Petition for Writ of Certiorari — Christopher L. Buie, Petitioner v. Department of Labor, Administrative Review Board
Supreme Court briefJan 8, 2021
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APPENDIX
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UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No: 19-3763
Christopher L. Buie
Petitioner
v.
Administrative Review Board of the United States Department of Labor
Respondent
Petition for Review of an Order of the Department of Labor (except OSHA)
(2014-STA-00037)
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ORDER
The petition for rehearing en banc is denied. The petition for rehearing by the panel is
also denied.
November 18, 2020
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Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
%>*
Appellate Case: 19-3763
Page: 1
Date Filed: 11/18/2020 Entry ID: 4977198
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ntteb States? Court of Sppeate
Jfor tfje Ctgljtf) Circuit
I
No. 19-3763
Christopher L. Buie
Petitioner
v.
Administrative Review Board of the United States Department of Labor
Respondent
Petition for Review of an Order of the
Department of Labor (except OSHA)
Submitted: September 28, 2020
Filed: October 1, 2020
[Unpublished]
Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
PER CURIAM.
Christopher Buie petitions for review of a final order from the United States
Department of Labor Administrative Review Board (ARB), affirming the denial of
his administrative complaint alleging that his employer fired him for engaging in
activities protected under the Surface Transportation Assistance Act. After careful
review, we conclude that the ARB’s decision was not arbitrary, capricious, an abuse
Appellate Case: 19-3763
Page: 1
Date Filed: 10/01/2020 Entry ID: 4961459
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of discretion, contrary to the law, or unsupported by substantial evidence in the
record. See 49 U.S.C. § 31105(d) (appellate court reviews ARB’s decision pursuant
to Administrative Procedure Act); 5 U.S.C. § 706(2) (reviewing court shall hold
unlawful and set aside agency decision found to be arbitrary, capricious, abuse of
discretion, or otherwise not in accordance with law, or if unsupported by substantial
evidence in record). Accordingly, we deny the petition. See 8th Cir. 47B. We also
deny Buie’s pending motion to supplement the record.
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Appellate Case: 19-3763
Page: 2
Date Filed: 10/01/2020 Entry ID: 4961459
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U.S. Department of Labor
Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210
In the Matter of:
CHRISTOPHER L. BUIE,
COMPLAINANT,
v.
ARB CASE NO. 2019-0015
ALJ CASE NO. 2014-STA-00037
DATE:
OCT 31 2019
SPEE-DEE DELIVERY SERVICE,
INC.,
RESPONDENT.
Appearances:
For the Complainant:
Christopher L. Buie; pro se; Omaha, Nebraska
For the Respondent:
Bridget R. Penick, Esq., and Kendra D. Simmons, Esq.; Fredrikson &
Byron, P.A.; Des Moines, Iowa
Before: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,
Administrative Appeals Judges.
FINAL DECISION AND ORDER
Per Curiam. This case arises under the employee protection provisions of the
Surface Transportation Assistance Act of 1982 (STAA) as amended.1 Complainant
drove a delivery truck for the Respondent. The Respondent suspended Complainant
and a month later discharged him for the stated reason that he consistently failed
to complete his route on time even after the Respondent twice shortened the route.
1
^ 49 U.S.C. § 31105(a) (2007) as implemented at 29 C.F.R. Part 1978 (2018); see 49
U.S.C. § 42121 (2000) (providing standards referenced in the STAA).
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2
Respondent’s Exhibit 45; Decision and Order Dismissing Complaint (Dec. 6, 2018)
(D. & 0.) at 2-6.
Complainant filed a complaint with the Occupational Safety and Health
Administration (OSHA), claiming that the Respondent violated the STAA when it
discharged him in retaliation for refusing to speed to complete his route on time. See
Respondent’s Exhibits 1, 11. OSHA dismissed the complaint. Respondent’s Exhibit
2. Complainant objected to OSHA’s determination and requested a hearing before a
Department of Labor Administrative Law Judge (ALJ).
The ALJ denied2 the complaint after a hearing because he found that
Complainant had failed to prove by a preponderance of the evidence that he had
engaged in protected activity or that protected activity contributed to the
Respondent’s decision to suspend and then discharge him. However, even if the
Complainant had established that protected activity contributed to his suspension
and subsequent discharge, the ALJ found that Respondent established by clear and
convincing evidence that it would have suspended and discharged Complainant in
the absence of the protected activity based on Complainant’s consistent inability to
complete his route on time. D. & O. at 14-15. Complainant appealed. For the
reasons stated below, we affirm the ALJ’s denial of the complaint.
Jurisdiction and Standard of Review
The Administrative Review Board (ARB or Board) has jurisdiction to review
the AU’s STAA decision pursuant to Secretary’s Order No. 01-2019 (Delegation of
Authority and Assignment of Responsibility to the Administrative Review Board),
84 Fed. Reg. 13,072 (Apr. 3, 2019); 29 C.F.R. Part 1978. The ARB reviews questions
of law de novo and is bound by the ALJ’s factual determinations if the findings of
fact are supported by substantial evidence on the record considered as a whole. 29
C.F.R. § 1978.110(b). An ALJ’s credibility findings, reviewed for substantial
evidence, may be set aside if they are inherently incredible or patently
unreasonable.3
2
We are cognizant of the fact that the ALJ’s order specifies that the complaint is
“dismissed.” That being noted, 29 C.F.R. § 1978.109(d)(2) specifically provides that “[i]f the
ALJ determines that the respondent has not violated the law, an order will be issued
denying the complaint.” As such, we will use the terminology prescribed by regulation to
describe the action below.
3
See Knox v. Natl. Park Serv., ARB No. 10-105, ALJ No. 2010-CAA-002, slip op. at 5
(ARB Apr. 30, 2012).
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BACKGROUND
The justiciable facts are not in dispute. Complainant drove a package
delivery and pick-up route from the Respondent’s Omaha, Nebraska facility from
2005 until his April 1, 2013 discharge. Complainant’s performance reviews from
October, 2008, to his April, 2013 discharge note problems completing his route on
time. See Respondent’s Exhibit 14; D. & 0. at 3. When in March 2009, Complainant
received a speeding ticket, the Respondent, consistent with company policy, gave
him a written reprimand. Joint Exhibit 1 at Stipulation 23; D. & O. at 3. Further,
the AU noted testimonial and documentary evidence showing time gaps between
deliveries that Complainant could not explain. D. & 0. at 3. Even after the
Respondent reduced Complainant’s routes in February and again in November of
2012, in an effort “to accommodate his inability to perform his duties adequately,”
Respondent’s Exhibit 45, Complainant still had difficultly complying with directives
to complete the route by specified times. D. & O. at 3-4. Consequently, the
Respondent’s Regional Manager, Timothy Zuehlke, and another manager
suspended Complainant from March 1-3, 2013, and Zuehlke ultimately discharged
Buie on April 1, 2013, for “blatant disregard for company expectations and
standards.” Respondent’s Exhibit 45.
Discussion
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 certain protected activity. 49
U.S.C. § 31105(a)(1). The legal burden of proof set forth in the employee protection
provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st
Century also governs STAA complaints. Id. § 31105(b)(1); see id. § 42121, To prevail
on a STAA claim, a Complainant must prove by a preponderance of the evidence
that he engaged in protected activity, that his employer took an adverse
employment action against him, and that the protected activity was a contributing
factor in the unfavorable personnel action. Id. § 42121(b)(2)(B)(iii). If the employee
makes such a showing, the employer can avoid relief by demonstrating by clear and
convincing evidence that it would have taken the same unfavorable personnel
action in the absence of the protected activity. Id. § 42121(b)(2)(B)(ii).
