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200 Constitution Ave. NW

Washington, DC 20210-0001

U.S. Department of Labor

In the Matter of:

WAYNE STOKES,

ARB CASE NO.

COMPLAINANT,

2022-0007

ALJ CASE NOS. 2020-STA-00080

2020-STA-00082

ALBERTSON’S, LLC AND

DARRELL KIDD,

DATE: May 20, 2022

RESPONDENTS.

Appearances:

For the Petitioner:

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

Edina, Minnesota

For the Respondents:

Raymond Perez, Esq.; Jackson Lewis P.C.; Atlanta, Georgia

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

Thomas H. Burrell and Stephen M. Godek, Administrative Appeals Judges

DECISION AND ORDER

PER CURIAM. This case arises under the Surface Transportation Assistance

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

(2021).

49 U.S.C. § 31105 (2007), and its implementing regulations at 29 C.F.R. Part 1978

Wayne Stokes (Complainant) filed a complaint alleging that Albertson’s, LLC2

(Albertsons) and Darrell Kidd, Vice President and General Manager of Albertsons’

Portland Distribution Center, retaliated against him in violation of STAA’s

whistleblower protection provisions. Following a hearing, an Administrative Law

Judge (ALJ) issued an Amended Decision and Order dismissing the complaint

(Amended D. & O.).3 Complainant appealed to the Administrative Review Board

(ARB or the Board). We affirm.

BACKGROUND

Complainant began working as a truck driver for Safeway Inc. (Safeway) on

or about October 18, 2002.4 While employed by Safeway, Complainant was aware of

a settlement agreement known as the “Dan Henry letter.”5 The Dan Henry letter

provided that Safeway would not issue demerit points to its truck drivers who

missed work because they were too ill or fatigued to drive safely.6

In 2015, Albertsons acquired Safeway, and the two companies merged

operations.7 The merger changed Mr. Stokes’ seniority relative to other drivers, and

he had to bid for his route.8 Complainant began working for Albertsons.9 On or

about October 10, 2016, Complainant underwent orientation and training, and

received a copy of Albertsons’ Distribution Center Attendance Call-In Procedures

(Call-In Procedures).10 Under Albertsons’ Portland Distribution Center’s

Attendance Policy (Attendance Policy), any driver could receive “points” for taking

unapproved absences from work, reporting late to work, and leaving work early.11

Drivers could also receive additional points if they failed to notify a supervisor of an

The record contains different variations of the company’s name; the ALJ and the

parties inconsistently refer to “Albertson’s” or “Albertsons.” In our decision, we will refer to

the party as “Albertsons” and the respondent parties (Darrell Kidd) collectively as

“Respondents.”

Stokes v. Albertson’s, LLC, ALJ Nos. 2020-STA-00080, -00082 (ALJ Nov. 21, 2021)

(Amended D. & O.).

Amended D. & O. at 3; Hearing Transcript (Tr.) at 13.

Amended D. & O. at 3; Complainant’s Exhibit (CX) 7.

Amended D. & O. at 3; Tr. at 28-29, 34-35.

Amended D. & O. at 3; CX 6.

Amended D. & O. at 3.

Amended D. & O. at 3; Tr. at 42.

Amended D. & O. at 3; Joint Exhibit (JX) 4; Tr. at 43-44.

Amended D. & O. at 3; JX 3 at 2.

absence at least one-hour before their scheduled shift.12 A driver’s accumulation of

“points” or “occurrences”13 within any given fifty-two-week period could result in

discipline.14 The Attendance Policy further provides that “[t]he exclusions to this

policy will be time off approved in advance or time off required by the Collective

Bargaining Agreement or time off required by law.”15

Albertson requires drivers to complete an Absentee Interview Form (AIF)16

upon returning to work from an absence or tardy.17 On July 16, 2017, Complainant

missed work due to an illness.18 When Complainant returned to work, he completed

an AIF and gave it to a dispatcher or supervisor.19 Complainant also completed and

submitted AIFs for his absences on January 12 and 13, 2018;20 January 16, 19, and

20, 2018;21 March 2 and 3, 2018;22 and March 6, 2018.23 Complainant claimed that

he was “too ill to drive safely,” or some variation of that claim, on the AIFs he

submitted to management.24

Id.

As the ALJ noted, the parties and witnesses use the terms “points” and

“occurrences” interchangeably. Amended D. & O. at 3 n.2. The Attendance Policy and CallIn Procedures use the term “occurrences.” JX 3-4.

Amended D. & O. at 3. According to the Attendance Policy, the following discipline

incurred based on points or occurrences: four points resulted in verbal counseling, six points

resulted in written counseling, eight points resulted in a three-day suspension, nine points

resulted in a “last and final warning,” and ten points resulted in discharge. JX 3 at 3.

Amended D. & O. at 3; JX 3 at 2.

