Petition for Writ of Certiorari — Adriano Kruel Budri, Petitioner v. Department of Labor, Administrative Review Board

No.

3ht

Supreme Court of tfjc ®mteb

States

Adriano Kruel Budri,

Petitioner,

V.

Administrative Review Board,

United States Department of Labor,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for 5th Circuit

APPENDIX

Adriano K. Budri

Petitioner Pro Se

5029 County Road 605

Burleson, TX 76028-1177

Phone (817) 447-3868

Email address: budri@sbcglobal.net

A1

Case: 18-60579 Document: 00514908591

Page: 1

Date Filed: 04/09/2019

No. 18-60579

IN THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

ADRIANO BUDRI,

Petitioner

v.

ADMINISTRATIVE REVIEW BOARD,

UNITED STATES DEPARTMENT OF LABOR

Petition for Review of the Final Decision and Order of

the United States Department of Labor

Administrative Review Board

LABR No. 18-025

Before KING, SOUTHWICK, and

ENGELHARDT, Circuit Judges.

PER CURIAM:*

Adriano Budri challenges an Administrative Review

Board's decision in favor of his former employer,

Firstfleet, Inc. The decision concluded that Budri

could not establish causation in his whistleblower

retaliation claim under the Surface Transportation

assistance Act ("STAA"), 49 U.S.C. § 31105. We agree

and deny the petition for review.

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published

and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

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The STAA "insure [s] that employees in the

commercial motor transportation industry who make

safety complaints, participate in STAA proceedings,

or refuse to commit unsafe acts do not suffer adverse

employment consequences because of their actions."

Road way Express, Inc. v. Dole, 929 F.2d 1060, 1065

(5th Cir. 1991).

After Budri was terminated by Firstfleet at the end

of his first month of employment, he filed a claim

with the Occupational Safety and Health

Administration. Under the STAA, Budri needed to

demonstrate "by a preponderance of the evidence

that protected activity was a contributing factor in"

termination.

29C.F.R.§ 1978.109(a).

An

his

administrative law judge ("ALJ") found there to be

"no genuine dispute as to any material fact" on the

causation element and granted summary decision to

Firstfleet. 29 C.F.R. § 18.72(a).Budri then petitioned

for review by the Department of Labor's

Administrative Review Board ("ARB"). See: Budri v.

First fleet, Inc., No. 18-025, 2018 WL 6978226 (U.S.

Dep't of Labor Admin. Rev. Bd. June 19, 2018).

The ARB found that, in the one month that Budri

was employed by Firstfleet, "he caused several

accidents, failed to report accidents, failed to deliver

a time-sensitive order, drove on a flat tire to a truck

stop when he had been told to wait for a service crew

to repair the tire, and had a customer ban him from

its facility for refusing to follow instructions." Id. at

A3

*1. It is also referred to the ALJ's findings that

"undisputed evidence demonstrated" Firstfleet"

immediately remedied" a complaint Budri asserted

in protected activity, "took no action against Budri"

after he engaged in other alleged protected activity,

and that all of Budri's mistakes on the job occurred

after purported protected activity. Id. Thps, though

Budri had undertaken protected activity, the ARB

found he had "fail[ed] to present any evidence that

[the activity] contributed to the termination

decision." Id

The ARB affirmed the ALJ's grant of summary

decision in Firstfleet's favor, finding no genuine

disputes of material fact and holding as a matter of

law that Firstfleet was entitled to judgment. Id .at

*2; see also 29 C.F.R. § 18.72(a).

Budri proceeds pro se in this court. We review an

ARB decision to make sure it is not "arbitrary,

capricious, an abuse of discretion, or otherwise

contrary to law, or . . . not supported by substantial

evidence." Mack tal v. United States Dep't of Labor,

171 F.3d 323, 326 (5th Cir. 1999) (citing 5 U.S.C.

06(2)(A)). We review conclusions of law de novo.

Ameristar Airways, Inc. v. Ad min. Review Bd ., 771

F.3d 268, 272 (5th Cir. 2014).

In his petition for review, Budri first argues the ARB

erred by failing to consider certain occurrences to

have been protected activity. The ARB in fact did

consider one of these, pertaining to an inoperative

headlamp on a truck, to be a protected activity, and

it factored the incident into its analysis. See Budri,

2018 WL 6978226, at *1 n.5. As to an event

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pertaining to Budri's driving on a flat tire after being

instructed not to do so, the ALJ concluded that Budri

waived that argument because he raised it too late.

Budri briefed the point in his appeal, but the ARB

did not address it. We conclude the ARB's silence

was effectively an adoption of the waiver holding.

Budri does not explain in his petition for review in

this court why the ARB's decision to deem the

argument waived would be arbitrary or capricious.

Even though we construe pro se briefs liberally,

Budri must still adequately contest the Agency's

determinations to have them addressed in this

forum. See Yohey v. Collins, 985 F.2d 222, 224-25

(5th Cir. 1993). He has failed to do that as to this

scenario involving the flat tire.

Budri also contends his motion to compel discovery

should have been granted. Budri filed requests on

November 25 and December 21, 2017. In an order

issued on December. 29, 2017, the ALJ ordered

Firstfleet to respond to Budri's discovery requests or

object to them. Budri argued to the ARB that

Firstfleet only partially complied with the order. The

ARB's decision does not discuss these contentions.

Even if the ARB should have discussed that issue, its

failure to do so is not reversible error if it "clearly

had no bearing on the procedure used or the

substance

of

decision

reached."

Worldcall

Interconnect, Inc. v. F.C.C., 907 F.3d 810, 818 (5th

Cir. 2018) (citation omitted). We see no significance

to the issue regarding discovery, and there is no

reversible error.

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This case concerns Budri's commission of a series of

errors during his only month of employment. His

termination took place after those mistakes and not

directly after the protected activity recognized by the

ARB. Budri does not dispute these facts. The record

also indicates that Firstfleet's human resources

manager authorized Budri's termination after an

email request from Budri's supervisor that detailed

Budri's on-the-job mistakes and did not mention any

of the protected activity. We therefore agree there is

no genuine dispute of material fact as to the element

of causation. Firstfleet was due a favorable decision

as a matter of law.

Finally, Budri argues the Agency erred in not

considering his prehearing statements, but he

insufficiently briefs the argument.

The petition for review is DENIED. All pending

motions are DENIED.

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Case: 18-60579

Document: 00514933245

Date Filed: 04/29/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-60579

ADRIANO BUDRI, Petitioner

v.

ADMINISTRATIVE REVIEW BOARD,

UNITED STATES DEPARTMENT OF LABOR

Respondent

Petition for Review of an Order of the Department of

Labor (except OSHA)

ON PETITION FOR REHEARING

Before KING, SOUTHWICK, and ENGELHARDT,

Circuit Judges. PER CURIAM:

IT IS ORDERED that the petition for rehearing is

DENIED.