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Protected Activity
Under the STAA, a complainant engages in protected activity by filing a
complaint or refusing to operate a vehicle for safety reasons.4 The ALJ determined
that under the facts of this case Complainant did not establish that he had engaged
in protected activity. In support of that finding, the ALJ initially noted that
Complainant never refused to drive his vehicle. D. & O. at 8. Next, considering
Complainant’s complaints to his supervisors that he would have to speed in order to
complete his route on tune, the ALJ found that Complainant did not prove that he
thereby engaged in protected activity because he did not establish that the
Respondent scheduled his run in a manner that required him to speed or that the
Respondent required him to speed.
Complainant argues on appeal that the AU’s findings are not supported by
substantial evidence. Complainant’s Brief at 10-13. However, the record shows that
the ALJ properly relied on evidence that Complainant’s supervisor repeatedly drove
the route and returned within the time allotted, and on the lack of evidence that the
supervisor had to speed to do so. D. & O. at 9-11. The ALJ found no evidence
corroborating Complainant’s testimony that the Respondent’s manager implied,
without stating, that Complainant should speed to timely complete his route.
Moreover, the ALJ noted that Complainant did not take the opportunity he had at
his post-discharge unemployment insurance hearing, to elicit any supporting
testimony from the manager who allegedly implied he should speed and who was a
witness at the hearing. D. & 0. at 11.
The ALJ also determined that Complainant’s asserted belief that the
Respondent was violating a commercial motor vehicle regulation, standard, or order
while subjectively reasonable, was not objectively reasonable where an experienced
driver employed by the Respondent in the same circumstances as Complainant
would have known three facts. First, the Respondent had an explicit policy against
speeding. Second, the Respondent enforced that policy against employees who
violated it, including reprimanding Complainant when he was ticketed. Third,
4
The STAA prohibits an employer from discharging, disciplining, or discriminating
against an employee because the employee files a complaint related to a violation of a
commercial motor vehicle safety or security regulation, standard, or order under 49 U.S.C. §
31105(a)(l)(A)(i), or when the employee refuses to operate a vehicle when the operation
violates a regulation, standard, or order of the United States related to commercial motor
vehicle safety, health, or security at 49 U.S.C. § 31105(a)(l)(B)(i).
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Respondent also took appropriate action such as putting governors on its vehicles to
limit their speed to 60 mph, to prevent its employees’ ability to violate the speeding
policy. D. & 0. at 8, 10*12. The ALJ stated:
It simply does not make any sense for an employee who knew these
three facts to believe that Respondent, which obviously had a no
speeding policy and took that policy seriously, would nevertheless
schedule a driver’s run so that it could only be completed if the driver
were to speed. Any such belief would be patently unreasonable based
on these three facts alone. Moreover, as outlined above, in March 2013,
[the supervisor] repeatedly ran Complainant’s route in a timely fashion
and there was no evidence that speeding was necessary for him to
accomplish this.
D. & O. at 11.
Complainant argues that the ALJ’s findings cannot stand because the ALJ
refused to consider specific evidence and failed to recognize that the Respondent’s
directives were goals not expectations or directives. Complainant also argued that
the ALJ erroneously credited other witnesses over Complainant’s testimony. We
reject these arguments as they amount to a request that the Board reweigh the
evidence and make credibility findings which we will not do. Complainant’s Brief at
13-17.
The ALJ also found that Complainant did not engage in protected activity on
November 25, 2009, when Buie filed a complaint in response to the then-Branch
Manager’s preventing him from leaving an office during a conversation concerning
his inability to complete routes within specified times. Although his complaint
concerning this incident contained a statement that he felt pressured to speed, the
ALJ found that that complaint was unreasonable for the reasons cited above. The
ALJ’s finding that Complainant failed to meet his burden to establish that he
engaged in protected activity is supported by substantial evidence, and we affirm it.
Engaging in protected activity is a required element of a successful STAA
claim, and we may affirm the ALJ’s denial of the complaint on the basis of his
finding that Complainant failed to meet his burden to prove that he engaged in
protected activity. Harris v. C &N Trucking, ARB No. 04-175, ALJ No. 2004-STA037, slip op. at 2 (ARB Jan. 31, 2007). But Complainant also raises arguments on
appeal addressing the ALJ’s additional findings and conclusions on the issues of
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causation and same action defense. We will, in an abundance of caution, next
review these findings.
Causation
On causation, the ALJ resolved an evidentiary dispute by crediting the
testimony of Zuehlke, one of the managers who suspended and discharged Buie,
over Complainant’s contrary testimony to find that Zuehlke had no knowledge of
Buie’s complaints at the time he made the decision to discharge him. The ALJ
indicated that, having observed both witnesses, he found Zuehlke the more credible
witness as he answered questions directly, in a straightforward manner, and
without hesitation, while Complainant’s answers in support of his argument that
his complaints did contribute to his suspension and discharge were inconsistent and
did not make sense. The ALJ concluded that Complainant’s alleged protected
activity, assuming it had been proved, was not a contributing factor to the discharge
decision. D. & O. at 11-14. Complainant argues that the ALJ’s resolution of the
evidence is incorrect because he did not consider other evidence that Complainant
deems credible. We conclude that the ALJs credibility determinations are
supported by substantial evidence and not inherently incredible or patently
unreasonable and we uphold them.
Even if Zuehlke had knowledge of Buie’s complaints about being pressured to
speed, the ALJ credited the fact that Respondent did not take any disciplinary
action against him for 2-3 years despite his inability to complete his route on time.
Respondent even made his route shorter on two occasions to accommodate him. The
ALJ found that “[i]t simply does not make sense that Complainant’s complaints
about being required to speed” could be “a factor, any factor” in his suspension and
termination. We agree and affirm the ALJ's finding that had Complainant engaged
in protected activity, that activity did not contribute to Complainant’s suspension
and termination.
Same Action Defense
The ALJ found that the Respondent would have taken the same adverse
action in the absence of any protected activity. D. & O. at 8, 14-15. On appeal,
Complainant argues that the ALJ failed to consider the issue of pretext and that
Respondent’s taking action against Complainant in 2013 after many years of
untimely route completion is “illogical.” Complainant also argues that other
employees did not complete their routes on time but were not discharged.
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Upon review of the AU’s D. & 0. and the evidence, we conclude that the
AU’s decision is a reasoned ruling supported by substantial evidence and
consistent with applicable law. The ALJ, acting within his discretion, rationally
credited the Respondent’s testimonial and documentary evidence showing that
Complainant’s suspension and discharge “had nothing to do with his complaints
that his route required him to speed to complete it on time and he would not speed.”
D. & O. at 14. Specifically, the ALJ noted that performance reviews from 2009, until
his discharge in 2013, “consistently noted problems with completing his route on
time.” Id. Until Complainant’s March 1, 2013, suspension, Respondent had taken no
disciplinary action against him “for consistently taking longer to complete his route
than [the] Respondent expected.” Id. The AU found that Respondent “frequently
counseled complainant regarding his late return times and tried to accommodate
him by twice cutting down the size of his route and scheduling his last pick-ups
earlier.” Id. The ALJ’s finding that Respondent would have taken the same action
in the absence of the alleged protected activity is supported by substantial evidence
and is in accordance with law. We thus affirm it.5
Conclusion
Accordingly, the ALJ’s decision in this matter is AFFIRMED, and the
complaint is hereby DENIED.
