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Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

STEPHEN COTTIER,

PETITIONER,

ARB CASE NO. 2020-0069

ALJ CASE NO. 2019-STA-00046

DATE: January 18, 2022

BAYOU CONCRETE PUMPING, LLC,

and

JULIO ARANA,

RESPONDENTS.

Appearances:

For the Petitioner:

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

Edina, Minnesota

For the Respondent:

Sarah K. Casey, Esq., Emily Olivier Kesler, Esq.; Baker Donelson

Bearman Caldwell & Berkowitz, PC; New Orleans, Louisiana

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

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

DECISION AND ORDER OF REMAND

PER CURIAM. This case arises under the Surface Transportation Assistance

Act of 1982 (STAA or the Act), as amended, and its implementing regulations.1

Stephen Cottier (Complainant) filed a complaint alleging that Bayou Concrete

Pumping, LLC (Bayou Concrete) and Julio Arana (collectively Respondents)

49 U.S.C. § 31105(a), and its implementing regulations at 29 C.F.R. Part 1978.

retaliated against him in violation of the STAA’s whistleblower protection

provisions. The Administrative Law Judge (ALJ) issued a Decision and Order

dismissing the complaint (D. & O.). Complainant appealed to the Administrative

Review Board (ARB or the Board). The Board vacates the ALJ’s D. & O. and

remands for further proceedings consistent with this Decision and Order of

Remand.

BACKGROUND

Bayou Concrete provides concrete services for residential projects and

commercial construction in Louisiana.2 At the time of the OALJ hearing, Bayou

Concrete owned eleven “boom trucks” that pumped concrete, with its largest truck

measuring sixty-one meters tall.3 Arana is the owner and president of Bayou

Concrete; he also oversees all of the company’s operations.4

Complainant was employed as a concrete pump operator and mostly ran the

forty meter (40m) and sixty-one meter (61m) trucks.5 Complainant received his

weekly job assignments and schedule through Bayou Concrete’s dispatcher, Hope

Hiscox.6

It was common for Bayou Concrete’s trucks to experience mechanical

problems due to their size and complex nature.7 According to Complainant, if a

truck had a maintenance issue, an employee was expected to either “stop what he

was doing and call someone,” or write-it up on an inspection form depending on the

severity of the issue.8 Bayou Concrete employs in-house mechanics including lead

mechanic, Calvin Brown. When the in-house mechanics cannot fix a maintenance

issue, Bayou Concrete sends the truck to a third-party mechanic.9

1. Mechanical issues with the 40m truck

Throughout Complainant’s employment at Bayou Concrete, he experienced

several mechanical issues with both the 40m and 61m trucks. The first issue

D. & O. at 2; Hearing Transcript (Tr.) at 22-23.

D. & O. at 9; Tr. at 23.

D. & O. at 9; Tr. at 22.

D. & O. at 4.

Tr. at 47-48.

Id. at 290-91.

D. & O. at 4-5.

Tr. at 30, 244, 282-83.

Complainant experienced in the 40m truck was a turning problem.10 According to

Complainant, the 40m truck had a problem turning to the left so he “wrote it up

multiple times, but it was never addressed.”11 Complainant informed Respondents

that he was not going to drive the 40m truck until the turning problem was fixed.12

Respondents removed the truck from operation and discovered that the front leaf

spring system was failing.13

The second issue Complainant experienced in the 40m truck was with the

grease lines and the power steering pump box.14 Complainant listed the problems in

a weekly inspection report on March 23, 2018.15 The third issue Complainant

experienced in the 40m truck was with the steering box and tire pressure.

Complainant listed these problems in a weekly inspection report on May 29, 2018.16

In August 2018, the Department of Transportation (DOT) inspected the 40m truck

and detected problems with the grease lines and power steering pump box, just as

Complainant had discovered and previously reported to Respondents.17 The DOT

inspectors informed Bayou Concrete that the truck had to be fixed right away.18

2. Mechanical issues with the 61m truck

Complainant also experienced several mechanical issues with the 61m truck.