ENTERED FOR THE COURT:

/s/

LESLIE H. SOUTHWICK

UNITED STATES CIRCUIT JUDGE

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United States Department of Labor

Administrative Review Board

200 Constitution Avenue, N.W.

Washington, D.C. 20210

ARB CASE NO. 18-025

ALJ CASE NO. 2017-STA-086

DATE: Jun 19, 2018

In the Matter of:

ADRIANO BUDRI,

COMPLAINANT,

v.

FIRSTFLEET, INC.,

RESPONDENT.

BEFORE: THE ADMINISTRATIVE REVIEW

BOARD

Before: Joanne Royce, Administrative Appeals

Judge, and Leonard J. Howie III,

Administrative Appeals Judge

FINAL DECISION AND ORDER

Adriano Budri filed a complaint with the United

States Department of Labor's Occupational Safety

and Health Administration (OSHA) on March 20,

2017. Budri alleged that his employer, Firstfleet,

Inc., violated the employee protection provisions of

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the Surface Transportation Assistance Act (STAA) of

1982, as amended and re-codified, when it

terminated his employment in retaliation for raising

safety concerns.1 The STAA prohibits employers

from discriminating against employees when they

report violations of commercial motor vehicle safety

rules or when they refuse to operate a vehicle when

such operation would violate those rules. A

Department of Labor (DOL) Administrative Law

Judge (ALJ) granted Firstfleet's motion for summary

decision and dismissed Budri's complaint because

Budri failed to present evidence of specific facts that,

if true, would allow a reasonable fact-finder to find

in his favor on the issue of causation. We agree with

the ALJ and summarily affirm the ALJ's order.

In summarily affirming the ALJ's Decision and

Order, we limit our comments to the most critical

points. First, we review a recommended decision

granting summary decision de novo.2 We view the

evidence in the light most favorable to Budri (the

non-moving party) to determine whether there are

any genuine issues of material fact and whether

Firstfleet was entitled to judgment as a matter of

law.3

1 49 U.S.C.A. § 31105 (Thomson Reuters 2016); implementing

regulations at 29 C.F.R. Part 1978 (2017); see 49 U.S.C.A. §

42121 (Thomson Reuters 2016).

2 Hardy v. Mail Contractors of Am., ARB No. 03-07, 2002-STA022, slip op. at 2 (ARB Jan. 30, 2004).

3 Lee v. Schneider Nat'l, Inc., ARB No. 02-102, ALJ No. 2002STA-025, slip op. at 2 (ARB Aug. 28, 2003).

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Budri asserts that Firstfleet fired him because he

engaged in protected activity. To prevail on his

claim, Budri is required to prove that 1) he engaged

in protected activity and 2) that Firstfleet took

adverse employment action against him 3) because

of the protected activity.4

We turn to the "causation" element, the focus of this

decision.5

Firstfleet provided documentation

showing that it fired Budri because he caused

several accidents, failed to report accidents, failed to

4 Leaks v. Arctic Glacier, ARB No. 15-079, ALJ No. 2014-STA080, slip op. at 4 (ARB Feb. 7, 2017); 49 U.S.C.A. §

42121 (b)(2) (B) (iii).

5 The ALJ held that Budri engaged in protected activity on

January 30, 2017 when he reported a burned out bulb but that

the evidence regarding Budri's February 8, 2017 discussion

about how to log time while waiting for repairs did not

constitute protected activity. We disagree with the latter

finding. In the course of his discussion with his manager about

how to log time, Budri insisted that the direction he was given

regarding logging time violated state or federal transportation

regulations. Department of Transportation regulations limit

the hours of service for drivers and to ensure compliance that

drivers are required to record their duty status for each 24 hour

period. 49 C.F.R. Part 395.8 (2017).Because hours of service are

strictly regulated and the regulations distinguish between offduty and on-duty (not driving), complaints about how a driver

records driving time, it seems to us, are safety related. Also,

STAA provides that a driver is protected when he "accurately

reports hours on duty pursuant to chapter 315. "49

U.S.C.A.§31105(a)(l )(C). We find that the evidence regarding

Budri's discussion about logging time presents a genuine issue

for trial as to whether it constituted protected activity. That we

find an additional instance of protected activity in this case

does not change the result however, because we affirm the

ALJ's dismissal based on his causation analysis which applies

to both instances of protected activity.

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deliver a time-sensitive order, drove on a flat tire to

a truck stop when he had been told to wait for a

service crew to repair the tire, and had a customer

ban him from its facility for refusing to follow

instructions.6 In his response to the motion for

summary decision, Budri did not controvert any of

the facts about these instances other than to assert

that the declarations of Firstfleet's witnesses were

"submitted in bad faith" and contained "misleading,

libel, hearsay and perjury information." The ALJ

also

observed

that

undisputed

evidence

demonstrated that: (1) Firstfleet immediately

remedied the burned out bulb; (2) took no action

against Budri following his discussion of logging

time, and (3) all Budri's alleged protected activity

happened before the incidents cited by Firstfleet as

the basis for Budri's termination. The ALJ properly

determined that Budri's evidence was insufficient to

create a genuine issue of material fact on the issue of

causation. Given Budri's failure to present any

evidence that his protected activities contributed to

the termination decision, Budri cannot prove an

essential element of his claim, the element of

causation.

6 D. & O. at 3-5.

All

CONCLUSION

The ALJ's decision correctly found that there was no

material issue of fact regarding the element of

causation and that Firstfleet is entitled to judgment

as a matter of law. Accordingly, we affirm the ALJ's

order dismissing the complaint and DENY Budri's

complaint.

SO ORDERED.

JOANNE ROYCE

Administrative Appeals Judge

LEONARD J. HOWIE III

Administrative Appeals Judge

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ADMINISTRATIVE REVIEW BOARD

Certificate of Service

ARB CASE NAME:

Adriano Budri v. Firstfleet, Incorporated

ARB CASE NO.

2018-025

ALJ CASE NO.

DOCUMENT

2017-STA-0086

ORDER

A copy of the above referenced document was sent to

the following persons on

JUN 1 9 2018

/s/

CHLOETHIEL STERLING

CERTIFIED MAIL

Adriano K. Budri

5029 County Road 605

Burleson, TX 76028

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Eric Stevens, Esq. Littler Mendelson, PC

333 Commerce Street, Suite 1450 Nashville ,TN

37201

FirstFleet, Inc.

202 Heritage Park Drive Murfreesboro, TN 37129

REGULAR MAIL:

Directorate of Whistleblower Protection Programs

U.S. Department of Labor/OSHA 200 Constitution

Avenue, NW Room N-4618, FPB Washington, DC

20210

Deputy Associate Solicitor

U.S. Department of Labor Room S-4004

200 Constitution Avenue, NW, Washington, D.C.

20210

Regional Solicitor

U.S. Department of Labor JFK Federal Building

25 New Sudbury Street, Room E-375 Boston, MA

02203

Regional Administrator Region 4

(OSHA / U.S. Department of Labor)

61 Forsyth Street, S.W.

Atlanta, GA 30303

Hon. Larry W. Price, Administrative Law Judge

Office of Administrative Law Judges 5100 Village

Walk, Suite 200

Covington, LA 70433

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Hon. Stephen R. Henley

Chief Administrative Law Judge Office of

Administrative Law Judges 800 K Street, NW,

Suite 400,Washington, DC 20001-8002

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United States Department of Labor

Office of Administrative Law Judges

5100 Village Walk, Suite 200 Covington, LA 70433

(985) 809-5173

(985) 893-7351 (Fax)

Issue Date: 02 February 2018

CASE NO.: 2017-STA-00086

In the Matter of:

ADRIANO BUDRI,

Complainant

v.