SO ORDERED.
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Complainant also argues that the ALJ committed several procedural, evidentiary,
and substantive errors. Complainant’s Brief at 22-30. The Respondent argues that none of
the alleged errors caused unfair prejudice to Complainant’s case. Complainant’s arguments
do not disturb our decision that the ALJ’s D. & O. is well reasoned and supported by
substantial evidence and that it is consistent with applicable law. In particular, Buie claims
that the ALJ refused to consider his claim to have suffered a hostile work environment.
Even if we were to agree with Buie that the ALJ erred in failing to consider that he suffered
harassment qualifying for a hostile work environment claim, that error would be harmless
as our analysis above precludes a finding that Buie suffered a hostile work environment in
retaliation for engaging in protected activity. Lewis v. U.S. Envt’l Prot. Agency, ARB 04-117,
ALJ No. 2003-CAA-005, -006 (ARB June 30, 2008).
U.S. Department of Labor
Office of Administrative Law Judges
800 K Street, NW
Washington, DC 20001-8002
(202) 693-7300
(202) 693-7365 (FAX)
Issue Date: 06 December 2018
OALJ Case No. 2014-STA-00037
OSHA Case No. 7-3620-13-065
In the Matter of:
CHRISTOPHER L. BUIE,
Complainant,
v.
SPEE-DEE DELIVERY SERVICES, INC.,
Respondent.
DECISION AND ORDER DISMISSING COMPLAINT
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This is a case arising under the Surface Transportation Assistance Act, 49 U.S.C.
§ 31105, as amended by the Implementing Recommendations of the 9/11 Commission Act of
2007, Pub. L. No. 110-053 (“STAA”), and the applicable regulations issued thereunder at 29
C.F.R. Part 1978. On July 19,2013, Christopher Buie (“Complainant”) filed a complaint with
the Occupational Safety and Health Administration (“OSHA”) of the U.S. Department of Labor
contending he was terminated from his employment with Spee Dee Delivery Services, Inc.
(“Respondent” or “Spee Dee”) in violation of the STAA. OSHA dismissed the complaint, and
Complainant requested a hearing before the Office of Administrative Law Judges.
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I held a formal hearing in this matter on August 30 and 31,2016 in Des Moines, Iowa.
At the hearing, the record was kept open for Complainant to submit additional evidence.
Following a recorded post-hearing telephonic conference call with the parties, on February 3,
2017,1 issued an order admitting additional exhibits into the record and bifurcating this case to
consider only the issue of liability at this time. Should I have concluded that Respondent
terminated Complainant in violation of the STAA, then the issue of damages would have been
addressed.1 The February 3, 2017 order is admitted into evidence as ALJ Exhibit 8.
The record contains medical reports concerning stress Complainant has allegedly suffered due to raising safety
issues while employed by Respondent. This evidence has no relevance to whether Complainant was terminated in
violation of the STAA. Accordingly, it will not be discussed in this decision.
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Subsequently, both parties filed proposed findings of fact, conclusions of law, and briefs, the last
of which was received on April 4,2017.
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Preliminarily, there are two motions filed by Complainant that must be addressed. First,
Complainant filed a motion to strike in part Respondent’s proposed findings of fact. That motion
is improper since parties may propose any findings they wish, and it is denied. However, I will
consider Complainant’s motion as a rebuttal to Respondent’s proposed findings, and it will be
considered. Second, Complainant moved to amend the transcript, contending that it contains
errors . One of the errors Complainant alleges is a mistake he made in his testimony that he
wants to change.2 In other instances he believes the court reporter added words to his
testimony,3 which I find highly unlikely. He also states that on page 403, line 24, and at other
unspecified places in the transcript, it is reported that he said “5:00 and - 5:00 p.m.” He denies
repeating “5:00.” That he states this occurs several times in the transcript makes it doubtful that
these are transcription errors. In alleging that he did not say Mr. Warm an (Complainant’s
emphasis) at page 418, line 15, he does not state whose name he believes he did say.
Complainant’s other objections are either immaterial or, based on the context are not supported.
Accordingly, his motion to correct the transcript is denied.
The findings and conclusions that follow are based on a complete review of the record in
light of the arguments of the parties, the testimony and evidence submitted, applicable statutory
provisions, regulations, and pertinent precedent. Although I do not discuss every exhibit in the
record, I have carefully considered all of the testimony and exhibits in reaching my decision.
Based on the evidence contained in the record of this proceeding, I conclude that Complainant
was not terminated from his employment in violation of the STAA.
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FINDINGS OF FACT AND CONCLUSIONS OF LAW4
Findings ofFact
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Respondent is a Minnesota corporation engaged in the package delivery business. Its
principal place of business is in St. Cloud, Minnesota. It has facilities in seven states in the
Midwest, including one in Omaha, Nebraska. Respondent is a commercial motor vehicle carrier
within the meaning of the Act. See 29 C.F.R. § 1978.100(i), (k). The Omaha branch is
supervised by a regional office located in Des Moines, Iowa
Complainant, as a driver for a covered employer, is a covered employee under the STAA.
See 29 C.F.R. § 1978.100(h). He is a high school graduate and militaiy veteran. He had been
going to school part-time before he started working for Respondent, and subsequent to his
employment by the Respondent went back to school full-time. He received an Associates
Degree in applied sciences and legal studies, but has not taken the test to become certified as a
paralegal. TR 528-30.
2 Page 435, line 8.
3 Page 407, line 24; Pages 437-38, lines 25 and 1 respectively.
4 Citations to the record of this proceeding will be abbreviated as follows: CX - Complainant’s Exhibit: RX Respondent’s Exhibit; JX - Joint Exhibit; TR - Hearing Transcript.
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Complainant began working for Respondent as a route driver in Omaha, Nebraska, on
October 31,2005, and remained in that position for his entire employment with Respondent. TR
402-03. He always drove the same route, 22020. As a route driver, he had a route where he
delivered and picked up packages. At the start of the day he was required to load his truck at the
company’s facility (also referred to as the “branch” or “shop”) with packages to deliver, deliver
those packages, pick up packages at scheduled stops, and return to the shop. He started work at
7:30 a.m. and worked until all his packages were delivered, his pick-ups completed, his truck
was fueled, and returned to the shop. Most drivers usually worked 10-15 hours of overtime each
week.
In several ways, Complainant was a good employee. His performance reviews note that
the customers liked him, he looked professional, and he generally followed company policies.
RX 14. Other than criticism regarding the timeliness of completing his route, his performance
reviews were usually very positive. He received raises of varying amounts following each of his
performance reviews. See JX 1, at Stipulation 21. But there were also some hitches. On March
12,2007, Complainant caused a minor accident that resulted in $345.00 in damages to a
stationary vehicle. RX28. There was no damage to his truck. While driving his route on March
17,2009, Complainant received a ticket for driving 52 miles per hour in a 35 mile per hour zone.
