# Administrative Review Board

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URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A431a729c0ebbe2fd

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Administrative Review Board
200 Constitution Ave. NW
Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:
KERVIN JEANTY,
COMPLAINANT,
v.

ARB CASE NO.

2019-0005

ALJ CASE NO.

2018-STA-00013

DATE: May 13, 2020

LILY TRANSPORTATION
CORPORATION,
RESPONDENT.
Appearances:
For the Complainant:
Kervin Jeanty; pro se; Newburgh, New York
Before: Heather C. Leslie, James A. Haynes, and James D. McGinley,
Administrative Appeals Judges
DECISION AND ORDER
PER CURIAM. This case arises under the employee protection provisions of the
Surface Transportation Assistance Act of 1982 (STAA), as amended. 49 U.S.C. §
31105(a) (2007); see also 29 C.F.R. Part 1978 (2019) (the STAA’s implementing
regulations). Kervin Jeanty filed a complaint with the United States Department of
Labor’s Occupational Safety and Health Administration (OSHA), alleging that
Respondent Lily Transportation Corporation (Lily) violated the STAA by
terminating his employment after he allegedly refused to drive a commercial vehicle
in violation of Federal Motor Carrier Safety Administration (FMCSA) regulations.
Following a hearing, a Department of Labor Administrative Law Judge (ALJ) ruled
that Jeanty had not met his burden to prove that he had engaged in protected
activity under the STAA, and denied his complaint.

Jeanty appealed the ALJ’s decision to the Administrative Review Board (ARB
or Board). Jeanty argues that the evidence established he did engage in protected
activity. Jeanty also requests the Board to reopen the record, issue him a thirdparty subpoena duces tecum, and consider a new form of retaliation for the first
time on appeal. For the following reasons, we affirm the ALJ’s decision and deny
Jeanty’s complaint.1
BACKGROUND2
Jeanty began working as a commercial tractor-trailer driver for Lily, a
logistics and delivery company, in July 2016. Jeanty was based at a facility operated
by Lily in Stormville, New York (the Stormville Yard). Jeanty worked for Lily for
approximately twelve weeks before the suspension precipitating this case. Jeanty
spent the first six weeks of his employment in training, and therefore only spent
approximately six weeks on the road as a driver for Lily.
Lily assigned Jeanty to make “runs” from the Stormville Yard to various
delivery locations, often in New York City. Each run followed a typical sequence of
events. First, Jeanty reported to the Stormville Yard to receive a delivery slip
informing him where the delivery was going and which trailer to take. Jeanty then
located the trailer he was assigned, hooked the trailer to his truck, “strapped” the
load in the trailer, and performed the required pre-trip inspection of the tractortrailer. After completing this pre-trip process, Jeanty made the delivery and
returned with his tractor-trailer to the Stormville Yard. Jeanty typically made two
runs a day.
On September 30, 2016, Jeanty completed a first run to Brooklyn and
returned to the Stormville Yard around 11:00 a.m. According to Jeanty, he then told
Andre Duncan, Lily’s Operations Manager at the Stormville Yard, that he was ill or
fatigued3 and asked if he could go home.4 Duncan allegedly responded that there
were no other drivers available to cover Jeanty’s next run, and Jeanty admittedly
Lily did not file a brief in response to Jeanty’s appeal, or otherwise enter an
appearance before the Board.
1

The facts are based on the ALJ’s detailed delineation of the parties’ stipulated facts
and the testamentary and documentary evidence presented at the hearing. Decision and
Order Dismissing Complaint (D. & O.) at 3-21.
2

Jeanty’s testimony was not clear as to precisely what he told Duncan. At one point
in his testimony, Jeanty stated that he told Duncan he was “not feeling well.” Hearing
Transcript (Hearing Tr.) at 30. He later testified that he told Duncan he was “ill and/or
fatigued.” Id. at 33.
3

Duncan testified that he did not recall Jeanty reporting that he was not feeling well,
was ill, or was fatigued. A resolution as to this factual dispute is not necessary in light of
our holding.
4