First, in April 2018, Complainant was driving the 61m truck on the interstate

headed to New Orleans when the truck’s drive lines broke loose and he lost control

of the truck’s steering, air, and brakes.19 Complainant described the incident as

terrifying, “catastrophic[,] and nothing but one big explosion.”20 According to

Complainant, about sixty gallons of hydraulic fluid spilled out onto the interstate

and it took Respondents four hours to clean up the mess and the mechanical

breakdown.21

D. & O. at 5.

Id.

Id.; Joint Exhibit (JX)-3 at 1, 6-7, 9.

D. & O. at 5; JX-3 at 9.

D. & O. at 5; JX-3 at 4.

D. & O. at 5.

Id.

Id. at 5-6.

Id. at 6.

Id.

Prior to the breakdown, Complainant called Arana and sent him a video of

the power takeoff (PTO) light blinking.22 Arana told Complainant to slow down, but

to continue driving to the job site.23 Complainant testified that it felt and sounded

like the truck was surging and something was hitting the undercarriage of the

pump.24 Respondents made repairs to the truck’s driveline, hanger bearings,

hydraulic pump, air tanks, brake hand, hydraulic hoses, and power steering hoses

following this breakdown.25

Second, on September 8, 2018, Complainant was operating the 61m truck on

Tulane University’s campus when the truck broke down. Upon inspection, he

discovered a knot in the driveline and that all the hanger bearings had blown out.26

Complainant attempted to contact Arana to inform him of the breakdown, but

Arana did not answer.27 Complainant then contacted Hiscox, informed her of the

breakdown, and asked the site contractor if he could leave the truck on site.28 At the

same time, another employee contacted Arana and informed him of the 61m truck’s

mechanical issues. The truck stayed on site over the weekend, and Respondents

replaced the driveshaft and the hanger bearings on Monday.29

In addition to these two specific incidents, Complainant also experienced

continuous problems with tires, a wedge pin, air bags, and leveling rods in the 61m

truck.30 According to Complainant, he would write up these various issues on

weekly inspection reports, but often they would not be fixed.31 If Respondents

attempted to fix these problems, they would not be long-term solutions and the

parts would just fail again.32

Id. at 5.

Id.

Id. at 6.

Id. at 7.

Id.

Id. at 5; JX-3.

D. & O. at 5; Tr. at 103.

D. & O. at 20; Tr. at 174.

3. Complainant’s refusals to operate the 61m truck and termination

Following the breakdown at Tulane University, Complainant sent Hiscox a

text message that he left the truck at the job site and would not drive the 61m truck

again.33 Hiscox responded to Complainant and sent the text messages, “Omg fuck”

and “Ok thanks I don’t blame you.”34 On Wednesday, September 12, 2018, Hiscox

sent Complainant a text message asking whether he would like to run the 40m or

61m truck for a job on Thursday.35 Complainant responded with “40.”36 Hiscox gave

Complainant the 40m truck job assignment, but informed him later that day that

the job was canceled due to the weather.37 That evening, Hiscox sent another text

message to Complainant asking whether he was operating the 40m or 61m truck on

Friday, September 14, 2018. Complainant reiterated again that he would not

operate the 61m truck.38

On Thursday, September 13, 2018, Hiscox assigned Complainant to operate

the 61m truck for September 14, 2018.39 Complainant refused the assignment and

stated his frustrations about not working enough hours, his hand injury, and the

lack of help he received the last time he operated the 61m truck.40 Hiscox switched

the assignments so Complainant could operate the 40m truck instead of the 61m

truck.41 Complainant responded, “I’m not going anywhere oh or in the 61 again.

Had 3 meetings and nothing changes. Except were gonna fix it next time!!! Next

time never comes!! [sic throughout]” and “[c]ool[.]”42

At some point following Complainant’s refusal, Hiscox and Arana had a

conversation during which Hiscox informed Arana that Complainant refused to

operate the 61m truck.43 Arana testified that Hiscox stated she did not know why

Complainant refused the assignment.44 Arana called Complainant and asked him to

Complainant’s Exhibit (CX)-1 at 9 (“Left it at Tulane. Will not drive it again”).

CX-1 at 9.

Id. at 10.

Id.

Id. at 11.

Id. at 13.

Id. at 14.

Id. at 15-16.

Id. at 16-18.

Id. at 18.

Tr. at 83.