RX 29. Company policy forbids speeding, and Complainant was reprimanded for it. See RX 24,
at 226; JX 1, at Stipulation 23.5 On June 27, 2012, Complainant’s truck incurred $1,000.00 in
damages when he backed it into a loading dock with too much force. RX 3 8. He also was
reprimanded and/or given verbal warnings four times for tardiness in 2010 and 2011. RX 19, at
88-91. None of these incidents led to more significant disciplinary actions than the aforesaid
reprimands.
Complainant’s performance reviews from October 2008 until his termination in 2013
consistently note problems with completing his route on time. See, e.g., RX 14, at 8-22.
Particularly problematic were excessive times between stops which he could not explain. See
id., at 8-12. Timothy Zuehlke, Respondent’s Regional Manager who supervises Respondent’s
operations in Nebraska (TR 231), testified that the delivery schedules for Complainant’s route
from October 6-9, 2008 show gaps of up to 52 minutes between deliveries to places that were not
far apart, and Complainant had no explanation for the gaps. TR 346-48. Complainant did not
contradict this testimony. Notes in Complainant’s company file written by Mr. Zuehlke and
Alex Lehning, the Omaha Branch Manager, point out problems with Complainant not
completing his route on time in 2009. RX 40-42. He was told on June 15,2009, that if he did
not improve there would be disciplinary action which could ultimately include termination. RX
42. On February 11,2010, Mr. Zuehlke met with Complainant specifically to counsel him on his
time management issues. RX 32. Mr. Lehning also attended that meeting. On August 24,2011,
Zuehlke again met with Complainant. Mr. Zuehlke wrote that Complainant had no explanation
for his lateness in returning to the shop, and he was told this was unacceptable. RX 37.
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To ameliorate Complainant’s lateness problems, Respondent twice reduced his route to
make it shorter. The first time was in February 2012. Complainant testified that at that time, a
zip code was removed from his route and pick-ups scheduled at or after 5:00 p.m . were
5 Moreover, Ronald Watson, Respondent’s State Operations Manager, testified that Respondent’s vehicles have
governors that don’t allow them to go over 60 mph. TR 195.
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eliminated. TR 423. Nevertheless, Complainant still had difficulty returning to the shop by 5:00
p.m. So Mr. Zuehlke and Mr. Lehning came up with a new plan, removing another zip code
from Complainant’s route and eliminating his last six pick-ups, making his last scheduled pick
up at 3:30 p.m. These changes were put into effect on November 7,2012. TR 240; CX 14, at 5.
By implementing these reductions to Complainant’s route, it was anticipated that he would be
back at the shop by 4:30 p.m. without exception. TR 241; CX 19.
Due to Complainant’s continued failure to complete his route on time despite these
reductions, Mr. Lehning and Mr. Zuehlke met with him on February 27, 2013, and informed him
that he was expected to complete his route by 4:30 p.m. “every day no matter what.” CX 19.
Yet that day Complainant did not clock out until 4:54 p.m., and the following day he did not
clock out until 5:13 p.m. See RX 15, at 19; TR 388. Having failed to complete his route by 4:30
p.m. on the two days following this meeting, Complainant was suspended without pay on March
1,2013. TR 388-89; RX 5. Since Complainant was not available to run his route on March 1, his
immediate supervisor, Jake Tomcak, the Group Leader, ran the route in his place. Normal route
drivers such as Mr. Buie were expected to get on the road by approximately 8:00 a.m. each
morning. TR 391. Because of his other duties as Group Leader, Mr. Tomcak left the shop later
than the Complainant would have, and made this first delivery that day at 9:32 a.m. TR 391.
Nevertheless, he completed the route by 4:10 p.m. TR 391-93. In other words, Mr. Tomcak
started the route an hour and a half later than a route driver would have been expected to, but still
returned twenty minutes before the 4:30 p.m. deadline. TR 393. Mr. Tomcak also ran
Complainant’s route on March 12, 13, 14, and 18, 2013, while Complainant was on vacation.
Although Mr. Zuehlke stated in an undated note that Mr. Tomcak completed the route every day
despite not making his first delivery earlier than 9:25 a.m. and as late as 9:43 a.m. (RX 7), the
timesheets from those days indicate that Mr. Tomcak clocked out from the route at 5:09 p.m.,
5:05 p.m., 6:13 p.m., and 4:49 p.m., respectively. CX 12(a), at 33-36; see also TR 128-29.
Nevertheless, that Mr. Tomcak left the shop later than Complainant would have had he been
working on those days diminishes the relevance of Mr. Tomcak’s return times. Complainant
speculates that the reason Tomcak finished the route so quickly on March 1 was because Mr.
Lehning accompanied him on the route. But at an earlier hearing concerning Complainant’s
unemployment benefits, Mr. Zuehlke testified that Mr.Lehning was there just for observation and
did not help run the route. RX 19, at 61. It was not unusual for supervisors to accompany
drivers who are unfamiliar with the route they were driving. RX 19, at 61.
Complainant returned to work following his suspension on March 4,2013. Mr. Zuehlke
testified that, from that day forward, Complainant did not clock out by 4:30 p.m. TR 389. On
the days Complainant worked from March 4,2013, until March 29,2013, Respondent’s time and
attendance report shows that he clocked out at 4:39 p.m., 4:41 p.m., 5:14 p.m., 5:05 p.m., 5:05
p.m., 5:22 p.m., 5:23 p.m., 4:34 p.m., 5:06 p.m., 4:49 p.m., 4:58 p.m., 5:15 p.m., 5:03 p.m., 4:49
p.m., and 4:41 p.m. RX 15, at 19. Due to Complainant’s failure to clock out on time even once
following his suspension, there was discussion among Mr. Zuehlke; Aaron Lynch, the Human
Resources Safety Director in Des Moines; Ronald Watson, the State Operations Manager; and
Bill Warman, the Corporate Liaison and a member of Respondent’s Board of Directors who is
Mr. Zuehlke’s and Mr. Watson’s boss. Mr. Zuehlke made the ultimate decision to terminate
Complainant. TR 294; JX 1, at Stipulation 33. On April 1, 2013, Complainant was handed a
letter signed by Mr. Lynch and Mr. Lehning that immediately terminated his employment. RX
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!
45. The letter stated that Complainant was being terminated for his failure to meet Respondent’s
expectations regarding his return times.
Complainant testified that the first time he complained about having to speed to complete
his route was in March 2009, that the last time he made that complaint was on March 1,2013,
and that he raised the same complaint multiple times during that four-year period. TR 453. Mr.
Zuehlke testified that he recalled Complainant saying in the last 2-3 years of his employment that
he could not complete the route in the time allotted. TR 283. Mr. Zuehlke also testified that he
was not aware of Complainant making any complaints to any manager or supervisor at
Respondent that he was not going to speed in order to complete his route on time. TR 397.
The record is both confusing and contradictory regarding when Complainant was
expected to complete his route in the years prior to November 7,2012. There is testimony from
Complainant that he was expected to complete his route by 5:00 p.m. TR 403; CX 19.6 Pick-up
itineraries for February 9,2009, June 19, 2012, and August 2,2012, however, list pick-ups at
5:00 p.m., which would have precluded Complainant from returning to the shop even by 5:15.
