Carter v. CPC Logistics, Inc. (agency decision, September 26, 2019)

Plain-English summary

CPC Logistics discharged tractor-trailer driver Roderick Carter after repeated delays, policy violations, discipline, and performance problems. Carter alleged that the company acted because he took safety-related fatigue and illness breaks protected by the Surface Transportation Assistance Act. After a federal appeals court remand, the ALJ recognized that Carter had told supervisors about breaks and found one protected refusal to drive because of illness. The ALJ did not credit Carter's other fatigue explanations and found that the protected incident did not contribute to the discharge. The Board held that substantial evidence supported those findings and affirmed denial of the complaint.

Decision snapshot

• Cited authorities: 49 U.S.C. §§ 31105 and 42121; 29 C.F.R. §§ 1978.102(a), 1978.102(c)(1)(i), and 1978.110
• Outcome: The ALJ's decision on remand was affirmed and the STAA complaint was denied.
• Key point: Proof of one protected refusal to drive did not establish retaliation where the credited evidence tied discharge to unexplained delays, disciplinary history, and failure to improve.

Full text (DOL official public release)

U.S. Department of Labor Administrative Review Board
200 Constitution Avenue, N.W.
Washington, D.C. 20210

  In the Matter of:


  RODERICK A. CARTER,                            ARB CASE NO.   2018-0078

                  COMPLAINANT,                   ALJ CASE NO.   2012-STA-00061

         v.                                      DATE: September 26, 2019

  CPC LOGISTICS, INC.; CPC MEDICAL
  PRODUCTS, LLC; and HOSPIRA
  FLEET SERVICES, LLC,

         RESPONDENTS.


  Appearances:

  For the Complainant:
        Roderick A. Carter, pro se, Hopkins, South Carolina

  For the Respondents:
        Michael F. Harris, Esq.; Harris, Dowell, Fisher & Young, L.C.,
        Chesterfield, Missouri


  Before: James A. Haynes, Thomas H. Burrell, and Heather C. Leslie,
  Administrative Appeals Judges


                         FINAL DECISION AND ORDER




         PER CURIAM. This case arises under the employee protection provisions of the
  Surface Transportation Assistance Act of 1982 (STAA) as amended. 1 Complainant
  Roderick A. Carter filed a complaint with the Occupational Safety and Health
  Administration (OSHA) alleging that Respondents CPC Logistics, Inc., CPC
  Medical Products, LLC (collectively CPC) and Hospira Fleet Services, LLC
  (Hospira) violated the STAA by discharging him from employment. OSHA denied
  the complaint and Carter requested a hearing before an Administrative Law Judge
  (ALJ). After a hearing, the ALJ dismissed the complaint on the grounds that Carter
  failed to prove that his STAA-protected activity was a contributing factor in his
  discharge. Carter appealed to the Administrative Review Board (Board) and we
  affirmed the ALJ’s dismissal of Carter’s complaint. Carter then appealed our ruling
  to the United States Court of Appeals for the Fourth Circuit.

         The Fourth Circuit determined that the ALJ overlooked evidence indicating
  that Carter had reported his need to take breaks from driving to CPC Supervisors
  and that this oversight may have adversely affected the outcome of this case. 2 The
  court remanded the case to the Board, and the Board remanded the case to the ALJ.
  On August 8, 2018, the ALJ issued a Decision and Order on Remand (D. & O. on
  Rem.), again denying the complaint, and Carter appealed the ALJ’s decision to the
  Board. For the following reasons, we affirm the ALJ’s D. & O. on Remand.




  1     49 U.S.C. § 31105(a) (2007); see also 29 C.F.R. Part 1978 (2018)(implementing the
  STAA).
  2      Carter v. CPC Logistics, Inc; CPC Medical Products, LLC; Hospira Fleet Services,
  LLC; Department of Labor, Administrative Review Board, 706 Fed. Appx. 794, 797 (4th Cir.
  2017).