FIRSTFLEET, INC.,

Respondent

DECISION AND ORDER

GRANTINGRESPONDENT'S MOTION FOR

SUMMARY DECISION

This case arises under the employee protection

provisions of the Surface Transportation Assistance

Act, 49 U.S.C. § 31105 (STAA), and its implementing

regulations at 29C.F.R. Part 1978, filed by Adriano

Budri

(Complainant)

against

FirstFleet

(Respondent).

Complainant initiated this action when he filed a

complaint with the Department of Labor's

Occupational Safety and Health Administration

(OSHA) on March 20, 2017, and August 3, 6, 10 and

15, 2017. In his OSHA complaint, Complainant

alleged that Respondent violated the STAA when it

A16

terminated his employment in retaliation for raising

three safety concerns: 1) an expired IFTA decal, 2)

alleged violations of hours of service, and 3)

replacement of a headlight bulb. After completing an

investigation, OSHA dismissed Complainant's

complaint on August 29, 2017. Complainant

requested a hearing before the Office of

Administrative Law Judges (OALJ).

On November 21, 2017, Respondent filed its Motion

for Summary Decision. Respondent argued that the

undisputed facts establish 1) that Complainant did

not engage in protected activity and 2) that any

protected activity was not a contributing factor in

the termination decision. Complainant filed his

Response on November 27, 2017. On December 12,

2017, the Court issued an Order to Show Cause and

Canceling Hearing where in Complainant was

advised of the procedures concerning summary

decision and provided a further opportunity to

respond. i

1 This order was sent because of Complainant's pro se status.

However, the Court recognizes Complainant is not a novice in

regard to the STAA, having filed four previous STAA

complaints

against

other

employers

(2017STA00029;

2014STA00032; 2011STA00015; and 2008STA00053). There

have been numerous motions for sanctions filed by both

Parties. I deny all these motions at this time. Complainant has

also expressed numerous concerns regarding electronic

signatures. The Court assumes these concerns relate to his

receipt / non receipt of the employee handbook. The Court has

not considered whether Complainant has or has not received

the employee handbook in determining whether summary

decision is appropriate.

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I. SUMMARY DECISION STANDARD

Summary decision is appropriate “if the pleadings,

affidavits, material obtained by discovery or

otherwise, or matters officially noticed show that

there is no genuine issue as to any material fact and

that a party is entitled to summary decision.” 29

C.F.R. § 18.72; see also Williams u. Dallas Indep.

Sch. Dist., No. 12-024, 2012 WL 6849447 (ARB Dec.

28, 2012). “At the summary decision stage of a STAA

case, the ALJ assesses the evidence for the limited

purpose of deciding whether it shows a genuine issue

as to a material fact... If Complainant fails to

establish an element essential to his case, there can

be “no genuine issue as to a material fact since a

complete failure of proof concerning an essential

element of the non-moving party’s case necessarily

renders all other facts immaterial.” Coates v.

Southeast Milk, Inc., No. 05-050, 2007 WL 4107740,

*3-4 (ARB Jul. 31, 2007).

In evaluating if Respondent is entitled to a summary

decision in this matter, all facts and reasonable

inferences there from are considered in the light

most favorable to the non-moving Complainant.

Battle v. Seibles Bruce Ins. Co., 288 F.3d 596 (4th

Cir. 2002) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574 (1986)). “However,

even when all evidence is viewed in the light most

favorable to the nonmoving party, the non-moving

party cannot defeat a properly supported summary

judgment motion without presenting ‘significant

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probative evidence.’” Pueschel v. Peters, 340 Fed.

Appx 858, 860 (4th Cir. 2009) (unpub.) (citing

Anderson u. Liberty Lobby, Inc., All U.S. 242, 249

(1986)). A party opposing a motion for summary

decision “may not rest upon the mere allegations or

denials of [a] pleading; [the response] must set forth

specific facts showing that there is a genuine issue of

fact for the hearing.” Celotex Corp. u. Catrett, All

U.S. 317, 322 (1986).

When the information submitted for consideration

with a motion for summary decision and the

response to that motion demonstrates that there is

no genuine issue as to any material fact, the request

for summary decision should be granted. Where a

genuine question of a material fact remains, a

motion for summary decision must be denied.

II.

UNDISPUTED FACTS2

1. Respondent and Complainant are subject to the

STAA.

2. Respondent hired Complainant as a commercial

truck driver on January 25, 2017. He was assigned

to be dispatched from the Fort Worth, Texas,

terminal. Daniel Humphreys is the Terminal

Manager. The Fort Worth terminal services a major

customer, Glazer’s Beer and Beverage. (RX 3 4-5).

3. Pursuant to Respondent’s policy, the first 60

days of employment are an introductory period. The

progressive disciplinary policy does not apply to

2 References are to Respondent Exhibits (RX) attached to the

Motion to Summary Decision and Complainant Exhibits (CX)

attached to his Response.

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the

during

introductory

period.

employees

Disciplinary issues that might otherwise result in

lesser discipline may result in termination for

introductory employees. (RX 6, p 11; RX 3 if 7).

4.

On January 28, 2017, after leaving for his first

dispatch, Complainant contacted Humphreys by

email to report the IFTA decal on the truck had

expired. Eight minutes later, Humphreys replied

that he would recheck and replace any and all

missing paperwork and thanked Complainant.

Respondent’s

Safety

Director

explained

to

Complainant that there was a two-month grace

period for obtaining new decals and Respondent was

not in violation of the registration requirement.

(RX5-7; RX 3 Ex A).

On January 30, 2017, Complainant stopped at

5.

a Mack Dealership where Humphreys had approved

a purchase order for Complainant to purchase a

latch support. After Complainant left the Mack

Dealership, he stopped at a Pilot truck stop where he

attempted to purchase fuel, oil, windshield wiper

fluid, antifreeze, and a bulb for his headlight using

the Comdata card he had been issued. The Comdata

card was set up to automatically allow fuel

purchases but could not be used to purchase parts

such as the light bulb. Complainant contacted

Humphreys to report the declined purchase and to

request a new bulb. Humphreys instructed

Complainant to purchase the bulb, which cost

approximately ten dollars, and assured him that he

would be reimbursed for the purchase. The bulb was

not replaced at that time. When Complainant

returned from his dispatch, it was discovered that a

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replacement bulb was in his cab the entire trip.

Humphreys changed the bulb for Complainant. (RX

3-11- 13). There is no evidence that Respondent took

any action against Complainant at that time.

6. On February 8, 2017, Complainant had a

discussion with Humphreys regarding logging his

time while repairs were being completed on his

vehicle. The issue was whether Complainant should

log in as "On Duty Not Driving" or as "Off Duty" and

whether Texas or U.S. DOT regulations governed.

