U.S. Department of Labor

Agency decision

Ask Donna

What actually matters in this document.

Text

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

IN THE MATTER OF:

CURTIS DICK,

COMPLAINANT,

ARB CASE NO. 2022-0063

ALJ CASE NO. 2018-STA-00054

ALJ TRACY A. DALY

DATE: April 16, 2024

USAA,

and

CONTRACTED DRIVER SERVICES,

RESPONDENTS.

Appearances:

For the Complainant:

Curtis Dick; Pro Se; Cedar Hill, Texas

For the Respondent USAA:

Gary Visscher, Esq. and Diana Schroeher, Esq.; Law Office of Adele L.

Abrams P.C.; Beltsville, Maryland

For the Respondent Contracted Driver Services:

Julie A. Pace, Esq. and David A. Selden, Esq.; Pace Selden Gilman

Marks PLLC; Phoenix, Arizona

Before HARTHILL, Chief Administrative Appeals Judge, and THOMPSON,

and ROLFE, Administrative Appeals Judges

DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

This case arises under the Surface Transportation Assistance Act of 1982

(STAA), as amended, and its implementing regulations.1 Curtis Dick (Complainant)

filed a complaint with the United States Department of Labor’s Occupational Safety

and Health Administration (OSHA) alleging that United Services Automobile

Association (USAA) and Contracted Driver Services (CDS) (collectively,

Respondents) retaliated against him in violation of the STAA’s whistleblower

protection provisions. Following a hearing, a United States Department of Labor

Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) denying

Complainant’s complaint. Complainant appealed the matter to the Administrative

Review Board (ARB or Board).

Because substantial evidence supports the ALJ’s determinations

Complainant did not engage in protected activity while assigned to USAA, and that

the protected activity he engaged in while assigned to Thunder Ridge did not

contribute to his termination, the Board affirms.

BACKGROUND

CDS is a personal staffing firm that provides intermittent, on-demand

commercial motor vehicle drivers to client companies on an as-needed basis.2 CDS

hired Complainant as a commercial motor vehicle driver in February 2017.3

USAA provides financial services to members of the United States military,

veterans, and their families.4 USAA contracted with CDS to provide drivers to

transport a specialty commercial motor vehicle (disaster CMV) to natural disaster

sites.5 The contract with USAA required CDS to dispatch a standby driver within

twenty-four hours after USAA requested one.6 CDS would identify drivers it

believed qualified as standby drivers, and USAA screened the drivers, and if

49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2023).

D. & O. at 6.

Id.

Appellate Exhibit (AX) 1 at 4.

D. & O. at 6

Id.

satisfied with their qualifications, would approve them.7 USAA approved

Complainant as a standby driver.8

Upon accepting a USAA driving assignment, a standby driver was required

to commence the job within twenty-four hours, pick up the disaster CMV at a

designated location, and travel to a disaster site.9 Standby drivers were also

obligated to timely notify USAA representatives of any delays in arriving to the

designated departure location.10

On December 5, 2017, USAA requested a driver to transport the disaster

CMV from San Antonio, Texas to Southern California.11 CDS offered Complainant

the assignment, and Complainant accepted.12 Jeff Durante, an operations specialist

for CDS, informed Complainant of the time-sensitive nature of the job specifying

that Complainant needed to arrive in San Antonio within twenty-four hours.13

When USAA contacted Complainant to schedule his travel plans, however,

Complainant informed USAA that he could only make the flight arriving at 9:58

p.m. on December 6, outside of the required twenty-four-hour deployment

schedule.14

To prevent further delay, Calvin Schlafke, a contemporary fleet and logistics

coordinator for USAA, drove the disaster CMV from San Antonio to El Paso.15

Schlafke contacted Complainant to discuss the adjusted travel schedule and

reiterate that the job was time-sensitive.16 In addition, Schlafke reminded

Complainant to complete his required hours-of-service form before arriving in El

Paso.17 USAA requires drivers to have the hours-of-service form completed before

arriving to pick up a vehicle.18

Id.

Id.; Hearing Transcript (Tr.) at 202-03.

D. & O. at 6.

Id. at 7.

Id.

Id.; Tr. at 421-22.

D. & O. at 7.

According to Schlafke, this was unprecedented and highly unusual to transport the

disaster CMV to an alternative location. Id.; Tr. at 74, 81-82, 205.

D. & O. at 7.

Id.; Tr. at 83-85, 99, 125.