                                       BACKGROUND 3

         CPC hired Carter on February 27, 2007, as a tractor-trailer driver for a six-
  man relay crew based in Columbia, South Carolina. The crew transported shipping
  containers loaded with medical equipment from Rocky Mount, North Carolina, to
  Jacksonville, Florida, and back again to Rocky Mount. An hour before the end of a
  trip, one driver would call the relay driver with his estimated time of arrival (ETA)
  so that the other driver would be available to drive the tractor-trailer on the next
  leg. The goal was maintaining a synchronized schedule to keep Hospira’s Rocky
  Mount facility operational. 4 CPC drivers were required to call in if they experienced
  significant delays, and Carter was aware of this policy. 5

         Carter started driving on the Columbia-Rocky Mount leg but subsequently
  acquired numerous warning letters about logging errors, violations of CPC’s call-in
  procedures, and an accident in June 2008 that was found to be his fault and cost
  more than $4,400.00 in property damage. 6 CPC issued Carter more warning letters
  over the next two years, including a five-day suspension in August 2010 when a
  CPC audit revealed numerous discrepancies between the time entries in Carter’s




  3      On remand and as appealed to the Board, the facts of this case remain largely the
  same. With the exception of the findings vacated after remand, the ALJ affirmed the
  findings of fact in his first Decision and Order and incorporated those findings into his
  Decision and Order on Remand. See D. & O. on Rem. at 2, 5 (“In light of the Fourth
  Circuit’s opinion, I vacate my previous findings (1) that Mr. Carter never mentioned fatigue
  breaks to his supervisors and (2) that Mr. Carter’s rest breaks were not a factor in the
  decision to terminate … After re-reviewing all of the evidence in the administrative file, I
  affirm my other findings of fact in the Decision and Order, and they are incorporated
  herein.”).
  4     Transcript (Tr.) 217. The relay team worked five days a week and usually had the
  weekends off. Both leg drivers would be home in Columbia for their time off during the
  week.
  5       Respondent’s Exhibits (RX) 1-3. See also RX 6 and 8 (informing Carter that he had
  failed to follow proper call-in procedures).
  6       D, & O. at 29-30 (describing disciplinary warnings and suspensions Carter received
  for violations of law and of CPC policies).


  hours-of-service logs and the time he recorded on trip reports he submitted to
  payroll. 7

         In August 2010, CPC assigned Carter to the Columbia-Jacksonville-Columbia
  leg and teamed him with Kelvin Gordon, who then drove the Columbia-Rocky
  Mount-Columbia leg. The average driving time for each round-trip leg ranged from
  10 to 13 hours. Gordon repeatedly complained to Ron Covert, CPC’s Regional
  Manager, about Carter’s excessive delays and lateness reporting to work. Covert
  kept a list of the delays reported by Gordon between June 27 and September 28,
  2011. This list showed that Carter was taking up to 14 hours to make the same
  drive that had taken Gordon 11 to 12 hours. The excessive hours delayed Gordon’s
  daily 4:00 p.m. start time by about an hour a day. The delay meant that by the end
  of the week Gordon could not start his run until 7:00 to 9:00 p.m. on Friday night,
  which shortened his time off. 8

         In August 2011 Gordon sent an e-mail to Covert’s supervisor, Divisional
  Manager Kenneth Pruitt, relaying his conversation with Carter about the
  scheduling problems and the importance of teamwork. During that conversation
  Carter had “started to yell and curse” and said that Gordon had done him “a favor”
  by complaining to Covert about his time delays because “now I’m gonna take my
  breaks and take my time coming back.” 9 When Gordon asked Carter if he was
  concerned about putting his job in jeopardy, he replied, “Ron [Covert] can’t fire me.
  If he could he would’ve by now.” 10

        Gordon complained further in September 2011 that Carter was “taking over
  an hour in breaks on the way down and the same on the way back” and he asked
  Covert to “[p]lease intervene.” 11 Covert reviewed Carter’s logs and found prolonged
  periods when Carter was on duty but not driving. Covert asked Carter why he used

  7      RX 13.
  8      RX 35; Tr. 190. Gordon also complained that Carter was supposed to start his run at
  2:00 a.m. on Mondays but was frequently late, up to three hours. Gordon gave his ETA
  times to Carter each afternoon but he was rarely there to take over the tractor-trailer on
  time.
  9      RX 26.
  10     Id.
  11     Id.


  so much time not driving and, according to Covert, Carter responded that he
  probably had to go to the bathroom or maybe he had not been feeling well. 12 Covert
  then prepared a recap of Carter’s hours and forwarded it to Pruitt, who was in
  charge of about 600 CPC drivers. 13

         During his employment with CPC, Carter occasionally informed his
  supervisors that he was taking breaks from driving. Carter testified at the hearing
  that he told Covert, Pruitt, and a dispatcher that his extended run times were
  caused by rest breaks or fatigue breaks. 14 On July 15, 2011, in an e-mail exchange
  between Covert and a CPC dispatch supervisor, Covert told the dispatcher that
  Carter reported that he had been delayed because he wasn’t feeling well and was
  entitled to a break. 15