D. & O. at 11; Tr. at 83.

run the 61m for Friday.45 Complainant testified that he told Arana that he did not

have enough help, that the truck was not safe, and that it was eventually going to

kill somebody.46 According to Complainant, Arana assured him that the truck was

fixed and safe for him to operate, but Complainant still refused to operate it.47

Conversely, Arana testified that Complainant never mentioned any safety concerns

or mechanical issues with the 61m truck.48 Rather, Arana claimed that

Complainant simply refused to operate the 61m truck and wanted to operate the

40m truck.49

Arana then called his business partner, Earl Dufrene, and informed him of

Complainant’s refusal.50 Arana was angry and thought Complainant’s refusal was

unacceptable because it occurred late in the day and it was difficult to find someone

to replace him.51 After discussing the situation with Dufrene, Respondents

terminated Complainant’s employment.52

A Bayou Concrete employee, Bryan Scandaliato, operated the 61m truck on

September 14, 2018, with no mechanical issues. On or about September 17 or 18,

about four days after Complainant’s refusal and ten days after the initial

breakdown at Tulane University, Scandaliato drove the 61m truck and noticed a

defect with its drive shaft and hanger bearings.53 Scandaliato and Brown inspected

the 61m truck and observed abnormal wear on the driveshaft close to the hanger

bearings.54 According to Arana, it was unusual for drivelines and hanger bearings to

have issues within five months of replacing them.55 Respondents took the 61m truck

to a third-party mechanic, Brook Bouvier, who discovered that the driveshaft was

too long, causing the truck to vibrate and burn through the hanger bearings.56

Bouvier replaced the incorrectly-sized driveshaft.57

D. & O. at 11-12; Tr. at 84.

Tr. at 173-74.

Id. at 174.

D. & O. at 12; Tr. at 84.

D. & O. at 11-12; Tr. at 84.

D. & O. at 12; Tr. at 84.

D. & O. at 12; Tr. at 84-85.

D. & O. at 12.

Id. at 13.

Tr. at 79.

D. & O. at 15.

Id. at 15.

4. Administrative proceedings and procedural history

On November 9, 2018, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA) alleging that he had been fired for

raising safety issues.58 Complainant requested that OSHA terminate its

investigation before it was complete, and OSHA therefore dismissed the complaint

on May 21, 2019.59 Complainant objected to OSHA’s dismissal and requested a

hearing before the Office of Administrative Law Judges (OALJ).60

On September 15, 2019, the Administrative Law Judge (ALJ) issued a

Decision and Order dismissing the complaint (D. & O.). On September 28, 2020,

Complainant petitioned the ARB for review of the ALJ’s D. & O. For the reasons

discussed below, we remand.

JURISDICTION AND STANDARD OF REVIEW

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.61

The Board 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.62 Substantial evidence means “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”63

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) that the protected activity was a

contributing factor in the unfavorable personnel action.64 If the employee meets his

Id. at 2.

Id.

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); 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).

Consol. Edison Co. of N.Y. v. N.L.R.B., 305 U.S. 197, 229 (1938).

Heyward v. Benore Logistic Sys., Inc., ARB No. 2021-0023, ALJ No. 2020-STA-00117

(ARB July 29, 2021).

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.65

1. Complainant had a reasonable apprehension of serious injury and his

refusal is protected under § 31105(a)(1)(B)(ii)

The ALJ found the Complainant’s refusal on September 13, 2018, did not

constitute protected activity under section 31105(a)(1)(B)(ii). Complainant argues

on appeal that the ALJ erred by relying upon Respondents’ history of addressing

mechanical and safety issues instead of focusing on the 61m truck’s failed repairs

and breakdowns.66 Conversely, Respondents aver that Complainant’s refusal was

not reasonable because the vehicle had been repaired, and that Complainant did not

seek correction of any alleged mechanical issues.67 We agree with Complainant and

find that the ALJ’s determination is not supported by substantial evidence.

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. Specifically, it states:

A person may not discharge an employee, or discipline or discriminate

against an employee . . . because . . . the employee refuses to operate a

vehicle because (i) the operation violates a regulation, standard, or

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

health, or security; or (ii) 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 . . . .68

Under section 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,” and “[t]o qualify for protection, the employee must have sought from the

employer, and been unable to obtain, correction of the hazardous safety or security

condition.”69 As we have discussed in prior cases, “[w]hether a refusal to drive

qualifies for STAA protection requires the evaluation of the circumstances

49 U.S.C. § 42121(b).

Comp. Br. at 16-19.