Complainant insisted the direction he was given

regarding logging time was wrong. There is no

evidence that Respondent took any action against

Complainant at that time. (RX 3 if 14; RX 5 if 8).

7. During his employment with Respondent,

Complainant operated exclusively within the State

of Texas. (RX 5 if 6).

8. On February 10, 2017, Complainant failed to

properly secure the load in his tractor trailer. As a

result, several pallets of beer fell over inside the

trailer and were subsequently rejected by Glazer's.

Glazer's estimated the damage to be valued at

$1,000. Complainant failed to report the damaged

product to Humphreys despite having been

previously coached to report all product and

equipment accidents. Respondent learned of the

damage when Humphreys was notified by Glazer’s

Shipping and Receiving Manager, Nick Gomez. (RX

3-15-16; RX3 Ex C).

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9. During the same call, Humphreys learned that

Gomez

began

experiencing

problems

with

Complainant soon after he was hired. Gomez found

Complainant rifling through a box of personal items

on Gomez’s desk. On several occasions, Gomez found

Complainant looking over his shoulder as he read

his personal or business e-mail. Gomez stated he had

to repeatedly tell Complainant to remain in his truck

and to stay off the loading docks while Grazer’s

forklift operators unloaded the trailers. Complainant

refused to follow Gomez’s instructions, exited his

truck, and wandered about the loading docks. (RX 3

if 17).

10. The Glazer’s facility has a designated restroom

for truck drivers to use, located in the front of the

building and away from the unloading equipment to

ensure the safety of drivers and forklift operators.

Gomez told Humphreys that Complainant refused to

use the restroom designated for drivers. Instead, he

used Glazer’s employee restroom which required him

to walk across several loading docks. Gomez said he

spoke several times with Complainant about the

restroom issue, but Complainant ignored Gomez’s

directives and continued to use the employee

restroom. Gomez stated Complainant was on his

“last chance,” had received his “last warning,” and

that if the situation did not change, Complainant

would be banned from their facility. (RX 3 if 17).

11. Approximately an hour later, Gomez called

Humphreys and told him that Complainant failed to

correctly restack several pallets of beer despite being

told on several occasions how to correctly position

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the pallets. Gomez complained that Complainant

was also refusing to follow instructions, using the

employee

restroom

again,

and

becoming

argumentative. Gomez said he was banning

Complainant from Glazer’s facility. Humphreys

asked that Complainant be given one more chance.

Gomez declined to do so, and said that if Respondent

sent Complainant back to the facility, he would

reject the load until another driver made the

delivery. (RX 3 if 18).

On February 16, 2017, Complainant had an

12.

accident at the facility of a different customer,

resulting in a door being torn off a trailer.

Complainant failed to report the accident to

Humphreys, despite having been coached to report

accidents. Respondent's handbook states that

'Failure to report a Company related accident' is a

ground for immediate discharge. (RX 6, p 23; RX 3 if

20).

13. On February 17, 2017, Complainant was

dispatched to deliver a time-sensitive order valued at

$50,000 to a distributor in Ennis, Texas.

Complainant arrived to pick up the load at 4:35 a.m.,

more than three hours before the scheduled pick up

time. The customer did not have the loading

completed.

Rather than wait,

Complainant

independently altered his assigned route schedule

and move on to the next order on the list. At that

time, Complainant did not notify Humphreys that he

had changed the route schedule. (RX 3-21).

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14. Because Complainant altered his delivery

schedule and delivered out of sequence, he did not

make it back to the first delivery pickup before the

customer had closed for the day. Humphreys had to

locate additional First Fleet personnel to take the

delivery to the distributor on Saturday. The

distributor, which is typically closed on Saturday,

also had to assemble personnel to come in to assist

with offloading and receiving. This resulted in Hum

phreys

receiving

another

serious

customer

complaint. (RX 3 - 22).

15. Also on February 17, 2017, Complainant called

Humphreys to report a flat tire. Humphreys

instructed Complainant to exit the customer's

facilities and to remain on the service road directly

in front of the customer's facility. Humphreys stated

that he would dispatch a repair service crew to meet

Complainant there and repair the tire. However,

Complainant left the service area and drove the

truck (on a flat tire) to a local truck stop

approximately six miles away. Complainant failed to

notify Humphreys that he had left the service, area.

Humphreys did not become aware that Complainant

was not where he was instructed to stay until the

repair service crew notified Humphreys that

Complainant was gone. Respondent was charged

$150.00 for the service dispatch and charged for the

tire repair at the truck stop. (RX 3 - 23).

16.

On February 17, 2017, Humphreys contacted

the Human Resources Manager and requested

authorization

to

terminate

Complainant's

employment. The email details the events at

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Glazer's, the accident resulting in a door being torn

off a trailer, Complainant's failure to report the

accident, Complainant's failure to deliver a timesensitive order, and the flat tire incident. No

mention is made of the IFTA decal, the burned out

bulb, or the time logging issue. On February 21,

2017, Complainant's next workday, Humphreys

informed Complainant of his termination. (RX 3 24:

RX 3 Ex D).

III.

WHISTLEBLOWER PROTECTION

UNDER THE STAA

The STAA prohibits an employer from discharging or

discriminating against an employee because the

employee has engaged in certain protected activity.

The employee protection provisions of the STAA at

issue in this case are these:

Prohibitions: (1) A person may not discharge

(a)

an employee or discipline or discriminate against an

employee regarding pay, terms, or privileges of

employment because: (A) (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 [the

complaints clause]...

(B) 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;

A25

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, [the refusal to drive clause] 49 U.S.C. §

3110 5 (a) (1) (A) (i), (B).

Congress amended the STAA on August 3, 2007, to

incorporate the legal burdens of proof set forth in the

Wendell H. Ford Aviation, and Investment and

Reform Act for the 21st Century (AIR-21), 49 U.S.C.

42121(b). Pub. L. 110-53, 9/11 Commission Act

§

of 2007, 212 Stat. 266 § 1536; Smith v CRTS

International, Inc., No. 11-086, 2013 WL 2902809, *2

fn.l (ARB Jun. 6, 2013); 49 U.S.C. § 31105(b). In

order to prove a violation under the STAA,

Complainant must show, by a preponderance of

evidence: (1) that he engaged in protected activity;

That Respondent took an adverse employment

(2)

action against him, and; (3) that his protected

activity was a contributing factor in the adverse

action. Williams v. Dominos Pizza, ARB No. 09-092,

No. 2008-STA-00052, slip op. at 5 (ARB Jan. 31,

2011).

At issue here is whether Complainant engaged in

protected activity and whether the protected activity

was a contributing factor to the adverse employment

action. If Complainant establishes that "the

protected activity, alone or in combination with other

factors, affected in some way the outcome of the

employer's decision," then he has met element (3). 77

FR 44127 (Jul. 27, 2012); Benjamin v. Citation

Shares Management, LLC, No .12-029, 2013 WL

6385831 (ARB Nov, 5, 2013). "If the employee does

A26

not prove one of these elements, the entire complaint

fails." Coryell v. Arkansas Energy Services, LLC, No.