         CPC’s submission to OSHA in response to Carter’s complaint indicates that
  he mentioned fatigue breaks to two supervisors when questioned about his
  performance and claimed that he often got sleepy while performing his driving
  duties. 16 Carter had also asked Pruitt in a phone conversation if he could stop
  driving if he was sleepy and told Pruitt that he was allowed by the DOT to take rest
  breaks if he needed them. 17

          On August 6, 2011, Covert, with Pruitt’s approval, sent a general
  memorandum to all Columbia drivers about reporting to work within an hour of the
  ETA of their partner; taking too frequent, extended rest breaks; making late
  deliveries; and ignoring the 2:00 a.m. Monday starting time. 18 After issuance of this
  letter, Carter’s turnaround time got worse. One week before his discharge, Covert

  12     Tr. 208.
  13      RX 54. The logs show that Carter started taking breaks an hour or two into his shift.
  He would drive as little as 16 minutes and as long as three hours before taking a break.
  Most breaks came after 60 to 90 minutes of driving. RX 52. Covert disciplined another CPC
  driver for similar behavior on the grounds that he was not coming to work “properly
  rested.” That driver improved his performance. RX 37, Tr. 195, 201.
  14     Tr. 30-33.
  15     RX 25.
  16     Complainant’s Exhibit (CX) 3 at 8.
  17     Id.
  18     RX 28.


  issued Carter a disciplinary letter regarding his failure to be available for work
  assignments. 19

         Pruitt compared Carter’s manifest times with the logs of two other drivers on
  the Columbia team during July, August, and September 2011. Based on Carter’s
  average times over those months, Pruitt recommended to his supervisor, Harold
  Wallis, Jr., vice president of CPC’s eastern operations, that CPC fire Carter. Wallis
  reviewed Gordon’s complaints about schedule delays and Carter’s disciplinary
  history, particularly the warning letter concerning his falsification of his logs. 20

         Wallis concluded that the progressive disciplinary process had failed to
  correct Carter’s insubordination toward his managers and dispatchers, his violation
  of CPC’s call-in policy, or his excessive hours in driving the Columbia-Jacksonville-
  Columbia run, and approved Carter’s discharge. On October 5, 2011, CPC issued
  Carter a letter terminating his employment due to his “continued poor job
  performance and insubordinate behavior.” The letter stated that Carter
  “continuously delayed runs without reasonable explanation” and had “shown a
  pattern of insubordination.” Carter’s work record revealed more than 25 violations
  within the past 30 months for which he was disciplined, which showed “a complete
  disregard for improvement.” 21



                        JURISDICTION AND STANDARD OF REVIEW

        The Secretary of Labor has delegated authority to the Board to issue final
  agency decisions in review or on appeal of matters arising under the STAA. 22 The
  ARB reviews questions of law presented on appeal de novo, but is bound by the
  ALJ’s factual determinations if they are supported by substantial evidence. 23 We


  19     RX 31.
  20     Tr. 249-251.
  21     RX 36.
  22     Secretary’s Order No. 1-2019 (Delegation of Authority and Assignment of
  Responsibility to the Administrative Review Board), 84 Fed. Reg. 13072 (Apr. 3, 2019); 29
  C.F.R. § 1978.110(a).
  23    29 C.F.R. § 1978.110(b); Lachica v. Trans-Bridge Lines, ARB No. 10-088, ALJ No.
  2010-STA-027, slip op. at 2, n.3 (ARB Feb. 1, 2012).


  uphold an ALJ’s credibility findings unless they are “inherently incredible or
  patently unreasonable.” 24



                                            DISCUSSION

         The STAA provides that a person may not “discharge,” “discipline,” or
  “discriminate” against an employee “regarding pay, terms, or privileges of
  employment” because the employee has engaged in certain protected
  activities. 25 The legal burden of proof set forth in the employee protection provision
  of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
  (AIR 21) governs STAA complaints. 26 To prevail on a STAA claim, a complainant
  must prove by a preponderance of the evidence that he engaged in protected
  activity, that his employer took an adverse employment action against him, and
  that the protected activity was a contributing factor in the unfavorable personnel
  action. 27 Failure to establish any one of these elements requires denial of the
  complaint. 28

         The STAA protects an employee who makes a complaint “related to a violation
  of a commercial motor vehicle safety or security regulation, standard or order.” Id. In
  addition, it is a STAA violation for any person to retaliate against a driver who refuses
  to operate a commercial motor vehicle when the driver’s ability or alertness is
  impaired due to fatigue, illness, or other cause. 29