See CX 14. On the other hand, a pick-up itinerary for August 28,2009, lists the last pick-up at
4:20. Id. There are also pick-up itineraries dated November 7,2012, and July 8,2013, in CX 14,
but by July 8, 2013, Complainant no longer worked for Respondent. Complainant testified that
the August 2, 2012 itinerary was in effect through November 7, 2012, and the November 7,2012
itinerary was in effect through his termination. TR 425-26. The last pick-up listed on the
November 7, 2012 itinerary is at 3:30 p.m. There is no evidence regarding how long the other
itineraries were in effect. Since those are the only pick-up itineraries in evidence, it is impossible
to draw any conclusions from them regarding Complainant’s overall pick-up schedule prior to
August 2, 2012. What is clear, however, is that Respondent consistently faulted Complainant for
the untimely completion of his route.
Complainant testified that when he received the speeding ticket on March 17, 2009, he
showed it to his supervisor, Mr. Lehning, as company policy required. As was pointed out
above, Spee Dee’s Policy Manual specifically admonishes drivers not to speed. At that time
Complainant states he told Mr. Lehning that if he wanted him back at 5:00 p.m. every day they
had to eliminate his pick-ups that were scheduled for that time or later. TR 403-05.
Complainant’s testimony is inconsistent regarding why he was late returning from his
route. His principal contention is that he could not return on time without speeding. But he also
states that he could not return on time because he had pick-ups scheduled at or after the time he
was supposed to be back at the shop. E.g., TR 461. Complainant’s testimony that Respondent
expected him to be back at the shop at a time when he still had scheduled pick-ups to complete is
illogical. Mr. Zuehlke testified that if Complainant had 5:00 p.m. pick-ups there would have no
expectation that he would return to the shop at 5:00 p.m. as Complainant could not be at two
places at once. TR 259. Rather, he testified that Spee Dee’s expectation was for Complainant to
get his pick-ups done in a timely manner. Id. Mr. Zuehlke also pointed out that pick-up
schedules on routes are not inflexible. He stated that “[pjickups can move, pickups can leave,
new ones can get added.” TR 254.
6 A June 15,2009 note states he was expected to clock out by 5:15 p.m. RX 42; see TR 372.
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Complainant testified that on June 8, 2009, Mr. Lehning rode with him to do an on-route
evaluation. Complainant testified that Mr. Lehning told him “come on, let’s go, we’re running
behind.” TR 406. Complainant stated he interpreted this as Mr. Lehning telling him to speed,
even though he initially thought Mr. Lehning was joking, and he replied that “I’m not getting
another speeding ticket.” Id. He testified that Mr. Lehning then told him “there are no cops
around.” Id. But Complainant admits that Mr. Lehning did not directly tell him to speed. Cf.
TR 445. Other than Complainant’s testimony, there is no evidence of this conversation in the
record. Nor is there any evidence of anyone else at Spee Dee telling Complainant to speed. In
fact, Complainant testified that no Spee Dee manager other than Mr. Lehning ever told him to
speed. TR 422. Complainant testified to other times where he told Mr. Zuehlke, Mr. Lehning
and/or Mr. Warman that he was not going to speed, including on March 1, 2013, when he was
suspended. TR 418,422 (Complainant testified that Mr. Zuehlke had not instructed him to
speed), 424,453-54. Complainant also testified that he wrote a rebuttal to a performance review
stating that he could not return from his route by 5:00 p.m. without speeding, but it was not in his
personnel file. TR 439.
On November 25,2009, Complainant was called into the office by Mr. Zuehlke and
David Staley, then the Branch Manager at the Omaha Branch. TR 103; TR 407. Mr. Staley
asked Complainant why he was not returning by 5:00 p.m. each day. After some discussion,
Complanant started walking out of die office. Mr. Staley then moved to stand in front of the
door and, when Complainant reached for the door handle, Mr. Staley put his hand on the
doorknob. Complainant then yelled at Mr. Staley to get out of the way. TR 407-08.
Complanant described this as a crime because Mr. Staley prevented him from leaving when he
wanted to leave. TR 411. Complainant was kept from leaving the office for “maybe 5 seconds.”
TR 414. Complainant testified he called the corporate office to complain about Mr. Staley’s
conduct that same day (Nov. 25, 2009). TR 413. Complainant stated he was being hounded to
get back by 5:00 p.m. every day, and he would have to speed to make the deadline. TR 414.
Despite his complaints, Complainant never refused to drive his route. Since he did not
speed, he was able to do his job safely. And despite Respondent’s problems with Complainant’s
failure to complete his route in a timely fashion, no disciplinary action was taken against
Complainant until his suspension on March 1,2013. When asked why Complainant was not
fired sooner, Mr. Zuehlke testified that Respondent “is not in the practice of getting rid of
drivers, you know. We have a hard enough time finding them, so when we have them, we like to
keep them if we can.” TR 368.
Issues
The issues to be decided in this case are:
1. Whether Complainant established by a preponderance of the evidence that he engaged
in protected activity;
2. Whether Complainant established by a preponderance of the evidence that he suffered
an unfavorable personnel action;
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3. Whether Complainant established by a preponderance of the evidence that the
protected activity was a contributing factor in the unfavorable personnel action; and
4. If Complainant established the first three issues by a preponderance of the evidence,
whether Respondent established by clear and convincing evidence that it would have
taken the same adverse action in the absence of Complainant’s protected activity.
TR 15-16 (at the hearing, I also listed a fifth issue in the event that Respondent violated the
STAA, namely, what remedy is appropriate).
Applicable Law
The employee protection provisions of the STAA provide, in general, that a covered
employer may not take adverse employment action against an employee because the employee:
(i) has fi led a complaint or testifies about “a violation of a commercial motor vehicle safety or
security regulation, standard, or order,” 49 U.S.C: § 31105(a)(1)(A); (ii) “refuses to operate a
vehicle because the operation violates a regulation, standard, or order of the United States related
to commercial motor vehicle safety or health,” id. § 31105(a)(l)(B)(i); (iii) “refuses to operate a
vehicle because ... 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,”7 id. §
31105(a)(l)(B)(ii); or (iv) “accurately reports hours on duty pursuant to chapter 315,” id. §
31105(C), 29 C.F.R. § 1978.102(c)(2).
The STAA employee protection provisions were enacted “to encourage employee
reporting of noncompliance with safety regulations governing commercial motor vehicles.”
“Congress recognized that employees in the transportation industry are often best able to detect
safety violations and, yet, because they may be threatened with discharge for cooperating with
enforcement agencies, they need express protection against retaliation for reporting the
violations.” Brockv. Roadway Express, Inc., 481 U.S. 252, 258 (1987).
The current version of the STAA provides that whistleblower complaints shall be
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 (AIR 21), 49 U.S.C.
§ 42121 (b)(2)(B)(i). 49 U.S.C. § 31105(b)(1). Underthe AIR21 standard, complainants must
initially prove by a preponderance of the evidence that a protected activity was a contributing
factor in the unfavorable personnel action alleged in the complaint. A “contributing factor” is
“any factor, which alone or in combination with other factors, tends to affect in any way the
outcome of the decision.” Powers v. Union Pac. R.R. Co., No. 13-034, ALJ No. 2010-FRS-030,
at 11 (ARB Jan. 6, 2017) (internal citations omitted). If a complainant makes this showing, an
employer can avoid liability by demonstrating by clear and convincing evidence that it would
have taken the same unfavorable personnel action in the absence of the protected activity. 49
U.S.C. § 42121 (b)(2)(B)(ii).