CX 1. The driver is responsible for completing the upper portion of the AIF. The

driver records the dates of the absence or tardy, whether the absence was related to Family

and Medical Leave Act (FMLA) or Oregon Family Leave Act (OFLA) leave, and whether the

absence or tardy was reported with at least one hour’s notice. The lower portion of the AIF

is marked “OFFICE USE ONLY,” and has fields for a supervisor’s initials, to note whether

the absence or tardy utilized Oregon Sick Protected Hours, FMLA, or OFLA time, and

whether management assessed points for the absence or tardy.

Amended D. & O. at 3; CX 1; Tr. at 18-19, 22.

Amended D. & O. at 3.

Id.; CX 1 at 1; Tr. 17-19.

Amended D. & O. at 3-4; CX 1 at 2.

Amended D. & O. at 4; CX 1 at 3.

Amended D. & O. at 4; CX 1 at 4.

Amended D. & O. at 4; CX 1 at 5.

CX 1 at 1-5.

At some point after Complainant submitted the AIFs, Complainant had a

conversation with a shop steward who informed him that Albertson did not

recognize the Dan Henry letter.25 Complainant then e-mailed a clerk at Albertson

expressing concern that he was accumulating points for absences he incurred when

he was too ill to drive safely.26 The clerk informed Complainant that “using sick

time out of [sick safe time]”27 incurs a point, but she did not know how many points

appeared on Complainant’s attendance record.28 The clerk also provided

Complainant information on how to request his attendance record.29, 30

Following this e-mail exchange with the clerk, Complainant requested his

fifty-two-week attendance record.31 Albertsons’ policy provides the company fortyfive days to respond to a driver’s attendance request.32 On April 25, 2018, prior to

the forty-five-day deadline, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA) alleging that Albertson violated 49

U.S.C § 31105 by issuing demerit points against him for failing to work when he

was too sick to drive safely.33

Prior to Complainant’s requesting his attendance report, a human resource

manager reviewed Complainant’s AIFs and assessed one point for Complainant’s

absences on March 2 and 3, 2018, and a second point for his absence on March 6,

2018.34 After Complainant requested his attendance report, Kidd learned that the

human resource manager assessed points for Complainant’s absences and directed

her to remove the points from Complainant’s attendance record.35 On April 27,

Amended D. & O. at 4; Tr. at 28.

Amended D. & O. at 4; CX 5 at 1.

The clerk’s e-mail used the abbreviation “SST.” CX 5 at 1. Based on the record,

“SST” is an abbreviation for “sick safe time.” Tr. at 66.

Amended D. & O. at 4-5; CX 5 at 1.

Id.

The ALJ determined that the clerk was “’working in transportation as a clerk,’ not in

Human Resources, and ‘should not have been involved in any way in – in going back and

forth with [Complainant] or any other driver about attendance points and – and AIFs.’”

Amended D. & O. at 4 n.3.

Amended D. & O. at 5.

Id.; Tr. at 115, 129.

Amended D. & O. at 5; JX 1.

Amended D. & O. at 5; CX 1 at 4-5; Tr. 109-11.

Amended D. & O. at 5; Tr. at 130-31; Kidd was unaware of Complainant’s OSHA

complaint when he directed the human resource manager to remove the points from the

2018, the human resource manager removed the points from Complainant’s

attendance record, and then generated the attendance report for Complainant.36

When Complainant received his fifty-two-week attendance report, it showed no

“points” or occurrences.37

Complainant objected to OSHA’s findings and requested a hearing before the

Office of Administrative Law Judges (OALJ). On November 21, 2021, the

Administrative Law Judge (ALJ) issued the Amended D. & O.38 On November 30,

2021, Complainant petitioned the ARB for review of the ALJ’s Amended D. & O.39

For the reasons discussed below, we affirm.

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the ARB to hear appeals

from ALJ decisions and issue agency decisions in cases arising under the STAA.40

The Board reviews questions of law presented on appeal de novo but is bound by the

ALJ’s factual determinations if they are supported by substantial evidence.41

Substantial evidence means “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”42

DISCUSSION

attendance record. Kidd learned about Complainant’s OSHA complaint on May 2, 2018.

Amended D. & O. at 5; Tr. at 113, 131, 133-34.

Amended D. & O. at 5; RX 3; Tr. at 115-17.

Amended D. & O. at 5; Respondent’s Exhibit (RX) 3; Tr. at 32-33.

The ALJ originally issued a Decision and Order Denying Relief on October 25, 2021.

Stokes v. Albertson’s, LLC, ALJ Nos. 2020-STA-00080, -00082 (ALJ Oct. 25, 2021) (D. & O.).

The ALJ vacated the D. & O. in response to Complainant’s Motion for Reconsideration on

November 10, 2021.

Complainant initially petitioned the ARB for review of the ALJ’s D. & O. on

November 3, 2021. The Board issued this appeal with its own case number, ARB No. 20220007. Upon receipt of Complainant’s petition concerning the ALJ’s Amended D. & O., the

ARB removed ARB No. 2022-0014 from its docket and consolidated the two cases. See

Stokes v. Albertson’s LLC, ARB Nos. 2022-0007, -0014, ALJ Nos. 2020-STA-00080, -00082

(ARB Dec. 2, 2021) (Order).

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).