D. & O. at 7; Tr. at 103.

Complainant missed his scheduled flight without notifying USAA.19 Schlafke,

however, arrived in El Paso at 9:00 p.m. with the disaster CMV as planned.20

Complainant eventually arrived in El Paso around 1:00 a.m. on December 7, nearly

thirty-six hours after he accepted the job.21 Upon arrival, Complainant did not have

his required hours-of-service form completed.22 Complainant and Schlafke worked

together to prepare the form, finishing at approximately 2:30 a.m.23

Schlafke also explained the Electronic Logging Device (ELD) application to

Complainant.24 USAA uses an ELD to track and record vehicle location, travel

routes, and time operating the disaster CMV.25 Complainant expressed opposition

to using the ELD several times and insisted he would record his own driving hours,

but he did not say that he thought the system presented a safety issue.26 Schlafke

reiterated that the ELD was a redundant, but different system than the driver’s

hours-of-service log used by Complainant (and other drivers), and that the ELD was

used to track the disaster CMV’s hours of operation and location.27 Conversely,

Complainant believed that Schlafke wanted him to input his past seven-days’

driving history in an incorrect manner on the ELD.28

Complainant departed El Paso at approximately 8:25 a.m. on December 7—

nineteen hours after the required twenty-four-hour dispatch time.29 At

approximately 8:37 p.m., Complainant called USAA to report heavy traffic and

advise that he needed to stop in Blythe, California, rather than Palm Desert,

California for his required driving break.30 Complainant had not advised USAA

D. & O. at 7.

Id. USAA requested Complainant to arrive in El Paso on an earlier flight than the

flight that he ultimately took because USAA wanted Complainant to take his required tenhour break and be on the road between 6:00 a.m. and 7:00 a.m. the next day. Tr. at 207.

D. & O. at 7.

Id. at 8; Tr. at 122-25, 518-19.

D. & O. at 8.

Id.; Tr. at 125-27.

D. & O. at 8; Tr. at 123-27, 156-57.

D. & O. at 8; Tr. at 125-27, 140.

D. & O. at 8; Tr. at 125-27.

D. & O. at 8. “Complainant had driven only 11 hours over two days during the past

seven-day time period. He did not assert that he was being asked to drive in a manner that

would violate regulations on hours of driving service limits.” Id.

Id.

earlier of the traffic delays, and his late notice forced USAA to cancel a hotel

reservation and incur a late cancellation charge.31

The USAA assignment required Complainant to depart Blythe at 6:00 a.m.

on December 8, but he did not leave until approximately 7:14 a.m.32 Around 11:05

a.m., Complainant stopped at a truck wash.33 Complainant spent more than three

hours at the truck wash before leaving at 2:23 p.m.34 A portion of that time was

spent obtaining a second wash because Complainant did not believe the disaster

CMV was washed thoroughly the first time.35

After leaving the truck wash, Complainant drove for approximately twentysix minutes before stopping at a truck stop in Ontario, California to take a

mandatory hours-of-service driving break.36 Complainant did not inform USAA of

his decision to stop at the truck wash, which he split with his upcoming required

hours-of-service driving break.37 USAA became aware of Complainant’s stop when

Schlafke contacted Complainant to inquire about his lack of progress toward the

wildfire destination area.38

Upon departing from the truck stop at 5:14 p.m., Complainant took a route

contrary to the directions Schlafke provided him in El Paso.39 USAA expected

Complainant to follow the route mapped for him.40 While tracking the vehicle’s

route, Schlafke realized Complainant was driving toward a portion of the highway

impacted by fire activity, and on several occasions, called Complainant or sent him

text messages to inform him that he was not driving on the mapped route.41

On December 8, Schlafke called Durante and requested CDS remove

Complainant from service as a driver for the USAA program due to his multiple

Id.; Tr. 14, 93, 118, 130-31, 219.

D. & O. at 9.

Id.; Tr. at 130-31.

D. & O. at 9.

Id.; Tr. at 164-67.

D. & O. at 9; Tr. at 131-32, 168, 171-73, 425.

D. & O. at 9; Tr. at 171-73.

D. & O. at 9; Tr. at 173-74.

D. & O. at 9; Tr. at 134-35, 208-09, 236-37.

Id.

service failures.42 In a follow-up e-mail, Schlafke provided CDS with a list of

reasons for USAA’s request to remove Complainant as a program driver.43

After being removed from the assignment, Complainant called Lydia Eschler,

a compliance specialist for CDS.44 During the call, Complainant told Eschler he felt

it was unsafe for him to answer USAA’s calls or respond to text messages while he

was driving, but he did not report any other safety concerns.45

On December 9, Complainant sent Durante a one-page e-mail recognizing

“timeliness concerns regarding [his] performance,” explaining the stops he made

while driving the disaster CMV, and rebutting USAA’s opinion that he was wasting

time.46 Complainant also noted his excellent safety record, that he stopped driving

to respond to USAA’s phone calls and text messages, which hindered his driving

progress, and that he put forth “100% in [his] efforts.”47 Notably, the e-mail

contained no reference to safety concerns or efforts by USAA representatives to

have him violate commercial motor vehicle safety regulations.48

On December 11, Complainant sent a second e-mail to Durante stating, “for

some reason USAA got mad at me about something.”49 Complainant acknowledged

that he misunderstood USAA’s twenty-four-hour standby policy and made

comments about receiving calls and text messages from USAA staff while driving.50

But the e-mail again contained no reference to safety concerns or efforts by USAA

representatives to have him violate commercial motor vehicle safety regulations. To

the contrary, Complainant acknowledged USAA was “so safety cautious . . . .”51

D. & O. at 9; Tr. at 91-92.

Schlafke listed the following reasons: (1) deployment failures that resulted in

Complainant not commencing the driving job within the required twenty-four-hour period;

(2) driving failures on December 6 and 7 that delayed delivery of the disaster CMV; (3)

failing to communicate with USAA to inform it of delays; and (4) interacting with USAA

personnel in an argumentative manner. CDS replaced Complainant, which resulted in CDS

incurring approximately $767.00 in additional expenses. D. & O. at 9-10; Tr. at 91-95, 10809, 118-22, 128-35, 137, 207-10.

