[Page 14]
Conclusion
The ALJ's findings of fact are supported by substantial evidence and his legal analysis correctly applied the STAA. Therefore, we AFFIRM the ALJ's determination that Bethea was not subjected to discrimination in violation of the STAA. Accordingly, we DENY Bethea's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 See 49 U.S.C.A. § 31105(a) (West 1997). Regulations implementing the STAA are found at 29 C.F.R. Part 1978 (2007). The STAA has been amended since Bethea filed his complaint. See Implementing Recommendations of the 9/11 Commission Act of 2007, P.L. 110-53, 121 Stat. 266 (Aug. 3, 2007). It is unnecessary for us to determine whether the amendments apply to Bethea's complaint because they are not implicated by the issues presented and thus, even if the amendments were applicable to this complaint, they would not affect our decision.
2 See 29 C.F.R. § 1978.109(c)(1).
3 See ALJ's February 21, 2007 Recommended Decision and Order (R. D. & O.) at 5-6; Hearing Transcript (Tr.) at 186, 190, 196-97. Bethea testified that Wallace Trucking pressured him to violate the hours of service regulation, an allegation which he stated that the daily logs support. When the ALJ asked about specific complaints that Bethea made to Wallace Trucking, Bethea identified being forced to drive on Good Friday. See Tr. at 35-39, 43-45.
4 See R. D. & O. at 14; Tr. at 135-36.
5 See Tr. at 47, 190, 201-02, 204-05.
6 Bethea's log indicates that on July 22, 2005, he came on duty at 10:00 a.m. and drove to Etowah, Tennessee where he was detained from 11:00 to 3:00 p.m. See R. D. & O. at 16; RX-1 (Respondent's Exhibits) (Daily Logs for Bethea). In a handwritten note dated January 12, 2006, Bethea wrote to a state investigator "7-22-05 I was dispatched at 10 AM." See R. D. & O. at 23; RX-5 (N.C. DOL Investigation Filings) at C-1.
7 See R. D. & O. at 5; Tr. at 191, 196, 201-02, 204-05. Bethea's allegation of falsification counters Bethea's own testimony. Bethea testified that he never violated the hours of service rules, but was asked to violate the rules. See Tr. at 189-90, 202; R. D. & O. at 23.
8 See R. D. & O. at 14; Tr. at 136, 198, 201-02, 204-05. Wallace Trucking also submitted affidavits from Bud Baldwin and Toni Baldwin stating that they had never directed Bethea to violate the hours of service regulation. See RX-7, 8 (affidavits from Wallace Trucking).
9 See CX-9 (Complainant's Exhibits) (Transcript State Employment Appeal) at 5-6; R. D. & O. at 6; Tr. at 46.
10 Tr. at 46; R. D. & O. at 6.
11 See CX-9 (Transcript State Employment Appeal) at 7.
12 CX-9 (Transcript State Employment Appeal) at 3.
13 See CX-9 (Transcript State Employment Appeal) at 5.
14 See R. D. & O. at 6-7; Tr. at 46, 47.
15 See Tr. at 124; R. D. & O. at 6.
16 See R. D. & O. at 6, 15; Tr. at 126.
17 RX-1 (Bethea's Daily Logs); R. D. & O. at 16-17. Bethea also submitted an unsigned inspection report as CX-3 which does not contain the check mark next to the box. The ALJ found this to be an altered original. The original submitted to Wallace Trucking is signed and contains a check in the box indicating no safety hazard. See R. D. & O. at 8.
18 See R. D. & O. at 15; Tr. at 143-44.
19 See R. D. & O. at 7; Tr. at 126-27. The Respondent concedes that a little over a month later there was a fuel leak on Bethea's truck and the tank was replaced. See R. D. & O. at 15; Tr. at 67, 150.
20 See R. D. & O. at 15; Tr. at 145.
21 See R. D. & O. at 15-16; Tr. at 146. While there is some question as to when and exactly what was known about Bethea's condition, the record indicates that Wallace was informed on August 4, 2005, that Bethea's condition was not work-related. See R. D. & O. at 16; RX-5 (N.C. DOL Investigation Filings) at 10, 13; CX-9 (Transcript State Employment Appeal) at 7-8.
22 See R. D. & O. at 15; Tr. at 148, 173, 174; RX-5 (Wallace's Response to Bethea's N.C. DOL filing dated Jan. 10, 2006).
23 See 29 C.F.R. § 1978.109(c)(1).
24 See Secretary's Order No. 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. § 1978.109(a).
25 See 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).
26 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)).
27 5 U.S.C.A. § 557(b) (West 2007).
28 See id.; Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).
29 A person may not retaliate against an employee because:
(A) 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 regulation, standard, or order, or has testified or will testify in such a proceeding; or
(B) the employee refuses to operate a vehicle because –
(i) the operation violates a regulation, standard, or order of the United States related to the commercial motor vehicle safety or health; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.