2

agreed to make a second run to Brooklyn after taking a lunch and rest break. There
is no indication that Jeanty complained about being ill or fatigued at any other
point during the remainder of the day on September 30.
When Jeanty finished his break around 12:15 p.m., he began the pre-trip
process for his second run. Jeanty and Duncan both testified that the pre-trip
process should typically take forty-five minutes. However, on September 30, 2016,
Jeanty took more than twice that amount of time getting ready to depart.
First, Jeanty claimed he suffered delays trying to connect his truck to the
assigned trailer. Jeanty caused two “high hitches,” a situation in which the
“kingpin” of the trailer gets stuck behind the “fifth wheel” of the truck. The parties
agreed a high hitch is a precarious situation and can cause severe damage to the
tractor and trailer. According to Duncan and Jack Poor, Lily’s Regional Vice
President of Operations, high hitches are caused by driver neglect and can be
avoided so long as the driver follows proper procedures.
Jeanty testified it took him somewhere between twenty-five and forty
minutes to extricate himself from the two high hitches. Jeanty did not alert anyone
to his connection problems at the time they occurred or ask for help to get out of the
high hitches, although Poor testified it was procedure for drivers to call dispatch for
help if a high hitch occurred. Poor testified that with help, Jeanty could have
remedied a high hitch in as little as five minutes.
Jeanty testified he finally had his tractor-trailer connected and his load
strapped by 1:15 p.m. Jeanty then proceeded to get fuel. Jeanty testified that he
was delayed in fueling because there was no fuel fob with the truck and because
there were other trucks in line at Lily’s lone fuel pump.
Jeanty still had not departed for his second run as of 2:00 p.m. At that point,
Jeanty reported to Duncan that he believed he no longer had time to make the
delivery and return to the Stormville Yard without violating the FMCSA’s hours-ofservice rules.5 Duncan reviewed Jeanty’s hours for the day, and determined he did
still have time to make the run. When Jeanty continued to insist he could not make
the run in time, Duncan suspended him. After Duncan consulted with Poor,
Jeanty’s suspension was changed to a termination.
JURISDICTION AND STANDARD OF REVIEW

As discussed in more detail in Section 1.B., infra, the hours-of-service rules limit
how many hours a driver of a commercial vehicle may drive during a work shift. 49 C.F.R. §
395.3.
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The Secretary of Labor has delegated to the ARB authority to hear appeals
from ALJ decisions and issue agency decisions in cases arising under the STAA.
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. 13,186 (Mar. 6, 2020). The ARB reviews questions of
law presented on appeal de novo, but is bound by the ALJ’s factual determinations
as long as they are supported by substantial evidence. 29 C.F.R. §1978.110(b);
Jacobs v. Liberty Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007, slip
op. at 2 (ARB Apr. 30, 2019) (reissued May 9, 2019) (citation omitted). In addition,
we uphold ALJ credibility determinations unless they are “inherently incredible or
patently unreasonable.” Jacobs, ARB No. 17-0080, slip op. at 2 (quotations omitted).
DISCUSSION
1. Jeanty Did Not Engage in Protected Activity
The STAA provides than an employer may not discharge or otherwise
retaliate against an employee with respect to the employee’s compensation,
conditions, or privileges of employment because the employee engaged in STAAprotected activity. 49 U.S.C. § 31105(a)(1); 29 C.F.R. §1978.102(a). Complaints filed
under the STAA are governed by the legal burdens of proof set forth in the employee
protection provision of the Wendell H. Ford Aviation Investment and Reform Act for
the 21st Century (AIR 21). 49 U.S.C. § 31105(b)(1); see 49 U.S.C. § 42121.
To prevail on a STAA claim, a complainant must prove by a preponderance of
the evidence that he engaged in protected activity, that his employer took an
adverse employment action against him, and that the protected activity was a
contributing factor in the unfavorable personnel action. 49 U.S.C. §
42121(b)(2)(B)(iii); Buie v. Spee-Dee Delivery Serv., Inc., ARB No. 2019-0015, ALJ
No. 2014-STA-00037, slip op. at 3 (ARB Oct. 31, 2019). If the employee does not
prove one of these requisite elements, the entire claim fails. Riess v. Nucor Corp.Vulcraft-Texas, Inc., ARB No. 2011-0032, ALJ No. 2008-STA-00011, slip op. at 5
(ARB Dec. 19, 2012) (citation omitted).
As relevant to this appeal, a complainant may engage in protected activity
under the STAA’s “refusal to drive” clause by refusing to operate a commercial
vehicle because the operation would violate a regulation, standard, or order of the
United States related to commercial motor vehicle safety, health, or security. 49
U.S.C. § 31105(a)(1)(B)(i).6 To be protected, a complainant must show that he

