Calhoun v. United States Department of LaborCalhoun v. United States Department of Labor
OPINION
This appeal arises out of a complaint Petitioner Beverly Calhoun filed with the Occupational Safety and Health Administration (“OSHA”) claiming that United Parcel Service (“UPS”) took adverse employment actions against him as a result of conduct protected by the Surface Transportation Assistance Act (“STAA”),
I.
Time is of the essence to UPS’s business, which guarantees package delivery by a certain date and, often, time. A problem at one facility, even with one driver, can create a ripple effect of delays that can seriously interfere with UPS’s delivery commitments. Accordingly, UPS gives its drivers a time allowance in which to inspect their vehicles (“start-work allowance” *) in order to minimize delays. UPS does not discipline drivers for being over their start-work allowance (“over allowed”) unless the time the driver is spending on inspections is significantly greater than that of other drivers.
Despite the time pressures incumbent on its business, UPS still has a “very positive” reputation for safety in the industry. (J.A. 627.) An expert testifying for UPS at the ALJ hearing — a former director of the Bureau of Motor Carrier Safety at the Department of Transportation (“DOT”) — described UPS as “one of the leaders in safety innovation and safety investment in terms of their motor carrier operations.” (J.A. 627-28.) All UPS feeder drivers
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attend a “feeder school” that includes 40 hours of classroom training and 40 hours of on-the-job training. UPS conducts an On-Job-Supervision (“OJS”) ride with every feeder driver at least once a year. And UPS prescribes pre-trip inspection methods for its drivers that have been found to “meet and exceed” the requirements of the Federal Motor Carrier Safety Regulations (“FMCSRs”). (J.A. 644.) In June 2000, DOT conducted an
Calhoun worked for UPS as a feeder driver for over thirty years, finally retiring in December 2003. As a feeder driver, Calhoun drove double trailers from a UPS hub in Greensboro to Carnesville, Georgia, and back four days a week. In 2002, UPS recognized him with an award for his driving record of 32 years without an avoidable accident.
Calhoun filed the OSHA complaint at issue in this case on December 6, 2001. In it, he claimed that on several days between June 26 and October 31, 2001, UPS took adverse action against him as a result of activity protected under the STAA. 4 Specifically, Calhoun alleged that he was warned, suspended, and discharged for engaging in daily vehicle inspections that exceeded the UPS inspection guidelines but that he felt were necessary to comply with FMCSRs that require a driver to be satisfied with the safe operating condition of a vehicle prior to driving. At the administrative hearing before the ALJ, several of Calhoun’s fellow drivers testified that they also engaged in inspection measures that exceeded those prescribed by UPS.
UPS’s start-work allowance for a feeder driver operating a double trailer like Calhoun is 23.5 minutes if the trailer set comes pre-assembled and 32.5 minutes if the driver has to assemble the unit himself. In 2001, on average, UPS drivers ran about 25 minutes over the allowance. Other drivers on Calhoun’s particular route were an average of 36 minutes over-allowed. Calhoun, on average, was 76 minutes over-allowed. Between January and June 2002, Calhoun’s pre-trip inspection delays caused him to return more than 30 minutes late for the “Twilight Sort” 5 on 60 percent of the days he worked.
Over the years, UPS informed Calhoun on numerous occasions that he needed to reduce his start-work times. Nonetheless, as of January 1998, Calhoun was the most over-allowed driver at the Greensboro facility, and his times only worsened between 1998 and 2001. Calhoun’s pre-trip inspection delays have both caused multiple service failures and forced UPS to take costly measures to prevent service failures. From January 2000, Calhoun was the most frequent cause of service failures at the Greensboro facility.
