ARB CASE NO. 04-108
ALJ CASE NO. 2002-STA-031
DATE: September 14, 2007
In the Matter of:
BEVERLY CALHOUN,
COMPLAINANT,
v.
UNITED PARCEL SERVICE,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
For the Complainant:
Paul O. Taylor, Esq., Truckers Justice Center, Burnsville, Minnesota
For
the Respondent:
Brian D. Edwards, Esq., Theresa H. Hammond, Esq., Alston & Bird LLP, Atlanta, Georgia
FINAL DECISION AND ORDER
This case arises under the employee protection provisions of the Surface Transportation Assistance Act of
1982 (STAA), as amended and recodified, 49 U.S.C.A. § 31105 (West 1997), and
its implementing regulations, 29 C.F.R. Part 1978 (2006). Beverly Calhoun
filed a complaint alleging that United Parcel Service (UPS) retaliated against
him for engaging in activities protected by the STAA. Following a hearing on
the complaint, the Administrative Law Judge (ALJ) issued a Recommended Decision
and Order (R. D. & O) in which he concluded that UPS violated the STAA.
UPS appealed the R. D. & O. to the Administrative Review Board. Following
a thorough review of the record, we conclude that Calhoun failed to prove by a
preponderance of the evidence that UPS suspended and fired him because he
engaged in protected activity. Accordingly, we
[Page 2]
reject the ALJ’s recommendation
that UPS retaliated against Calhoun in violation of the STAA and we deny
Calhoun’s complaint.
Background
This case involves a whistleblower
dispute between Calhoun, a truck driver with an excellent safety record and a
strong commitment to safe driving, and United Parcel Service, a national package
delivery company recognized by federal safety regulators for its safety program.[1]
Calhoun worked for UPS for thirty-three years from 1970 until 2003 when he
retired with full benefits.[2] UPS
publicly recognized Calhoun in 2002 for his driving record of 32 years without
an avoidable accident.[3]
Calhoun was a feeder driver at
UPS’s Greensboro hub in North Carolina. A feeder driver is a tractor-trailer
driver who delivers packages to a turnaround point, where he or she meets
another feeder driver from another facility, exchanges trailers, and returns to
his or her point of origin.[4] These
trips are very time sensitive as the large majority of customers require that
their packages be delivered overnight or in within 24 hours.
Greensboro is one of UPS’s largest hubs with approximately 225
feeder drivers. Nationwide, UPS has about 14,000 drivers.[5]
All UPS feeder drivers and managers receive extensive driver training that
includes classroom and hands-on training covering DOT regulations, vehicle
inspections, required paperwork, equipment assemblage and vehicle operation
under various conditions, and hands-on instruction regarding how to conduct a
proper pre-trip inspection of a tractor trailer as required by the Federal
Motor Carrier Safety Regulations (FMCSRs).[6] Two
experienced federal regulators testified that UPS’s pre-trip methods and
practices exceed both the prevailing practice in the industry and the
requirements of the regulations.[7]
[Page 3]
UPS has a preventive maintenance
program (exceeding federal regulations) involving thorough mechanical
inspections of each tractor (at least every 4 months) and trailers (at least
every 9 months).[8] UPS
states that it “has the highest possible safety rating from the Federal Motor
Carrier Safety Administration[9] and
experiences equipment-related failures at a rate less than half the national
average.”[10]
UPS’s industrial engineers have
evaluated and established company-wide time allowances for completion of the
pre-trip inspection.[11] UPS
does not require rigid adherence to the letter of its pre-trip methods and
practices.[12] The
start work allowance for a feeder driver assigned a pre-assembled double is
23.4 minutes and 32.4 minutes if the driver must assemble the unit.[13]
In 2001 Greensboro feeder drivers on Calhoun’s route averaged 36 minutes while
Calhoun’s average was between 100 minutes (for a preassembled double) and 109
minutes (assembling of doubles required).[14] UPS’s
concern with Calhoun’s consistent and excessive overallowed pre-trip
inspections is that Calhoun was often late to his feeder location, which
disrupted service and caused late package delivery to customers or caused other
workers to work overtime. On the average UPS paid Calhoun $5,000 per year more
than other drivers because of the extra time he took doing the pre-trip
inspections. If other UPS drivers were to follow Calhoun’s practices it would
cost the company $76 million per year as well as unhappy customers who had to
be compensated for late packages.[15]
In January 1998, UPS management reviewed its
records and concluded that a number of drivers were over-allowed for their
overall paid days.[16]
This analysis, and
[Page 4]
subsequent comparisons, identified Calhoun as the most
over-allowed feeder driver at the Greensboro hub.[17]
In response, UPS decided to work with Calhoun (and others) to help him reduce
his start times.[18]
Calhoun filed his first STAA
complaint in 1998, alleging that UPS violated the STAA when it implemented some
of its efforts to reduce his start times, which included pre-assembling Calhoun’s
trailers, requiring mechanics to pre-inspect his trailers, requiring him to attend
morning meetings, placing restrictions on his restroom breaks, and providing
him with written criticism. The ARB issued a Final Decision and Order on that
complaint in 2002 in which we affirmed the ALJ’s decision (Calhoun I).
We held that UPS’s efforts to reduce Calhoun’s start times did not constitute
adverse action under the STAA.[19]
Meanwhile, Calhoun filed a second STAA complaint on
September 29, 1999, alleging that he was subjected to adverse action for
conducting a brake test.[20]
OSHA determined that this complaint lacked merit, and Calhoun objected and
requested a hearing before an ALJ. Prior to the hearing, the parties agreed to
suspend the proceedings on that complaint pending the outcome of Calhoun’s
appeal to this Board in Calhoun I. The parties stipulated that the
ARB’s decision in Calhoun I would dispose of the issue raised in the
second complaint. After we issued Calhoun I, the ALJ issued an order
allowing the parties an additional opportunity to proceed on Calhoun’s second
complaint. Neither party responded to the order, and the ALJ issued an order
dismissing the second complaint. The ARB issued a Notice of Review and
Briefing Schedule, informing the parties that they were permitted to file
briefs in support of or in opposition to the ALJ’s order. Neither party did
so. We therefore affirmed the ALJ’s order dismissing the second complaint.[21]
The case now before us is based upon Calhoun’s third
complaint, filed on December 6, 2001,[22] in
which he contends that he engaged in STAA-protected activities on nine separate
occasions: (1) June 26, 2001; (2) June 27, 2001; (3) June 28, 2001; (4)
[Page 5]
June 29, 2001; (5) July 5, 2001; (6) July 10, 2001; (7) September 6, 2001; (8)
October 30, 2001; and (9) May 7, 2002.[23] On
each of these days, Calhoun admittedly disobeyed the instructions of his supervisors.