D. & O. at 10.

Id.

Moreover, Complainant indicated that he remained interested in driving for

USAA.52

On the afternoon of December 14, Clarke consulted with CDS senior

management and his business partner and decided to terminate Complainant’s

employment53 based upon Complainant’s failure to perform his job satisfactorily,54

his unprofessional and disrespectful interactions with CDS employees and

managers,55 and his disregard for customer service.56 According to Clarke,

Complainant did not accept responsibility for his poor job performance and client

interaction with USAA and he and Walker “were ‘not getting along.’”57 The ALJ

credited Clarke’s testimony that while making the decision to terminate

Complainant’s employment, Clarke was unaware of any safety concerns

Complainant had reported either stemming from Complainant’s assignments with

USAA or the assignment Complainant was working that day at Thunder Ridge.58

Separately, but also on December 14, CDS gave Complainant a driving

assignment for Thunder Ridge.59 During this assignment, Complainant observed a

truck with a cracked mirror and an inoperable headlight.60 Complainant called

Eschler at 9:54 p.m., informed her of his observations, and requested contact

Id.

D. & O. at 12; Tr. at 487-88, 504-05.

D. & O. at 11-12.

Id. at 11; Tr. at 485-87. Clarke also testified:

Curtis may not be aware of that, that whenever he

communicates with others that he puts people in sort of

prospective, but when you’re aggressive and you’re aggressive

consistently, it puts people on edge and on defensive motion. So,

our teams were - - they want to work with people, but if they like

they can’t work with them, then my teams usually instead of

being combative, they’ll shut down. They’re those types, right, so

we typically will not raise our attention to that other individual.

We don’t want to get into a fight. It’s just not a good fit. We’d

rather move on so that’s what we decided.

Tr. at 500.

D. & O. at 12; Tr. at 487-88.

D. & O. at 11-12. Complainant complained to CDS employees that Walker was being

idle, ignoring him, that she “can’t help with nothing,” and that she “can’t usually do too

much.” Id. at 10.

Id. at 12; Tr. at 492.

D. & O. at 11.

Id.

information for senior management at Thunder Ridge.61 The next day, Eschler emailed Justin Clarke, CDS’ owner and chief executive officer, Victoria Anderson,

CDS’ operations manager, and Mary Ann Pennella, Clarke’s business partner,

summarizing her discussion with Complainant. The e-mail noted Complainant’s

displeasure with his removal from the USAA assignment, that Complainant had

safety concerns with Thunder Ridge’s trucks, Complainant’s request for Thunder

Ridge’s management’s contact information, and potential lawsuits Complainant

stated he may file against USAA and Thunder Ridge.62

On December 16, 2017, Lydia Evanson, a CDS contracted human resources

manager, called Complainant to notify him that Respondent was terminating his

employment.63 Complainant informed Evanson on the call that CDS recently

assigned him to work at Thunder Ridge, and Evanson told Complainant to continue

working for the duration of the assignment.64 Complainant’s last day of employment

with Respondent was December 19.65 Complainant submitted safety concerns

regarding the Thunder Ridge assignment to CDS on December 20.66

Id.; Tr. at 277-79, 283, 345.

Tr. at 282, 286-88. According to Eschler’s e-mail, Complainant “talked [her] ear off

about being pulled off of USAA job . . . [and] that he may be filing a DOT Law suit against

USAA for pulling him off this job with no reason. (his words, not mine)[.]” Later in the email, Eschler stated:

Now, last night on call, he called me at 9:54 pm asking for an

email address to Thunder Ridge higher ups so he could send

them a list of everything wrong with their trucks, per DOT he

feels that there may be a law suit there too! I told him to send

the list to us, did not get anything as of yet.

I’m just sending this because I see a problem with him in the

future, and maybe he’s looking for a law suit with anyone or any

company he can find one at? So just an FYI.

Respondent CDS’ Exhibit (RX) 9.

The record also contains a second e-mail discussing a potential lawsuit against

USAA. On December 14, 2017, April Walker, CDS’ Texas branch manager, sent an e-mail

to Anderson and copied Durante to the e-mail, which stated “[Complainant] talks about

USAA continuously but yesterday he mentioned filing a Federal complaint against them for

constantly calling him while he was driving.” RX-7.

D. & O. at 11; RX-11; Tr. at 490-92.

D. & O. at 11.

Id. at 12.

Id. at 11.