  24    Mizusawa v. United Parcel Serv., ARB No. 11-009, ALJ No. 2010-AIR-011, slip op. at
  3 (ARB June 15, 2012) (quoting Jeter v. Avior Tech. Ops., Inc., ARB No. 06-035, ALJ No.
  2004-AIR-030, slip op. at 13 (ARB Feb. 29, 2008)).
  25     49 U.S.C. § 31105(a)(1).
  26     49 U.S.C. § 31105(b)(1); see 49 U.S.C. § 42121.
  27     49 U.S.C. § 42121(b)(2)(B)(iii).
  28      Luckie v. United Parcel Serv. Inc., ARB Nos. 05-026, -054; ALJ No. 2003-STA-039,
  slip op. at 6 (ARB June 29, 2007). CPC did not dispute the ALJ’s findings that Carter
  established that he engaged in protected activity and that his discharge was an adverse
  action. We affirm these findings. Jackson v. Union Pac. RR Co., ARB No. 13-042, ALJ No.
  2012-FRS-017, slip op. at 5 (ARB Mar. 20, 2015).
  29     49 U.S.C. § 31105(a)(1)(B)(i); 29 C.F.R. § 1978.102(a), (c)(1)(i).


         Carter engaged in STAA-protected activity and CPC subjected him to an
  adverse employment action by discharging him from employment. The issue before
  us on appeal is to determine if, after his reconsideration of the evidence, the ALJ’s
  reiteration of his conclusion that Carter’s protected activity did not contribute to his
  discharge is supported by the record.

          On remand the ALJ reconsidered his rulings on Carter’s asserted
  justifications for his delayed deliveries. The ALJ affirmed his ruling that Carter
  engaged in STAA-protected activity on July 15, 2011, when he refused to drive due
  to illness. The ALJ vacated his previous findings that Carter never mentioned
  fatigue breaks to his supervisors and instead found that “Carter told Mr. Covert
  and Mr. Pruitt that his extended run times were caused by rest breaks.” 30 And the
  ALJ acknowledged CPC’s statement to OSHA, which contains several statements
  admitting that Carter informed CPC of his right to refuse to drive if his alertness
  was impaired. 31

          The Fourth Circuit identified CPC’s position statement to OSHA as
  containing evidence concerning conversations that the ALJ may have overlooked in
  his first decision. 32 The ALJ on remand discussed two conversations that Carter
  had with supervisors and found that Carter’s additional statements to CPC to the
  effect that his delays were a result of fatigue breaks were untruthful for several
  reasons. D. & O. on Rem. at 3. First, the ALJ found it unbelievable that Carter
  suffered fatigue on nearly every run he made. Second, the ALJ found that Carter
  delayed his runs to annoy and harass his partner and disrupt his partner’s


  30      D. & O. on Rem. at 3. While CPC had no rule that drivers were required to contact
  the company every time they took a rest break, company rules did require drivers to report
  significant delays. Id. at 5.
  31     See CX 3 at 8, 13-14 (“Mr. Carter told Mr. Covert that he ran late because he got
  sleepy and had to pull over to rest ... Mr. Carter asked CPC Division Manager Ken Pruitt
  over the phone whether Mr. Pruitt was saying he couldn’t stop if he was sleepy ... Mr.
  Carter said that he was allowed by the DOT to take rest breaks if he needed them ... Mr.
  Carter also accused CPC of not caring about safety and threatened to report CPC ... Thus,
  CPC knew Mr. Carter had verbally claimed that he often got sleepy while performing his
  driving duties and therefore needed frequent rest breaks, and that Mr. Carter had referred
  to the DOT when stating he was entitled to such breaks.”).
  32     The Fourth Circuit did not identify specifically the evidence that the ALJ overlooked
  beyond a description of the conversations and that at least one of the conversations was
  referenced in CPC’s statement to OSHA.


  schedule. D. & O. on Rem. at 3-4. Third, the ALJ found that Carter’s untruthfulness
  was further evidenced by the fact that he admitted that he never recorded his rest
  breaks on his trip manifests despite his obligation to do so. 33 With the exception of
  July 15, 2011, Carter failed to inform CPC contemporaneously with any bouts of
  fatigue or illness. 34 We affirm the ALJ’s findings that Carter’s claim of having made
  additional statements concerning fatigue to CPC were not credible. We therefore
  affirm the ALJ’s ruling that the only recorded incident of STAA-protected activity in
  this case occurred on July 15, 2011. 35