However, Calhoun contends that the FMCSRs, specifically 49 C.F.R. §§ 392.7 and
396.13, require him to satisfy himself that his equipment is in safe operating
condition. He argues that his “refusal to diminish his daily vehicle
inspections by eliminating those steps necessary to satisfy himself that his
equipment is in safe operating condition are protected activities pursuant to
49 U.S.C. § 31105(a)(1)(B)(i),”[24] and
that UPS retaliated against him “for his refusal to violate 49 C.F.R. §§ 392.7
and 396.13.[25]
Between 1998 and 2002, Calhoun
filed at least forty-five grievances in which he claimed UPS was interfering
with his ability to conduct his personally preferred pre-trip inspection.[26]
UPS contends that except for the grievances related to his suspensions and
termination and discussed later in this opinion, it has no record of any action
being taken in response to Calhoun’s complaints.[27]
OSHA conducted an investigation based on
Calhoun’s third complaint and concluded that UPS did not violate the STAA.[28]
Calhoun objected to OSHA’s findings and requested a hearing.[29]
The ALJ conducted a hearing on November 4-6, 2003. Both parties presented
witnesses and exhibits.
On June 2, 2004, the ALJ issued an
R. D. & O. in which he concluded that, on some of the dates specified, UPS
violated the STAA by suspending Calhoun and terminating his employment for
conducting certain components of his pre-trip inspection.[30]
The ALJ awarded Calhoun back pay and compensatory damages for emotional
distress. The ALJ also ordered UPS to post copies of the R. D. & O. “in
[Page 6]
prominent places on the premises of all UPS terminals for sixty days.”[31]
The case is now before the Board pursuant to the automatic review provisions of
49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c)(1).
Jurisdiction and Standard of Review
The Secretary of Labor has
delegated her authority to decide this matter to the Board.[32]
When reviewing STAA cases, the Board is bound by the ALJ’s factual findings if
those findings are supported by substantial evidence on the record considered
as a whole.[33] Substantial
evidence is defined as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”[34] In
reviewing the ALJ’s legal conclusions, the Board, as the Secretary’s designee,
acts with “all the powers [the Secretary] would have in making the initial
decision….”[35]
Therefore, the Board reviews the ALJ’s legal conclusions de novo.[36]
Discussion
I. Legal Standard
The STAA protects
employees who engage in certain activities from adverse employment actions. The
Act provides that an employer may not “discharge,” “discipline” or
“discriminate” against an employee-operator of a commercial motor vehicle
“regarding pay, terms, or privileges of employment” because the employee has engaged
in making a complaint “related to a violation of a commercial motor vehicle safety
regulation, standard, or order ....”[37]
[Page 7]
Protection is also
afforded under the Act where an employee “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 ….”[38]
A refusal to operate a vehicle may also be premised on an employee’s “reasonable
apprehension of serious injury to [oneself] or the public because of the vehicle’s
unsafe condition.”[39] The
STAA provides that “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 unsafe condition establishes a real danger of
accident, injury, or serious impairment to health.”[40]
To qualify for protection under the reasonable apprehension prong the employee “must
have sought from the employer, and been unable to obtain, correction of the
unsafe condition.”[41]
To prevail
on his claim, Calhoun must prove by a preponderance of the evidence that: (1) he
engaged in protected activity; (2) UPS was aware of the protected activity; (3)
UPS discharged, disciplined, or discriminated against him; and (4) the protected
activity was the reason for the adverse action.[42]
In STAA cases, the Board adopts
the burdens of proof framework developed for pretext analysis under Title VII
of the Civil Rights Act of 1964, as amended, and other discrimination laws,
such as the Age Discrimination in Employment Act.[43]
Under this burden-shifting framework, the complainant must first establish a prima
facie case of discrimination. That is, the complainant must adduce evidence
that he engaged in STAA-protected activity, that the respondent employer was
aware of this activity, and
[Page 8]
that the employer took adverse action against the
complainant because of the protected activity. Only if the complainant makes
this prima facie showing does the burden of production shift to the employer to
articulate a legitimate, non-discriminatory reason for the adverse action.
If the respondent carries this
burden, the complainant then must prove by a preponderance of the evidence that
the reasons offered by the respondent were not its true reasons but were a
pretext for discrimination.[44] At that point, the inference of
discrimination disappears, leaving the complainant to prove intentional
discrimination by a preponderance of the evidence.[45]
When the
respondent produces evidence that the complainant was subjected to adverse
action for a legitimate, nondiscriminatory reason, the rebuttable presumption
created by the complainant’s prima facie showing “drops from the case.”[46]
Thus, after a
whistleblower case has been fully tried on the merits, the ALJ does not
determine whether a prima facie showing has been established, but rather
whether the complainant has proved by a preponderance of the evidence that the
respondent discriminated because of protected activity.[47] As the Supreme Court observed in U.S.
Postal Serv. Bd. of Governors v. Aikens, “Because this case was tried on
the merits, it is surprising to find the parties and the Court of Appeals still
addressing the question whether Aikens made out a prima facie case. We
think that that by framing the issue in these terms, they have unnecessarily
evaded the ultimate question of discrimination vel non.”[48]
The Secretary
of Labor further explained in Carroll v. Bechtel Power Corp.: [49]
[Page 9]
Once the respondent has presented
his rebuttal evidence, the answer to the question whether the plaintiff
presented a prima facie case is no longer particularly useful.
“The [trier of fact] has before it all the evidence it needs to determine
whether ‘the defendant intentionally discriminated against the plaintiff.’” USPS
Bd. of Governors v. Aikens, 460 U.S. at 715 (quoting Texas
Department of Community Affairs v. Burdine, 450 U.S. at 253
(emphasis supplied)).[[50]]
Accordingly, the Board will decline to discuss an ALJ’s findings
regarding the existence of a prima facie showing in a case the ALJ has fully
tried on the merits.[51]
Calhoun has alleged that he
engaged in protected activity on nine specific days and that he suffered
various adverse actions as a result of his protected activity. UPS argues that
Calhoun did not engage in protected activity under the STAA on any of those
days and that, while UPS did take adverse actions against Calhoun, UPS had a
legitimate, nondiscriminatory reason for the adverse actions and that Calhoun
has not shown these reasons to be pretext.
Although the basis for Calhoun’s
contention that he engaged in protected activity is not entirely clear, we
agree with the ALJ’s interpretation of Calhoun’s argument i.e., that Calhoun “asserts
that failure to assure himself that his assigned commercial vehicles were in
good working order and safe operating condition before he operated them on the
highways would have resulted in actual violations of the generalized safety
regulations set out at 49 C.F.R. 392.7 and 396.13.”[52] These sections provide in pertinent part:
§ 392.7
No commercial vehicle shall be
driven unless the driver is satisfied that the following parts and
accessories are in good working order, nor shall any driver fail for use or
make use of such parts and accessories when and as needed……
[Page 10]
§ 396.13
Before driving a motor vehicle, the driver shall:
(a) Be
satisfied that the motor vehicle is in safe operating condition;
(b) Review the last driver inspection…..