PROCEDURAL HISTORY

On December 18, 2017, Complainant filed a complaint against USAA and

CDS with OSHA alleging Respondents violated the STAA.67 On April 17, 2018,

OSHA concluded no reasonable cause existed to believe Respondents violated the

STAA and dismissed the complaint.68 On April 26, 2018, Complainant objected to

OSHA’s findings and requested a hearing before the Office of Administrative Law

Judges (OALJ).69

On July 27, 2018, USAA filed a Motion for Summary Decision. On October 3,

2018, the ALJ issued a Ruling on Respondent USAA’s Motion for Summary

Decision dismissing Complainant’s claims against USAA because the ALJ found

USAA did not employ Complainant.70 Complainant filed an interlocutory appeal of

the order with the Board. On July 23, 2020, the Board dismissed the appeal and

returned the case to the ALJ to conduct a formal hearing and render a decision in

the case against CDS on its merits, including considering whether any violation of

the statute occurred when Complainant completed the USAA assignment while

CDS employed him.71

The ALJ conducted the hearing on July 21-22, 2021. On September 2, 2022,

the ALJ issued a D. & O. denying Complainant’s complaint against CDS, finding

Complainant did not engage in any protected activity while working for CDS on the

USAA job assignment and that any protected activity on the Thunder Ridge

assignment played no part in his termination from CDS. On September 9, 2022,

Complainant filed a petition for review of the ALJ’s D. & O. with the Board.72

Id. at 1.

Id.

Id. at 2. On July 30, 2018, CDS filed a Motion to Dismiss. On October 3, 2018, the

ALJ issued a Ruling on Respondent Contracted Driver Services’ Motion to Dismiss denying

CDS’ Motion.

Id.

The Board acknowledges Complainant appealed the ALJ’s Ruling on Respondent

USAA’s Motion for Summary Decision dismissing Complainant’s claims against USAA on

the basis USAA did not employ him. Complainant’s Opening Legal Brief (Comp. Br.) at 1011. In its order denying the interlocutory appeal, however, the Board found that argument

“not collateral to his Complaint,” and instead “integrated with his overall claim against

Respondents[,]” which it remanded for a hearing on the merits against CDS. Order

Dismissing Interlocutory Appeal at 4. Given that we affirm the ALJ’s post-hearing finding

Complainant did not engage in protected activity while assigned to the USAA job while

working for CDS, any whistleblower claim against USAA also necessarily fails, whether it

employed Complainant or not. Halm v. Schwan’s Home Serv., Inc., ARB No. 2011-0005,

ALJ No. 2009-STA-00034, slip op. at 4 (ARB Sept. 28, 2012) (failure to prove any one of the

JURISDICTION AND STANDARD OF REVIEW

The Secretary of the Department of Labor has delegated to the Board the

authority to review ALJ decisions under STAA.73 In STAA cases, the Board reviews

questions of law presented on appeal de novo, but is bound by the ALJ’s factual

findings if they are supported by substantial evidence.74 Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.”75 The Board reviews an ALJ’s determinations on procedural and

evidentiary rulings under an abuse of discretion standard.76

DISCUSSION

1. Governing Law

The STAA provides that a person may not “discharge,” “discipline,” or

discriminate” against an employee “regarding pay, terms, or privileges of

employment” because the employee has engaged in protected activity.77 To prevail

on a STAA claim, a complainant must prove by a preponderance of the evidence

that: (1) they engaged in activity that STAA protects; (2) their employer took

adverse action against him; and (3) their protected activity was a contributing

elements of a claim necessarily requires dismissal of a whistleblower complaint) (citations

omitted). The Board thus declines to review the ALJ’s initial dismissal of USAA as a party

as moot. 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. 13,186 (Mar. 6, 2020).

29 C.F.R. § 1978.110(b); Stokes v. Albertson’s, LLC, ARB No. 2022-0007, ALJ Nos.

2020-STA-00080, -00082, slip op. at 5 (ARB May 20, 2022) (citing 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)).

Stokes, ARB No. 2022-0007, slip op. at 5 (citing Consol. Edison Co. of N.Y. v.

N.L.R.B., 305 U.S. 197, 229 (1938)); see also Hanna v. Global Nuclear Fuel-Americas, LLC,

ARB No. 2023-0015, ALJ No. 2020-ERA-00002, slip op. at 6 (ARB Mar. 19, 2024) (citing

Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)).

May v. AGL Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at 6

(ARB Sept. 14, 2023) (citing Furlong-Newberry v. Exotic Metals Forming Co., LLC, ARB No.

2022-0017, ALJ No. 2019-TSC-00001, slip op. at 22 (ARB Nov. 9, 2022)).

49 U.S.C. § 31105(a)(1). STAA complaints are governed by the legal burdens of proof

set forth in the employee protection provisions of the Wendell H. Ford Aviation Investment

and Reform Act for the 21st Century (AIR21). Id. § 31105(b)(1); see 49 U.S.C. § 42121.

factor in the adverse action.78 If the complainant meets this burden of proof, the

respondent may avoid liability if it establishes an affirmative defense, proving by

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

the absence of the complainant’s protected activity.79

2. Dick Did Not Engage in Protected Activity While Assigned to USAA But

Did Engage in Protected Activity While Assigned to Thunder Ridge

Under the STAA, a complainant engages in protected activity by filing a

complaint or refusing to operate a vehicle for safety reasons.80 For the complaint

clause, a complainant must demonstrate that they had a reasonable belief the

conduct complained of violated pertinent law or regulations.81 This requires

establishing a subjective belief that is objectively reasonable.82 Showing the

complainant actually believed the conduct constituted a violation of relevant law

satisfies the subjective component.83 The objective component is evaluated based on

the knowledge available to a reasonable person in the same factual circumstances

with the same training and experience as the aggrieved employee.84

Before the ALJ, Complainant asserted that he engaged in protected activity

during the USAA assignment when he: (1) expressed concerns regarding the

disaster CMV’s ELD system; (2) was ordered to work during a DOT break; and

(3) refused to answer phone calls or text messages.85 The ALJ concluded

29 C.F.R. § 1978.109(a).

Id. § 1978.109(b).