Resp. Reply at 18-22.

49 U.S.C. § 31105(a)(1).

49 U.S.C. § 31105(a)(1)(B)(ii).

surrounding the refusal under the particular requirements of each of the

provisions.”70

The ALJ determined that “the 61m truck was repaired and safe to operate, at

least in the very short term of the job [Complainant] was assigned [and refused].” 71

Although the ALJ is correct that the 61m truck did not fail on this particular job

assignment, his finding that the truck was “safe to operate, at least in the very

short term” is not reasonable. Only days after Complainant’s refusal, the truck

needed repairs to the driveshaft and hanger bearings—the same repairs that

Respondents continuously failed to fix over the course of five months.72 A vehicle

that is only operational in ideal conditions or for short term use and, fortunately,

does not breakdown on a specific trip, is not “safe” to operate. The purpose of the

STAA is to promote highway safety and protect employees from retaliatory

discharge.73 Any finding that encourages employers to implement shoddy repair

practices or insufficient, temporary fixes in order to circumvent employees’

complaints and refusals contradicts the purpose of the STAA.

The STAA requires that the fact-finder focus on whether the driver had a

reasonable belief that the truck would create a real danger of accident, injury, or

serious impairment to health. Here, the ALJ’s reasonable apprehension analysis

focused on specific problems with the 61m truck, including the April 2018

breakdown and the September 2018 breakdown, but also the mechanical history

and problems with the 61m truck, and Complainant’s allegation that Respondents

failed to adequately respond to mechanical problems.74 The ALJ determined that

the 61m truck’s “previous incidents would give a reasonable driver cause to be

concerned about whether operating the truck would create a real danger of accident,

See, e.g., Melton v. Yellow Transp., Inc., ARB No. 2006-0052, ALJ No. 2005-STA00002, slip. op. at 5 (ARB Sept. 30, 2008).

D. & O. at 19.

Arana testified that Bayou Concrete replaced the hanger bearings two or three times

between April and September 2018. Tr. at 66-68. Bouvier testified that repeated premature

failure and wear of hanger bearings is usually a sign that there is an underlying issue

causing them to burn up. Tr. at 275.

The Senate Commerce Committee noted “enforcement of commercial motor vehicle

safety laws and regulations is possible only through an effort on the part of employers,

employees, State safety agencies and the Department of Transportation.” 128 Cong. Rec.

S14028 (daily ed. December 7, 1982). Since then, the Secretary has recognized that “an

employee’s safety complaint to his employer is the initial step in achieving this goal . . . an

internal complaint by an employee enables the employer to comply with the safety

standards by taking corrective action immediately and limits the necessity of the

enforcement though formal proceedings.” Davis v. H.R. Hill, Inc., Case No. 1986-STA00018, slip op. at 2 (Sec’y Mar. 19, 1987).

D. & O. at 19.

injury, or serious impairment to health.”75 We agree with this finding, and it is

supported by the record.

However, following this finding, the ALJ discredited Complainant’s

reasonableness by shifting his focus to Respondents’ response to mechanical

problems. Specifically, the ALJ determined that Respondents considered safety a

priority, instituted preventative maintenance measures, and properly addressed

mechanical and safety issues, including regularly taking unsafe equipment out of

operation.76 Although this finding is supported by the record, such a finding does

not preclude Complainant’s reasonable apprehension of serious injury concerning

operating the 61m truck on September 14, 2018. Respondents can be both safety

conscientious and also own a truck that may be occasionally unsafe to operate;

neither is solely dependent on the other. While an employer’s reputation or business

practices may provide some inference as to a vehicle’s condition, such information

does not outweigh the actual evidence surrounding a particular vehicle or set of

circumstances.

In this case, Complainant testified that Arana told him that the 61m truck

was repaired on September 10, and safe to operate for the September 14 job

assignment. However, the record does not reflect what information Arana actually

conveyed to Complainant concerning which repairs were made to the 61m truck.