(2) Under paragraph (1)(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 unsafe 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 unsafe condition.
49 U.S.C.A. § 31105(a) (2005).
30 See BSP Trans, Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Clean Harbors Envt'l. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transp. Drivers, Inc., 836 F.2d 226, 228 (6th Cir. 1987).
31 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993).
32 See Feltner v. Century Trucking, Ltd., ARB No. 03-118, ALJ Nos. 2003-STA-001, 2003-STA-002, slip op. at 4-5 (ARB Oct. 27, 2004); Densieski v. La Corte Farm Equip., ARB No. 03-145, ALJ No. 2003-STA-030, slip op. at 4 (ARB Oct. 20, 2004). See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-43 (2000); St. Mary's Honor Ctr., 509 U.S. at 513; 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).
33 See Calhoun v. United Parcel Serv., ARB No. 00-026, ALJ No. 1999-STA-007, slip op. at 4 (ARB Nov. 27, 2002).
34 See St. Mary's Honor Ctr., 509 U.S. at 507; Densieski, slip op. at 4-5.
35 See R. D. & O. at 22.
36 See R. D. & O. at 6 n.7; Tr. at 46, 128, 130.
37 See CX-3 (Bethea's Altered Inspection Report for 22nd).
38 See R. D. & O. at 6, 15; Tr. at 126.
39 See CX-9 (Transcript State Employment Appeal) at 5.
40 See Tr. at 189-90, 201-02, 204-05.
41 See R. D. & O. at 23; RX-5 (N.C. DOL Investigation Filings) at C-1.
42 Both Bethea and Wallace discuss pre-July 2005 scheduling conflicts as part of the controversy surrounding Bethea's termination. We conclude that several pre-July concerns Bethea raised are not protected activity covered by STAA. STAA does not protect voicing concerns about scheduling, which does not implicate hours of service rules, or not receiving reimbursement for a part. See 49 U.S.C.A. § 31105.
43 Calhoun v. United Parcel Serv., ARB No. 04-108, ALJ No. 2002-STA-031, slip op. at 11 (ARB Sept. 14, 2007); Leach v. Basin W., Inc., ARB No. 02-089, ALJ No.2002-STA-005, slip op. at 3 (ARB July 31, 2003).
44 See R. D. & O. at 20-23. The ALJ concluded that Bethea's accusations of pressure to falsify were raised for the first time late in the hearing but were within his original complaint and accordingly allowed the amendment to Bethea's complaint. See R. D. & O. at 2 n.3; 29 C.F.R. 18.5(e). The ALJ found that Bethea's post-hearing complaints about refusing to work, however, were not within his original complaint. See R. D. & O. at 3 n.5. The original complaint asserted that Bethea's protected activity was raising concerns about hours of service violations, the fuel leak and filing a workers' compensation claim. See R. D. & O. at 3 n.5; CX-7 (Bethea's Documents accompanying his Jan. 9, 2006 OSHA Complaint). The Board has held that a claim for refusing to work under STAA does not relate back to a claim under the complaint prong of STAA. See Roberts v. Marshall Durbin Co., ARB No. 03-071, 03-095, ALJ No.2002-STA-035, slip op. 9-10 (ARB Aug. 6, 2004); 29 C.F.R. § 18.5(e). Thus, the ALJ found the claims of retaliation for refusing to work untimely. Nonetheless, the ALJ went on to comment that had he found the complaints timely, he would not find the Complainant's testimony credible and thus would not have found protected activity. See R. D. & O. at 3-4 n.5. The ALJ concluded that Bethea did not prove that picking up the backhaul would have violated the law or that he reasonably believed would have constituted a safety hazard to him or others. We concur with the ALJ's legal conclusion that Bethea's late refusal to work claim is untimely.
45 In his brief, Bethea argues that the ALJ erred in not finding protected activity and retaliation. Bethea argues that the ALJ should have accepted the state DOL's conclusion that protected activity had been proven. As the ALJ noted, the state determination was under a state statute, which may indeed protect filing workers' compensation claims. See R. D. & O. at 13. STAA, however, does not.
46 49 C.F.R. § 395.3 (2005) (as amended 68 Fed. Reg. 22,516, Apr. 28, 2003).
47 R. D. & O. at 20.
48 49 U.S.C.A. § 31105(a)(1)(A).
49 49 C.F.R. § 395.3 (2005) (as amended 68 Fed. Reg. 22,516, Apr. 28, 2003). Wallace Trucking submitted the daily logs from August 2004 to August 2005. RX-6 (daily logs). The ALJ noted that there were a few instances where Bethea's logs appear to show that he drove more than 11 hours or was on duty more than 14 hours in violation of the hours rules. The ALJ found that there were a "number of discrepancies and errors in the logs . . . [and he] cannot actually determine if in fact any violations occurred." R. D. & O. at 14 n.13.