49 U.S.C. § 31105(a)(1). This case pertains to § 31105(a)(1)(A)(i)-(ii). Under

§ 301105(a)(1)(A), a person may not discharge an employee, or discipline or discriminate

against an employee because: (i) the employee, or another person at the employee’s request,

has filed a complaint or begun a proceeding related to a violation of a commercial motor

vehicle safety or security regulation, standard, or order, or has testified or will testify in

such a proceeding; or (ii) the person perceives that the employee has filed or is about to file

a complaint or has begun or is about to begin a proceeding related to a violation of a

commercial motor vehicle safety or security regulation, standard, or order. Id.

Tocci v. Miky Transp., ARB No. 2015-0029, ALJ No. 2013-STA-00071, slip op. at 8

(ARB May 18, 2017) (citing Gilbert v. Bauer’s Worldwide Transp., ARB No. 2011-0019,

ALJ No. 2010-STA-00022, slip op. at 7 (ARB Nov. 28, 2012); Dick v. J.B. Hunt Transp., Inc.,

ARB No. 2010-0036, ALJ No. 2009-STA-00061, slip op. at 6 (ARB Nov. 16, 2011)).

Tocci, ARB No. 2015-0029, slip op. at 8 (citations omitted).

Id.

D. & O. at 13-15; Complainant’s Post Hearing Brief Against Contracted Driver

Services at 4, 6; Complainant’s Post Hearing Reply Brief Against Contracted Driver

Services at 1-2.

Complainant did not engage in protected activity as it related to his work on the

USAA driving assignment.86 As it pertained to Complainant’s ELD system

complaints, the ALJ held “while Complainant’s belief may have been subjectively

sincere . . . it was not objectively reasonable.”87

Complainant’s appeal on protected activity concerns only the ELD system.88

Upon review, we hold substantial evidence supports the ALJ’s finding that even if

Complainant held a subjective belief the use of the system violated a safety rule,

that belief was not objectively reasonable.

First, the ALJ’s factual determinations establish it is questionable whether

Complainant subjectively believed the mere use of the ELD system violated a safety

regulation. The ALJ found: (1) Schlafke clearly conveyed the ELD system’s purpose

and use to Complainant;89 (2) Schlafke acknowledged that Complainant was

independently obligated to retain his own driving record;90 and (3) Complainant

took no action to inform his CDS managers about any safety concerns or that

Schlafke requested he misrepresent his driving history. Rather, Complainant sent

two e-mails to CDS following his removal from the USAA job that at no point

alleged safety concerns.91 To the contrary, Complainant acknowledged in one e-mail

that “[USAA] are so safety cautious . . . .”92 Complainant does not allege error in any

of these factual findings, nor can we independently discern any.

As recognized by the ALJ, given the temporal proximity to Complainant’s

removal from the USAA job, it thus would have been expected for him to describe

any prior safety concerns he subjectively believed contributed to his removal from

D. & O. at 15.

Id. at 14 (emphasis added).

Comp. Br. at 6-7. Complainant does not address or challenge the ALJ’s other USAA

protected activity finding that “Complainant’s asserted protected activity related to work

during a break and refusing to answer phone calls or texts lacks convincing evidentiary

proof.” D. & O. at 14. Nor have we independently found any such proof.

D. & O. at 14. Schlafke described the difference between a driver’s logbook, a sevenday service form, and USAA’s ELD system. The logbook is a journal that a commercial

motor vehicle driver has to keep every single day; the seven-day hour service form tracks

the hours that a driver provided to their previous client, and the USAA’s ELD system is an

application that drivers can download on their phone or use the application on the provided

iPad in the disaster CMV, which tracks the vehicle location, hours driving, and breaks.

Tr. 122-24.

D. & O. at 14; Tr. at 122-24.

D. & O. at 14; RX-4; RX-5.

RX-5.

the assignment within these e-mails.93 Instead, the Complainant’s e-mails reflect he

had no safety-related problems with either USAA or Schlafke.

Second, regardless of Complainant’s subjective point of view, substantial

evidence supports the ALJ’s determination that Complainant did not establish an

objectively reasonable belief that the ELD system was unsafe. The simple use of a

system to track a truck’s location does not intrinsically suggest a violation of any

safety regulation, standard, or order. Indeed, other drivers routinely used it (or

similar systems) without any concern that doing so would misrepresent past driving

hours, cause safety concerns, or violate regulations.94

Nor did Complainant submit any evidence or attempt to develop any

argument beyond his conclusory allegation suggesting the mere use of an ELD

system violates a safety rule or regulation. Given that complete lack of proof,

substantial evidence supports the ALJ’s determination that even if Complainant

subjectively believed the ELD system presented safety concerns, he did not meet his

burden to establish that belief was objectively reasonable.95 We therefore affirm the

ALJ’s determination Complainant did not engage in protected activity while

performing the USAA assignment for CDS.96

D. & O. at 14.

Tr. at 127.

