Calhoun v. United Parcel Service, 1999-STA-7 (ALJ Jan. 6, 2000)

May 9, 2009

DOL Home > OALJ Home > Whistleblower Collection

USDOL/OALJ Reporter

Calhoun v. United Parcel Service, 1999-STA-7 (ALJ Jan. 6, 2000)

U.S. Department of Labor Office of Administrative Law Judges
603 Pilot House Drive, Suite 300
Newport News, Virginia 23606-1904
(757) 873-3099
(757) 873-3634 (FAX)
DOL Seal

Date: January 6, 2000

Case No.: 1999-STA-00007

In the Matter of:

BEVERLY C. CALHOUN,
Complainant,

UNITED PARCEL SERVICE,
Respondent.

Appearances:

Paul O. Taylor, Esq.
For Complainant

John J. Doyle, Jr., Esq.
Jill S. Stricklin, Esq.
For Respondent

Before: FLETCHER E. CAMPBELL, JR.
Administrative Law Judge

RECOMMENDED DECISION AND ORDER

This proceeding arises from a claim under the Surface Transportation Assistance Act, 49 U.S.C. 31105 ("the act" or "the STAA"). In his claim, Complainant seeks compensatory damages in the amount of ,740.00 and $50,000.00 in damages for emotional distress. In July,1998, Beverly C. Calhoun ("Complainant") filed a complaint against United Parcel

[Page 2]

Service ("Respondent") under the act. On October 30, 1998, after completion of an investigation into Complainant's complaint by the regional administrator, the Secretary of Labor concluded that the complaint did not have merit. On November 9, 1999, Complainant objected to the Secretary's findings and requested a hearing before an administrative law judge. A formal hearing was held in this case on June 8-11, 1999 in Winston-Salem, North Carolina. Complainant offered Exhibits CX-1 through CX-75.¹ Respondent offered Exhibits RX-1 through RX-37. All were admitted into evidence. Both parties filed post-hearing briefs. The findings and conclusions which follow are based on a complete review of the entire record in light of the arguments of the parties, applicable statutory provisions, regulations, and pertinent precedent.

STIPULATIONS

Respondent and Complainant stipulated to and I find the following facts:

1. Complainant is now, and at all relevant times was, an "employee" as defined by the act.

2. Respondent is engaged in the transportation of parcels in interstate commerce. Furthermore, in the regular course of its business, Respondent's employees operate commercial motor vehicles in interstate commerce. Thus, Respondent is an "employer" within the meaning of the act.

3. Respondent is subject to the act.

4. In 1970, Respondent hired Complainant. Complainant was a driver of commercial motor vehicles with gross weight ratings in excess of 10,000 pounds.

5. Subsequent to July 14, 1998, Respondent received a copy of Complainant's complaint, and Complainant is seeking relief solely for any retaliation that occurred after January 20, 1998.

(Tr. 7-15)

ISSUES

1. Has Complainant established his prima facie case under the act?

2. If the prima facie has been established, has Respondent shown that it had a legitimate, non discriminatory reason for any adverse employment actions taken against Complainant?

3. If Respondent has successfully rebutted Complainant's prima facie case, has Complainant demonstrated that Respondent's non-discriminatory reasons were merely pretextual?

[Page 3]

FINDINGS OF FACT

Complainant is a feeder driver for Respondent at its Greensboro, North Carolina facility (Tr. 50). A feeder driver is a tractor-trailer driver who delivers packages to a turnaround point. At this point, one feeder driver meets another such driver from another facility, they exchange trailers, and they return to their respective home facilities (Id at 51). In Complainant's case, he drives every day from Greensboro, North Carolina to a turnaround point in Alabama (Id.). Complainant has been employed by Respondent since 1970 (Tr. 47). He has been designated by Respondent as a "Circle of Honor" driver. This distinction means that Complainant has driven twenty-five years or more without an accident or traffic violation (Id at 18, 294).

Robert J. Latchford, hub division feeder manager for the Greensboro facility, testified that his facility was experiencing unacceptably high paid days (Tr. 986-7).² In January, 1998, Mr. Latchford instructed Roger Millner, feeder scheduler for Respondent's southeast region,³ to compile a list of the ten most "over-allowed" drivers in the West Carolina District (Id at 986; RX 34).⁴ The record compiled by Mr. Millner indicated that Complainant was one of those ten drivers (RX 34).

