But Walkewicz did not adduce evidence that he was dependable compared to the other drivers. Moreover, as the ALJ notes, the fact that L&W gave Walkewicz a bonus and granted his vacation requests on December 21, two days after his protected refusal to drive, tends to indicate that the company was not retaliating because of that refusal to drive.
In short, substantial evidence in the record as a whole supports the ALJ's finding that Walkewicz did not prove by a preponderance of evidence, as he must, that L&W retaliated because of protected activity. Therefore, we accept the ALJ's recommendation and DENY Walkewicz's complaint.
SO ORDERED.
OLIVER M. TRANSUE
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
[ENDNOTES]
1 49 U.S.C.A. § 31105 (West 2008). Regulations that implement the STAA are found at 29 C.F.R. Part 1978 (2007). Congress has amended the STAA since Walkewicz 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 not necessary for us to determine whether the amendments are applicable to this case because even if they were, they would not affect our decision since they are not applicable to the issues presented for our review.
2 Recommended Decision and Order (R. D. & O.), Walkewicz v. L&W Stone Corp., 2006-STA-030 (ALJ Sept. 20, 2006).
3 "The [ALJ's] decision shall be forwarded immediately, together with the record, to the Secretary for review by the Secretary or his or her designee." 29 C.F.R. § 1978.109(a). The Secretary of Labor has delegated to the Administrative Review Board the authority to issue final agency decisions under the STAA and its implementing regulations. Secretary's Order 1-2002 (Delegation of Authority and Responsibility to the Administrative Review Board), 67 Fed. Reg. 64,272 (Oct. 17, 2002); 29 C.F.R. Part § 1978.
4 29 C.F.R. § 1978.109(c)(3). The Board reviews questions of law de novo. See Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993).
5 Walkewicz had been on duty for 15 hours on December 19, 2005. The applicable Federal Motor Carrier Safety Administration rule provides that "[n]o motor carrier shall permit or require any driver used by it to drive a property-carrying commercial motor vehicle, nor shall any such driver drive a property-carrying commercial motor vehicle . . . [f]or any period after the end of the 14th hour after coming on duty following 10 consecutive hours off duty . . . . 49 C.F.R. § 395.3 (a)(2) (2005).
6 Respondent's Exhibit (RX) 12.
7 R. D. & O. at 2; Transcript (TR) 80.
8 RX 15.
9 49 U.S.C.A. § 31105 (a).
10 See West v. Kasbar, Inc. /Mail Contractors of Am., ARB No. 04-155, ALJ No. 2004-STA-034, slip op. at 3-4 (ARB Nov. 30, 2005).
11 R. D. & O. at 6.
12 49 U.S.C.A. § 31105(a)(1)(B)(i).
13 See Minne v. Star Air, Inc., ARB No. 05-005, ALJ No. 2004-STA-026, slip op. at 10 (ARB Oct. 31, 2007).
14 R. D. & O. at 6 n.7.
15 See Martin v. Dep't of the Army, ARB No. 96-131, ALJ No. 1993-SDW-001, slip op. at 7-8 (ARB July 30, 1999) (proving constructive discharge requires a showing that working conditions were so difficult or unpleasant that a reasonable person in the employee's shoes would have found continued employment intolerable and would have been compelled to resign) (citing Bristow v. Daily Press, 770 F.2d 1252, 1255 (4th Cir. 1985)).
16 Two other drivers were on vacation or FMLA leave from December 19 through January 6. See RX 12.
17 RX 12. The other driver who was assigned only three loads was having difficulty getting to work early because of transportation problems. TR 83.
18 TR 165.
19 RX 11.
20 RX 6, 7.
21 RX 8.
22 TR 157-161.
23 RX 10.
24 See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).