Discussing each of the elements of
Calhoun’s case in turn, we begin with Calhoun’s allegations of protected
activity under the STAA.
II. Protected Activity
A. Calhoun’s general dissatisfaction with UPS’s pre-trip inspection methods does not
constitute protected activity.
Calhoun argues that he
has the responsibility under the FMCSRs to assure himself that the truck is in
safe operating condition before he drives it. He argues that he has the right
to conduct the inspection to his standards no matter how long it takes him to
do so. Calhoun testified that, although he did not know how UPS’s inspection
standards compared to the rest of the trucking industry, UPS was “probably
pretty safe.”[53] The
ALJ found that UPS’s inspection procedures were reasonable.[54]
Nevertheless, the ALJ concluded that “Calhoun’s inspections in the face of
instructions to adhere simply to the UPS inspection regimen and his
well-documented displeasure with the UPS inspection regimen constitute
protected complaints under the act.”[55] The
ALJ reached this conclusion of law by deciding that Calhoun could exceed UPS’s
inspection guidelines by invoking the FMCSRs, specifically 49 C.F.R. §§ 392.7[56]
and 396.13,[57]
which require drivers to confirm that their vehicles are in safe operating
condition. We disagree.
[Page 11]
We concur with the ALJ’s conclusion that Calhoun
may complain about the safety of his vehicle during or following inspections
pursuant to 49 C.F.R. §§ 392.7 and 396.13. However, under the complaint clause
of the STAA, Calhoun must at least be acting on a reasonable
belief regarding the existence of a safety violation.[58]
This standard requires Calhoun to prove that a person with his expertise and
knowledge would have a “reasonable belief” that UPS’s inspection methods were
in violation of the regulations and that Calhoun’s use of the UPS pre-trip
inspection methods would lead Calhoun to reasonably believe that the truck was
not in good operating order and safe to drive.
[59]
Not only is the record devoid of evidence
indicating that UPS’s pre-trip inspection methods violate the FMCSRs, there is
substantial evidence to the contrary. The record shows that the United States Department
of Transportation (DOT) conducted an inspection of the Greensboro hub’s pre-trip
inspections, at Calhoun’s insistence, and concluded that UPS allowed its
drivers to conduct thorough pre-trip inspections.[60]
The record also contains expert testimony that UPS’s pre-trip methods exceed
both industry practice and the requirements of the FMCSRs.[61]
And despite the fact that other UPS drivers testified that they sometimes
inspect components of their vehicles beyond the UPS requirements, they did not
indicate that UPS procedures were inadequate or unsafe. We therefore conclude
that while Calhoun had a general dissatisfaction with UPS’s
[Page 12]
inspection methods,
he did not hold a “reasonable belief” that the UPS methods were in violation of
the FMCSRs.
B. “Driving under protest” is not a “refusal to drive” under 49 U.S.C.A. §§ 31105 (a)(1)(B)(i)
or (ii).
On June 26, June 29, July 10, and September 6,
2001, Calhoun “drove under protest” because he was not able to conduct the pre-trip
inspection according to his own methods but was required to use the UPS
methods. On June 28, 2001, he declined to drive and UPS got another driver to
drive Calhoun’s route. He argues that he engaged in protected activity under
the STAA’s “refusal to drive” provisions on those days.
The ALJ correctly cites Zurenda
v. J & R Plumbing & Heating Co., Inc.,[62]
for the proposition that “to establish that he engaged in protected activity, Calhoun
must first show that he refused to drive his assigned vehicle.”[63]
The ALJ erred as a matter of law when he proceeded to conclude that “Calhoun’s
refusal to drive until he completed his pre-trip inspections satisfies the
requirement that he refused to drive.”[64] He
reasons “Calhoun’s refusal to drive was conditioned on completing his
inspections of his vehicle, and I find that a conditional refusal to drive
satisfies the refusal to drive” element of Calhoun’s prima facie case.”[65]
He distinguishes Zurenda and other cases but cites no legal authority
for his novel interpretation of the law.
Based on this
interpretation the ALJ concluded that Calhoun refused to drive pursuant to the
STAA on June 26, June 28, June 29, July 10, and September 6, 2001, when he
conducted pre-trip inspections that were inconsistent with UPS methods. The
ALJ identified specific components of Calhoun’s pre-trip inspection method and
examined whether it was “reasonable” for Calhoun to perform each of those
components.[66] The
ALJ next determined which pre-trip inspection steps Calhoun performed on the
dates relevant to this case. The ALJ then concluded that Calhoun engaged in
protected activity on the dates he performed “reasonable” tasks as a part of
his pre-trip inspection.[67]
[Page 13]
The ALJ erred in his interpretation
of the law. According to the plain language of 49 C.F.R. §§ 31105 (a)(B)(i or
ii) protection under this section is available if one “refuses to drive.” The
record indicates that, with the exception of June 28, 2001, Calhoun drove his
vehicle on the dates he alleges he conditionally refused to drive.[68]
Calhoun cannot seek protection under the refusal to drive clause on the days he
drove his vehicle.[69]
With respect to June 28, 2001, Calhoun conducted
his pre-trip inspection in the presence of Don Allen, his supervisor, and Randall
Williams, a UPS shop steward. Calhoun began conducting his inspection as he
had on previous occasions. Allen interrupted the inspection and told Calhoun
that he had seen no effort by Calhoun to comply with suggestions he had
received over the previous two days.[70] When
Calhoun continued his inspection he touched lug nuts, cleaned the interior of
his cab, and handled hoses in defiance of Allen’s instructions not to do so. Allen
stopped Calhoun again and asked him to step down from the cab. The ALJ found
that “Calhoun was being rebellious at this point, and Allen and Williams
accompanied him back upstairs to the office.”[71] UPS
asked Calhoun if he was going to drive his route and Calhoun said no, he was
too upset. UPS found someone else to complete his run.
Calhoun did not drive on June 28, 2001, because
he elected to take himself out of service.[72] As
we indicate above, Calhoun did not refuse to drive because to he was concerned
about an actual violation of a FMCSR or because he had a reasonable concern
about injury to himself or the public because of his vehicle’s unsafe condition.
He did not assert that either of these conditions existed on June 28, 2001. We
conclude that
[Page 14]
Calhoun did not engage in protected activity under the refusal to
drive provisions of the STAA on June 28, 2001.
C. Calhoun Engaged in Protected Activity Pursuant to the STAA’s “Complaint Clause” on June 26, June
27, July 6, 2001, and September 6, 2001, by communicating safety concerns to
UPS.