Rather, the record reflects a constant pattern over a five-month period:

Complainant would make a safety complaint concerning the 61m truck,

Respondents would address the problem with an inadequate repair, and the truck

would eventually break down. This pattern even continued after Complainant

refused to operate the 61m truck following Arana’s assurances that the truck was

safe to operate. Only days after Complainant’s refusal on September 13, the 61m

truck needed repairs to the drive shaft and hanger bearings, the same problem

Complainant experienced at Tulane University. Under these specific circumstances,

it is unreasonable to hold Complainant accountable for not knowing the 61m truck’s

mechanical state when Respondents also clearly did not know the truck’s

mechanical state.

Although we disagree with the ALJ’s protected activity finding, the ALJ is

correct that a complainant must have sought from the employer, and been unable to

obtain, correction of the hazardous safety or security condition in order for a refusal

to be protected.77 Respondents cite to this statutory requirement as well as the

Id. at 20.

Id.

holding in Gatto v. General Utilities,78 in which the Board affirmed an ALJ’s

decision that a driver’s refusal to operate a vehicle was unreasonable.79

However, we disagree with the ALJ that Complainant failed to seek and was

unable obtain correction of the dangerous condition. As discussed above,

Complainant made several attempts to seek and obtain correction of the problems

that surrounded the 61m truck between May 2018 and September 2018. These

attempts were listed on weekly inspection reports, received via text message to

Hiscox, and even discussed with Arana on September 13. Respondents addressed

these complaints with inadequate, temporary repairs and/or assurances that the

vehicle was safe to operate. Given that these attempts to seek correction were made

following a breakdown on the interstate in April 2018, and continued until

Respondents made repairs to the 61m truck days after Complainant’s refusal, we

conclude from these facts that Complainant sought and was unable to obtain

correction of the 61m truck’s dangerous condition.

Second, Gatto is distinguishable from the present case. In Gatto, a seasonal

fuel driver noticed a leak from his truck’s gas tank and was directed to take a spare

truck by his manager.80 The seasonal driver refused to take the spare truck because

he stated it was unsafe based on prior experiences of being unable to open the doors

or windows of the truck.81 The seasonal driver did not conduct a pre-trip

examination, enter the spare truck, or try its doors and windows before his

refusal.82 The company’s chief mechanic also told the seasonal driver that the spare

truck was safe to operate.83 Moreover, the truck’s maintenance history provided

that it was repaired in March 2016, and passed a state inspection in October 2016,

before the driver’s refusal in December 2016.84

In the present case, although we also have a driver who refused to operate a

truck based on prior mechanical issues and without conducting a pre-trip

examination, there are significant differences between the drivers’ refusals and the

company’s responses to the mechanical issues. Complainant operated the 61m truck

at Tulane University on a Saturday when there were problems with the driveline

and hanger bearings. Respondents attempted to repair the 61m truck on Monday,

Gatto v. Gen. Utils., ARB No. 2019-0008, ALJ No. 2018-STA-00003, slip op. at 2-3

(ARB June 19, 2019).

Resp. Reply at 20.

Gatto, ARB No. 2019-0008, slip op. at 1-2.

Id. at 2.

Id.

two days following the breakdown. Complainant was asked to operate the 61m

truck that Wednesday and Thursday, two and three days following the attempted

repair. Comparatively, in Gatto, the driver experienced the mechanical problems in

early 2016 and his refusal came nearly nine months later.

Moreover, in the present case, the record reflects that although Respondents

made several attempts to repair the 61m truck between April 2018 and September

2018, each attempt failed, and the truck would eventually need further repairs to

address the same problems.

This is best illustrated by the week leading up to Complainant’s termination.

The truck’s driveline and hanger bearings malfunctioned on a Saturday, repairs to

the driveline and hanger bearings were made that Monday, Complainant’s last

refusal to operate the truck occurred that Thursday, and the same driveline and

hanger bearings needed further repairs only three or four days later.

Comparatively, in Gatto, the employer made repairs to the spare truck

following the driver’s initial complaint. The record does not reflect that these

repairs were inadequate or temporary. Rather, the record reflects that no other

repairs were made to the spare truck, and that it passed a state inspection in

between the employer’s repair and the driver’s refusal. Given the differences in the

events leading up to the drivers’ refusals and the employers’ responses to

mechanical problems, these cases are distinguishable from one another.