A complainant may also engage in protected activity by filing a complaint related to
a violation of a commercial motor vehicle safety or security regulation, standard, or order.
49 U.S.C. § 31105(a)(1)(A). The ALJ’s D. & O. focused exclusively on the “refusal to drive”
clause, and did not address whether Jeanty’s conduct constituted protected activity under
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refused to drive based on a subjectively and objectively reasonable belief regarding
the existence of an actual or potential violation.7 Gilbert v. Bauer’s Worldwide
Transp., ARB No. 2011-0019, ALJ No. 2010-STA-00022, slip op. at 7 (ARB Nov. 28,
2012) (citing Dick v. J.B. Hunt Transp., Inc., ARB No. 2010-0036, ALJ No. 2009STA-00061, slip op. at 6 (ARB Nov. 16, 2011)); see also Mauldin v. G & K Servs.,
ARB No. 2016-0059, ALJ No. 2015-STA-00054, slip op. at 4 n.12 (ARB June 25,
2018). The “subjective” component of the reasonable belief test is satisfied by
showing that the complainant actually believed, in good faith, that the conduct he
complained of constituted a violation of relevant law. Gilbert, ARB No. 11-0019, slip
op. at 7; Dick v. Tango Transp., ARB No. 2014-0054, ALJ No. 2013-STA-00060, slip
op. at 7 (ARB Aug. 30, 2016). Objective reasonableness is “evaluated on the
knowledge available to a reasonable person in the same factual circumstances with
the same training and experience as the aggrieved employee.” Gilbert, ARB No. 110019, slip op. at 7 (quotation omitted); accord Tango Transp., ARB No. 14-0054, slip
op. at 7 (citation omitted).
The ALJ determined that Jeanty’s refusal to make a second run on
September 30, 2016, did not constitute protected activity under the STAA’s “refusal
to drive” clause. The ALJ’s decision is well-reasoned, comprehensive, and amply
supported by the evidence and her credibility determinations. Accordingly, we
affirm the ALJ’s decision.
A. Refusal to Drive Due to Illness and/or Fatigue
The first instance of potential protected activity considered by the ALJ was
Jeanty’s initial request not to make a second run on September 30, 2016, because he

the “complaint” clause. Jeanty did not identify this as a point of error by the ALJ or an
issue for the Board to consider on appeal.
Some Courts of Appeals have held that a refusal to drive claim under Section
31105(a)(1)(B)(i) requires the complainant to establish an actual violation of applicable
rules or regulations for his conduct to be protected. See, e.g., Koch Foods, Inc. v. Sec’y of
Labor, 712 F.3d 476, 486 (11th Cir. 2013); Calhoun v. U.S. Dep’t of Labor, 576 F.3d 201, 209
(4th Cir. 2011). However, the Board has held that proof of an actual violation is not
necessary, and a complainant’s actions may be protected as long as he had a subjectively
and objectively reasonable belief regarding the existence of an actual or potential violation.
Gilbert, ARB No. 11-0019, slip op. at 7; Mauldin, ARB No. 16-0059, slip op. at 4 n.12. And,
while the Eleventh Circuit disagreed with the Board’s approach in Koch Foods, as we
recognized in Mauldin we are not bound by the Eleventh Circuit’s opinion as this case falls
within the ambit of a different circuit. See Mauldin, ARB No. 16-0059, slip op. at 4 n.12.
Below, the ALJ considered whether driving under the circumstances would have resulted in
an actual violation, and, alternatively, whether Jeanty had a subjectively and objectively
belief of violation. In accordance with our precedent, we limit our analysis to whether
Jeanty’s belief was subjectively and objectively reasonable under the circumstances.
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was ill or fatigued.8 D. & O. at 24-25. We agree with the ALJ that Jeanty’s
statement that he was “ill and/or fatigued” was too vague to be protected activity
under the STAA’s refusal to drive clause.
The FMCSA regulations provide, in relevant part:
No driver shall operate a commercial motor vehicle, and a
motor carrier shall not require or permit a driver to operate
a commercial motor vehicle, while the driver’s ability or
alertness is so impaired, or likely to become impaired,
through fatigue, illness, or any other cause, as to make it
unsafe for him/her to begin or continue to operate the
commercial motor vehicle.
49 C.F.R. § 392.3. Therefore, Jeanty had to prove by a preponderance of the
evidence that he refused to drive because he reasonably believed that his ability or
alertness was so impaired, or was likely to become so impaired, that it would have
been unsafe to make the second run.
Yet, there is no evidence that Jeanty told Duncan that he thought he could
not drive, or that his alleged illness or fatigue could impact his ability to drive his
vehicle safely. Jeanty also apparently did not elaborate on or give context for his
condition or explain the source or extent of his “illness and/or fatigue.” See D. & O.
at 25 n.36; Hearing Tr. at 30, 33. Furthermore, there is no evidence Jeanty ever
raised his alleged illness or fatigue again later in the day on September 30, even
when he was in a dispute with Duncan over his subsequent refusal to drive based
on the hours-of-service rules.9
Under these circumstances, we agree with the ALJ that Jeanty’s assertion of
“illness and/or fatigue,” without more, did not suggest his “ability or alertness [was]
so impaired, or so likely to become impaired through illness or fatigue . . . as to
The ALJ stated in her D. & O. that it was not clear whether Jeanty was actually
asserting a refusal to drive claim based upon illness or fatigue. Even so, the ALJ elected to
consider the issue “in the interest of completeness.” D. & O. at 24 n.35. Jeanty’s position
remains unclear in his appeal. Although he makes brief reference to his alleged illness or
fatigue, he is not clear whether he is arguing his assertion of illness or fatigue was a form of
protected activity. Nevertheless, we will consider the issue, as the ALJ did.
8