The ALJ concluded that Calhoun’s
inspections on June 26, June 28, June 29, July 10, and September 6, 2001, are
protected under the STAA’s complaint clause because “some aspects of Calhoun’s
pre-trip inspections were reasonable.”[73] We
disagree.
Internal complaints about
violations of commercial motor vehicle regulations may be oral, informal or
unofficial.[74]
However, such complaints cannot be implied. They must be communicated to a
manager or supervisor.[75]
Specific components of Calhoun’s pre-trip inspection such as touching the lug
nuts or the brake hoses, standing alone, did not convey to UPS that Calhoun was
aware of specific vehicle defects on the dates relevant to this case or that
UPS’s methods were in violation of the STAA.[76] The
employee protection provision of the STAA requires an employee to communicate
his or her concerns by either refusing to drive or initiating a complaint. We
therefore reject the ALJ’s conclusion that Calhoun’s added inspections,
standing alone, constituted complaints pursuant to the STAA.[77]
We now review the ALJ’s conclusions
as to protected activities under the complaint clause. In particular, we must
determine what the record reveals regarding Calhoun’s specific complaints to
UPS about violations of the FMCSRs.[78]
[Page 15]
1. June 26, 2001
On June 26, 2001, Calhoun had an on-the-job
supervision (OJS) ride with Allen. Before the start of the OJS, Allen observed
Calhoun conduct his pre-trip inspection. During that inspection Calhoun
touched lug nuts, belts, hoses, and engine-compartment steering components, and
he also performed an unapproved brake test. When Calhoun proceeded to wipe
down the dash, steering wheel, gear shifter and buttons inside his vehicle,
Allen told Calhoun that he was not adhering to UPS pre-trip methods.[79]
The ALJ held that Calhoun engaged in protected
activity because he manually continued to inspect components of his vehicle in
defiance of Allen’s instructions.[80] We
disagree. A driver engages in protected activity under the STAA by either
refusing to drive or making a complaint related to a violation of a commercial
motor vehicle safety regulation, standard, or order. Calhoun did not engage in
protected activity simply by inspecting his vehicle in defiance of UPS methods.
As we indicate above, complaints about violations of commercial motor vehicle
regulations may be oral, informal or unofficial, but they must be communicated
to a manager or supervisor.[81]
However, Calhoun testified that prior
to the OJS ride, he told Allen about a malfunctioning dolly latch he discovered
while attempting to build his double trailer set.[82]
The defective latch prevented Calhoun from properly assembling his trailers.
Allen allowed Calhoun to take the trailer to be checked by a mechanic.[83]
We therefore conclude that Calhoun engaged in protected activity on June 26,
2001, by complaining to Allen about a malfunctioning dolly latch.
2. June 27, 2001
Allen observed Calhoun conduct his pre-trip inspection on
June 27, 2001. He wiped off reflective strips and lights, and touched air
lines during his inspection. Allen
[Page 16]
told Calhoun not to touch air lines
but Calhoun did so anyway because he had been “finding problems” with air
lines.[84]
Calhoun increased his inspection time as compared to the previous day because
he was “exaggerating his inspections.”[85] At
the end of the OJS ride, Allen also told Calhoun that “touching hands on
everything is not necessary nor recommended.”[86]
The ALJ found that “Calhoun discovered an air
leak at the rear valve of the trailer using UPS inspection methods.[87]
Calhoun testified that he took his vehicle to the shop to have mechanics check
his dolly brakes. Additionally, the Start Work Audit generated that day
indicates that Allen was aware that Calhoun had a “breakdown on property”
involving a problem with the dolly brakes and replacement of both short lines.
We therefore conclude that Calhoun engaged in protected activity on June 27,
2001, by informing UPS about a problem with his brake system.[88]
3. June 28, 2001
As indicated above, Calhoun conducted his
inspection on June 28, 2001, by touching lug nuts, cleaning the interior of his
cab, and handling hoses in defiance of Allen’s instructions not to do so. The
ALJ found that Calhoun was being rebellious that day, and the record does not
indicate that Calhoun made a complaint related to a violation of a commercial
motor vehicle safety regulation, standard, or order. We therefore conclude
that Calhoun did not engage in STAA-protected activity on June 28, 2001.
4. June 29, 2001
The ALJ concluded that Calhoun engaged in protected
activity on June 29, 2001. He described Calhoun’s actions that day:
[Page 17]
On June 29, 2001, Allen completed
yet another work audit of Calhoun, who seemed to improve slightly in his
hand-checking of parts. However, as if to compensate for not touching things,
he spent more time on his scan (Tr. 802). Calhoun also began separating the
doubles, at which point Allen stopped him. Calhoun became belligerent and
insisted that he needed to check the coupling devices (Tr. 802-3). At the end
of his start-work routine, Allen, Calhoun, Williams and Byron Tucker met
regarding his one-day suspension. It was decided that he would be taken out of
work for his next scheduled work day (Tr. 804). Calhoun was advised that he
needed to make some changes in his start-work routine to avoid further
disciplinary action.[89]
Nothing in this description indicates that Calhoun engaged
in STAA-protected activity on June 29, 2001. Calhoun testified that he told
Allen that he “want[ed] to be left alone to check [his] equipment properly,”
but could not recall exactly what he had said because “[he] talked with him so
much by that time, [he] was getting a little bit hot.”[90]
As we have stated, Calhoun did not
automatically engage in protected activity by conducting his pre-trip inspection.
He did not inform Allen or anyone else at UPS that his vehicle was unsafe or
that Allen’s instructions were in violation of the FMCSRs. We conclude that
Calhoun has failed to prove that he engaged in protected activity on June 29,
2001.
5. July 5, 2001
Allen accompanied Calhoun during his pre-trip
inspection on July 5, 2001.[91] On
this day Calhoun also shut down the air brake system and disconnected air lines
to visually inspect the seal inside the glad hands in contravention of the UPS
inspection methods. Allen testified that Calhoun had not done this on any of
the days they had worked together.[92] Calhoun
admitted that this action exceeded UPS methods, and during the hearing he
admitted that an air leak could be audibly detected unless it was “minute or
[Page 18]
small.”[93] In
response, Allen prepared a Start Work Audit indicating that Calhoun had not
performed a proper inspection because he turned off the air brake system to inspect
the seals on the brake lines.[94]
Calhoun’s insistence on substituting his own
methods for UPS’s established methods does not constitute a complaint pursuant
to the STAA unless he expresses a reasonable and specific concern about the
safety of his vehicle or a violation of the FMCSRs. We therefore conclude that
Calhoun did not engage in protected activity on July 5, 2001.