12-033, 2013 WL 1934004, *3 (ARB Apr. 25, 2013).

If Complainant successfully proves that his

protected activity was a contributing factor in the

decision to discharge him, then Respondent may

nonetheless avoid liability if it demonstrates by clear

and convincing evidence that the adverse

employment action was the result of events or

decisions independent of protected activity.

49

U.S.C.

§ 42121 (b)(2)(B)(iv); 29 C.F.R. §

1979. 109(a)). Clear and convincing evidence is

"evidence indicating that the thing to be proved is

highly probable or reasonably certain." Coryell v.

Arkansas Energy Services, LLC, No. 12-033, 2013

WL 1934004, *3 (ARB Apr. 25, 2013), quoting

Warren v. Custom Organics, No. 10-092, 2012 WL

759335, *5 (ARB Feb. 29, 2012); Klosterman v. E.J

Davies, Inc., No. 12-035, 2013 WL 143761 (ARB Jan.

9,2013).

At this summary decision juncture, it is

Respondent’s burden to establish that no genuine

issue of material fact exists regarding one or more

essential elements of Complainant's claim. Coates v.

Southeast Milk, Inc., supra.

A27

Protected Activity

As noted previously, a complainant can satisfy the

"protected activity" element of his prima facie case

under either the "complaints clause" (49 U.S.C. § 31

105(a)(l)(A)(i)) or the "refusal to drive clause" (49

U.S.C. § 31105(a)(1)(B)). There has been no

allegation or evidence that Complainant ever refused

to drive.

The three alleged incidents of protected activity will

thus be considered under the "complaints clause."

The IFTA decal

I find Complainant's comments regarding an

outdated IFTA decal did not constitute protected

activity. First, it is not disputed that the IFTA decal

was within the grace period for obtaining a new

decal. Second, even if the decal had expired, the

IFTA decal had nothing to do with safety. Rather,

the International Fuel Tax Agreement (IFTA) is an

agreement between the lower 48 states of the United

States and the Canadian provinces to simplify the

reporting of fuel use by motor carriers that operate

m

than

more

one

jurisdiction.

See

https//en.wikipedia.org/wik/ International Fuel Tax

Agreement.

The Burned Out Bulb

While the undisputed facts establish that

Respondent immediately addressed Complainant's

concern and provided a means by which any safety

issue could be immediately corrected, for purposes of

A28

this motion, I find that the reporting of the burned

out bulb was protected activity.

The Logging of Time Spent in Maintenance

Complainant had a discussion with Humphreys

regarding logging his time while repairs were being

completed on his vehicle. The issue discussed was

whether Complainant should log in as "On Duty Not

Driving" or as "Off Duty" and whether Texas or U. S.

DOT regulations governed.

As noted in Blackann v. Roadway Express, Inc., ARB

Case No. 02-115 (Jun. 30, 2004), federal guidance

provides that "it is the employer's choice whether the

driver shall record stops made during a tour of duty

as off-duty time." 62 Fed. Reg. 16370, 16422 (Apr. 4,

1977). The ARB held that this dispute involved

company policy, not any conduct that is protected by

the Act. On appeal, the Sixth Circuit affirmed the

ARB, stating the ARB correctly noted that the

regulations explicitly leave it to the employer to

determine the manner of recording tour of duty time

and that Roadway 's time log policies did not force

Blackann to violate any federal regulation.

Blackann

v.

Roadway

Express,

Inc.,

159

Fed.Appx.704 (6th Cir. 2005).

I find that Complainant's discussion with

Humphreys regarding logging his time was not

protected activity.

A29

Causation

In a motion for summary decision, the moving party

has the burden of establishing the absence of

evidence to support the nonmoving party's case. The

evidence must be viewed in the light most favorable

to the nonmoving party. Case law recognizes that it

may be difficult to present direct evidence on issues

such as motive, animus, or contribution. It disfavors

use of summary decision to dismiss cases for failing

to establish a genuine issue of material fact based on

those issues. The nonmoving party need not provide

direct evidence to satisfy the causation element;

rather, circumstantial evidence may be sufficient.

To withstand the Motion for Summary Decision,

Complainant must show there is a genuine issue for

trial by presenting evidence of specific facts that, if

true, would allow a reasonable jury to find that

Complainant's reporting the burned out bulb was a

contributing factor in his termination. Anderson u.

Liberty Lobby, Inc., All U.S. 242 (1986).

Although not dispositive, evidence of temporal

proximity may be sufficient circumstantial evidence

to create a genuine issue of material fact that the

protected activity contributed to the adverse action.

Conversely, a causal connection may be severed by

the passage of a significant amount of time or by

some legitimate intervening event. Wiest v. Tyco

Electronics Corp., 812 F.3d 319 (3rd Cir. 2016);

Ameen v. Merck & Co., Inc., 226 Fed.App'x 363, 376

(5th Cir. 2007) (finding that employee's receipt of

favorable treatment after the alleged protected

A30

activity is "utterly inconsistent with an inference of

retaliation").

I find that any inference of causation gleaned from

temporal proximity is nonexistent as the undisputed

facts

overwhelmingly

demonstrate

legitimate

intervening events such that any causal connection

that could be derived from the circumstances was

severed.

Specifically,

the

undisputed

facts

demonstrate that:3

1. The light bulb incident happened in the first week

of Complainant's employment. Respondent offered

an immediate remedy and, when Complainant

declined to purchase the bulb, replaced the bulb at

the first possible opportunity.

2. No action was taken by Respondent against

Complainant following any of the alleged protected

activities, and there is no mention of any of the

activities at any later time.

3. All the alleged protected activity took place prior

to the incidents that were cited by Humphreys in his

request that Complainant be terminated.

4. On February 10, 2017, Complainant's failure to

properly secure a load in his trailer resulted in

damage valued at $1,000. Complainant failed to

report the damaged product to Humphreys despite

having been previously coached to report all product

and equipment accidents.

3 I find the same analysis would apply to the logging of

maintenance time if it were found to constitute protected

activity.

A31

5. Humphreys learned that Glazer's, a major

customer, began experiencing problems with

Complainant soon after he was hired. The problems

ultimately resulted in Complainant's being banned

from Glazer's facility and the notice that Gomez

would reject any load delivered by Complainant.

6. On February 16, 2017, Complainant had an

accident at the facility of a different customer,

resulting in a door being torn off a trailer.

Complainant failed to report the accident to

Humphreys, which is a ground for immediate

discharge.

7. On February 17, 2017, Complainant was

dispatched to deliver a time-sensitive order.

Complainant altered his assigned route schedule

without notifying Respondent. The result was the

need to locate additional personnel to make the

delivery on Saturday when the customer is typically

closed. This resulted in Humphreys receiving a

serious customer complaint.

The same day, Complainant called Humphreys

8.

to report a flat tire. Without telling Humphreys,

aware that Complainant was not where he was

instructed to stay until the repair service crew

notified Humphreys. Respondent was charged

$150.00 for the service dispatch and charged for the

tire repair at the truck stop.