Jeanty suggests that the two high hitches he caused while preparing for his second
run were an “obvious indication that [he] was ill and or [sic] fatigued.” Complainant’s
Petition for Review (Petition) at 3. Yet, Jeanty never asked for help to get out of the high
hitches. See D. & O. at 30. If Jeanty really was sick or fatigued, we would expect him to
have asked for help when he ended up in a high hitch situation and/or to have reiterated
his illness or fatigue to Duncan. Instead, he chose to exert himself further by getting in and
out of his truck while trying to resolve the situation himself.
9

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make it unsafe for him to” drive and, therefore, was not protected under the STAA.
See 49 C.F.R. § 392.3; Bates v. USF Reddaway, Inc., ARB No. 2007-0086, ALJ No.
2005-STA-00029, slip op. at 3-5, 9-10 (ARB May 20, 2009) (finding driver’s
statements that he “had several unscheduled stops due to illness” on his previous
run and that he was “sick” and “not feeling very well” were insufficient where driver
never explained to employer “that he was too sick to drive safely the run he
refused”); Wrobel v. Roadway Express, Inc., ARB No. 2001-0091, ALJ No. 2000-STA00048, slip op. at 3, 5 (ARB July 31, 2003) (finding that driver’s refusal to drive
after telling dispatcher he was “sick,” without further elaboration, did not
communicate protected activity to employer); Stout v. Yellow Freight Sys., Inc., ALJ
No. 1999-STA-00042, slip op. at 8 (ALJ Dec. 3, 1999), aff’d ARB No. 2000-0017
(ARB Jan. 31, 2003) (“It is not enough for the employee to simply state that he is
not feeling well or that he is ‘sick and tired.’ The comments must be explicit enough
to convey to Respondent that the refusal to continue to drive was because the
complainant’s ability to do so was impaired.”).
In addition, as the ALJ noted, Jeanty admitted that he ultimately agreed to
make the second run, despite being ill or fatigued. D. & O. at 5. We agree with the
ALJ that Jeanty cannot engage in protected activity under the STAA’s “refusal to
drive” clause when he did not, in fact, actually refuse to drive. See Calhoun v. Dep’t
of Labor, 576 F.3d 201, 209 (4th Cir. 2009); Williams v. CMS Transp. Servs., Inc.,
No. 1994-STA-00005, slip op. at 3 (Sec’y Oct. 25, 1995).
B. Refusal to Drive Due to an Hours-of-Service Violation
The second instance of potential protected activity considered by the ALJ was
Jeanty’s refusal to drive on the afternoon of September 30 based on the FMCSA
hours-of-service rules. D. & O. at 25-31. The hours-of-service rules set limits on the
number of hours a driver of a commercial property-carrying vehicle can legally
drive. In particular, the rules provide that a driver “may drive only during a period
of 14 consecutive hours after coming on duty . . . .” 49 C.F.R. 395.3(a)(2). The driver
may continue to work after reaching the 14-hour limit, but may not drive again
until he has had at least ten hours off duty. See id.; D. & O. at 17-18. By 2:00 p.m.,
Jeanty had five hours and twenty-four minutes remaining under the 14-hour
driving limit.10 Jeanty claims he refused to make the second run because he could
not have finished his drive in that amount of time.
There was conflicting evidence at the hearing as to the time Jeanty had remaining
under the 14-hour limit as of 2:00 p.m. Although Jeanty did not recall what time he began
his shift on September 30, 2016, he testified inconsistently that it took as little as five or as
many as eight hours for him to finish his first run. Hearing Tr. at 31-32, 40, 45-46. The ALJ
weighed Jeanty’s testimony against the testimony of Lily’s witnesses and the documentary
evidence admitted into the record, including an electronic driver log, and determined that
Jeanty had been on duty for five hours and thirty-six minutes when he finished his first run
at 11:00 a.m. D. & O. at 26-27. Therefore, three hours later at 2:00 p.m. Jeanty had been on
10