Thus, in order to prevail in this case, Complainant must establish the following by a
preponderance of the evidence: (i) that he engaged in protected activity; (ii) that Respondent took
7 There is no contention by Complainant that any of the vehicles he drove for Respondent were unsafe.
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an unfavorable employment action against him; and (iii) that his protected activity was a
contributing factor in Respondent’s decision to take the unfavorable employment action. If
Complainant meets this burden, Respondent may avoid liability by establishing by clear and
convincing evidence that it would have taken the same unfavorable employment action against
Complainant in the absence of his protected activity.
Discussion
As discussed in more detail below, while Complainant suffered an unfavorable personnel
action, he did not engage in protected activity. Complainant thus did not meet his burden.
Moreover, even if Complainant had met his burden, Respondent established by clear and
convincing evidence that it would have taken the same unfavorable personnel action against
Complainant regardless of his protected activity. Accordingly, the complaint in this matter must
be dismissed.
Complainant Has Not Established that He Engaged in Protected Activity
Under the STAA, a complainant can engage in protected activity by filing a complaint or
by refusing to operate a vehicle. “The plain language of § 31105(a)(1)(B) makes clear that to
qualify for protection under the ‘Refusal to Drive Clause,’ an employee must have “refuse[d] to
operate a vehicle.” Calhoun v. U.S. Department ofLabor, 576 F.3d 201, 212 (4th Cir. 2009)
(affg Calhoun v. UPS, No. 04-108 (ARB Sept. 14, 2007). Driving a vehicle under protest is not
a refusal to operate a vehicle. Id. There is no evidence that, in the over seven years Complainant
worked for Respondent, he ever refused to operate his vehicle. Accordingly, Complainant has
failed to establish he engaged in protected activity under the “refusal to work” clause.
As Complainant did not refuse to operate his vehicle while working for Respondent, the
issue becomes whether his activity falls under the “Complaint Clause” of Section 31105(a)(1).
Under this clause, for a complaint to be protected under the STAA, the complaint must
“relate” to a violation of a safety standard and a specific standard need not be expressly cited in
the complaint. 49 U.S.C. § 31105(a)(l)(A)(i) (“... filed a complaint... related to a violation
...”); see also Ulrich v. Swift Transportation Corp., No. 11-016, ALJ No. 2010-STA-00041, slip
op. at 4 (ARB Mar. 27,2012). Furthermore, “a complainant must show that he reasonably
believed he was complaining about the existence of a safety violation.” Id., slip op. at 4. The
Administrative Review Board has stated:
The reasonableness of a complainant’s belief is assessed both subjectively and
objectively, with the subjective component satisfied by showing that the
complainant actually believed that the conduct he complained of constituted a
violation of relevant law. 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.
Garrett v. Bigfoot Energy Svcs, LLC, No. 16-057, ALJ No. 2015-STA-047 (ARB May 14,2018)
(footnotes and internal marks omitted). The complaint need not concern an actual violation of
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the regulations. Elbert v. True Value Co., No. 07-031, ALJ No. 2005-STA-036, slip op at 3 fo 5
(ARB Nov. 24, 2010).
I
An employee’s internal complaint to management conveying his reasonable belief that
the company was engaging in a violation of a motor vehicle safety regulation is a protected
activity under 49 U.S.C. § 31105(a)(1)(A). Calhoun, 576 F.3d at 212 (holding that “internal
complaints to company management, whether written or oral, suffice to satisfy the complaint
requirement of 49 U.S.C. § 31105(a)(l)(A)(i)”); Dutkiewicz v. Clean Harbors Envtl Servs., No.
97-STA-090 (Sec’y Aug. 8, 1997, slip op. at 3-4) (citing Stiles v. J.B. Hunt Transp., Inc., Ho. 92STA-34 (Sec y Sept 24, 1993, slip op. at 3-4)); see also Moravec v. HC & M Transportation,
Inc., Ho. 1990-STA-44 (Sec’y July 11,1991); Clean Harbors Envtl. Servs. v. Herman, 146F.3d
12,21 (1st Cir. 1998) (holding that “[a] construction of the STAA that covers only complaints
filed with courts or government agencies would narrow the mechanisms to achieve these policy
goals, leaving unprotected employees who in good faith assert safety concerns to their
employers, or who indicate an unwillingness to engage in such violations”).
Under the STAA, scheduling a run in a manner that requires the driver to exceed
applicable local speed limits is a violation of a Federal motor carrier safety regulation. Nolan v.
AC Express, No. 92-STA-37 (Sec’y Jan 17,1995). An employee’s stated refusal to drive over
the speed limit in the future, in a situation where the earner’s policies required drivers to violate
applicable speeding regulations, is protected activity under the STAA. McGavock v. Elber, Inc.
No. 86-STA-5 (Sec’y July 8, 1986).
A driver’s complaint about an employer’s scheduling a run in a way that it can only be
completed by speeding can be protected activity, and a driver’s refusal to speed in the future
when an employer requires him or her to speed can also be protected activity. Under the facts of
this case, however, Complainant did not establish that he engaged in protected activity under
either approach. This is because he did not establish that Respondent scheduled his run in a
manner that required him to speed and also because he did not establish that Respondent required
him to speed.
Complainant did not file a complaint with a governmental agency or begin a proceeding
regarding safety related to his employment at Spee Dee until he initiated this proceeding
subsequent to his termination. However, he did complain to his supervisors that he would have
to speed in order to complete his route on time. Complainant contends that “his complaints to
management about return time expectations that he believed required him to speed were a
contributing factor in Respondent’s decisions to suspend him and then to terminate his
employment.” Complainant’s Proposed Findings of Fact and Conclusions of Law at 17.
Complainant did not establish that his route was scheduled in a way that speeding was
necessary to complete it on time. While Complainant repeatedly asserted that speeding was
required to complete the route on time, the evidence establishes that on March 1,2013, Mr.
Tomcak ran the route and returned to the shop at 4:10 p.m., twenty minutes before the 4:30 p.m.
deadline, even though due to his supervisory duties he started the route approximately an hour
and a half later than a route driver would have (the route drivers were expected to leave the shop
around 8:00 a.m.). TR 391-93. Moreover, had Mr. Tomcak left the shop at around 8:00 a.m. and
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taken the same amount of time to complete the route as he actually did that day, he would have
returned at approximately 2:40 p.m., well before the 4:30 p.m. deadline established for
Complainant to return to the shop. There is no evidence that Mr. Tomcak had to speed to
accomplish this.
Mr. Tomcak also ran Complainant’s route on March 12,13,14, and 18, 2013. The
evidence shows that Mr. Tomcak made his first delivery on those four days between 9:25 a.m.
and 9:43 a.m., indicating that each day he left the shop between approximately one and a half
hours and approximately one and three-quarters hours later than the route drivers would have.
The evidence shows that on those four days Mr. Tomcak returned to the shop between 4:49 p.m.
and 6:13 p.m., returning by 5:09 p.m. on three of the four days. See RX 7; CX 12(a), at 33-36;
TR 128-29. In other words, the evidence shows that on those four days Mr. Tomcak left the
shop beween one and a half and one and three-quarters hours later than a route driver would
have, and returned to the shop at the latest approximately one and three quarters hours after the
4:30 p.m. deadline established for Complainant, while he returned on the other three days at most
thirty-nine minutes after the 4:30 p.m. deadline. As with Mr. Tomcak’s March 1, 2013 run, there
is no evidence that Mr. Tomcak had to speed to accomplish this.