A32

9.

Also the same day, Humphreys recommended

that Complainant be terminated and detailed the

events at Glazer's, the accident resulting in a door

being torn off a trailer, Complainant 's failure to

report the accident, Complainant's failure to deliver

a time-sensitive order, and the flat tire incident.

In his Response, Complainant does not controvert

any of the above facts other than to assert that the

declarations of Humphreys, Henderson, and Cole

have "been submitted in bad faith and contains

misleading, libel, hearsay and perjury information."

Following receipt of the Response, the Court issued

an Order to Show Cause explaining the summary

decision procedure to Complainant. Although no

further Response was filed, Complainant did file a

78-page Prehearing Statement of Position. I have

considered the facts contained therein and find they

do not create a dispute as to the material facts stated

supra.

First, at page 48 Complainant lists nine instances of

alleged protected activity. Most relate to the decal,

logging hours, and the light bulb instances

previously discussed. As to the other instances, I find

these have never been timely placed before OSHA or

the Court.

Second, Complainant disputes whether he ever

received Respondent's employee handbook (p. 9) . I

make no finding regarding Complainant's receipt of

the employee handbook or any issue regarding

electronic signatures.

A33

Next, Complainant disputes some of the facts

surrounding the burned out light bulb (p. 14). But,

the material facts that (1) Complainant made a

complaint about the bulb, (2) the Respondent offered

an immediate remedy, and (3) when Complainant

declined to purchase the bulb, Respondent replaced

the bulb at the first possible opportunity are not

disputed. Further, it is undisputed that Respondent

took no action against Complainant at that time.

Fourth, Complainant disputes the severity of the

damage caused to the trailer door and whether the

accident was reportable. Complainant does not

dispute that he failed to report the accident to

Humphreys, and Complainant does not dispute that

Respondent's handbook states that "Failure to report

a Company related accident" is a ground for

immediate discharge.

Next, Complainant disputes some of the facts

relating to the schedule change on February 17,

2017. Complainant does not dispute that he took it

upon himself to alter his assigned route schedule

and move on to the next order on the list.

Complainant does not dispute that he did not notify

Humphreys that he had changed the route schedule.

Complainant does not dispute that the delivery was

not made before the customer had closed for the day,

that additional First Fleet personnel made the

delivery to the distributor on Saturday, or that the

distributor, which is typically closed on Saturday,

had to assemble personnel to come in to assist with

offloading and receiving. Complainant does not

dispute that this resulted Humphreys' receiving a

serious customer complaint.

A34

Lastly, Complainant disputes some of the facts

related to the flat tire incident on February 17, 2017.

However, Complainant does not dispute that

Humphreys instructed Complainant to remain on

the service road directly in front of the customer's

facility, that Humphreys dispatched a repair service

crew to meet Complainant there and repair the tire,

that Complainant left the service area without

notifying Humphreys, and that Respondent was

charged $150.00 for the service dispatch and charged

for the tire repair at the truck stop.

These uncontroverted facts, both individually and

collectively, negate any possible inference of

causation. Complainant has presented no evidence of

specific facts that, if true, would allow a reasonable

jury to find in his favor on the issue of causation.

supra. Consequently, Complainant

Anderson,

cannot withstand the motion for summary decision

on the issue of causation:

IV. ORDER

Based upon the foregoing and upon the entire record,

Respondent's Motion for Summary Decision is

hereby GRANTED. Case No. 2017-STA-00086 is

DISMISSED WITH PREJUDICE.

A3 5

So ORDERED.

Digitally signed by LARRY PRICE DN: CN=LARRY

PRICE, OU=JUDGE, 0=US DOL Office of

Administrative Law Judges, L=Covington, S=LA,

C=US Location: Covington LA

LARRY W. PRICE

Administrative Law Judge

NOTICE OF APPEAL RIGHTS: To appeal, you

must file a Petition for Review ("Petition") with the

Administrative Review Board ("Board ") within

fourteen (14) days of the date of issuance of the

administrative law judge's decision. The Board's

address is: Administrative Review Board, U.S.

Department of Labor, Suite S-5220, 200 Constitution

Avenue, NW, Washington DC 20210, for traditional

paper filing. Alternatively, the Board offers an

Electronic File and Service Request (EFSR) system.

The EFSR for electronic filing (eFile) permits the

submission of forms and documents to the Board

through the Internet instead of using postal mail

and fax. The EFSR portal allows parties to file new

appeals electronically, receive electronic service of

Board

issuances,

file

briefs

and

motions

electronically, and check the status of existing

appeals via a web-based interface accessible 24

hours every day. No paper copies need be filed.

An e-Filer must register as a user, by filing an online

registration form. To register, the e-Filer must have

a valid e-mail address. The Board must validate the

e-Filer before he or she may file any e-Filed

document. After the Board has accepted an e-Filing,

it is handled just as it would be had it been filed in a

A36

more traditional manner, e- Filers will also have

access to electronic service (eService), which is

simply a way to receive documents, issued by the

Board, through the Internet instead of mailing paper

notices/documents.

Information regarding registration for access to the

EFSR system, as well as a step by step user guide

and FAQs can be found at:

https://dolappeals.entellitrak.com. If you have any questions or

comments,

please

contact:

Boards-EFSRHelp@dol.gov.

Your Petition is considered filed on the date of its

postmark, facsimile transmittal, or e-filing; but if

you file it in person, by hand-delivery or other

means, it is filed when the Board receives it. See 29

C.F.R. § 1978.110(a). Your Petition must specifically

identify the findings, conclusions or orders to which

you object. You may be found to have waived any

objections you do not raise specifically. See 29 C.F.R.

§ 1978.110(a).

At the time you file the Petition with the Board, you

must serve it on all parties as well as the Chief

Administrative Law Judge, U.S. Department of

Labor, Office of Administrative Law Judges, 800 K

Street, NW, Suite 400 -North, Washington, DC

20001-8002. You must also serve the Assistant

Secretary,

Occupational

Safety

and

Health

Administration and, in cases in which the Assistant

Secretary is a party, on the Associate Solicitor for

Occupational Safety and Health. See 29 C.F.R. §

1978.110(a).

A37

If filing paper copies, you must file an original and

four copies of the petition for review with the Board,

together with one copy of this decision. In addition,

within 30 calendar days of filing the petition for

review you must file with the Board an original and

four copies of a supporting legal brief of points and

authorities, not to exceed thirty double-spaced typed

pages, and you may file an appendix (one copy only)

consisting of relevant excerpts of the record of the

proceedings from which the appeal is taken, upon

which you rely in support of your petition for review.

If you e-File your petition and opening brief, only one

copy need be uploaded.

Any response in opposition to a petition for review

must be filed with the Board within 30 calendar days

from the date of filing of the petitioning party's

supporting legal brief of points and authorities. The

response in opposition to the petition for review must

include an original and four copies of the responding

party's legal brief of points and authorities in

opposition to the petition, not to exceed thirty

double-spaced typed pages, and may include an

appendix (one copy only) consisting of relevant

excerpts of the record of the proceedings from which

appeal has been taken, upon which the responding

party relies. If you e-File your responsive brief, only

one copy need be uploaded.