7

The ALJ determined that Jeanty’s professed belief that his second run would
have violated the hours-of-service rules was not subjectively or objectively
reasonable, and therefore did not constitute protected activity under the STAA. We
agree.
i. Subjective Belief
The ALJ determined that Jeanty’s professed belief that he was going to
violate the hours-of-service rules if he made the second run was not held in good
faith. See Tango Transp., ARB No. 14-0054, slip op. at 7 (“To prove subjective belief,
a complainant must prove that he held the belief in good faith.”). After finishing his
first run at 11:00 a.m., Jeanty took nearly three hours before reporting that he
could no longer make the second run. The ALJ weighed the evidence and concluded
that Jeanty purposefully delayed his departure because he did not want to make a
second delivery that day, and the hours-of-service rules were just a fabricated
excuse to achieve his desired result. Substantial evidence supports the ALJ’s
conclusion.
In assessing the three hour delay, the ALJ found, in relevant part:
Respondent has established there are specific time periods
for drivers to complete tasks prior to beginning a delivery.
I credit Mr. Duncan and Mr. Poor’s testimony it takes 45
minutes to hook the trailer and strap the load and up to 15
minutes to get fuel, if fueling is necessary. On September
30, it took Complainant 2 hours to complete these tasks. It
would not have taken that period of time had Complainant
notified Mr. Duncan that he was in a high hitch situation.
Complainant did not follow Respondent’s established
policy because he failed to notify anyone that he had a high
hitch when it occurred. If he had notified Mr. Duncan,
assistance would have been provided, it would have taken
less time to correct the first high hitch, and very likely
would have avoided the alleged second high hitch.
Complainant’s actions in causing one and possibly two high
hitch situations by not following procedure for hooking the
truck significantly contributed to the delay in his
departure. Compounding this failure was Complainant’s
failure to notify Respondent of his high hitch so he could
duty eight hours and thirty-six minutes and could only drive for the next five hours and
twenty-four minutes before reaching the 14-hour limit. Substantial evidence supports the
ALJ’s findings and her calculation of Jeanty’s hours on September 30, 2016.