6. July 6, 2001
Allen accompanied Calhoun during his pre-trip inspection
on July 6, 2001. Allen generated a Start Work Audit indicating that, although
Calhoun “over extended his pre-trip,” it was the “first day [he] felt [Calhoun]
showed a sense of urgency.”[95]
Before leaving the yard, Calhoun had difficulty
maintaining the air pressure in his brake system, which he contends may have
indicated a problem with a drain cable, compressor, seal ring, or spitter valve.[96]
The Start Work Audit Allen generated on that day indicates that Calhoun
experienced a “breakdown on property” because of “low air pressure.”[97]
The ALJ found that “the truck was taken to the
shop and the leak fixed.”[98] The
ALJ also found that, although the air pressure had not reached the correct
level, Allen told Calhoun to leave the yard anyway.[99]
Calhoun testified that he did not think that he had completed a proper pre-trip
inspection and felt rushed through it.[100]
[Page 19]
Calhoun contends that he “drove under protest” on July 6,
2001.[101]
Driving under protest does not constitute a refusal to drive under the STAA.
However, Calhoun complained to UPS about his vehicle’s unsafe condition by
informing Allen that he could not leave the yard due to low air pressure. We
therefore conclude that Calhoun engaged in protected activity on July 6, 2001.[102]
7. July 10, 2001
Allen observed Calhoun conduct his pre-trip
inspection on July 10, 2001. During his inspection Calhoun rubbed his hands up
and down the brake lines. He also looked under the cab door area and the rear
of the truck, and drained “all the air off the dolly,” which UPS did not
consider a necessary inspection step.[103] Allen
testified that Calhoun was “over exaggerating his inspections” and “had no sense
of urgency about running the schedule or his departure time.”[104]
Allen testified that Calhoun told him that he did not believe in the UPS
pre-trip inspection methods and would check what he deemed necessary.[105]
As we have stated, Calhoun did not
automatically engage in protected activity by conducting his inspection. He did
not inform Allen or anyone else at UPS that his vehicle was unsafe or that a
regulation was being violated. Nor do we interpret Calhoun’s opinions about
UPS methods to constitute safety complaints under the STAA. By July 10, 2001,
Allen was already aware of Calhoun’s opinion of UPS methods. His statements
that day did not convey to Allen that Calhoun was aware of a safety violation
that precluded him from driving his vehicle. We therefore conclude that
Calhoun has failed to prove that he engaged in protected activity on July 10,
2001.
[Page 20]
8. September 6, 2001
Calhoun started the day on September 6, 2001, by
meeting with Allen and Harry Wolfe, UPS’s Feeder On Road Manager. They asked
Calhoun to make an effort do reduce his start times. Calhoun testified that he
told them that he could not commit to following UPS’s methods.[106]
Allen observed Calhoun conduct his pre-trip inspection
on September 6, 2001. During the inspection Calhoun inspected components of
his vehicle in contravention of UPS guidelines and Allen’s previous
instructions.[107] Calhoun
also performed brake tests on his vehicle pursuant to UPS guidelines. Calhoun testified
that he informed Allen that he needed to have the dolly brake checked at the
UPS shop because it did not “look right,” and that Allen told him “the brake
test felt okay” and he needed to “move on and go.” [108]
Calhoun drove to Carnesville, Georgia, where a UPS vendor in Carnesville
adjusted the brake.[109] On
September 11, 2001, UPS issued a letter to Calhoun indicating that it intended
to terminate his employment for failing to “use proper UPS pre-trip methods.” [110]
Calhoun’s request to have the dolly brake checked could be
construed as a complaint that his truck could not be driven. We distinguish
this statement from Calhoun’s general complaints about the adequacy of UPS’s
inspection methods because he was complaining about an actual defect in the
vehicle he was assigned to drive. We therefore conclude that Calhoun engaged
in protected activity on September 6, 2001, when he complained about the
condition of his vehicle.
9. October 30, 2001, and May 7, 2002
UPS mechanics assembled some drivers’
double-trailer sets to reduce their paid days. Calhoun I, slip op at
6-7. On October 30, 2001, Calhoun was assigned a preassembled trailer but
pulled his “trailers apart to check the dolly and put them back together after
finding nothing wrong with them.”[111] In
response, UPS initiated a second
[Page 21]
termination of Calhoun’s employment. On May
7, 2002, Calhoun again pulled his trailers apart “even though he had no
specific reason for doing so.[112] In
response, UPS issued Calhoun’s third employment termination.
Calhoun’s actions in separating
his doubles were not complaints related to motor vehicle safety. Unlike the
circumstances on June 26, 2001, (when his doubles could not be coupled because
of the malfunctioning dolly latch), Calhoun had no reason to believe that his
trailers had not been properly assembled.
We conclude that Calhoun has proven that he
engaged in protected activity on June 26, June 27, July 6, and September 6,
2001. Next we determine whether UPS disciplined, discharged, or discriminated
against Calhoun in retaliation for his activities on those days.
III. Adverse Action
1. UPS did not
subject Calhoun to adverse action by supervising his pre-trip inspections.
In his complaint, Calhoun alleges that UPS
retaliated against him by conducting “excessive supervision” because of “his
refusal to violate 49 C.F.R. §§ 392.3 and 396.13.”[113]
We disagree. As we note above, Calhoun’s interpretation of his rights pursuant
to the FMCSRs is unreasonable. The attention and instruction he received from
UPS did not constitute discrimination with regard to his pay, terms, or
privileges of employment because UPS took legitimate actions designed to reduce
the amount of time Calhoun was spending on his pre-trip inspection. We therefore
conclude that UPS did not subject Calhoun to adverse action by supervising his
pre-trip inspections.
2. Other Adverse Action
In his complaint Calhoun contends
that UPS retaliated against him by issuing warnings, suspensions, or discharges
on (1) July 2, 2001, for engaging in protected activity on June 26, 2001; (2)
July 2, 2001, for engaging in protected activity on June 28, 2001; (3) July 18,
2001, for engaging in protected activity on July 10, 2001; (4) September 11,
2001, for engaging in protected activity “on September 7, and previous
occasions;” and on (5) October 31, 2001.[114]
[Page 22]
The record indicates that UPS
subjected Calhoun to adverse actions on June 28, 2001 (warning and suspension),
July 10, 2001 (three-day suspension), September 6, 2001 (termination), October
30, 2001 (termination), and May 7, 2002 (termination).[115]
However, the record does not support either Calhoun’s contention or the ALJ’s
finding that UPS subjected Calhoun to adverse employment actions on any other
dates.
The ALJ held, citing pages 118-20 of the
transcript, that UPS subjected Calhoun to adverse action on June 26, 2001.[116]
These pages do not support the ALJ’s finding, as they contain testimony
describing events that transpired on June 28, 2001. Calhoun’s complaint does
not allege that UPS subjected him to adverse action on June 26, 2001, and there
is no other evidence supporting the ALJ’s finding. We therefore conclude that
the ALJ’s finding is not supported by substantial evidence, and Calhoun has not
proven that UPS subjected him to adverse action on June 26, 2001.