         After his review of the evidence, the ALJ again concluded that Carter failed
  to prove by a preponderance of the evidence that his STAA-protected activity was a
  contributing factor in CPC’s decision to discharge him, and we agree. The ALJ again
  found that Carter was delayed by more than an hour on nearly all of his runs for
  three months prior to his discharge. The D. & O. included several charts
  summarizing the start and end times for each run by Carter and Gordon during the
  period from June 27, 2011, through October 5, 2011, and summarizing the times it
  took Carter to complete round trips compared to the times it took similarly situated
  drivers to complete similar trips on the same days. 36 The ALJ reexamined this
  evidence on remand:

                  There were 44 days on which Mr. Carter and the team 1
                  driver drove the Jacksonville route. Decision and Order at
                  38. On 39 of those days, the team 1 driver made the run in


  33     Tr. 65 (“I never, even when I was doing the other leg, for four and a half years of
  being there, I never put down that I stopped and took a rest break.”).
  34     See D. & O. on Rem. at 5 (“Mr. Carter may have told his supervisors that his long
  run times were caused by fatigue breaks, see CX 3, but Mr. Carter did not make those
  statements while he was suffering from a bout of fatigue. Because the statements were not
  made contemporaneous with any bout of fatigue, and I find Mr. Carter to be generally non-
  credible, I find those statements were merely post hoc excuses and give them no probative
  weight.”).
  35     In his Petition for Review Carter asserts that, in addition to July 15, 2011, he
  engaged in STAA-protected activity on September 9, and October 4, 2011. Petition for
  Review at 8. However, he did not indicate what he did or said on those days that would
  constitute protected activity. We note that we issued a briefing order after receipt of
  Carter’s Petition for Review but he did not file a brief identifying record evidence
  supporting this assertion.
  36     D. & O. at 31-38.


                  less time than Mr. Carter did, averaging about 67 minutes
                  less than it took Mr. Carter. Id. On each of the five days on
                  which Mr. Carter took less time than the team 1 driver did,
                  the team 1 driver was delayed in Jacksonville for one to
                  three hours. Id. at 38-39. And, there were 44 days on which
                  Mr. Carter and the team 2 driver (Walter Moore) drove the
                  Jacksonville route. Id. at 39. On 38 of those days, Mr.
                  Moore completed the trip in an average of 111 minutes less
                  time than it took Mr. Carter. Id. On the other six days, Mr.
                  Moore took longer than Mr. Carter, but Mr. Moore was
                  waiting for the train at the Jacksonville railyard on each of
                  those days. Id. 37

         CPC’s admission that Carter’s breaks from driving were a factor in the
  decision to fire him does not establish that CPC violated the STAA because, with
  one exception, Carter failed to prove that those breaks constituted STAA-protected
  activity. The evidence he offered in support of his alleged protected activity was not
  credible to the finder of fact. Instead, the overwhelming evidence shows that Covert
  reviewed Carter’s job performance and Wallis made the decision to discharge Carter
  based on his disciplinary history, his failure to improve his performance, and his
  unexplained delays on the Jacksonville run. In sum, we agree with the ALJ’s
  conclusion that CPC’s termination of Carter’s employment did not violate the
  STAA. 38


                                         CONCLUSION

         In accordance with the Fourth Circuit’s ruling, we have examined the record
  to determine if Carter’s STAA-protected activity was a contributing factor in his
  discharge from employment. The record fully supports the ALJ’s conclusion that
  Carter engaged in STAA-protected activity by refusing to drive due to illness. The

  37     D. & O. on Rem. at 3.
  38     Id. at 7, citing Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 987-88 (4th Cir. 1993)
  (“An employer obviously remains free to sanction an employee for chronically tardy conduct
  or indeed for any action not protected by the STAA. The STAA protects only a driver who
  may unexpectedly encounter fatigue on the course of a journey; it obviously does not protect
  delays unrelated to the statutory purposes of public and personal safety.” (emphasis
  added)).


  record also supports the ALJ’s conclusion that Carter’s protected activity did not
  contribute to his discharge. Carter was discharged because of his unexplained
  delays, disciplinary history, and failure to improve his performance. Accordingly,
  the ALJ’s Decision and Order on Remand denying Carter’s complaint is
  AFFIRMED, and the complaint is hereby DENIED. 39

         SO ORDERED.




  39     29 C.F.R. § 1978.110(e).