8

have been assisted in correcting the situation, which
further delayed his departure and compressed the time he
had available under the hours of service regulation to
complete the second delivery.
D. & O. at 30 (footnotes omitted). In addition, the ALJ considered the fact that
Jeanty took forty-five minutes or more for lunch, when a shorter break could have
put him back on the road sooner. Id. at 30 n.45. The ALJ also noted Jeanty’s history
of “difficulty with following company policy” (Id. at 30 n.47), and made a credibility
determination that Jeanty was “influenced by his frustration that Respondent was
not paying him the wages he believed he was promised.” Id. at 22-23. In fact, Jeanty
reiterated on appeal that he did not think he was getting paid what he thought he
was promised. Complainant’s Brief in Support of Appeal (Compl. Br.) at 7 (“. . . I
believe Lily perceived, that I was going to report and complain about going over
hours of service, as well as the fact that, they were not paying me what, they said I
would be making ($1500-$2,000 a week” (emphasis original)). We agree with the
ALJ that the foregoing evidence demonstrates Jeanty purposefully delayed
departing for his second run and that he was not, in good faith, concerned with an
hours-of-service violation.11
On appeal, Jeanty disputes the ALJ’s assessment of the legitimacy (or lack
thereof) of his delay. Jeanty claims his high hitches were legitimately and
inadvertently caused by his alleged fatigued. Petition at 3. Yet, Jeanty’s alleged
fatigue does not excuse his decision to not ask for help to resolve the high hitches.
As the ALJ found, substantial evidence demonstrates that had Jeanty asked for
assistance in accordance with policy, “it would have taken less time to correct the
first high hitch, and very likely would have avoided the alleged second high hitch.”
D. & O. at 30. Even if Jeanty was fatigued, he should have asked for help to avoid
an unnecessary, lengthy delay.
Jeanty also argues that Duncan’s earlier statement at 11:00 a.m. that there
were no other drivers available to cover Jeanty’s second run meant that there was
no one available to help Jeanty extricate himself from the high hitches, even if he
had asked for help. Petition at 3. However, that no driver was available to make a
run does not mean that no one was available to assist Jeanty, for a few minutes, to
get out of a high hitch or help him get a proper connection. To the contrary, Poor
testified help was always available in the yard for issues like a high hitch. D. & O.
There was also some evidence and testimony presented at the hearing that Jeanty
may have returned to dispute the hours-of-service issue a second time at 3:00 p.m., and was
not suspended until that time. D. & O. at 28. It is not clear what Jeanty may have been
doing during this extra hour. If Jeanty was in fact still trying to prepare for his run or
otherwise remained in the Stormville Yard without departing for another hour, this would
make his delay even more obviously purposeful and unreasonable.
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at 20. The ALJ credited Poor’s testimony, as it was undisputed at the hearing. D. &
O. at 27 n.37. We find no reason to upset the ALJ’s credibility determination.
Finally, Jeanty attempts to justify his delay in getting fuel by noting that
there were two drivers in front of him in line at the fuel pump. Petition at 6. He
testified to this at the hearing, but the ALJ did not accept Jeanty’s explanation and
time estimates. Instead, the ALJ credited the testimony from Duncan and Poor as
to how long Jeanty’s pre-trip preparation, including fueling, should have taken. D.
& O. at 30. Jeanty asks us to reweigh the evidence and upset the ALJ’s credibility
determinations, which we will not do. See Buie, ARB No. 19-0015, slip op. at 5.
ii. Objectively Reasonable Belief
The ALJ also found that Jeanty’s professed belief that he could not complete
his second run without violating the hours-of-service rules was not objectively
reasonable. Again, we agree.
First, the ALJ credited the testimony of Duncan and Poor that Jeanty could
have made a delivery to Brooklyn and returned to the Stormville Yard in the five
hours and twenty-four minutes he had remaining to drive under the hours-ofservice rules as of 2:00 p.m. D. & O. at 31. Jeanty argues this finding was in error in
light of evidence showing a round trip to Brooklyn could take up to seven hours,
depending on factors like traffic getting worse after 2:00 p.m. Petition at 2; Compl.
Br. at 2. To be sure, the ALJ did find that “it could possibly take up to seven hours
depending upon several potential, but uncertain, factors to drive from Respondent’s
Stormville, NY facility to Brooklyn and back.” D. & O. at 29 (emphasis original).
Even so, substantial evidence supports the ALJ’s conclusion that Jeanty also could
have completed the run without violating the hours-of-service rules. Indeed,
Jeanty’s first run to Brooklyn on the morning of September 30 took only five hours
and thirty-six minutes, just a few minutes more than the amount of time Jeanty
had remaining as of 2:00 p.m. to make a second run to Brooklyn. Id. at 26-27.
More importantly, though, the ALJ also concluded that even if Jeanty hit the
14-hour limit mid-run because of traffic or other delays, he could have called Lily for
a relief driver to avoid an hours-of-service violation. Id. at 31. Several witnesses
testified it was the company’s policy to dispatch relief drivers to pick up and
complete the run for any driver who requested one upon reaching his hours-ofservice limit. Id. at 11, 14, 18, 21. Because Jeanty could have availed himself of this
policy, we agree with the ALJ that it was not reasonable for him to believe he would
have violated the hours-of-service rules.
Jeanty argues on appeal that he frequently exceeded the 14-hour limit
without comment or discipline from Lily. Compl. Br. at 4. Although not clear,
Jeanty appears to be suggesting this proves Lily was not actually in the practice of
10