Therefore, we find that Complainant’s refusal on September 13, 2018, was

protected activity under section 31105(a)(1)(B)(ii) and reverse the ALJ’s protected

activity finding.

2. Respondents had knowledge of Complainant’s protected refusal

The record supports and it is undisputed that Complainant suffered an

adverse action when Respondents terminated his employment.85 However, the ALJ

found that Complainant’s alleged STAA-protected activity was not a contributing

factor in his discharge.86 The ALJ determined that even though Complainant was

fired because he refused to operate the 61m truck, the individuals involved in

terminating his employment were unaware that his refusal was based on safety

concerns.87

The record is inconsistent as to the actual date Respondents’ terminated

Complainant’s employment. These dates vary between September 14, September 16, and

September 19, 2018. See D. & O. at 2, 15; JX-1; Tr. at 82, 174.

D. & O. at 21.

Id.

On appeal, Complainant contends that the ALJ erred in finding that Arana

had no knowledge of Complainant’s refusal due to safety concerns.88 Conversely,

Respondents claim that the ALJ’s finding is supported by substantial evidence.89

Again, we agree with Complainant.

To prevail on his complaint, Complainant must prove that he engaged in

STAA-protected activity that was a contributing factor in his discharge. A

contributing factor is “any factor, which alone or in combination with other factors,

tends to affect in any way the outcome of the decision.”90

A. Actual Knowledge

The ALJ’s contributing factor analysis focused on whether Arana had

knowledge of Complainant’s refusal to drive due to safety concerns. Specifically, the

ALJ found that Arana had knowledge of Complainant’s refusal, but believed the

refusal was due to Complainant’s scheduling frustrations over the lack of hours he

worked due to his hand injury. In doing so, the ALJ focused on a single text

message sent from Complainant to Hiscox as well as Arana’s testimony concerning

the discussions he had with Hiscox and Complainant.

The text message that the ALJ relied upon stated:

So they don’t let me work all week because of my hand. Everyone else

seems to be on the clock. And I’m going not only on the 61 but with 5

hoses. Not gonna happen!! Said I wasn’t running it after last week

after getting fucked. So why would I do it again. A whole 10 hours for

the week and now going to a system pour but I can’t work in the

shop!!????? [sic throughout].91

On its own, we would find substantial evidence supports the ALJ’s finding

that no safety implications were addressed in this text message. However, it is

impractical to examine this text message on its own, in a vacuum, instead of

evaluating all of the text messages in the series of communications. This is

particularly true given that these text messages occurred within days of each other.

Comp. Br. at 19-22.

Resp. Reply at 22-24.

Simpson v. Equity Transp. Co., Inc., ARB No. 2019-0010, ALJ No. 2017-STA-00076,

slip op. at 8 (ARB May 13, 2020) (citing Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035,

ALJ No. 2014-FRS-00154, slip op. at 53 (ARB Jan. 4, 2017)).

D. & O. at 16; CX-1 at 16.

Immediately following the breakdown at Tulane University on September 8,

Complainant sent Hiscox a video and text messages regarding safety concerns

regarding the 61m truck.92 These text messages stated “[l]eft it at Tulane. Will not

drive it again[,]” and “[y]ea. It would have been bad if I got it moving.”93 Later that

week, Complainant sent Hiscox the following text messages: “I’m not running the 61

again” and “I’m not going anywhere oh or in the 61 again. Had 3 meetings and

nothing changes. Except were gonna fix it next time!!! Next time never comes!! [sic

throughout].”94 These four text messages illustrate Complainant’s refusal was not

solely based on his hand injury and scheduling frustrations, but also his safety

concerns surrounding the 61m truck.

Even with these text messages, the ALJ still determined that Arana was

unaware of Complainant’s safety concerns. Instead, the ALJ focused on the fact that

Complainant could not prove what messages Hiscox forwarded to Arana, and then

relied upon Arana’s testimony concerning his conversations with Hiscox and

Complainant. For the following reasons, we find the ALJ erred.