In order to determine the cause of Complainant's consistently high paid days, management personnel were assigned to work with him. These managers included Charles Caruso, Byron Tucker, and Wayne Ondeck (Id at 532, 625, 849). All three managers testified that the primary source of Complainant's over allowances was his start-work time allowance, which includes inspecting and putting together his tractor-trailer (Id at 553, 670, 679, 890). Specifically, Complainant's pre-trip inspection went beyond Respondent's procedures in four respects.⁵ First, Complainant touched lug nuts on each of the vehicle's five tires in a crossing pattern to test tightness (Tr. 95-7). Second, in order to check various parts on the vehicle's underside, Complainant went to the back and viewed the length of the trailer from the rear (Id at 154-5).⁶ Third, he twisted and touched various hoses to detect cracks or bulges (Id at 82-5, 635-40, 651-2). Fourth, Mr. Tucker and Mr. Ondeck testified that Complainant would "stare" at various parts of the vehicle without reason to believe that such parts were faulty (Tr. 638, 880).⁷ Mr. Tucker testified that the above actions

[Page 4]

were unnecessary because Respondent's established procedures should have given Complainant an accurate assessment of his vehicle's safety and mechanical fitness (Id at 649, 763, 765).⁸ Furthermore, both he and Mr. Latchford asserted that Complainant's pre-trip inspection could cause delays sufficient to affect service to customers (Tr. 997-1000, 1045-6).

On the other hand, Complainant defended his inspection procedures on essentially two grounds. First, according to Compainant, the thirty-two minute allowance for the completion of start work activities, including inspections, is unreasonable (CX 1 at 19). Complainant stated that the time allowance depends on the trailers, truck keys, IVIS, and dollies being in their proper places (Id at 19-20). The testimony of Jim Wutschel, Sam Lemmond, and Larry Bower (all of whom are feeder drivers at the Greensboro facility) corroborated Complainant's observations (Tr. 362, 479- 80, 508-9). Furthermore, Mr. Caruso testified that a thirty-two minute allowance is sufficient only under the following conditions: "the equipment needs to be lined up in a row, about ten feet apart like they do it at DTS [Drivers' Training School], because if you're running all over the Greensboro yard, you are not going to have time to get out of there in thirty minutes" (Id at 538)(brackets added). He also stated that trailers not being in their proper location was a significant problem at the Greensboro facility (Id at 538-9)(brackets added).

Complainant's second defense for his inspection methods was that he is required to inspect his vehicle to the point where he is satisfied that it is safe and in good mechanical condition (CX 1 at 19). Complainant cited the following federal regulation:

No commercial vehicle shall be driven unless the driver thereof shall have satisfied himself 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 . . .

49 C.F.R. 392.7; Id. Complainant also pointed to Respondent's own training manual, which states the following:

The pre-trip routine is designed to help train a new driver. It is not necessary or desirable to change experienced drivers pre-trip if it differs. It is more important that the driver have a routine that covers all items and consistently uses that routine in the performance of the pre-trip.

(CX 7 at 7; RX 2 at 14). Complainant testified that, after over twenty-five years of driving experience, he has learned to do a more thorough vehicle inspection (Tr. 114). In fact, Steve Sanfield, a tractor truck mechanic at the Greensboro facility, testified that, if any driver would find a problem with a vehicle, it would be Complainant (Tr. 583).

Whatever the relative merits of the above arguments, Respondent nevertheless took various actions to reduce Complainant's over allowances. In his January 20, 1998 start-work audit, Mr. Tucker instructed Complainant

[Page 5]

to use only Respondent's methods for inspecting a vehicle (CX 32 at 2).⁹ In addition, Respondent required Complainant and his supervisors to meet before the start of each day for several days in January and August, 1998 (CX 74; Tr. 701-2). Next, Respondent began a program of pre-assembling trailers for the most over-allowed drivers in order to bring their paid day more in line with the plan day (Tr. 684, 692). Respondent also assigned mechanics to pre-inspect Complainant's vehicle, and if Complainant subsequently discovered any defects, the mechanics would be disciplined (Id at 685, 1003).¹⁰ Finally, in August, 1998, Mr. Tucker informed Complainant that any restroom breaks had to be counted against his allotted personal time (Tr. 703-4).¹¹ Complainant believes that all of the above actions were taken by Respondent for purposes of retaliation and discrimination (CX 1 at 28-31).

