C.F.R. § 1978.109(a) (2020); Estate of Ayres, ARB Nos. 2018-0006, 0074, ALJ No. 2015-STA-00022, slip op. at 6 (ARB Nov. 18, 2020).

29 C.F.R. § 1978.109(b) (2020); Blackie v. Smith Transp., Inc., ARB No.

2011-0054, ALJ No. 2009-STA-00043, slip op. at 8 (ARB Nov. 29, 2012).

contends that his “34-h ‘restarts’” reference in his October 20, 2019, email related to

a specific safety regulation and was therefore a protected activity. The STAA

protects employees who make complaints “related to a violation of a commercial

motor vehicle safety regulation.”58 Covered safety complaints include oral, informal,

or unofficial “internal complaint[s] to superiors conveying [an employee’s]

reasonable belief that the company was engaging in a violation of a motor vehicle

safety regulation.”59

We agree with the ALJ’s finding that Complainant’s reference to the 34-hour

restart rule in the October 20th email was not a protected activity. The purpose of

the email was to seek tax information because Complainant believed his work

schedule made him an employee of Respondent, rather than an independent

contractor. Further, Complainant makes only a vague reference to the 34-hour

restart rule among a list of other issues. Complainant wrote that he had “to work 4

weeks without days off, 34-h ‘restarts.’” It is uncertain whether Complainant is

stating that Respondent forced him to work four weeks straight without allowing

any required 34-hour rest period, or that he worked so frequently during those four

weeks that he had to take the required rest time. Complainant did not further

discuss the rule or any alleged violation in his email exchange with Majus, making

it impossible to discern whether or not he was making a safety complaint to his

supervisor. Accordingly, the ALJ’s finding that Complainant failed to prove that he

had made a safety complaint to his employer is supported by substantial evidence,

and Complainant’s claim is denied.

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

reference to the 34-hour restart rule had contributed to his termination and

subsequent negative referral and that Respondent proved that it would have

committed the same adverse actions absent his alleged protected activity. However,

Complainant’s behavior, including failing to tell his employer he was taking a week

off, keeping a truck that could have been used by another driver, and being

argumentative and disrespectful toward his employer, reasonably caused

Respondent to end the employment relationship and give his work performance low

ratings. While Complainant may expect more leeway in his work as an independent

contractor, his actions caused harm to the business that could have been easily

Dick v. Tango Transp., ARB No. 2014-0054, ALJ No. 2013-STA-00060, slip

op. at 7 (ARB Aug. 30, 2016).

Harrison v. Roadway Express, Inc., ARB No. 2000-0048, ALJ No. 1999STA-00037, slip op. at 6 (ARB Dec. 31, 2002).

prevented with basic communication with his employer. Therefore, the ALJ’s

findings that Complainant failed to prove contribution and that Respondent proved

its affirmative defense are supported by substantial evidence.60

CONCLUSION

Because Complainant failed to prove several required elements of his STAA

claim, we AFFIRM the ALJ’s Decision and Order Denying the Complaint.61

SO ORDERED.

Complainant also contests the ALJ’s finding that Complainant failed to prove

he had paid a deposit for his truck rental and, therefore, that Respondent could not have

committed an adverse action by failing to pay required interest on it. We note that

Complainant failed to produce evidence that he had made a deposit or that an escrow

account holding the deposit existed. We therefore affirm the ALJ’s finding.

In any appeal of this Decision and Order that may be filed with the Courts of

Appeals, we note that the appropriately named party is the Secretary, Department of Labor

(not the Administrative Review Board (ARB)).

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.