The ALJ’s finding that Arana did not have knowledge about Complainant’s

safety-based refusal ignores the events of September 8. In light of the September 8

phone call informing Arana of the situation and the repair on September 10,

Respondents had knowledge of Complainant’s safety concerns and refusal to drive

the 61m truck.95 The ALJ’s finding also presumes that Arana had knowledge of only

the one text message from Hiscox where Complainant’s refusal appears to be due to

his hand injury and scheduling frustrations, but was unaware of the numerous

other text messages sent to Hiscox concerning Complainant’s refusal to drive for

safety concerns. As the president who “oversee[s] all of the actions . . . [and] any

concerns or problems that develop,” messages alleging safety concerns and

mechanical problems surrounding a specific truck are the exact types of information

that should be (and likely were) forwarded to Arana for decision-making.96 We note

that Arana’s testimony concerning his communication with Hiscox is hearsay, and

Respondents did not call Hiscox as a witness to explain the inconsistency

concerning the text messages.97

CX-1 at 8-9.

Id. at 8-9.

CX-1 at 13, 18.

Byron Scandaliato testified that “Complainant had reported an issue with the

hanger bearings and felt unsafe to drive it. There was a hanger bearing issue and it was

coming apart.” D. & O. at 13.

Tr. at 23.

Administrative hearings in STAA cases are conducted in accordance with the Rules

of Practice and Procedure for Administrative Hearings. See 29 C.F.R. § 1978.106(a) (citing

29 C.F.R. Part 18). Under these rules, hearsay statements are inadmissible unless they are

Along with this omission, the ALJ also failed to make credibility

determinations among contradicting witnesses. Arana testified that Complainant

never addressed safety concerns while discussing his refusal for the September 14

job.98 On the other hand, Complainant testified that he warned Arana that “the

truck’s not safe and it’s going to eventually kill somebody.”99 The Board gives ALJ

credibility determinations “great deference” if they are not “inherently incredible or

patently unreasonable.”100 The Board affords such deference because the ALJ is

able to observe the “witnesses’ demeanor while testifying” and “the extent to which

their testimony is supported or contradicted by other credible evidence.”101 Since the

ALJ did not make credibility determinations among contradicting witnesses, we

cannot extend this measure of deference.

B. Constructive Knowledge

Assuming arguendo that the ALJ was correct that Arana did not have actual

knowledge of Complainant’s safety concerns, it is undisputed that: (1) Complainant

communicated his refusal to operate the 61m truck several times to Hiscox; (2)

Arana was aware that Complainant operated the 61m truck just days prior when it

suffered another major breakdown at Tulane University; and (3) Arana was aware

of the past maintenance reports and reoccurring issues surrounding the 61m truck.

These facts establish at a minimum that Respondents had “constructive knowledge”

defined as non-hearsay or fall within an exception to the hearsay rule. 29 C.F.R. § 18.802. A

statement not covered by any of the other exceptions to the hearsay rule, “but having

equivalent circumstantial guarantees of trustworthiness to the aforementioned hearsay

exceptions,” are admissible if the ALJ determines that:

(i) the statement is offered as evidence of a material fact; (ii) the statement is more

probative on the point for which it is offered than any other evidence which the

proponent can procure through reasonable efforts; and (iii) the general purposes of

these rules and the interests of justice will best be served by admission of the

statement into evidence.

29 C.F.R. § 18.803(a)(24).

Tr. at 89.

Id. at 173-74.

Adm’r, Wage and Hour Div., U.S. Dep’t of Labor v. Sun Valley Orchards, LLC, ARB

No. 2020-0018, ALJ No. 2017-TAE-00003, slip op. at 18 (ARB May 27, 2021) (citing Kanj v.

Viejas Band of Kumeyaay Indians, ARB No. 2012-0002, ALJ No. 2006-WPC-00001, slip op.

at 6 (ARB Aug. 29, 2012)).

100

Id. (quoting Caldwell v. EG&G Def. Material, Inc., ARB No. 2005-0101, ALJ No.

2003-SDW-00001, slip op. at 12 (ARB Oct. 31, 2008)).