Upon receipt of a legal brief filed in opposition to a

petition for review, the petitioning party may file a

reply brief (original and four copies), not to exceed

ten double-spaced typed pages, within such time

period as may be ordered by the Board. If you e-File

your reply brief, only one copy need be uploaded.

A38

If no Petition is timely filed, the administrative law

judge's decision becomes the final order of the

Secretary of Labor pursuant to 29 C.F.R. §§

1978.109(e) and 1978.11 0(b). Even if a Petition is

timely filed, the administrative law judge's decision

becomes the final order of the Secretary of Labor

unless the Board issues an order within thirty (30)

days of the date the Petition is filed notifying the

parties that it has accepted the case for review. See

29 C.F.R. § 1978.110(b).16

SERVICE SHEET

Case Name:

BUDRI_ADRIANO_v_FIRSTFLEET,INC

Case Number: 2017STA00086

Document Title: Decision and Order Granting

Respondent's Motion for Summary Decision

I hereby certify that a copy of the above-referenced

document was sent to the following this 2nd day of

February, 2018:

Digitally signed by Racheal M. Guerra ON:

CN=Racheal M. Guerra, OU=Legal Assistant,

0=US DOL Office of

Administrative Law Judges, L=Covington,

S:LA, C=US Location: Covington

LA Racheal M, Guerra

Legal Assistant

Regional Solicitor

U. S. Department of Labor

JFK Federal Building, Room E-375

25 New Sudbury Street, BOSTON MA 02203

{Hard Copy - Regular Mail}

A39

Regional Administrator Region 4

U. S. Department of Labor, OSHA

61 Forsyth Street, S.W.

ATLANTA GA 30303

{Hard, Copy - Regular Mail}

Adriano K Budri

5029 County Road 605

BURLESON TX 76028

{Hard Copy - Regular Mail}

Eric Stevens, Esq. Littler Mendelson, PC

333 Commerce Street, Suite 1450

NASHVILLE TN 37201

{Hard Copy - Regular Mail}

Administrative Review Board

U. S. Dept, of Labor, Suite S-5220, FPB A33

200 Constitution Ave., N.W.

WASHINGTON DC 20210

{Hard Copy - Regular Mail}

Director

Directorate of Whistleblower Protection Programs U

S Department of Labor, OSHA

Room N 4618 FPB

200 CONSTITUTION AVE NW,

WASHINGTON DC 20210

{Hard Copy - Regular Mail}

Deputy Associate Solicitor

U. S. Department of Labor, OSHA

Room S-4004, FPB

200 Constitution Ave., N.W.

WASHINGTON DC 20210

{Hard Copy - Regular Mail}

A40

Administrative Review Board

U. S. Dept, of Labor, Suite S-5220, FPB

200 Constitution Ave., N.W.

WASHINGTON DC 20210

{Hard, Copy - Regular Mail}

SERVICE SHEET continued

(2017STA00086 Case Decision) Page: 2

First Fleet, Inc.

202 Heritage Park Drive

MURFREESBORO, TN 37129

{Hard Copy - Regular Mail}

A41

Surface Transportation Assistance Act (STAA)

49 U.S.C. §31105

§31105 Employee protections, (a) Prohibitions. - (1) A

person may not discharge an employee, or discipline

or discriminate against an employee regarding pay,

terms, or privileges of employment, because - (A) (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; (B) 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; (C)

the employee accurately reports hours on duty

pursuant to chapter 315; (D) the employee

cooperates, or the person perceives that the employee

is about to cooperate, with a safety or security

investigation by the Secretary of Transportation, the

Secretary of Homeland Security, or the National

Transportation Safety Board; or (E) the employee

furnishes, or the person perceives that the employee

is or is about to furnish, information to the Secretary

of Transportation, the Secretary of Homeland

Security, the National Transportation

A42

Safety Board, or any Federal, State, or local

regulatory or law enforcement agency as to the facts

relating to any accident or incident resulting in

injury or death to an individual or damage to

property occurring in connection with commercial

motor vehicle transportation.

(2) Under paragraph (l)(B)(ii) of this subsection, 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. To qualify

for protection, the employee must have sought from

the employer, and been unable to obtain, correction

of the hazardous safety or security condition, (b)

Filing Complaints and Procedures. - (1) An employee

alleging discharge, discipline, or discrimination in

violation of subsection (a) of this section, or another

person at the employee's request, may file a

complaint with the Secretary of Labor not later than

180 days after the alleged violation occurred. All

complaints initiated under this section shall be

governed by the legal burdens of proof set forth in

section 42121(b). On receiving the complaint, the

Secretary of Labor shall notify, in writing, the person

alleged to have committed the violation of the filing

of the complaint.

(2) (A) Not later than 60 days after receiving a

complaint, the Secretary of Labor shall conduct an

investigation, decide whether it is reasonable to

believe the complaint has merit, and notify, in

writing, the complainant and the person alleged to

A43

have committed the violation of the findings. If the

Secretary of Labor decides it is reasonable to believe

a violation occurred, the Secretary of Labor shall

include with the decision findings and a preliminary

order for the relief provided under paragraph (3) of

this subsection. (B) Not later than 30 days after the

notice under subparagraph (A) of this paragraph, the

complainant and the person alleged to have

committed the violation may file objections to the

findings or preliminary order, or both, and request a

hearing on the record. The filing of objections does

not stay a reinstatement ordered in the preliminary

order. If a hearing is not requested within the 30

days, the preliminary order is final and not subject

to judicial review. (C) A hearing shall be conducted

expeditiously. Not later than 120 days after the end

of the hearing, the Secretary of Labor shall issue a

final order. Before the final order is issued, the

proceeding may be ended by a settlement agreement

made by the Secretary of Labor, the complainant,

and the person alleged to have committed the

violation. (3)

(A) If the Secretary of Labor decides, on the basis of

a complaint, a person violated subsection (a) of this

section, the Secretary of Labor shall order the person

to - (i) take affirmative action to abate the violation;

(ii) reinstate the complainant to the former position

with the same pay and terms and privileges of

employment; and (iii) pay compensatory damages,

including back pay with interest and compensation

for any special damages sustained as a result of the

discrimination, including litigation costs, expert

witness fees, and reasonable attorney fees. (B) If the

Secretary of Labor issues an order under

A44

subparagraph (A) of this paragraph and the

complainant requests, the Secretary of Labor may

assess against the person against whom the order is

issued the costs (including attorney fees) reasonably

incurred by the complainant in bringing the

complaint. The Secretary of Labor shall determine

the costs that reasonably were incurred. (C) Relief in

any action under subsection (b) may include punitive

damages in an amount not to exceed $250,000. (c)

DE NOVO REVIEW. - With respect to a complaint

under paragraph (1), if the Secretary of Labor has

not issued a final decision within 210 days after the

filing of the complaint and if the delay is not due to

the bad faith of the employee, the employee may

bring an original action at law or equity for de novo

review in the appropriate district court of the United

States, which shall have jurisdiction over such an

action without regard to the amount in controversy,

and which action shall, at the request of either party

to such action, be tried by the court with a jury, (d)

JUDICIAL REVIEW AND VENUE. - A person

adversely affected by an order issued after a hearing

under subsection (b) of this section may file a

petition for review, not later than 60 days after the

order is issued, in the court of appeals of the United

States for the circuit in which the violation occurred

or the person resided on the date of the violation.