We concur with the ALJ’s finding that Calhoun
presented no evidence that UPS subjected him to adverse action on June 27,
2001.[117]
However, the ALJ erred in finding that “[o]n June 29, 2001, Calhoun was taken
out of work for the next day.”[118] The
record does not indicate that Calhoun suffered adverse action on June 29 or 30,
2001, or that any of Calhoun’s suspensions or terminations were in retaliation
for Calhoun’s activities on June 29, 2001.[119] Noteworthy
is the fact that, in the portion of the R. D. & O. awarding damages, the
ALJ does not order UPS to reimburse Calhoun for any lost pay on either June 29
or June 30, 2001.
We also conclude that there is no evidence in
the record that UPS disciplined Calhoun for complaining about the air pressure
in his brake system on July 6, 2001,[120] or
that Calhoun was subjected to any adverse employment action for his actions on
June 27,
[Page 23]
2001.[121]
The record does not indicate that Calhoun was disciplined for informing Allen
of the malfunctioning dolly latch on June 26, 2001.
Finally, we agree with the ALJ’s conclusion that
UPS did not subject Calhoun to adverse action on July 5, 2001, by monitoring
his pre-trip inspection and generating a start-work audit memorializing
Calhoun’s inspection efforts.[122] We
therefore conclude that UPS subjected Calhoun to adverse action on June 28,
July 10, September 6, and October 30, 2001, and May 7, 2002.[123]
IV. UPS articulated a legitimate nondiscriminatory reason for taking progressive
disciplinary action against Calhoun.
UPS argues it warned and suspended
Calhoun and terminated his employment because he refused to follow instructions
and otherwise cooperate with UPS’s legitimate efforts to reduce his excessive
start-work times. Specifically, it took disciplinary action because of
Calhoun’s extremely poor performance causing frequent serious and costly
business problems, his failure to follow instructions designed to prevent
problems from occurring,[124] and
his failure to cooperate in any way with efforts to reduce his start work
times.[125] We
conclude that this is an articulation of a legitimate, nondiscriminatory reason
for the adverse actions, and that the burden therefore is on Calhoun to prove
that this reason is pretext, and that the real reason for the adverse action is
retaliation for engaging in protected activity.
[Page 24]
V. Calhoun
did not prove by a preponderance of the evidence that the UPS’s legitimate non
discriminatory reasons were pretext.
The record reflects that UPS has
been working with Calhoun since the mid-1990’s to attempt to reduce his
start-times. In 1998, Calhoun was the most “overallowed” driver at the Greensboro hub with respect to his start times. Calhoun testified that UPS had many
conversations with him and that he essentially ignored UPS’s instructions. He
testified that he basically did nothing to reduce his overallowances. UPS
began working with Calhoun again in 2001. Again, Calhoun essentially did
nothing to improve. He was belligerent, disrespectful and verbally abusive to
his supervisors and refused to follow Allen’s instructions i.e., UPS’s
pre-trip inspections methods. Calhoun, himself, described the UPS methods in
his testimony as “probably pretty safe. And, using these methods for pre-trip
inspections, UPS trucks are placed “out of service” by federal and state
enforcers at a rate that is one-half the rate of other trucks on the highways.
UPS presented testimony that the
costs to the company were potentially enormous. If all drivers at UPS decided
to take Calhoun’s approach to pre-trip inspections, it would cost the company
$76 million per year in wages and loss of business and reputation due to the
inability to get packages delivered to customers in the 24 hours promised. The
package delivery business is very time sensitive.
Calhoun made clear that he
preferred his own pre-trip inspection methods to those developed by experienced
motor carrier safety professionals within UPS. Calhoun called the DOT and
requested an inspection focusing on UPS’s pre-trip inspections. DOT conducted
an inspection of three drivers conducting pre-trip inspection at the Greensboro hub and stated that all drivers checked the necessary components and that the
inspections took from 35 to 55 minutes. All drivers felt they had enough time
to conduct the pre-trip inspection. The investigation revealed that drivers
conducted quality pre-trip inspections, the investigator found no defects, and
the investigator was confident that these were typical of the pre-trip
inspections conducted at the Greensboro hub.[126]
Calhoun filed 45 grievances under the UPS union
contract. Only the grievance relating to Calhoun’s 2001-2002 suspensions and
terminations resulted in any action. The joint labor-management grievance
panel rendered the following decision:
This discharge is reduced to a 20
day suspension in order for the Grievant to recognize the seriousness of his
actions and to bring about a change in his behavior. In the future, the
Grievant is instructed to follow all his Supervisor’s instructions, Company
methods and procedures in the
[Page 25]
performance of his daily job responsibilities.
This is a final warning. This decision set no precedent.[127]
Calhoun’s sole argument is that under the FMCSRs,
he has the unlimited right to conduct a pre-trip inspection to his own
specifications, to take as much time as he feels is necessary to convince
himself that the truck is safe and to ignore the pre-trip inspection procedures
mandated by UPS. This is not a reasonable interpretation. The ARB rejected
this argument in Calhoun I stating “[t]here was a legitimate,
nondiscriminatory reason proffered by UPS for initiating its action and Calhoun
has not shown that this was pretext for discrimination.”[128]
UPS argues that the motive for its actions in 2001-2002 are the same as it
motivations for disciplinary actions taken earlier and litigated in Calhoun I.[129]
We agree.
There is overwhelming evidence in the record
that UPS warned and suspended Calhoun and terminated his employment because he
would not follow UPS’s instructions or pre-trip inspection methods, would not
take steps to reduce his start work times and would not cooperate with his
supervisors. There is essentially nothing in the record and no solid legal
analysis to support Calhoun’s claim that UPS disciplinary actions were in
retaliation for his protected activity. We therefore conclude that UPS’s
legitimate, nondiscriminatory reasons for taking disciplinary actions against
Calhoun were not pretext. Because Calhoun has not proven that UPS retaliated
against him for engaging in protected activity, we conclude that the ALJ’s
decision must be reversed and Calhoun’s complaint denied.
Conclusion
Calhoun has failed to prove by a preponderance
of the evidence that UPS either suspended or terminated his employment because
he engaged in activities protected by the STAA, and we DENY his
complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[1] See e.g., Joint Exhibit (JX) 24, 31; Transcript (Tr.)
1009-1011.
[2] See Calhoun v. United Parcel Serv., ARB No. 00-026,
ALJ No. 1999-STA-007, slip op. at 1 (ARB Nov. 27, 2002) (Calhoun I); see
also UPS’s Post Hearing Brief at 38.
[3] Calhoun I, slip op. at 3.
[4] Id., slip op. at
1-2.