101

of the safety concerns reported by Complainant.102 Complainant is not required to

prove “direct personal knowledge on the part of” Arana that he engaged in protected

activity.103 The law “will not permit an employer to insulate itself from liability by

creating ‘layers of bureaucratic ignorance’ between a whistleblower’s direct line of

management and the final decision-maker.”104

In this case, the “bureaucratic ignorance” constructed by Bayou Concrete is

the communication procedure, or lack thereof, between Arana and Hiscox. Arana

testified that Hiscox told him that Complainant was not going to do the September

14th job, and did not know why Complainant was refusing to accept the job

assignment.105 Arana testified that Complainant and other drivers regularly

communicated with Hiscox.106 Hiscox was responsible for providing drivers their

assignments,107 receiving vehicle inspection reports,108 and alerting scheduling

problems to Arana.109 In such a business structure where a dispatcher regularly

receives safety complaints, it is unlikely that a dispatcher picks and chooses which

complaints and refusals are forwarded to “upper” management.

There is also unrebutted evidence that Complainant began a series of

communications with Hiscox, as early as of September 8, addressing the most

recent safety concerns with the 61m truck. These safety concerns and refusals

continued through September 13th. Yet, Arana was apparently somehow unaware

of Complainant’s safety concerns either due to Hiscox’s neglect or deliberate action.

Hiscox, or any dispatcher in such a position, should have forwarded these concerns

to Arana. Hiscox apparently did forward the one text in the series in which safety

concerns with the 61m truck are not explicitly mentioned.110

This reasoning by no means creates a bright-line rule for all complaints or

refusals between drivers and dispatchers or even more generally, for employees and

29 C.F.R. § 1978.104(e)(2)(ii) (permitting investigations if “[t]he respondent knew or

suspected, actually or constructively, that the employee engaged in the protected activity”).

102

Warren v. Custom Organics, ARB No. 2010-0092, ALJ No. 2009-STA-00030, slip op.

at 7 (ARB Feb. 29, 2012) (citing Zinn v. American Commercial Lines, ALJ No. 2009-SOX00025, slip op. at 61-62 (ALJ Nov. 5, 2009)).

103

Zinn v. Am. Com. Lines, ALJ No. 2009-SOX-00025, slip op. at 18 (ALJ Nov. 19, 2012)

(quoting Frazier v. Merit Sys. Prot. Bd., 672 F.2d 150, 166 (D.C. Cir. 1982)).

104

105

Tr. at 83.

106

D. & O. at 10.

107

Tr. at 47.

108

Id. at 41.

109

Id. at 83.

110

D. & O. at 21.

managers. However, given these specific facts, Bayou Concrete’s size and culture,

and the communication procedures it established, we conclude that the ALJ’s

finding is not supported by substantial evidence, and that Respondents had

knowledge of Complainant’s refusal due to safety concerns.111

Since Respondents had knowledge, actual or constructive, of Complainant’s

protected refusal, and it is undisputed that Complainant was terminated due to his

refusal to operate the 61m truck, we conclude that Complainant’s protected activity

was a contributing factor in the decision to terminate Complainant’s employment.

3. The ALJ did not make a finding as to Respondents’ same action

defense—we therefore remand for further proceedings

If a complainant meets his burden of proof that he engaged in protected

activity and that protected activity contributed to an adverse action, the employer

may avoid liability only if it proves by clear and convincing evidence that it would

have taken the same unfavorable personnel action in the absence of the

complainant’s protected activity.112 We have said that the employer satisfies this

burden when it shows that it is “highly probable” that it would have taken the

action in the absence of protected activity.113

Since the ALJ found that Complainant did not engage in protected activity,

and that his alleged protected activity was not a contributing factor in his

discharge, the ALJ did not make a finding as to Respondents’ same-action defense.

Therefore, we remand this case to the ALJ to determine whether Respondents

would have terminated Complainant’s employment if he had not engaged in

protected activity.

CONCLUSION

We REVERSE the ALJ’s finding that Complainant did not engage in

protected activity, and that the employer did not have knowledge of Complainant’s

protected activity. Further, we REVERSE the ALJ’s finding that the protected

activity was not a contributing factor in the termination. We REMAND for the ALJ

to apply the STAA’s same-action defense.

SO ORDERED.

Arana testified that Bayou Concrete is a small business with nineteen employees.

Tr. at 26. Complainant testified that Bayou Concrete is “not a very large company where

they have a designated safety person.” Tr. at 103.

111

112

49 U.S.C. § 42121(b).

Simpson, ARB No. 2019-0010, slip op. at 9 (citing Palmer, ARB No. 2016-0035, slip

op. at 52).

113

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.