sending relief drivers to avoid hours-of-service violations, or that Lily expected him
to complete the runs without asking for relief. Yet, there is no evidence that Jeanty
ever requested a relief driver when he hit the 14-hour limit, or that Lily would not
have supplied a relief driver had he asked for one. To the contrary, there was
consistent testimony from witnesses that Lily wanted its drivers call for relief if
they hit the driving limit, even if drivers did not always comply. D. & O. at 11, 14,
18, 21. The fact that Lily may not have enforced this relief policy by disciplining
drivers who violated it does not mean the policy was not actually available to allow
drivers to avoid a violation.
Jeanty also argues that Lily did not have relief drivers available on
September 30, 2016, based on Duncan’s statement at 11:00 a.m. that there were no
other drivers available at that time to cover Jeanty’s second run. Compl. Br. at 3.
Yet, a relief driver, if one turned out to be necessary, would not have needed to be
available until 7:24 p.m.12 It was not reasonable for Jeanty to conclude that the lack
of a driver to cover a complete run at 11:00 a.m. meant there would not be a driver
available to relieve him for whatever portion of the run he had remaining more than
eight hours later.
Finally, Jeanty faults Duncan for not explicitly telling Jeanty a relief driver
would be available when Jeanty expressed his concern over the hours-of-service
rules. Compl. Br. at 3. Yet, Jeanty has not cited any evidence or made any
argument suggesting that he was not aware Lily would supply relief driers in the
event he reached his driving limit.13 That Duncan did not explicitly remind Jeanty
of this policy does not make Jeanty’s professed belief that he would violate the
hours-of-service rules reasonable.
Therefore, we agree with the ALJ that Jeanty did not engage in protected
activity under the STAA.
2. Jeanty’s Request to Reopen the Record to Subpoena Additional Records
On appeal, Jeanty also requests the opportunity to reopen the record to
submit a subpoena to Lily’s customer. Compl. Br. at 7. According to Jeanty, Lily
failed to retain and/or produce all of its records reflecting Jeanty’s drive times,
which prevented him from establishing each instance he exceeded the hours-ofservice rules as a driver for Lily or firmly establishing the time he began his shift on
September 30. Id. at 5-7. Jeanty apparently hopes to collect that missing
With five hours and twenty-four minutes remaining at 2:00 p.m., Jeanty would have
reached his hours-of-service limit at 7:24 p.m.
12

In fact, on a previous occasion in early September 2016, when Jeanty allegedly
complained about not being given a sufficient break period under FMCSA regulations, Lily
supplied a replacement driver to make a run for Jeanty. D. & O. at 7, 10.
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information from Lily’s customer, although he has not articulated why he expects
the customer would have information concerning his start, stop, and drive times.
Jeanty did not request the subpoena until just five days before the scheduled
hearing date14 and well after the discovery period closed. See March 2, 2018 PreHearing Conference Transcript (Mar. 2 Tr.) at 9-10. Jeanty did not make a written
request for the subpoena (29 C.F.R. § 18.56(a)(1)) or file a written motion to compel
regarding Lily’s alleged failure to produce relevant documents (29 C.F.R. §
18.33(a)(1)). The ALJ did not issue Jeanty the subpoena because of the belatedness
of his request. Mar. 2 Tr. at 10.
ALJs have wide discretion to limit the scope of discovery and will be reversed
only when their rulings are arbitrary or an abuse of discretion. Hibler v. Exelon
Generation Co., LLC, ARB No. 2005-0035, ALJ No. 2003-ERA-00009, slip op. at 2324 (ARB Mar. 30, 2006); High v. Lockheed Martin Energy Sys., Inc., ARB No. 20030026, ALJ No. 1996-CAA-00008, slip op. at 5-6 (ARB Sept. 29, 2004); Hasan v.
Burns & Roe Enter., Inc., ARB No. 2000-0080, ALJ No. 2000-ERA-00006, slip op. at
3-4 (ARB Jan. 30, 2001). Jeanty has not argued why the ALJ’s rejection of his
request for a subpoena under the circumstances was arbitrary or an abuse of
discretion. Nor has Jeanty explained why he waited until the eve of the hearing to
make his request, why his request did not comply with the rules of procedure, or
why he did not or could not make his request during the regular discovery period.
Although Jeanty is afforded certain latitudes as a self-represented litigant,
Jeanty is not excused from the rules of practice and procedure applicable to this
proceeding merely because of his pro se status. See Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[T]his court has repeatedly insisted
that pro se parties follow the same rules of procedure that govern other litigants.”);
Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (“[P]ro se litigants are bound by the
rules of procedure.”). An ALJ “must accord a party appearing pro se fair and equal
treatment, but a pro se litigant cannot generally shift the burden of litigating his
case to the courts, nor avoid the risks of failure that attend his decision to forego
expert assistance.” Pik v. Credit Suisse, AG, ARB No. 2011-0034, ALJ No. 2011SOX-00006, slip op. at 4-5 (ARB May 31, 2012) (quotation omitted). Absent any
explanation for his belated request for a subpoena, we find the ALJ did not abuse
her discretion when she rejected Jeanty’s request.15
The hearing date was temporarily postponed at the last minute due to inclement
weather.
14