Calhoun’s appeal requires us to determine whether on ten days between June 2001 and June 2002 Calhoun was subject to adverse employment action as a result of engaging in STAA-protected activity. The events of those days are as follows:
June 26, 2001: Don Allen, Calhoun’s supervisor, did an OJS ride with Calhoun. Allen observed Calhoun wipe down the dash, steering wheel, gear shifter and hut-
During his inspection, Calhoun found the dolly latch that controlled the trailer coupling device was not working properly. Allen initially instructed him to hook up the dolly anyway, but Calhoun took the trailer to the shop, where a mechanic found the dolly’s brake drum was defective. Calhoun was given a replacement. After the OJS ride was completed, Allen prepared a report noting that Calhoun engaged in an over-exaggerated inspection of his vehicle with “no sense of urgency.” (J.A. 1048.)
June 27, 2001: Allen again observed Calhoun’s pre-trip inspection on June 27, 2001. Allen advised Calhoun that UPS methods prescribe that air lines be checked by walking around the truck and listening and looking for leaks. Calhoun ignored Allen’s instructions not to touch the air lines, and in doing so, he found two air lines that needed to be replaced because they had air bubbles in them.
June 28, 2001: Both Allen and shop steward Randall Williams accompanied Calhoun on his pre-trip inspection on this day. After Calhoun grabbed and twisted the steering rod, pulled on the drag link, and touched some lug nuts, Allen asked him to come back to the UPS office. There, Allen informed Calhoun that because he continued to disregard instructions he was being given another warning letter. Calhoun responded that he needed to touch the equipment “for safety” (J.A. 98) and he resumed his inspection by touching some more lug nuts and wiping off the steering wheel and gearshift lever. Allen then gave Calhoun a one-day suspension without pay. Calhoun did not drive that day. 6
June 29, 2001: Allen again accompanied Calhoun on his pre-trip inspection, during which Calhoun found an air leak in the brake system. However, after Calhoun began separating a pre-assembled trailer set, Allen stopped him, and Calhoun became belligerent, stating that he wanted to check the equipment his way. As a result, Calhoun was taken out of service the next day. Calhoun apparently still drove his vehicle on June 29, although he indicated that he was “working under protest.” (J.A. 108.)
July 5, 2001: Allen once again accompanied Calhoun on his pre-trip inspection. Calhoun turned off the air to the rear trailer in order to inspect for leaks. Allen later prepared a start-work audit in which he indicated that Calhoun had engaged in an exaggerated inspection and had unnecessarily turned off the air to the rear trailer instead of simply listening for a leak. 7
July 6, 2001: Allen and union steward Thomas Hope accompanied Calhoun on his pre-trip inspection. Calhoun reported a problem with the air pressure in his brake system fluctuating significantly. After the
July 10, 2001: Allen again accompanied Calhoun on his pre-trip inspection and found him again to be engaged in an over-exaggerated inspection, including draining the air off the dolly, manually inspecting brake hoses, and looking under the cab door area and looking under the rear of the truck. Afterwards, Allen asked Calhoun to join him in a meeting with another supervisor, Mark Hamilton. At that meeting, Calhoun was given a three-day suspension for not scanning equipment properly. Allen indicated that Calhoun should inspect equipment with a quick, visual glance and that he needed to keep moving as he did his inspection. In a start-work audit prepared that day, Allen indicated that Calhoun was “purposely overextending” his inspections and “ha[d] not improved [his] sense of urgency about departing on schedule.” (J.A. 1070.)