In short, when accounting for the fact that Mr. Tomcak departed the shop significantly
later than Complainant as a route driver would have, the evidence shows that the 4:30 p.m. return
time established for Complainant was reasonable. Complainant thus did not establish that
Respondent scheduled his route in a manner that it could only be completed by speeding.
Moreover, the fact that there is no evidence Mr. Tomcak had to speed to complete
Complainant’s run in March 2013 indicates that Complainant did not have a reasonable belief
that Respondent was violating a commercial motor vehicle regulation, standard, or order in
scheduling his run in a way that it could only be completed by speeding. As outlined above,
Respondent’s policy prohibited speeding and Complainant had been reprimanded for speeding in
2009. The fact that Respondent reprimanded Complainant for speeding indicates that its policy
against speeding was not merely for show. As shown by the fact that Respondent took
appropriate action when the policy was violated, Respondent enforced its no-speeding policy.
Moreover, Respondent had governors on its vehicles that limited their speed to 60 mph. While
there is no evidence in this case that Complainant’s speed while driving for Respondent was ever
limited by a governor, the fact that Respondent took a concrete step to ensure that its vehicles
would never speed on roads where the speed limit was in excess of 60 mph also indicates that
Respondent took appropriate steps to minimize violations of its no-speeding policy.
Complainant has failed to establish that he had a reasonable belief that speeding was
necessary to complete his assigned route. As outlined above, whether a belief is reasonable is
assessed both subjectively and objectively. While I find that Complainant has established his
belief was subjectively reasonable, he has not established that his belief was objectively
reasonable.
There is no evidence in the record that Complainant did not actually believe that speeding
was necessary to complete his route. On the contrary, the record establishes that Complainant
repeatedly stated that speeding was necessary to complete his route. In the absence of persuasive
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evidence to the contrary, I find that Complainant has established by a preponderance of the
evidence that he actually believed speeding was necessary to complete his route and thus that his
belief was subjectively reasonable.
While Complainant has established that his belief was subjectively reasonable, he has not
established that his belief was objectively reasonable because an experienced driver employed by
Respondent in the same factual circumstances as Complainant would know the following three
facts: (1) Respondent had an explicit policy against speeding; (2) Respondent took appropriate
action, such as issuing reprimands, against employees who violated that policy; and (3)
Respondent took appropriate action, such as having governors on its vehicles to limit them to a
speed of 60 mph, to minimize its employees’ ability to violate that policy. These three facts,
taken together, would indicate to any experienced driver employed by Respondent that
Respondent not only had a no-speeding policy, but that, far from being an empty policy, it was
appropriately enforced and that Respondent, by placing governors on its vehicles, did what it
could to prevent its drivers from speeding on roads where the speed limit was 60 mph or greater.
It simply does not make any sense for an employee who knew these three facts to believe that
Respondent, which obviously had a no-speeding policy and took that policy seriously, would
nevertheless schedule a driver’s run so that it could only be completed if the driver were to
speed. Any such belief would be patently unreasonable based on these three facts alone.
Moreover, as outlined above, in March 2013 Mr. Tomcak repeatedly ran Complainant’s route in
a timely fashion and there was no evidence that speeding was necessary for him to accomplish
this. Accordingly, I find that Complainant has failed to establish that his belief was objectively
reasonable.
Moreover, Complainant did not produce credible evidence that he was ever told to speed
by a manager at Spee Dee. The only evidence supporting Complainant’s position is his
testimony that on June 8, 2009, when Mr. Lehning rode with him, he believes Mr. Lehning
implied, without specifically stating, that he should speed on his route in order to complete it on
time. But there is no evidence corroborating Complainant’s testimony that Mr. Lehning implied
that he should speed. Complainant did not document this incident in writing, either in a separate
note or in the place for his comments on his performance evaluations. Nor did he report this
conversation to anyone else. Although Mr. Lehning was no longer working for Spee Dee at the
time of this STAA hearing and apparently was unavailable to testify, he did testify at
Complainant’s unemployment insurance hearing, which occurred only a few months after
Complainant was terminated. Mr. Lehning testified at that hearing, and Complainant had the
opportunity to question him. But Complainant did not ask Mr. Lehning whether he had
instructed Complainant to speed or implied that Complainant should speed when Mr. Lehning
rode with Complainant on June 8,2009. See RX 19. Moreover, Complainant testified that no
Spee Dee manager other than Mr. Lehning ever told him to speed. Further, as outlined above,
speeding is against Respondent’s policy, and Complainant was reprimanded when he received a
ticket for speeding.
Thus, Complainant’s argument that, in complaining about being required to speed, he
filed a complaint satisfying the complaint clause of the STAA comes down to this: he reasonably
believed that speeding was necessary to complete his run on time and complained that he was
refusing to commit a violation of safety standards, i.e.s speeding, that Respondent never
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instructed him to do and that was against company policy. Under these facts, Complainant has
not established by a preponderance of the evidence that his belief that speeding was necessary to
complete his route was reasonable and that his complaints to Respondent concerned a violation
of a commercial motor vehicle regulation, standard, or order.
Additionally, Complainant’s complaint to Respondent’s corporate office about Mr.
Staley’s conduct on November 25,2009, in keeping him from leaving the office did not
constitute protected activity under the STAA for two reasons. First, that complaint did not
involve refusal to operate a vehicle. Second, that complaint focused on Mr. Staley’s conduct in
very briefly keeping Complainant from leaving the office when he wanted to leave. While
Complainant stated his complaint to corporate on November 25,2009, included the fact that he
would have to speed to make it back to the shop by the 5:00 p.m. deadline, I find this does not
rise to the level of a complaint about a violation of a motor vehicle regulation, standard, or order
for the same reasons as outlined above — Complainant alleges he was complaining about refusing
to speed even though his belief that speeding was necessary to complete his assigned run was
neither subjectively nor objectively reasonable, Respondent never told him to speed, and
speeding was against Respondent’s policy.
Therefore, Complainant has failed to meet either the refusal to operate clause or the
complaint clause of the STAA, and die Complainant has failed to establish by a preponderance
of the evidence that he engaged in protected activity.
Complainant Established that He Suffered an Unfavorable Personnel Action
It is undisputed that Complainant suffered an unfavorable personnel action, as he was
suspended and then his employment was terminated.
Complainant Did Not Establish that His Complaints Contributed to the Unfavorable
Personnel Action
l!
|i
Even if Complainant had engaged in protected activity by complaining about having to
speed to complete his route on time (and recognizing that Complainant has established that he
suffered from an unfavorable personnel action, i.e., the suspension and subsequent termination of
his employment), Complainant has failed to establish by a preponderance of the evidence that
such protected activity contributed to the unfavorable personnel action.
There is no dispute that Mr. Zuehlke made the decision to terminate Complainant’s
employment. JX 1, at Stipulation 33.
!
There is no dispute that at least for the last 2-3 years of Complainant’s employment, Mr.
Zuehlke was aware of Complainant’s complaint that he could not complete his route in the time
he was given. TR 283 (Mr. Zuehlke testified that he recalled Complainant saying in the last 2-3
years of his employment that he could not complete his route in the time allotted).
Complainant testified that the first time he complained about having to speed to complete
his route was in March 2009, that the last time he made that complaint was on March 1,2013,
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and that he raised the same complaint multiple times during that four-year period. TR 453.