DISCUSSION

A. Legal Standard

In cases arising under the STAA, the Court of Appeals for the Fourth Circuit has held that such matters are governed by the proof scheme under Title VII of the Civil Rights Act of 1964. Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 983 (4th Cir. 1993), citing Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981).¹² Under this scheme, to establish a prima facie case for retaliatory discharge, a complainant must establish the following three elements: (1) that a complainant engaged in protected activity under the STAA; (2) that he was the subject of adverse employment action; and (3) that there was a causal link between his protected activity and the adverse action of his employer. Munday v. Waste Management of N. Am., Inc., 126 F.3d 239, 242 (4th Cir. 1997), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). Once a complainant has established his prima facie case, a respondent "may then rebut the prima facie case by showing that there was a legitimate non-discriminatory reason for the adverse action, after which the burden shifts back to the plaintiff [complainant] to show that these reasons are pretextual." Id. (brackets added).

B. Adverse Employment Action

The record indicates that Respondent took the following five actions to reduce Complainant's over allowance: (1) instructing Complainant to use only its inspections methods and noting said instruction in writing (CX 32 at 2); (2) pre-assembling Complainant's trailers (Tr. 684, 692); (3) instructing mechanics to pre-inspect Complainant's vehicle and threatening disciplinary action against these mechanics if defects were subsequently discovered (Tr. 685, 1003); (4) requiring Complainant to attend frequent morning meetings with management personnel (CX 74; Tr. 701-2); and (5) instructing Complainant to count restroom breaks against his meal-time allotment (Tr. 703- 4). A crucial question in this matter is whether these actions constitute "adverse employment actions" under the STAA.

[Page 6]

In Page v. Bolger, 645 F.2d 227 (4th Cir. 1981), the Court of Appeals for the Fourth Circuit observed the following:

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 . . . By the same token, it is obvious to us that there are many interlocutory or mediate decisions having no immediate effect upon employment which were not intended to fall within the direct proscriptions of . . . Title VII.

Page, 645 F.2d at 233 (ellipses added). Along these lines, the Court of Appeals for the Fourth Circuit has held that certain actions taken by employers against employees do not rise to the level of adverse employment actions. For example, it was held that a supervisor yelling at a complainant, directing other employees to ignore or spy on the complainant, and refusing to communicate with a complainant on an employment- related complaint did not amount to adverse employment actions. Munday, 126 F.3d at 243 (citations omitted). Furthermore, the court in Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745 (4th Cir. 1996) held that the following actions by an employer did not constitute adverse employment actions: (1) giving a complainant a formal disciplinary warning and subsequently removing it form his personnel file; (2) noting that the complainant needed improvement in "job behavior" and "work relations"; and (3) encouraging the complainant to ignore or tolerate objectionable conduct. Hopkins, 77 F.3d at 755. Taken as a whole, the above cases illustrate the fact that Fourth Circuit case law requires a complainant to show more than the use of mean-spirited or intimidation tactics by an employer. Rather, he must demonstrate some type of immediate and serious impact on his employment (e.g., termination, suspension, demotion, decrease in pay, refusal to grant leave, etc.).

In applying the above case law to the facts of this case, it is clear that the actions by Respondent in this case do not rise to the level of adverse employment actions. Complainant has never been fired, suspended, demoted, or disciplined in any way. In fact, Mr. Tucker testified that the start-work audit form, upon which his instructions about Complainant's inspection methods were noted, has no effect on Complainant's pay, benefits, or working conditions (Tr. 823-5), and Complainant has not disputed his testimony. Furthermore, the actions taken concerning Complainant fit within the range of behavior which Fourth Circuit case law has held not to be adverse employment actions. See Munday, Hopkins, supra.

[Page 7]

The crux of Complainant's argument is that the STAA "is intended to prevent actions by employers that chill the willingness of an employee to come forward with safety related complaints." Complainant's reply brief at 10. As grounds, Complainant cites a number of cases from the Administrative Review Board ("The ARB" or "the Board") and other federal circuit courts of appeal. See, e.g., Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Mar. 9, 1990); Stone & Webster Engineering v. Herman, 1997 U.S. App. LEXIS 16225, No. 95-6850 (11th Cir. July 2, 1997). However, nowhere does Complainant cite any Fourth Circuit precedent supporting his position. Because this matter arises within the purview of the Court of Appeals for the Fourth Circuit, I am bound by that court's interpretation of Title VII and, by extension, the STAA. See Reich, supra. Assuming arguendo that the authorities cited by Complainant do in fact support his position, such an interpretation is inconsistent with Fourth Circuit precedent; thus, I must reject Complainant's argument. Based on the above analysis, I find that the actions taken by Respondent in this matter do not constitute adverse employment actions . Moreover, I find that Complainant has failed to establish his prima facie case under the act. Because of the above findings, I need not consider any other issues. Under these circumstances, I must recommend denial of Complainant's claim.