September 6, 2001: Allen and Feeder Manager Harry Wolfe met with Calhoun at the beginning of the day. At the meeting, Calhoun was asked to make a commitment to improving his start-work time and following instructions, but he refused. Allen then accompanied Calhoun on his pretrip inspection, where Calhoun continued to manually inspect equipment and looked under the tractor cab multiple times. At one point in the inspection, Calhoun dropped to one knee and looked under the dolly to inspect the springs and brakes. In doing so, Calhoun saw a dolly brake was out of adjustment and told Allen that he wanted to take it to the UPS shop. Allen responded that “the brake test felt okay” and that Calhoun “needed to move on and go.” (J.A. 135.) Calhoun left but when he got to Carnesville, GA, he felt that the brakes were not working properly, and a mechanic found that the brake parts were severely rusted. At a meeting the next day with Allen, Union Steward Williams, and Feeder Manager Wolfe, Calhoun was discharged for insubordination. In a discharge letter dated September 11, UPS cited Calhoun’s September 6 conduct 8 and Calhoun’s other failures to follow instructions on June 28 and July 10 as reasons for the discharge. 9
October 30, 2001: Before doing his pretrip inspection, Calhoun was given a preassembled trailer set to hook up. During his inspection, he proceeded to uncouple the set in order to inspect the coupling device and brakes. Allen approached and told Calhoun that he was not to separate and inspect pre-assembled doubles and that he would be terminated again if he continued to do it. On October 31, 2001, Calhoun received a discharge letter as a result of a warning letter on July 2, a July 3 one-day suspension, a July 17 three-day suspension, the September 7 notice of termination, and the October 30 failure to follow supervisor instructions.
May 7, 2002: Supervisors again observed Calhoun uncoupling a trailer set. Calhoun was discharged once more on May 8, 2002.
In a Recommended Decision and Order, issued on June 2, 2004, the ALJ found that Calhoun had established a prima facie case of discriminatory action by UPS on June
II.
“Under the scheme established by Congress, the Secretary of Labor makes final determinations on Surface Transportation Assistance Act violations ... subject to appellate court review....”
Yellow Freight Sys., Inc. v. Reich (Yellow Freight I),
III.
The STAA was passed to “promote the safe operation of commercial motor vehicles,” “to minimize dangers to the health of operators of commercial motor vehicles,” and “to ensure increased compliance with traffic laws and with ... commercial motor vehicle safety and health regulations and standards.”
(1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because—
(A) (i) the employee ... has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order, or has testified or will testify in such a proceeding [“Complaint Clause”]; or
(B) the employee refuses to operate a vehicle because [“Refusal to Drive Clause”]—
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security [“Actual Violation Prong”]; or
(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition [“Reasonable Apprehension Prong”]
Calhoun argues that he can satisfy the “protected activity” element of his prima facie case under both the “Refusal to Drive Clause” and the “Complaint Clause” of
A.
Calhoun first challenges the ARB’s conclusion that his conduct on June 26, June 28, June 29, July 10, and September 6, 2001 does not constitute protected activity under the “Refusal to Drive Clause.” In order to make out a prima facie case under this subsection of
Looking at the first requirement of the “Refusal to Drive Clause” — a refusal to drive — the ALJ found that “Calhoun’s refusal to drive until he completed his pretrip inspections satisfies the requirement that he refuse to drive.” (J.A. 1454.) The ARB, however, found that the ALJ erred in his interpretation of the law because “Calhoun cannot seek protection under the refusal to drive clause on the days he drove his vehicle.” (J.A. 1528.)
The plain language of
With respect to June 28 and July 10, we affirm the ARB’s conclusion that Calhoun
As the ALJ noted, “Calhoun does not allege that his vehicle’s condition was unsafe, and thus, a violation of any specific safety regulation.” (J.A. 1457.) Instead, he argues that operating his vehicle on the days in question without completing his preferred pre-trip inspection would have violated two general FMCSRs,
Calhoun accepts that he was not entitled to take unlimited measures to satisfy himself under the regulations but he argues that he was allowed to “take those additional measures that are reasonably necessary for him to assure himself that his assigned vehicles were in safe condition.” (Pet’r’s Br. 27 (emphasis added).) UPS does not dispute that a reasonableness standard should be applied but it argues that there is not substantial evidence on the record to support the ALJ’s findings that the measures Calhoun took to satisfy himself were in fact reasonable. According to UPS, because the UPS-approved inspection measures were themselves reasonable, Calhoun had no objectively reasonable need to take the additional measures that he did.