50 See R. D. & O. at 21; Tr. at 42-43.
51 See R. D. & O. at 16; RX 1 (Bethea's Daily Logs). If Bethea had accumulated approximately 40 hours on July 22nd, it is difficult to see how he could have had a reasonable belief that Baldwin's request would put him over either the 60 or 70 hour cap. See Tr. at 113-21. The ALJ did not credit Bethea's assertion that he began work at 6:00 a.m. on the 22nd.
52 See R. D. & O. at 21.
53 See R. D. & O. at 22; Tr. at 75, 200. In fact, elsewhere Bethea complained about the frequent layovers as potential adverse actions, and this tends to work against his later claim that he believed Wallace Trucking frequently pressured him to violate hours of service rules. See Tr. at 91, 93. Bethea was familiar with the layover procedure when he got afternoon assignments, and thus, as the ALJ found, would not have had a reasonable apprehension of Wallace Trucking pressuring Bethea to violate the hours of service regulation with afternoon assignments.
54 See R. D. & O. at 22.
55 See R. D. & O. at 22-23.
56 See R. D. & O. at 22-23. We note that the ALJ, in reaching this finding, observed that the tank was in fact replaced a little over a month later. See R. D. & O. at 15. The OSHA findings indicate that before the tank was replaced other drivers drove the truck without complaint. See Mar. 31, 2006 OSHA findings at 2-3.
57 See R. D. & O. at 23; Tr. at 190-91, 201-04.
58 See R. D. & O. at 23; Tr. at 190, 201-02, 204-05. Bethea also testified that he never violated the hours of service regulation, but was asked to violate the rules. See Tr. at 190.
59 See R. D. & O. at 23.
60 See 49 U.S.C.A. § 31105(a)(1)(A).
61 See Clemmons v. Ameristar Airways, Inc., ARB Nos. 05-048, 05-096, ALJ No. 2004-AIR-011, slip op. at 7 (ARB June 29, 2007). The ALJ concluded that Bethea's complaints of adverse actions occurring before July 13, 2005, were time barred because Bethea's complaint was filed on January 9, 2006. STAA has a 180-day filing deadline from the time of the alleged adverse action. See 49 U.S.C.A. § 31105(b)(1). Thus, Bethea's complaints about being repeatedly placed in layover situations and working on Good Friday as retaliation for his alleged protected activity are time barred. See R. D. & O. at 1-2 n.1. The ALJ did not discuss equitable tolling and no party has addressed equitable tolling before the Board. We therefore concur with the ALJ and conclude that any potential adverse actions occurring before July 2005 are time barred.
62 See R. D. & O. at 24.
63 Wallace claims that it fired Bethea because of poor job performance, insubordination for refusing a backhaul, and untruthfulness regarding the fuel leak and workers' compensation claim. See R. D. & O. at 24; RX-5 (N.C. DOL Investigation Filings). Wallace Trucking supports this assertion with record support of the untruthfulness about the fuel leak, testimony of damaged trucks, and scheduling conflicts. Wallace testified that it is the culmination of all these events together with the perceived untruthfulness over the workers' compensation claim which "broke the camel's back." R. D. & O. at 12, 24.
64 Bethea Brief to ARB dated Mar. 19, 2007.
65 The R. D. & O. shows that the ALJ took notice of the employee manual and gave a great deal of consideration to the daily logs and the contents therein. See R. D. & O. at 13, 17-19; CX-13 (employee manual). While it may be true that Bethea did not receive all 12 months worth of daily logs, the R. D. & O. shows that the ALJ did in fact consider all 12 months and any potential violations contained therein. The ALJ noted that although there appeared to be a few instances of violations, the logs as a whole contained many errors and discrepancies and thus were not entitled to weight. Even if Bethea had copies of the logs for the remaining months, Bethea has not shown us how this would change the ALJ's conclusion, given the fact that he considered all the logs and any potential violations therein. Finally, the ALJ's error, if any, is harmless as the Board is upholding the ALJ's determination that there was no causation.
66 See R. D. & O. at 13. The ALJ excluded exhibit 15 as not being relevant for Bethea's STAA claim. Exhibit 15 involves a North Carolina Retaliatory Employment Discrimination Act (REDA). Under STAA, a complaint about workers' compensation is not protected and accordingly the ALJ did not consider the contents of the discussion suggesting protected activity was "proven" under that state statute.
67 Hasan v. Sargent & Lundy, ARB No. 05-099, ALJ No. 2002-ERA-032, slip. op. at 8-9 (ARB Aug. 31, 2007).