To the contrary, Latchford's testimony indicates that UPS was concerned with the mechanics' ability to perform their tasks, as well as ensuring that drivers such as Calhoun were not slowed down by what was referred to as "break downs on property" (BOPs):
Q Now did you give any instructions in particular with respect to the shop --
A Yes.
Q -- and mechanics ? What were your instructions with respect to the mechanics?
A I told them I'd hold them accountable if they didn't perform their job.
Q And, what did you mean when you said you were going to hold them accountable?
A I expected them-- I pay them to do a job. I expected them to do the job.
Q But specifically with respect to inspecting the units ?
A To make sure there were no problems that would cause a break down on property.
Q Have you given directions to hold other groups of individuals or other employees accountable?
A Absolutely.
Q Is that something you do often, Mr. Latchford?
A Every day.
T. 1002-1003.
Similarly, Tucker testified that he wished to convey to Calhoun the "urgency" of the situation when he spoke to Calhoun about the mechanics. T. 725. Additionally the record shows that no mechanic was ever subjected to such discipline. T.686-688. The Board finds that the UPS instruction to the mechanics and to Calhoun did not discriminate or discipline Calhoun in any way affecting his pay, terms or privileges of employment. There was a legitimate, nondiscriminatory , business reason proffered by UPS for its action and Calhoun has not shown that this was pretext for discrimination.
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4. & 5. Morning Meetings and Restroom Break Restrictions
Calhoun alleges that UPS violated the STAA by making him attend morning meetings and placing restrictions on his restroom breaks. In August 1998, Calhoun was told that, until his start work time improved, he would need to meet with Tucker every morning to discuss his start work procedures. CX 74 at 1. These meetings took place between August and October 1998. Tucker's relevant testimony is as follows:
Q . . .With respect to the drivers on that twenty-five list, did you require that their supervisors give those individuals special attention?
A Well, they had to concentrate their efforts. Because these gentlemen were among the least best, they had to concentrate their efforts on figuring out why they were and how to reduce the overall paid day.
Q Did that include morning meetings with these drivers?
A Oh, absolutely. I do not believe in carrying on conversations when it regards an individual's performance or personal issues, if there are personal issues, in the presence of other employees. In the mornings or even in the afternoon, there are ten, fifteen, there can be as many as twenty people in the check-in area. I don't believe that that's a business setting, and I don't think it's appropriate to have conversations with drivers regarding personal situations.
Q And in Mr. Calhoun's case, when did you decide was the best time to try to catch him, provide him what input you had, about how he was doing or any questions you had?
A In the mornings.
Q. And during August of 1998, did you meet with him from time to time during the mornings?
A Yes.
Q And, how long would these sessions last?
A They were very brief, five, ten minutes. And sometimes, you mentioned, when we walked over to the shop, that's about a minute and a half walk.
Q Were you singling out Mr. Calhoun to have these meetings?
A Absolutely not.
Q Did you have meetings like this with other feeder drivers who were on this twenty-five list?
A Yes.
Q Did you observe other drivers who were on that twenty-five list during the month of August 1998 --
A Yes.
T. 699-702.
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The Board does not find that these meetings constitute adverse action pursuant to the STAA. There is nothing in the record to indicate that these meeting were designed to discipline or discriminate against Calhoun under the STAA. Meetings are well-known and accepted business practice for communicating company concerns. We find that UPS has articulated a legitimate, non-discriminatory purpose for holding these meetings with Calhoun and other UPS drivers to work with them to reduce their paid days. T. 987-95. There was no evidence they were selected on any other basis.
Calhoun also alleges that UPS wrongfully required him to count his restroom breaks against his meal-time allotment. Rec. Dec. at 5-6; CX 1 at 31. However, Calhoun's own witness testified that this policy applied to all Greensboro feeder drivers. T. 381-82, 409-11. Additionally, Calhoun testified that he did not know what other feeder drivers were told regarding restroom breaks. T. 410-11. We therefore find that this restriction on Calhoun's use of the restroom was not discrimination under the STAA .