In
Krahn,
No. 04-097, 2006 DOL Ad. Rev. Bd. LEXIS 55, at *21-23 (ARB May 9, 2006),
pet. for review denied by,
Similarly in
Monde,
No. 02-071, 2003 DOL Ad. Rev. Bd. LEXIS 109, at *8-9 (Oct. 31, 2003), the ARB considered a claim that complainant Monde engaged in protected activity under
As
Krahn
and
Monde
persuasively suggest, where an employer’s prescribed inspection methods are themselves reasonable, an employee’s additional inspection measures will typically not be reasonably necessary to satisfy him that his vehicle is safe to drive under
Here, UPS has been found to be a leader in industry safety, and the DOT inspection of the Greensboro facility found that drivers’ pre-trip inspections were thorough and that vehicles were in good operating condition. Even the ALJ found that UPS’s recommended pre-trip inspection methods were reasonable. Nonetheless, the ALJ concluded that various of Calhoun’s extra inspection measures — including manually checking brake hoses, lug nuts, belts, and the- steering mechanism— were also reasonable. We do not necessarily disagree with this conclusion. These measures undoubtedly have the potential to detect safety-related defects that might not be discovered using UPS’s prescribed visual inspection methods.
But Calhoun was not disciplined simply for using pre-trip inspection techniques beyond those prescribed by UPS. The record shows that a number of other UPS drivers used the same or similar measures to check their equipment, and UPS did not take any disciplinary action against them. What distinguishes Calhoun’s conduct from that of the other drivers, and what prompted UPS to take action, was the significant delays caused by Calhoun’s lengthy pre-trip inspections. The time by which Calhoun was over-allowed in his pretrip inspection was more than double the average of the other drivers on his route, leading to numerous delays and service failures for UPS. Calhoun has not shown that the extra time he spent in his inspection regimen beyond that of other drivers made any appreciable difference in the safety of his vehicle, and thus has not shown that it was reasonably necessary to take this additional time.
Therefore, we agree with the ARB’s conclusion that Calhoun cannot invoke the “Refusal to Drive Clause” to establish that he was engaged in STAA-protected activity on June 28 or July 10. UPS’s prescribed pre-trip inspection methods were themselves reasonable and Calhoun cannot show that his extended inspection regimen was reasonably necessary to satisfy himself about the operating condition of his vehicle for purposes of
Finally, with respect to Calhoun’s conduct on June 26, the record demonstrates that Calhoun did have a specific safety concern about operating his vehicle that day, namely a malfunctioning dolly latch. But Calhoun has not shown that UPS took any adverse action against him as a result
B.
The ARB further found that Calhoun could not make out a prima facie case under the “Complaint Clause” of
Calhoun does not identify any complaint, written or oral, that he made to Allen or any other supervisor on July 5 or July 10. 12 Calhoun suggests instead that he complained sub silentio on those days, by turning off air to the rear trailer on July 5 and engaging in a prolonged inspection on July 10. The ARB concluded that Calhoun’s conduct on those days did not amount to a complaint for purposes of the “Complaint Clause” since “[h]e did not inform Allen or anyone else at UPS that his vehicle was unsafe or that a regulation was being violated.” (J.A. 1534.) Calhoun argues that his actions can be read as complaints considered in the context of his history of oral and written complaints.
Calhoun believes that the First Circuit’s review of the ARB’s decision in
Dutkiewicz, see Clean Harbors,
On the remaining days for which the ARB found that Calhoun could not satisfy the requirements of the “Complaint Clause,” Calhoun has not shown that his complaints concerned actual violations of the FMCSRs. Calhoun argues first that on June 28, 2001, he made a protected complaint to a supervisor when he told Alen he needed to manually inspect the equipment on his vehicle “for safety.” (J.A. 98.) The ARB found that this was not “a complaint related to a violation of a commercial motor vehicle safety regulation, standard, or order.” (J.A. 1531.) Calhoun cites no specific regulation that UPS violated by not allowing him to touch his equipment. The only regulations that he points us to are, once again, the general regulations
On June 29 and October 30, 2001, and May 7, 2002, Calhoun complained to Alen that he wanted to be allowed to separate his pre-assembled double trailer set. Again, Calhoun’s complaint to Alen did not involve a concern about violation of a specific safety regulation, nor did it concern conduct that was reasonably necessary to satisfy Calhoun about the safe operating condition of his vehicle. The record shows that other drivers only pulled apart pre-assembled doubles when they had specific concerns about them. Calhoun would disassemble them as a matter of course. Even the ALJ found that “Calhoun’s decision to pull apart pre-assembled doubles without any specific reason for so doing has not been shown to be reasonable.” (J.A. 1466.) Thus the ARB was justified in finding that Calhoun’s complaints on these days did not amount to protected activity.