Stokes, ARB No. 2022-0007, slip op. at 5 (holding substantial evidence is “such

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

Although Complainant did not engage in protected activity while assigned to USAA,

the Board agrees with the ALJ and Complainant that Complainant’s safety complaints

during the Thunder Ridge assignment constituted protected activity under the STAA.

D. & O. at 15; Comp. Br. at 7. Complainant notified Eschler and Thunder Ridge’s

management that he observed a vehicle with a broken mirror and inoperable light. D. & O.

at 15. And the ALJ correctly determined Complainant suffered two forms of adverse action:

CDS removed Complainant from the USAA assignment and terminated Complainant’s

employment. D. & O. at 15. We accept these findings as final because they

are unchallenged by the parties on appeal. See 29 C.F.R. 1978.110(a) (“The parties should

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

the objections may be deemed waived.”); Leiva v. Union Pac. R.R., ARB Nos. 2014-0016,

-0017, ALJ No. 2013-FRS-00019, slip op. at 8 (ARB May 29, 2015) (affirming ALJ’s finding

as unchallenged on appeal under a parallel whistleblower statute). As explained above,

however, the lack of any protected activity on the USAA job eliminates any potential

liability for USAA. Halm, ARB No. 2011-0005, slip op. at 4.

3. Dick’s Protected Activity While Assigned to Thunder Ridge Did Not

Contribute to His Employment Termination

A contributing factor is “any factor which, alone or in connection with other

factors, tends to affect in any way the outcome of the decision.”97 The Board has

noted that this is a relatively low standard for an employee to meet—the activity

need only play some role and “need not be ‘significant, motivating, substantial or

predominant.”98

The ALJ concluded Complainant’s Thunder Ridge safety complaint “played

absolutely no role in him being removed from the USAA wildfire driving job, nor

was it considered when his employment as an at-will, intermittent driver for CDS

was terminated.”99 In coming to this conclusion, the ALJ permissibly determined

that Clarke: (1) had no knowledge of any safety concerns raised or reports made by

Complainant prior to deciding to terminate his employment; and (2) based the

decision to terminate Complainant on non-retaliatory reasons.100

On appeal, Complainant claims his concerns regarding the electronic logs and

efforts “to report truck (CMV) defects” were a contributing factor in CDS’ decision to

terminate his employment.101 CDS counters that the ALJ correctly determined CDS

terminated Complainant solely for his “intolerable job performance” and “not for

engaging in any protected activity.”102

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

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

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

Id. at 9 (quoting Palmer, ARB No. 2016-0035, slip op. at 53). The United States

Supreme Court recently issued Murray v. UBS Securities, LLC, a whistleblower case under

the Sarbanes-Oxley Act of 2002 (SOX) examining whether a whistleblower must prove

“retaliatory intent” to satisfy the contributing factor element. Murray v. UBS Secs., LLC,

601 U.S. 23 (2024). The Court held a whistleblower bears the burden to prove his protected

activity “was a contributing factor in the unfavorable personnel action alleged . . . but he is

not required to make some further showing that his employer acted with ‘retaliatory

intent.’” Id. at 39. The Court noted that Congress “incorporated the easier-to-satisfy

‘contributing factor’ framework” into whistleblower statutes that protect employees in

industries where whistleblowing plays an especially important role in protecting the public

welfare, including the airline industry (AIR21) and securities industry. Id. at 28. As noted

previously, the STAA applies the legal burdens of proof set forth within AIR21. Supra note

77. Thus, the Board uses this “easier-to-satisfy” contributing factor framework in STAA

cases.

D. & O. at 17.

100

Id.

101

Comp. Br. at 5-8.

102

Respondent Contracted Driver Services, Inc.’s Response Brief at 33.

We agree with CDS that substantial evidence supports the ALJ’s finding that

any protected activity Complainant engaged in on the Thunder Ridge assignment

did not contribute to either his removal from the USAA assignment or his

termination. As a preliminary matter, Complainant’s removal from the USAA

assignment occurred well-before his Thunder Ridge safety complaints. Complainant

was removed from the USAA assignment on December 8, 2017. Complainant first

reported his safety concerns to Eschler on December 14, 2017, and later submitted a

written summary of his concerns to CDS managers on December 20, 2017.103 Given

that timeline, the Thunder Ridge safety report could not have been a contributing

factor in his removal from the USAA assignment as a matter of both law and

logic.104

Moreover, the record further supports the ALJ’s determination Clarke

likewise did not know about Complainant’s Thunder Ridge safety concerns before

deciding to terminate his continued employment with CDS.105 Clarke testified that

he consulted with CDS senior management and his business partner in the

afternoon on December 14, while Complainant reported his initial concerns to

Eschler at 9:54 p.m. later that day.106 Clarke also testified Complainant’s removal

from the USAA assignment and employment termination resulted from service

failures, performance issues, and unacceptable personal interaction with CDS

clients and employees.107 The ALJ, in his role as factfinder, found Clarke’s

testimony “reliable” and “well-supported” and noted that it contained “no internal

inconsistencies.”108 He therefore gave it “considerable weight.”109

We reject Complainant’s invitation on appeal to reinterpret Clarke’s

testimony. The Board gives great significance to an ALJ’s credibility

determinations, deferring to an ALJ unless their witness evaluations are

“inherently incredible or patently unreasonable.”110 Complainant neither points to