RECOMMENDED ORDER

It is hereby ORDERED that Complainant's claim under the act is DENIED.

FLETCHER E. CAMPBELL, JR.
Administrative Law Judge

FEC/rjl
Newport News, Virginia

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution avenue, NW, Washington, D.C. 20210. See 29 C.F.R. §1978.109; 61 Fed. Reg. 19978 (1996).

[ENDNOTES]

¹ The following abbreviations will be used as citations to the record:

       CX - Complainant's Exhibits
       RX - Respondent's Exhibits
       Tr. - Transcript.

² A "paid day" is the actual daily pay earned by an employee for any given date. A "plan day" is the projected wage for that same date (Tr. 987-8).

³ Respondent organizes its facilities in various states into districts. These districts, in turn, are organized into regions. The Greensboro facility is part of the West Carolina district, which is part of the southeast region (Tr. 565-6).

⁴ The terms "over allowed" and "under allowed" refer to whether an employee's paid day is above or below that projected in the plan day (Tr. 622). Furthermore, within the plan day, each employee is allocated a certain amount of time for each activity to be performed (Tr. 737, 828-9). Respondent keeps track of the time an employee takes to perform a designated activity by means of a computerized in vehicle information system ("IVIS")(Tr. 401-2).

⁵ Based on the record, it is clear that Respondent is not alleging that Complainant did an inadequate pre-trip inspection. Rather, it is asserting that Complainant's inspection went unreasonably beyond Respondent's own methods.

⁶ Although Complainant's inspection of the vehicle's underside from the rear was a originally a source of contention between Complainant and Respondent, he has since been allowed to continue this practice (Tr. 680-1).

⁷ However, Complainant characterized this activity as "scanning" rather than staring (Tr. 88).

⁸ It is worth noting that not all of Complainant's supervisors considered his pre-trip inspection to be unreasonable. Mr. Caruso testified that, although he knew about Complainant's over allowance problems, he believed that Complainant was not doing anything wrong (Tr. 533). Moreover, Mr. Caruso stated the following about Complainant's pre-trip inspection:

[H]e's what I personally consider to be on the outer fringe of reasonableness. But he's very, very meticulous when he does a pre-trip. The opposite side of that is to the best of my knowledge when he was in my group, he's never had a road break down. He's always found the problem and gotten it fixed before he went out on the road .

(Tr. 537) (brackets added).

⁹ However, according to Mr. Tucker, the January, 1998 start work audit was the only time Complainant's inspection methods were documented (CX 74 at 2). Mr. Tucker also testified that Complainant was never discharged, suspended, threatened with either action, or disciplined in any way (Tr. 709-10). See RX 1(union contract defining what disciplinary actions may be taken against an employee).

¹⁰ Mr. Latchford testified that the pre-inspections by mechanics only took place on Complainant's equipment (Tr. 1001-2). Both Mr. Latchford and Mr. Tucker testified that the purpose of these pre- inspections was to ascertain the cause of the multiple break downs on property ("BOP") of Complainant's equipment (Tr. 685, 1002). However, Complainant believed that it was intended to harass and embarrass him (CX 1 at 28). Mr. Ondeck, Complainant's supervisor at the time, agreed that it was embarrassing to Complainant (Tr. 908-9).

¹¹ Mr. Tucker testified that he was merely informing Complainant of Respondent's policy on restroom breaks (Tr. 704). Mr. Wutschel confirmed that such was indeed Respondent's policy (Id at 381-2). Nevertheless, Complainant believes that Mr. Tucker's reminder was intended to harass him (CX 1 at 30; Tr. 410).

¹² It is important to note that this case arises within the Fourth Circuit. Therefore, I must analyze this case using Fourth Circuit precedent or persuasive authority not inconsistent with Fourth Circuit case law.