6. Written Criticism
Another adverse action alleged by Calhoun relates to copies of audits and evaluations of Calhoun's performance dating back to 1978. RX 9, 11-18. Calhoun requests that the Board order UPS to "remove all memoranda, letters or other writings from its files disciplining the Complainant, or mentioning discipline, for inspecting equipment and complaining about unsafe equipment . . ." Complaint, ¶5. Though he does not specify, this request appears to refer to the "Driver Start Work Audits," "Safety Training Ride: forms, and "Safe Work Training Methods" forms which contain comments regarding his pre-trip methods. RX 11-17, 21-27.
A supervisor's criticism of an employee, without more, does not constitute an adverse employment action. See, e.g., Harrington v. Harris , 118 F.3d 359, 366 (5th Cir. 1997). See also Shelton v. Oak Ridge National Laboratories , ARB Case No. 98-100 (Mar. 30, 2001), in which the Board noted that:
Employer criticism, like employer praise, is an ordinary and appropriate feature of the workplace. Expanding the scope of Title VII to permit discrimination lawsuits predicated only on unwelcome day-to-day critiques and assertedly unjustified negative evaluations would threaten the flow of communication between employees and supervisors and limit an employer's ability to maintain and improve job performance. Federal courts ought not be put in the position of monitoring and second-guessing the feedback that an employer gives, and should be encouraged to give, an employee.
Id. , slip op. at 10 (quoting Davis v. Town of Lake Park , 245 F.3d 1232, 1242 (11th Cir. 2001) (Title VII case)).
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The aforementioned written criticisms placed in Calhoun's file at various times beginning in 1978 have not negatively impacted Calhoun's pay, terms or privileges of employment as required by 49 U.S.C. §31105(a)(1). Although the documents do 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. T. 823-25. Moreover, the comments contained therein are consistent with Calhoun's own interpretation of his performance. See, e.g. , RX 21. Calhoun has failed to show that the criticism was in retaliation for his protected activity and he has failed to show how it has affected his pay, terms or privileges of employment. The Board also finds that UPS had a nondiscriminatory reason for placing these comments in Calhoun's file.
Hostile Work Environment
Calhoun's complaint alleges that, "[f]rom January 1, 1996 to the present, UPS has harassed, intimidated and humiliated [him] for his inspection of equipment and for complaining about the unsafe condition of equipment." CX 76 at 4. While we recognize that the actions discussed above may constitute cognizable claims under the STAA when considered together, the legal standard is that they must be sufficiently severe or pervasive as to alter the conditions of employment, thereby creating an abusive or hostile work environment. See, e.g., Berkman v. United States Coast Guard Academy , ARB Case No. 98-056, slip op. at 16-17 (ARB Feb. 29, 2000). Whether an environment is hostile or abusive can be determined only by looking at all the circumstances surrounding a particular case. Varnadore v. Oak Ridge National Laboratory, Case Nos. 92- CAA-2, et al., Sec. Dec. and Ord., Feb. 5, 1996, slip op. at 80, aff'd sub nom. Varnadore v. Secretary of Labor , 141 F.3d 625 (6th Cir. 1998). The fundamental elements of proof of a hostile work environment require that: (1) the employee engaged in protected activity and suffered intentional retaliation as a result, (2) the retaliation was pervasive and regular, (3) the retaliation detrimentally affected the employee, (4) the retaliation would have detrimentally affected other reasonable whistleblowers in that position, and (5) a basis for employer liability. See, e.g., Varnadore, slip op. at 80.
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The Board finds that Calhoun has failed to show that the combination of actions taken by UPS to reduce Calhoun's over-allowed time constituted harassment sufficiently severe or pervasive to create a hostile work environment. Evidence establishes that the actions taken by UPS were for the sole purpose of reducing Calhoun's extreme over-allowances for "paid days." The actions were not discriminatory nor were they disciplinary in nature. They were legitimate, logical and effective measures that did reduce Calhoun's over-allowance and did result in at least one new procedure which is now used throughout the company.