103

D. & O. at 11; RX-2; RX-3; RX-18; RX-19.

Kirschmann v. Hampton Rds. Transit, ARB No. 2023-0002, ALJ No. 2021-NTS00006, slip op. at 9 n.30 (ARB Feb. 14, 2024) (stating “[i]t is axiomatic that, to constitute

actionable retaliation, the alleged action must post-date the protected activity.”) (citing

Nieman v. Se. Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021, slip op. at 14

n.85 (ARB Oct. 5, 2020) (internal citations omitted)).

104

105

D. & O. at 12; Tr. at 492.

106

D. & O. at 12; RX-11; Tr. at 487-89, 504-05.

107

D. & O. at 11-12; RX-1; RX-8; Tr. at 485-88.

108

D. & O. at 6.

109

Id.

Jacobs, ARB No. 2017-0080, slip op. at 2; Cottier v. Bayou Concrete Pumping, LLC,

ARB No. 2020-0069, ALJ No. 2019-STA-00046, slip op. at 15 (ARB Jan. 18, 2022) (holding

110

any evidence the ALJ did not consider in crediting Clarke’s testimony about the

timeline of his termination, nor does he identify any error of law. And while

Complainant makes various arguments regarding different aspects of Clarke’s

testimony that he alleges impact his overall credibility, they concern facts unrelated

to the timeline of his termination.111

On its face, Complainant’s argument thus falls far short of meeting the high

burden to demonstrate the ALJ’s crediting of Clarke’s testimony about the

termination decision was inherently incredible or patently unreasonable.112

Moreover, other contemporaneous record evidence corroborates Clarke’s account,

including, for example: USAA’s e-mail requesting CDS to replace Complainant as a

driver;113 e-mails amongst CDS staff regarding Complainant’s inappropriate

behavior;114 and witness testimony.115

Complainant, in effect, thus simply asks us to reweigh the evidence in his

favor, something our standard of review does not permit.116 We instead affirm the

ALJ’s contributing factor causation analysis as related to the decision to terminate

his CDS employment as supported by substantial evidence.117 While that affirmance

is fatal to Complainant’s claim, CDS’s successful establishment of its affirmative

defense is equally dispositive.

that “[t]he Board affords such deference because the ALJ is able to observe the ‘witnesses’

demeanor while testifying. . . .’”) (citations omitted).

See, e.g., Comp. Br. at 7-8, suggesting Clarke’s testimony is incredible regarding: (1)

not receiving information from Durante about the USAA assignment; (2) not

communicating with Walker about voicemails or e-mails she had received from

Complainant; (3) his knowledge that CDS was looking for a replacement driver for the

USAA assignment; and (4) other drivers vetted for USAA assignments.

111

Folger v. SimplexGrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip

op. at 4 (ARB Feb. 18, 2016) (noting that “[m]aking credibility determinations of this sort is

exactly why ALJs hold elaborate, trial-like hearings . . . and exactly why we afford great

deference to an ALJ’s credibility determinations.”) (citations omitted).

112

113

RX-1.

114

Id.; RX-7; RX-9; RX-10.

115

Tr. at 92-93, 118.

See Clem v. Comput. Scis. Corp., ARB 2020-0025, ALJ Nos. 2015-ERA-00003,

-00004, slip op. at 13 (ARB Mar. 10, 2021) (holding that the substantial evidence standard

“limits the reviewing court from ‘deciding the facts anew, making credibility

determinations, or re-weighing evidence.’”) (citations omitted).

116

See Butler v. Neier, Inc., ARB No. 2016-0084, ALJ No. 2014-STA-00068, slip op. at 910 (ARB June 22, 2018) (affirming the ALJ’s causation findings based on, in part, the ALJ’s

witness credibility determination and reliance on the witness’ uncontradicted timeline of

events).

117

4. CDS Demonstrated by Clear and Convincing Evidence It Would Have

Terminated Dick’s Employment in the Absence of His Protected Activity

If a complainant demonstrates that their protected activity was a

contributing factor in the adverse action, the respondent may avoid liability if it

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

adverse action in the absence of the complainant’s protected activity.118 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.119

The ALJ determined CDS proved by clear and convincing evidence that it

would have taken the same action against Complainant in the absence of

Complainant’s protected activity.120 The ALJ relied upon the same reasons that

were discussed in his contributing factor analysis, including service failures,

performance issues, and unacceptable personal interaction with CDS clients and

employees.121 On appeal, Complainant argues that the ALJ erred in finding that

Respondent met its burden. In so doing, Complainant does not point to any error of

law the ALJ committed, but once again asks us to reweigh facts in a different

light.122

We decline to do so. The record contains ample evidence from which any

reasonable observer could determine that CDS terminated Complainant’s

employment because Complainant failed to provide adequate, time-sensitive service

to USAA.