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

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

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

contributing factor in the unfavorable personnel action.43 If the employee meets his

burden of proof, the employer may avoid liability by proving by clear and convincing

evidence that it would have taken the same unfavorable action in absence of the

protected activity.44 The Board has previously held an employer satisfies this

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

the absence of protected activity.45

Complainant alleged that Respondent retaliated against him by issuing

points on his attendance record for absences he incurred when he was too ill to drive

safely.46 The ALJ determined that Complainant was not entitled to relief because

Albertsons’ Attendance Policy did not allow it to treat Complainant’s absences as

“occurrences,” and Respondent acted within a reasonable time to correct

Complainant’s attendance record.47 The ALJ also found that based upon the record,

Complainant failed to establish by a preponderance of the evidence that his

protected activity contributed to the alleged adverse action he suffered.48

Complainant argues on appeal that the ALJ erred as a matter of law by

denying his complaint.49 Specifically, Complainant avers that Respondents’

assessment of demerit points to his attendance record was an adverse action

because the points were more than trivial and amounted to preliminary steps

toward a possible suspension and discharge, which caused him to suffer mental

pain and anguish.50 Complainant also argues that Albertsons’ assessment of points

is similar to issuing warning notices in other whistleblower contexts;51 that the

Attendance Policy, as applied to STAA-protected activity, is a per se violation of the

49 U.S.C. § 42121(b)(2)(B)(iii); 29 U.S.C. § 31105(b)(1) (incorporating the AIR 21

legal burdens of proof).

Id. at § 42121(b)(2)(B)(iv).

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

op. at 9 (ARB May 13, 2020) (citing Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035, ALJ

No. 2014-FRS-00154, slip op. at 52 (ARB Sept. 30, 2016) (reissued with full dissent Jan. 4,

2017)).

Amended D. & O. at 6.

Id.

Id. at 7.

Brief of Complainant Wayne Stokes (Comp. Br.) at 12-23.

Comp. Br. at 14.

Id. at 16-19.

STAA;52 and that the ALJ’s Amended D. & O. is inconsistent with the purpose of

the STAA.53 Complainant further contends the ALJ erred in his contributing factor

analysis because he failed to “resolve evidence pointing to protected activity as a

contributing factor in the issuance of demerit points.”54

Upon consideration of the parties’ briefs on appeal, and having reviewed the

evidentiary record as a whole, we conclude the ALJ’s finding that Complainant did

not suffer an adverse action is supported by substantial evidence. Respondent, upon

further analysis of the issue or learning of the mistake, removed the demerit points

from the 52-week report before submitting it to Complainant. Complainant suffered

no consequences from the temporary assignment of demerit points.55 None of

Complainant’s arguments demonstrate that the ALJ abused his discretion or

Id. at 22.

Id. at 19.

Id. at 23-29.

The ALJ found that Albertson acted within a reasonable time to correct

Complainant’s record. Amended D. & O. at 7. The Board has similarly held that an

employee was not entitled to relief after an employer’s rescission of a presumptively

adverse action. See Onysko v. Utah Dep’t of Envt’l Quality, ARB No. 2019-0042, ALJ Nos.

2017-SDW-00002, 2018-SDW-00003, slip op at 2-3 (ARB Dec. 16, 2020) (per curiam)

(affirming, adopting, and attaching an ALJ’s Summary Decision that an employee did not

suffer an adverse action when the employer accidentally sent a termination e-mail to the

employee but then rescinded the e-mail immediately); Hirst v. Se. Airlines, Inc., ARB Nos.

2004-0116, -0160, ALJ No. 2003-AIR-00047, slip op. at 11-12 (ARB Jan. 31, 2007) (holding

that a pilot’s termination that was rescinded two days later by the airline was not an

adverse action because the airline recognized its mistake, immediately informed the pilot

he was still employed, and ensured the pilot suffered no economic loss); McNeill v. Crane

Nuclear, Inc., ARB No. 2002-0002, ALJ No. 2001-ERA-00003, slip op. at 17-18 (ARB July

29, 2005) (holding an employee’s termination that was rescinded within hours by the

employer was not an adverse action because it did not cause a significant change in the

employee’s employment status and, at most, only caused the employee’s temporary

unhappiness); Griffith v. Wackenhut Corp., ARB No. 1998-0067, ALJ No. 1997-ERA-00052,

slip op. at 11-12 (ARB Feb. 29, 2000) (holding that an employee’s reprimand and three-day

suspension that were rescinded promptly and voluntarily by the employer was not an

adverse action because the employee suffered no financial harm or negative effect on her

employment and that her anxiety was too temporary to render the action adverse).

committed reversible error.56 Accordingly, we AFFIRM the ALJ’s Amended D. &

O.57

SO ORDERED.

Because we are affirming the ALJ’s finding that Complainant did not suffer an

adverse action, the parties’ other arguments are moot, and we decline to make any

determination on those arguments.

In any appeal of this Decision and Order that may be filed, we note that the

appropriately named party is the Secretary, Department of Labor (not the Administrative

Review Board).

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.