In summary, we affirm the ALJ's conclusion that Calhoun has failed to show that the actions taken by UPS constitute adverse actions under the STAA. The Board holds that the actions taken in totality do not constitute harassment sufficiently severe or pervasive to create a hostile work environment. UPS presented a legitimate, non-discriminatory reason for its actions, to wit , that it was engaged in a process of monitoring its most over-allowed drivers, and Calhoun has not established that UPS's proferred reason was pretextual. Thus, Calhoun has failed to show that UPS's actions were in retaliation for his protected activity.
The ALJ's Analysis
We note that the ALJ recommended dismissal of the complaint before us citing Fourth Circuit case law interpreting Title VII of the Civil Rights Act of 1964, which he believes precludes harassment claims under the employee protection provision of the STAA. Specifically, the ALJ cited the Fourth Circuit's ruling in Page v. Bolger , 645 F.2d 227 (4th Cir. 1981), wherein that court stated that:
Disparate treatment theory as it has emerged in application of this and comparable provisions of Title VII . . . has consistently focused on the question whether there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting and compensating . . . .
Rec. Dec. at 7, citing Page, 645 F.2d at 233. While we agree with the ALJ that the actions taken by UPS do not constitute adverse actions under the STAA, subsequent developments in the law have established that
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adverse actions need not rise to the level of "ultimate employment decisions." See Von Gunten v. Maryland, 243 F.2d 858 (4th Cir. 2001)(Title VII case). In Von Gunten the Fourth Circuit stated that adverse action includes not only ultimate employment decisions such as firing or demotion, but also actions that result in "adverse effect[s] on the terms, conditions, or benefits of employment." Id. at 866. Similarly, the STAA prohibits an employer from "discharg[ing] . . . disciplin[ing] or discriminat[ing] against an employee regarding pay, terms, or privileges of employment. . ." 49 U.S.C. §31105(a)(1).
CONCLUSION
Calhoun has failed to show that the actions taken by UPS constitute adverse actions under the STAA or that those actions, cumulatively, constitute harassment sufficiently severe or pervasive to create a hostile work environment. We also find that UPS presented a legitimate, non-pretextual and non-discriminatory reason for its actions. We therefore DISMISS the complaint and that Calhoun has failed to show that UPS' reasons was pretext for discrimination.
SO ORDERED.
JUDITH S. BOGGS
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
WAYNE C. BEYER
Administrative Appeals Judge
[ENDNOTES]
1 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. Rec. Dec. at 3.
2 A "plan day" is a driver's projected wage for a workday. A "paid day" is the actual pay earned for that day. A driver is "over-allowed" when he or she exceeds time allowances, thereby increasing his or her paid day. Rec. Dec. at 3.
3 Specifically, 49 C.F.R. §392.7 states that:
No commercial motor vehicle shall be driven unless the driver thereof shall have satisfied himself/herself 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.
Similarly, 49 C.F.R. §396.13 provides that:
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 vehicle inspection report; and (c) Sign the report, only if defects or deficiencies were noted by the driver who prepared the report, to acknowledge that the driver has reviewed it and that there is a certification that the required repairs have been performed. The signature requirement does not apply to listed defects on a towed unit, which is no longer part of the vehicle combination.
4 We note that Calhoun may have received less overall pay because his hours of over-allowed work decreased, however, there is no evidence that he was entitled to receive pay for hours beyond those he actually worked.
5 The company was concerned about over-allowances because they affected company costs and can adversely affect service to customers. T. 1034-1044.
6 Nor is there any evidence that Calhoun actually was intimidated by UPS management into refraining from raising safety concerns. Calhoun testified that he continued to bring mechanical defects to UPS's attention during the period that his equipment was being pre-inspected. T. 687-88.