118

29 C.F.R. § 1978.109(b).

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

op. at 52)).

119

120

D. & O. at 18-19.

See id. at 16-17, 19. The ALJ noted Clarke’s persuasive testimony pertaining to

these interactions, the timeline of events leading up to Complainant’s termination, and his

lack of knowledge of Complainant’s alleged protected activities. Id. at 19.

121

122

Comp. Br. at 4. Complainant states:

Respondent CDS, has cited the primary reason for Complainant’s

termination was for service failures at Respondent USAA. (TR. 560). Then

CDS makes a blanket statement that Complainant was acting rude, and

dignified. (Tr. 561, lines 17 thru 23). Respondent CDS cited three (3)

telephonic events, that contributed to Complainant’s termination. (Tr. 562),

which CDS decision-maker misrepresented the content of the phone call

conversations (CX-29 & CX-30) [sic throughout].

Comp. Br. at 4.

For example, according to USAA’s email requesting Complainant’s removal

from the assignment and credible witness testimony, Complainant: (1) failed to

commence the driving job within the required 24-hour period; (2) committed several

driving failures that delayed delivery of the disaster CMV to California; (3) failed to

communicate with USAA and inform it of delays, which caused additional costs for

USAA; and (4) interacted with USAA personnel in an argumentative manner.123

Complainant even acknowledged USAA’s dissatisfaction with his job performance in

an e-mail to Durante.124

In addition to the significant problems with the USAA assignment that

occurred while in CDS’s employment, the record also contains distinct evidence that

CDS terminated Complainant’s employment due to additional professionalism and

customer service concerns. The ALJ reasonably credited Clarke’s persuasive

testimony that he considered Complainant’s interactions and conduct toward

Schlafke and CDS employees to be combative, unprofessional, and unacceptable,

and the timeline of Complainant’s termination corroborates that testimony.125

Conversely, Complainant has not provided any evidence or argument to

establish the ALJ erred in making these factual determinations. While

Complainant may have legitimate concerns regarding his termination that go

beyond raising safety issues, the STAA is not a general employee grievance

statute.126 Accordingly, the Board affirms the ALJ’s affirmative defense finding as

supported by substantial evidence and in accordance with law.127

123

D. & O. at 18-19; RX-1; Tr. at 92-93, 118.

124

RX-5.

125

D. & O. at 19; RX-7; RX-9; Tr. at 535-36.

The purpose of the STAA is to promote highway safety and protect employees from

retaliatory discharge. Cottier, ARB No. 2020-0069, slip op. at 9 (citations omitted). The

STAA is not a general remedy for employment grievances unrelated to commercial vehicle

safety. See e.g. Kirschmann, ARB No. 2023-0002, slip op. at 9 n.31 (noting the NTSAA and

other whistleblower statutes administered by the Board are not general anti-retaliation

statutes).

126

We further reject Complainant’s suggestion the ALJ abused his wide discretion in

conducting procedural matters during the hearing in this claim. Complainant claims the

ALJ did not permit Complainant to question witnesses and present his case in the manner

that he desired which prejudiced him. The Rules of Practice and Procedure for the

Department of Labor’s Office of Administrative Law Judges, however, authorize the ALJ to

exercise reasonable control over the mode and order of interrogation and presentation of

evidence, which includes making the interrogation and presentation effective for the

127

CONCLUSION

For the foregoing reasons, the Board AFFIRMS the ALJ’s D. & O., and

AFFIRMS the ALJ’s Ruling on Respondent USAA’s Motion for Summary Decision.

SO ORDERED.

____________________________________

JONATHAN ROLFE

Administrative Appeals Judge

____________________________________

SUSAN HARTHILL

Chief Administrative Appeals Judge

____________________________________

ANGELA W. THOMPSON

Administrative Appeals Judge

ascertainment of the truth, avoiding needless consumption, and protecting witnesses from

harassment or undue embarrassment. 29 C.F.R. § 18.611(a).

Here, the ALJ originally permitted Complainant to take the lead in questioning

witnesses until it became apparent Complainant was argumentative and did not

understand evidentiary rules. On numerous occasions, Complainant asked compound

questions, irrelevant questions, and/or failed to lay proper foundation before questioning

witnesses. Tr. 68, 72-73, 78, 105, 121, 135-36, 175-76. After several failed attempts by

Complainant and unnecessary time spent on witnesses, the ALJ took the lead in

questioning witnesses to expedite the process, rephrased questions for Complainant, and

then, permitted Complainant to follow-up with additional, relevant questions. Id. at 62, 7980, 83, 85, 94-95, 112, 116, 120-22, 140-41, 151, 155, 163, 167, 174, 261, 283, 286, 288, 293,

296-98. The ALJ aided Complainant throughout the proceedings with explanations and

extended deadlines, which are not typically afforded to litigants at that stage of the

proceedings. Id. at 21, 33, 48-51, 142, 179-80, 191-92. Accordingly, the Board finds that ALJ

did not abuse his discretion.

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.