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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 | ![]() |
Date: January 6, 2000
Case No.: 1999-STA-00007
In the Matter of:
BEVERLY C. CALHOUN,
Complainant,
v.
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
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.
Respondent and Complainant stipulated to and I find the following facts:
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.
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?
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
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:
49 C.F.R. 392.7; Id. Complainant also pointed to Respondent's own training manual, which states the following:
(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
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.
In Page v. Bolger, 645 F.2d 227
(4th Cir. 1981), the Court of Appeals for the Fourth Circuit observed the following:
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.
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.
It is hereby ORDERED that Complainant's
claim under the act is DENIED.
FLETCHER E.
CAMPBELL, JR.
FEC/rjl
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).
1 The following abbreviations will be
used as citations to the record:
CX - Complainant's Exhibits
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:
(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.
[Page 6]
[Page 7]
Administrative Law
Judge
Newport News, Virginia
RX - Respondent's Exhibits
Tr. - Transcript.