In addition, the records Jeanty hopes to obtain are unlikely to help his case. That
Jeanty may have frequently exceeded the hours-of-service rules without complaint and
without requesting relief in accordance with company policy bolsters the ALJ’s conclusion
that Jeanty did not have a good faith concern with violating the hours-of-service rules on
September 30, 2016. Likewise, even if Jeanty uncovered evidence showing he had fewer
than five hours and twenty-four minutes remaining as of 2:00 p.m. on September 30, 2016,
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3. Jeanty’s New Claim of an Additional Act of Retaliation
Jeanty also raises, for the first time on appeal, a separate instance of alleged
retaliation which occurred weeks before his suspension on September 30.
Specifically, Jeanty argues Lily’s issuance of a “last chance agreement” on
September 7, was an independent act of retaliation in response to Jeanty insisting
upon taking a legally mandated rest break. Compl. Br. at 4.
The sole justiciable issue identified in Jeanty’s request for hearing, at the
various pre-hearing conferences, and at the hearing itself, was whether the
September 30 suspension (and ensuing termination) was retaliatory. In fact, Jeanty
expressly disavowed all other issues, except as relevant background. February 2,
2018 Pre-Hearing Conference Transcript at 13 (“[W]hat this complaint is about is
September 30th. Anything prior to that is just to further support my case.”). We will
not consider a new claim raised for the first time on appeal, particularly in light of
Jeanty’s disavowal below. Mauldin, ARB No. 16-0059, slip op. at 6; Chief, Div. of
Enforcement, Office of Labor-Mgmt. Standards v. Local 12, American Fed. of Gov’t
Employees, ARB Nos. 2013-0094, 2014-0081, ALJ No. 2013-SOC-00001, slip op. at
10 n.4 (ARB Sept. 24, 2014); Honardoost v. Peco Energy Co., ARB No. 2001-0030,
ALJ No. 2000-ERA-00036, slip op. at 6 n.3 (ARB Mar. 25, 2003).
4. Supposed “Contradictions” in the Record
Finally, Jeanty points to supposed “contradictions” in the evidence and
testimony adduced at trial in an effort to cast doubt on the ALJ’s findings. However,
none of the “contradictions” are relevant or material to the issue of Jeanty’s
protected activity or the outcome of this case.
Jeanty cites a “contradiction” between Duncan’s recollection at the hearing
that Jeanty did not tell him about his high hitches when Jeanty refused the load at
2:00 p.m., and Poor’s recollection that Duncan told him that Jeanty did in fact
eventually report the high hitch situations. Petition at 5; Compl. Br. at 1-2. Yet,
Jeanty admitted at the hearing he did not report the high hitches at the time they
occurred, when help could have been provided. Hearing Tr. at 81. This contributed
to the ALJ’s finding that Jeanty purposefully delayed his departure to avoid a
second run. Whether or not Jeanty later reported the high hitches is immaterial to
this analysis.
Jeanty also argues there were “contradictions” between Lily’s witnesses
regarding whether Lily let its drivers exceed the 14-hour hours-of-service limit
it would not alter the ALJ’s finding that he could have asked for a relief driver to avoid an
hours-of-service violation.

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without discipline, and whether an exception could apply to the limit. Compl. Br. at
2-3, 4-5. That Jeanty may have exceeded the limit without discipline does not alter
the conclusion that relief drivers were nevertheless available to avoid violations if
drivers chose to take advantage of them.
Therefore, these “contradictions” do not alter our decision.
CONCLUSION
For the foregoing reasons, we find the ALJ properly concluded that Jeanty
did not engage in protected activity under the STAA. Accordingly, the ALJ’s
decision in this matter is AFFIRMED and Jeanty’s complaint is hereby DENIED.
SO ORDERED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A431a729c0ebbe2fd. Public record. Not legal advice.