C.
The ARB found that Calhoun did engage in protected activity under the “Complaint Clause” on four days: June 26 (complaint regarding defective dolly latch), June 27 (bulges found in air lines), July 6 (reported problem with brake system’s air pressure), and September 6 (complaint regarding dolly brake). But, as the ARB notes, Calhoun has not shown that UPS
Calhoun’s protected conduct on September 6 did not happen in isolation. Rather, it was only after refusing to improve his inspection times and in the midst of inspecting his vehicle in defiance of his supervisor’s instructions, that Calhoun found the dolly brake defect and complained about it to Allen. The record establishes that it was for Calhoun’s marked insubordination, and not for his protected complaint, that he was discharged on September 7. Moreover, Calhoun had a long history of insubordinate behavior — including at one point telling Allen that his efforts to reduce Calhoun’s start-work time were “bullshit.” In the face of Calhoun’s repeated refusals to change his behavior, Calhoun’s conduct on September 6 was simply the proverbial straw that broke the camel’s back.
Given this history of insubordinate behavior, Calhoun cannot show that UPS’s decision to discharge him on September 7 for insubordination was pretext for discrimination. We therefore affirm the ARB’s conclusion that Calhoun has failed to meet his burden under the “Complaint Clause,”
IV.
For the foregoing reasons, we affirm the ARB’s denial of Calhoun’s complaint.
AFFIRMED
Notes
. This is measured by the time between punching in at the beginning of the work day and leaving the yard in a loaded vehicle.
. Feeder drivers move packages between UPS terminals.
. The inspection came as the result of a complaint filed by Calhoun with the DOT, in which he alleged that UPS management was not giving drivers enough time to conduct their pre-trip inspections.
. Calhoun has filed a number of grievances with UPS under his union’s collective bargaining agreement expressing his interest in being allowed to satisfy himself that his equipment was in safe operating condition before he drove.
. UPS needs all of its loads to be at a hub facility by twilight in order to be unloaded, processed, and moved on in time to make it to their final destinations promptly. The Twilight Sort begins at 8:00 p.m.
. The ALJ found that Calhoun was sent home to serve his one-day suspension. The ARB, however, concluded from Calhoun's testimony at the administrative hearing that Calhoun was upset after his meeting with Allen and took himself out of service. Either way, it is undisputed that Calhoun did not operate his vehicle that day.
. Calhoun testified at the administrative hearing that air leaks can generally be detected audibly, unless they are minute.
. The letter actually cites September 7, not September 6, as the day on which Calhoun committed the infractions leading to his termination. This appears to be an error, as the ALJ found that Calhoun was discharged on September 7 as a result of his conduct on September 6.
. UPS discharged Calhoun several times but always ultimately rehired him.
. The regulation goes on to identify the following parts about which the driver must satisfy himself: service brakes, including trailer brake connections; parking brake; steering mechanism; lighting devices and reflectors; tires; horn; windshield wipers; mirrors; coupling devices.
. The ALJ found that Calhoun was given a one-day suspension for his conduct on June 26, but the ARB found that this was based on a misunderstanding of the testimony at the administrative hearing. After reviewing the administrative record, we agree with the ARB.
. Moreover, Calhoun does not identify any adverse action taken against him as a result of his conduct on July 5. The record shows that the only action Allen took that day was to prepare a start-work audit, which, as the ALJ found, was not adverse action because it did not affect Calhoun's pay or promotion potential.