[5] Tr. 614, 662.
[6] See Calhoun I, slip op. at 6-7 (discussing 49
C.F.R. §§ 392.7 and 396.13, which require drivers to satisfy themselves that
their vehicles are in safe operating condition.).
[7] Tr. 966, 1006-09.
[8] Tr. 499-505.
[9] Respondent’s Exhibit (RX) 1.
[10] UPS’s Post Hearing Brief at 1; see e.g.,
Tr. at 1009-0012, 1046.
[11] Tr. 619-21.
[12] UPS’s Appellate Brief (Respondent’s Brief),
Exhibit A at 12.
[13] Tr. 627-28.
[14] JX 80-81, Tr. 904-906.
[15] Id. at 24-25.
[16] JX 80; Calhoun I, slip op. at 2. A
driver is “over-allowed” when he or she exceeds time allowances, thereby
increasing his or her paid day. A “paid day” is the actual pay a driver earns on
a particular day. Id.
[17] See, e.g., JX 81.
[18] Calhoun I, slip op.
at 6.
[19] Id., slip op. at
11.
[20] JX 8.
[21] See Calhoun v. United Parcel Serv.,
ARB No. 03-080, ALJ No. 2000-STA-016 (ARB Apr. 29, 2004).
[22] JX 11.
[23] R. D. & O. at 36-43; JX 11 at 2-6.
[24] JX 11 at 3.
[25] Id. at 8. The reference to 49
C.F.R. §§ 392.3 on this page appears to be a typographical error.
[26] JX 32-33.
[27] UPS’s Post Hearing Brief at 21.
[28] JX 14.
[29] JX 15.
[30] R. D. & O. at 37, 39-42.
[31] Id. at 47.
[32] 49 U.S.C.A. §
31105(b)(2)(C); see Secretary’s Order 1-2002, 67 Fed. Reg. 64,272 (Oct.
17, 2002); 29 C.F.R. § 1978.109(c).
[33] 29 C.F.R. §
1978.109(c)(3); BSP Trans, Inc. v. U.S. Dep’t of Labor, 160 F.3d 38, 46
(1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41,
44 (2d Cir. 1995).
[34] Clean Harbors Envtl.
Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson
v. Perales, 402 U.S. 389, 401 (1971)).
[35] 5 U.S.C.A. § 557(b) (West 1996).
[36] Id.; see Roadway
Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
[37] 49 U.S.C.A. § 31105(a)(1)(A).
[38] 49 U.S.C.A. § 31105(a)(1)(B)(i).
[39] 49 U.S.C.A. § 31105(a)(1)(B)(ii).
[40] 49 U.S.C.A. § 31105(a)(2).
[41] Id.
[42] BSP Trans, Inc., 160 F.3d at 45 (1st
Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th
Cir. 1994); Eash v. Roadway Express, ARB No. 04-036, ALJ No. 1998-STA-028,
slip op. at 5 (ARB Sept. 30, 2005); Densieski v. La Corte Farm Equip.,
ARB No. 03-145, ALJ No. 2003-STA-030, slip op. at 4 (ARB Oct. 20, 2004).
[43] Feltner v. Century
Trucking, Ltd., ARB No. 03-118, ALJ Nos. 03-STA-001, 03-STA-002, slip op.
at 4-5 (ARB Oct. 27, 2004); Densienski, slip op. at 4. See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 513 (1993); Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Poll v. R.J. Vyhnalek
Trucking, ARB No. 99-110, ALJ No. 96-STA-035, slip op. at 5-6 (ARB June 28,
2002).
[44] Calhoun I, slip op. at 5.
[45] Schlagel v. Dow Corning Corp., ARB
No. 02-092, ALJ No. 2001-CER-001, slip op. at 6 n.1 (ARB Apr. 30,
2004); Jenkins, slip op. at 18. Cf. Reeves, 530 U.S. at 143; McDonnell Douglas Corp., 411 U.S. at 802.
[46] Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. at 255 n.10.
[47] Schlagel, slip op.
at 6 n.1; Schwartz v. Young’s Commercial Transfer, Inc., ARB No.
02-122, ALJ No. 01-STA-033, slip op. at 9 n.9 (ARB Oct. 31, 2003), Kester v.
Carolina Power & Light Co., ARB No. 02-007, ALJ No. 00-ERA-031, slip
op. at 6 n.12 (ARB Sept. 30, 2003), Simpkins v. Rondy Co., Inc., ARB No.
02-097, ALJ No. 2001-STA-059, slip op. at 3 (ARB Sept. 24, 2003), Johnson v.
Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-005, slip op. at
7-8 n.11 (ARB Mar. 29, 2000).
[48] 460 U.S. 711, 713-714 (1983)(footnote
omitted).
[49] No. 91-ERA-046 (Sec’y Feb. 15, 1995).
[50] Id., slip op. at 11.
[51] Andreae v. Dry Ice,
Inc., ARB No. 97-087, ALJ No. 95-STA-024, slip op. at 2 (ARB July 17,
1997).
[52] R. D. & O. at 26.
[53] Tr. 293-94.
[54] R. D. & O. at 35.
[55] Id. at 44.
[56] 49 C.F.R. § 392.7 provides that:
No commercial motor vehicle shall be driven unless
the driver is satisfied that the following parts and accessories are in good
working order, nor shall any driver fail to use or make use of such parts and
accessories when and as needed:
Service brakes, including trailer brake
connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.
[57] 49 C.F.R. § 396.13 provides that “[b]efore
driving a motor vehicle, the driver shall: (a) Be satisfied that the motor
vehicle is in safe operating condition ....”
[58] Leach v. Basin Western,
Inc., ARB No. 02-089, ALJ No. 02-STA-005, slip op. at 3 (ARB July 31,
2003).
[59] See, e.g., Welch v. Cardinal Bankshares
Corp., ARB No. 05-064, ALJ No. 2003-SOX-15, slip op. at 10 (ARB May 31,
2007) (under Sarbanes-Oxley Act of 2002); Gallina v. Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., 123 Fed.Appx. 558, 564, (4th Cir. 2005) (Niemeyer,
J., dissenting) (Under Title VII, “reasonable belief” under the “protected activity”
test contains both a subjective and an objective component.).
[60] JX 24.
[61] Tr. 966, 1008-09, 1027-28.
[62] ARB No. 98-088, ALJ No. 97-STA-016 (ARB
June 12, 1998).
[63] R. D. & O. at 23.
[64] Id.
[65] Id.
[66] R. D. & O. at 29-35.
[67] Id. at 36-44.
[68] See, e.g., JX 33 at D-000553, 565,
572, 583, 593; JX 47; JX 54 at D-000586.