Review shall conform to chapter 7 of title 5. The

review shall be heard and decided expeditiously. An

order of the Secretary of Labor subject to review

under this subsection is not subject to judicial review

in a criminal or other civil proceeding, (e) CIVIL

ACTIONS TO ENFORCE. - If a person fails to

comply with an order issued under subsection (b) of

this section, the Secretary of Labor shall bring a civil

A45

action to enforce the order in the district court of the

United States for the judicial district in which the

violation occurred, (f) NO PREEMPTION. - Nothing

in this section preempts or diminishes any other

safeguards

against

discrimination,

demotion,

discharge,

suspension,

threats,

harassment,

reprimand, retaliation, or any other manner of

discrimination provided by Federal or State law. (g)

RIGHTS RETAINED BY EMPLOYEE. - Nothing in

this section shall be deemed to diminish the rights,

privileges, or remedies of any employee under any

Federal or State law or under any collective

bargaining agreement. The rights and remedies in

this section may not be waived by any agreement,

policy, form, or condition of employment, (h)

DISCLOSURE OF IDENTITY. -(1) Except as

provided in paragraph (2) of this subsection, or with

the written consent of the employee, the Secretary of

Transportation or the Secretary of Homeland

Security may not disclose the name of an employee

who has provided information about an alleged

violation of this part, or a regulation prescribed or

order issued under any of those provisions. (2) The

Secretary of Transportation or the Secretary of

Homeland Security shall disclose to the Attorney

General the name of an employee described in

paragraph (1) of this subsection if the matter is

referred to the Attorney General for enforcement.

The Secretary making such disclosure shall provide

reasonable advance notice to the affected employee if

disclosure of that person's identity or identifying

information is to occur, (i) PROCESS FOR

REPORTING SECURITY PROBLEMS TO THE

DEPARTMENT OF HOMELAND SECURITY. (1)

ESTABLISHMENT OF PROCESS. - The Secretary

A46

of Homeland Security shall establish through

regulations, after an opportunity for notice and

comment, a process by which any person may report

to the Secretary of Homeland Security regarding

motor carrier vehicle security problems, deficiencies,

or vulnerabilities. (2) ACKNOWLEDGMENT OF

RECEIPT. - If a report submitted under paragraph

(1) identifies the person making the report, the

Secretary of Homeland Security shall respond

promptly to such person and acknowledge receipt of

the report. (3) STEPS TO ADDRESS PROBLEM. —

. The Secretary of Homeland Security shall review

and consider the information provided in any report

submitted under paragraph (1) and shall take

appropriate steps to address any problems or

deficiencies identified, (j) DEFINITION. - In this

section, 'employee' means a driver of a commercial

motor vehicle (including an independent contractor

when personally operating a commercial motor

vehicle), a mechanic, a freight handler, or an

individual not an employer, who - (1) directly affects

commercial motor vehicle safety or security in the

course of employment by a commercial motor carrier;

and (2) is not an employee of the United States

Government, a State, or a political subdivision of a

State acting in the course of employment.

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FIRSTFLEET’S EMPLOYEE HANDBOOK

PAGE NUMBER 55

Team Driver Off-Duty Time Allowance:

The non-driving member of a team is allowed up to 2

hours of Off-Duty time while the vehicle is moving.

This time must be part of a complete 10 hour break

and must be logged immediately before or after a

consecutive 8-hour Sleeper Berth period.

Day Cab Breaks:

Drivers in trucks that are not equipped with Sleeper

Berths may complete their 10- hour break in the

front seat of a Day Cab truck. The time must be

logged Off -Duty and the vehicle may not move

during the 10-hour break.

On Duty:

All time from the time a driver begins to work or is

required to be in readiness to work, until the time

he/she is relieved from work, and all work

responsibility is considered on- duty time. Work for

any entity/employer, regardless of whether the

employer is a carrier, is considered on-duty time. Onduty time includes the following:

• All time at a plant, terminal, facility, or other

property, of a motor carrier or shipper, or on any

public property, waiting to be dispatched, unless the

driver has been relieved from duty by the motor

carrier;

• All time inspecting, servicing, or conditioning any

commercial motor vehicle at any time;

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• All driving time;

• All time, other than driving time, in or upon any

commercial motor vehicle except time spent resting

in a sleeper berth;

• All time loading or unloading a commercial motor

vehicle, supervising, or assisting in the loading or

unloading, attending a commercial motor vehicle

being loaded or unloaded, remaining in readiness to

operate the commercial motor vehicle, or in giving or

receiving receipts for shipments loaded or unloaded;

• All time repairing, obtaining assistance, or

remaining in attendance upon a disabled commercial

motor vehicle.

• All time spent providing a breath sample or urine

specimen, including travel time to and from the

collection site, in order to comply with alcohol and

drug testing requirements;

• Performing any other work in the capacity, employ

or service of a motor carrier;

• Performing any compensated work for a person who

is not a motor carrier 100 Air-Mile;

Radius/Exempt Logs:

100 Air-Mile Radius or Exempt Logs are provided for

drivers who meet the FMCSA requirements in

section 395.1(e). All 100 air-mile radius/local drivers

and switchers must complete either the Over the

Road log or the Exempt log.

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A 100 air-mile radius driver may complete a

100 air-mile radius/Exempt log if:

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Below an excerpt of the chapter 315:

49 U.S.C. Chapter 315:

MOTOR CARRIER SAFETY

Title 49

TRANSPORTATION SUBTITLE VI

MOTOR VEHICLE AND DRIVER PROGRAMS

PART B COMMERCIAL CHAPTER 315

MOTOR CARRIER SAFETY

Sec. 31501., Definitions. §31502.

Requirements for Qualifications, Hours of Service,

Safety, and Equipment Standards. §31503.

Research, Investigation, and Testing. §31504.

Identification of Motor Vehicles.

§31501. Definitions in this chapter:

(2) "motor carrier", "motor common carrier", "motor

private carrier", "motor vehicle", and "United

States" have the same meanings given those terms

in section 13102 of this title.

§31502. Requirements for qualifications,

hours of service, safety, and equipment standards

(a)

Application.

This

section

applies

to

transportation

(1) Described in sections 13501 and 13502 of this

title; and

To the extent the transportation is in the

(2)

United States and is between places in a foreign

country, or between a place in a foreign country

and a place in another foreign country.

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Motor Carrier and Private Motor Carrier

(b)

Requirements. The Secretary of Transportation

prescribes requirements for:

Qualifications and maximum hours of service

(1)

of employees of, and safety of operation and

equipment of, a motor carrier; and

Qualifications and maximum hours of service

(2)

of employees of, and standards of equipment of, a

motor private carrier, when needed to promote

safety, of operation.