Complainant also testified that he told two of Respondent’s managers that he would not speed
for Respondent - Mr. Lehning and Mr. Zuehlke. TR 422. Mr. Zuehlke testified that he was not
aware of Complainant making any complaints to any manager or supervisor at Respondent that
he was not going to speed in order to complete his route on time. TR 397.
There is a dispute as to whether Mr. Zuehlke, the person who made the decision to
terminate Complainant, was aware of Complainant’s complaints that he would not speed in order
to complete his route on time at the time he made that decision. I observed both witnesses
testifify. Throughout his testimony, Mr. Zuehlke’s answers to questions were direct,
straightforward, and without hesitation. In contrast, Complainant (who has an Associate’s
Degree in legal studies and applied science, TR 529-30, and who, as I noted at the outset of the
hearing, had submitted quality written filings, TR 9-10), often avoided answering questions
directly and was often evasive in his answers. See, e.g., TR 417-18.
Complainant’s credibility further suffers by the fact that, when asked at his
unemployment hearing why he was terminated, he merely stated, “[w]ell, I know it wasn’t for
performance, I, I would say that, you know, I look at it, I tried to honor their demands, although I
thought once they got to the 4:30 [p.m. return time] they were being unreasonable.... But I still
attempted to honor their demands, but it was a bar that was set that I, I felt was high, too high,
but I still tried to honor their demands. I did the best I could.” RX 19 at 27. Complainant also
testified at that hearing that Respondent wouldn’t accept “anything dealing with safety” as being
an acceptable reason for delay on his route. RX 19 at 72. But nowhere in that hearing did
Complainant say that his complaints about having to speed to complete his route on time
contributed to his termination in any way. Indeed, Complainant admitted at the hearing that his
explanation for why Respondent fired him was not the same explanation he gave the
administrative law judge presiding over his unemployment hearing. TR 518, TR 518-522.
Having observed both witnesses testify, I find Mr. Zuehlke the more credible witness. I
thus find that Mr. Zuehlke did not know of Complainant’s complaints that he would not speed
for Respondent at the time he made the decision to terminate him. Accordingly, even if
Complainant’s complaints that he would not speed for Respondent constituted protected activity,
there is no causal connection between such complaints and Complainant’s termination because
the person who decided to terminate Respondent’s employment had no knowledge of such
complaints at the time he made the termination decision.
Even if Complainant’s complaints that he could not complete his route in the time alloted
(as opposed to his complaints that he would not speed for Respondent) constituted protected
activity, Complainant still has failed to establish that they contributed to the unfavorable
personnel action. The most compelling reason he has been unable to do so is this: Mr. Zuehlke
was aware, for two or three years before Complainant’s termination, that Complainant said he
could not complete his route in the time allotted. Indeed, according to Complainant’s testimony,
Respondent was aware since March 2009 that Complainant said he could not complete his route
in the time allotted without speeding. Complainant’s contributing factor argument is that
Respondent waited for years after the alleged protected activity before taking adverse action.
This argument is fatally undercut by Respondent’s response to Complainant’s statements that he
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could not complete his route in the time allotted: Respondent twice made the route shorter, first
in February 2012 and then in November 2012. TR 423; TR 240-41; CX 14; CX 19.
I asked Complainant about this directly at the hearing. Specifically, I asked
Complainant: “If Spee-Dee wanted you to run a route that could only be done by speeding and
breaking the law, why would they twice shorten your route?” TR 460. Complainant first
answered that they did so because he complained, then he stated that his issue “had never been
with the amount of zip codes” on his route (in other words, the length of his route), but rather
was with the scheduling of his pick up times at the end of the day. TR 460-61. Complainant was
unable to provide a satisfactory answer to my question asking if Respondent “was so concerned
with efficiency and getting everything done super fast to the extent that they wanted you to speed
to get your work done, if that’s the company you worked for, why would they twice curtail your
route?” TR460.
It simply does not make sense that Complainant’s complaints about being required to
speed to complete his route on time would be a factor, any factor, in his suspension and
subsequent termination when Respondent twice shortened his route to help make it possible for
him to complete his route on time. Accordingly, I find that Complainant has not established that
his alleged protected activity was a contributing factor in Respondent’s suspension and
subsequent termination of his employment.
Respondent Established that It Would Have Taken the Same Adverse Action in the
Absence of Complainant’s Complaints
Even if Complainant had established by a preponderance of the evidence that he had
engaged in protected activity under the STAA and that such protected activity was a contributing
factor in the unfavorable personnel action he suffered, he would still not prevail in this matter
because Respondent has established by clear and convincing evidence that it would have taken
the same adverse action in the absence of any such protected activity. Simply put, Respondent
has established by clear and convincing evidence that the suspension and subsequent termination
of Complainant’s employment had absolutely nothing to do with his complaints that his route
required him to speed to complete it on time and he would not speed.
I!
As noted above, Complainant’s performance reviews from before he first alleges having
complained in 2009 that he would not speed to complete his route through his termination in
2013 consistently noted problems with his completing his route on time. Until March 1,2013,
no disciplinary action had ever been taken against Complainant for consistently taking longer to
complete his route than Respondent expected. This was true despite Respondent’s belief that
Complainant was wasting time on his route. Nor has Complainant alleged that he was ever not
paid for all the time he worked. Instead, Respondent frequently counseled Complainant
regarding his late return times and tried to accommodate him by twice cutting down the size of
his route and scheduling his last pick-ups earlier.
Respondent has shown by clear and convincing evidence that it suspended and then
terminated Complainant because even with these substantial accommodations, he still did not
complete his route by the expected time. Respondent’s witnesses provided credible testimony,
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a25
supported by contemporaneous documentary evidence, regarding Complainant’s work
performance and the reason he was terminated. Respondent gave Complainant numerous
chances to improve his performance, and finally reached the point where, despite Respondent’s
reluctance to fire drivers, it could no longer tolerate his consistent inability to complete his route
on time.
Conclusion
For the above-stated reasons, I find that Complainant has failed to meet his burden under
the STAA. Although there is no dispute that Complainant suffered an unfavorable personnel
action, Complainant did not establish by a preponderance of the evidence that he engaged in
protected activity, nor did he establish by a preponderance of the evidence that any such
protected activity was a contributing factor in that unfavorable personnel action. Moreover, even
if Complainant had met his burden, Respondent established by clear and convincing evidence
that it would have taken the same unfavorable perssonel action in the absence of any such
protected activity. Accordingly, the complaint in this matter is dismissed.
ORDER
The complaint by Christopher Buie against Spee Dee Delivery Service, Inc., under the
Surface Transportation Assistance Act is DISMISSED.
SO ORDERED.
PAUL R. ALMANZA
Associate Chief 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
;
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12/18/2020
U.S.C. Title 49 - TRANSPORTATION
49 U.S.C.
a26
United States Code, 2011 Edition
Title 49 - TRANSPORTATION
SUBTITLE VI - MOTOR VEHICLE AND DRIVER PROGRAMS
PART B - COMMERCIAL
CHAPTER 311 - COMMERCIAL MOTOR VEHICLE SAFETY
SUBCHAPTER I - GENERAL AUTHORITY AND STATE GRANTS
Sec. 31105 - Employee protections
From the U.S. Government Publishing Office, www.gpo.gov
§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 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 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.
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U.S.C. Title 49 - TRANSPORTATION
(B) Not later than 30 days after the notice under subparagraph (A) of this paragraph, the all
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 backpay 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 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 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
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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.