[69] See, e.g., Zurenda, slip op. at 5
(“Although Zurenda alleged that he complained about the condition of the trucks
he was to drive on these dates, and ‘refused’ to drive them, in fact he did
drive the trucks in question,” and therefore, his case “more appropriately
[fell] within the complaint provision of the STAA.”). The ALJ attempts to
distinguish Zurenda by concluding that Calhoun’s inspections constituted
“conditional” refusals to drive. As we indicate above, neither the language of
the STAA nor the applicable case law recognize conditional or implied refusals
to drive.
[70] R. D. & O. at 38, citing Tr. 799.
[71] Id.
[72] See JX 46 at D-000548 (Allen notes
attached to June 28, 2001 Start Work Audit) (“Randall asked if we could get
someone else to run Beverly’s run because Beverly was too upset to continue
working. I asked Beverly if he felt ok to continue or is it time he wanted to
take himself ‘out of service.’ He replied saying he was too stressed out and
upset to continue. I said ok I’ll get someone else to run your run.”).
[73] R. D. & O. at 44.
[74] See, e.g., Harrison v. Roadway Express,
Inc., ARB No. 00-048, ALJ No. 1999-STA-037, slip op. at 6 (ARB Dec. 31,
2002).
[75] Id.
[76] Although we disagree with his conclusion
that Calhoun refused to drive, the ALJ found that “Calhoun has not established
that, at the times he refused to drive, there were any indications that his
assigned vehicles were unsafe.” R. D. & O. at 25.
[77] We also reject the ALJ’s assertion that
“Calhoun’s inspections in the face of instructions to adhere simply to the UPS
inspection regimen and his well-documented displeasure with the UPS inspection
regimen constitute protected complaints under the act.” R. D. & O. at 44.
[78] This case was litigated prior to the
enactment of amendments to the STAA redefining the scope of protected
activity. See Implementing Recommendations of the 9/11 Commission Act
of 2007, Pub. L. No. 110-053 (2007).
[79] R. D. & O at 36; Tr. 89, 112, 123-24.
[80] R. D. & O. at 36 (“Manually inspecting
lug nuts, belts, hoses, and steering components are protected activities. Manual
inspection of brake lines is also protected activity. Calhoun has established
that he performed all of these activities on June 26, 2001.”).
[81] Id.
[82] Tr. 90-93.
[83] Id. at 94.
[84] Id. at 112.
[85] R. D. & O. at 38,
citing Tr. 795-6.
[86] Tr. 117; JX 45 at D-000543. The ALJ
incorrectly cites to Calhoun’s testimony at page 117 of the Transcript and the
discussion of JX 45 as relevant to June 26, 2001. See R. D. & O. at
36.
[87] R. D. & O. at 38.
[88] The ALJ held, citing page
131 of the transcript, that on June 27, 2001, Calhoun “asked Allen to be left
alone during his inspection because he wanted to check the air lines and
because the truck is his responsibility from the moment he picks up the keys in
the morning until he turns them in at night.” R. D. & O. at 38. Page 131
of the transcript contains Calhoun’s descript of what he told Allen on June 29,
2001. See Tr. 131.
[89] R. D. & O. at 39.
[90] Tr. 131-32.
[91] Id. at 133. Calhoun also took
twelve minutes to inspect his tractor, more than double the time allotted by
UPS. Tr. at 807-09; JX 49.
[92] Tr. 806.
[93] Id. at 139.
[94] JX 49.
[95] JX 50 at D-000567.
[96] Tr. 143.
[97] JX 50 at D-000566. In the
section titled “Proper Pre-Trip,” Allen wrote “good effort demonstrated,
checked all items, still taking longer on [illegible] inspection than he
should.” Id.
[98] R. D. & O. at 40.
[99] Id., citing Tr. 514-5 (Testimony of
Thomas Hope, another UPS driver).
[100] R. D. & O. at 9, citing
Tr. 532-36 (Testimony of Hope). During the hearing, Calhoun confirmed that on
July 6, 2001, he “probably” stated the following to one of his shop stewards: “I’m
checking my equipment, I don’t give a shit what they say. As quick as we get
done with this bullshit, I’m going right back to checking my equipment.” Tr.
383.
[101] JX 33 at D-000568 (“I have left again this
morning not satisfied with my equipment.”).
[102] In concluding that Calhoun engaged in
protected activity on July 6, 2001, the ALJ erred by concluding that Calhoun
refused to drive by complaining about the brake system. R. D. & O. at 40.
Because Calhoun drove his vehicle on July 6, he did not refuse to drive.
[103] Tr. 801.
[104] Id. at 811.
[105] Id. at. 821 (“he had made some
statements that he did not believe in UPS methods and he was going to look at
it regardless what we told him and he was going to do it his way and to satisfy
himself”).
[106] Id. at 389.
[107] JX 54.
[108] Tr. 158-59.
[109] Id. at 162-63, 165.
[110] JX 56. The reference to September 7, 2001,
in the letter instead of September 6, 2001, is a typographical error. Tr.
169-70.
[111] R. D. & O. at 43.
[112] Id.
[113] JX 11 at 8.
[114] JX 11 at 7-8.
[115] JX 44-58, 66.
[116] R. D. & O. at 37.
[117] Id. at 38; see also
Complainant’s Brief Partially in Support of, and Partially in Opposition to,
the Recommended Decision and Order (Complainant’s Brief) at 23-24.
[118] R. D. & O. at 40.
[119] See Complainant’s Reply Brief at 9,
citing Tr. 194, JX-34, and JX-42.
[120] In discussing the events of July 5 and 6,
2001, the ALJ found that UPS did not subject Calhoun to adverse actions on July
5, 2001, and he says nothing about July 6, 2001. At the end of the R. D. &
O., the ALJ states, without explanation, that Calhoun is entitled to damages
for a July 6, 2001 suspension. R. D. & O. at 47.
[121] Id. at 38.
[122] R. D. & O. at 40-41,
citing Calhoun I. In Calhoun I we held that, although documents
such as the start work audits “contain negative comments regarding Calhoun’s
job performance, the purpose of the documentation was to record that training
or instruction took place or to serve management as a tool; these documents do
not provide the basis for subsequent employment decisions with respect to
discipline, compensation, or job assignments.” Calhoun I, slip op. at
9.
[123] We concur with the ALJ’s
conclusion that UPS did not violate the STAA by disciplining Calhoun on October
30, 2001, and May 7, 2002, for separating double trailers that had been
pre-assembled for him because separating his doubles did not constitute
protected activity. R. D. & O. at 43.
[124] Tr. 173-175, 192-193, 390-91, 679-87,
822-24; JX 58, 65-66.
[125] Tr. 375, 390, 818-19, 823; JX 84 at
113-115,182-183.
[126] Tr. 317-19, 898-900, JX 24.
[127] JX 35.
[128] Calhoun I at 12.
[129] UPS’s Post Hearing Brief at 68
