Heyward v. Benore Logistic System, Inc. (agency decision, July 29, 2021)

Plain-English summary

Truck driver Brian Heyward was selected for a random drug test and refused to provide a urine sample at his employer's testing area. He later offered to provide a sample at a medical facility, but Benore Logistic System terminated him for the refusal. Heyward argued that he declined because the testing procedure would violate his privacy under a Transportation Department rule. The ALJ held that refusing a random drug test is not among the activities protected by the Surface Transportation Assistance Act. The Board found the ruling well reasoned, adopted it, and dismissed the complaint without reaching adverse action or causation.

Decision snapshot

• Cited authorities: 49 U.S.C. §§ 31105(a), 31105(b)(1), and 42121(b); 49 C.F.R. § 40.43; 29 C.F.R. § 1978.110(b)
• Outcome: ALJ dismissal adopted and STAA complaint dismissed.
• Key point: Refusal to take a random drug test is not an enumerated protected activity under the STAA, even when the employee objects to the testing procedure on privacy grounds.

Full text (DOL official public release)

                                     Administrative Review Board

U.S. Department of Labor 200 Constitution Ave. NW
Washington, DC 20210-0001

    In the Matter of:



    BRIAN HEYWARD,                                ARB CASE NO. 2021-0023

                COMPLAINANT,                      ALJ CASE NO. 2020-STA-00117

          v.                                      DATE: July 29, 2021

    BENORE LOGISTIC SYSTEM, INC.,

                RESPONDENT.

    Appearances:

    For the Complainant:
          Brian Heyward; pro se; Piedmont, South Carolina

    For the Respondent:
          A. Jack Finklea, Esq.; Scopelitis, Garvin, Light, Hanson & Feary, P.C.;
          Indianapolis, Indiana

    Before: James D. McGinley, Chief Administrative Law Judge, Randel K.
    Johnson and Stephen M. Godek, Administrative Appeals Judges


                               DECISION AND ORDER

           PER CURIAM. This case arises under the Surface Transportation Assistance
    Act of 1982, 49 U.S.C. § 31105(a) (2007) (STAA), as amended, and its implementing
    regulations at 29 C.F.R. Part 1978 (2020).

          Brian Heyward (Complainant) started working as a truck driver for Benore
    Logistic System, Inc. (Respondent) on January 5, 2018. On November 14, 2018,
    Complainant was selected to participate in a random drug test. He refused to
    submit to a urinalysis at Respondent’s testing area, and was subsequently fired
    based on that refusal on the same day.
   On February 11, 2019, Complainant filed a complaint with the Occupational

Safety and Health Administration (OSHA), alleging retaliation in violation of the STAA. On July 17, 2020, OSHA dismissed the complaint based on its determination that refusing to submit to a drug test is not protected activity.

  Complainant requested a hearing before an Administrative Law Judge (ALJ).

On February 12, 2021, the ALJ issued an Order to Show Cause as to why the case should not be dismissed for failure to allege a protected activity under the STAA. On March 10, 2021, Complainant filed a response. On March 16, 2021, the ALJ issued a Decision and Order dismissing the complaint (D. & O.). Complainant appealed the ALJ’s ruling to the Administrative Review Board (Board).

  The Secretary of Labor has delegated his authority to the Board to issue

agency decisions in STAA cases.1 The Board reviews an ALJ’s factual determinations under the substantial evidence standard.2 The Board reviews the ALJ’s legal conclusions de novo.3

   Upon review of the record and briefs on appeal, we conclude that the ALJ’s D.

& O. is a well-reasoned decision based on the facts and applicable law. As a result, we ADOPT and ATTACH the ALJ’s D. & O. and, accordingly, we DISMISS Heyward’s complaint.

  SO ORDERED.

1 Secretary’s Order No. 01-2020 (Delegation of Authority and Assignment of Responsibility to the Administrative Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13186 (Mar. 6, 2020). 2 29 C.F.R. § 1978.110(b). 3 Olson v. Hi-Valley Constr. Co., ARB No. 2003-0049, ALJ No. 2002-STA-00012, slip op. at 2 (ARB May 28, 2004) (citations omitted).

                                        2

U.S. Department of Labor Office of Administrative Law Judges
11870 Merchants Walk - Suite 204
Newport News, VA 23606

                                   (757) 591-5140
                                   (757) 591-5150 (FAX)



                                                                         Issue Date: 16 March 2021

 CASE NO.:      2020-STA-00117

 In the Matter of:

 BRIAN HEYWARD,
      Complainant,

        v.

 BENORE LOGISTIC SYSTEM, INC.,
     Respondent.

                     DECISION AND ORDER DISMISSING COMPLAINT

         This matter arises under the employee protection provisions of the Surface Transportation
 Assistance Act (“STAA” or “the Act”), 49 U.S.C. § 31105 et seq., and the implementing regulations
 found at 29 C.F.R. Part 1978. Complainant, Brian Heyward, alleges that he was terminated after
 refusing to submit to a random urinalysis.

                                   PROCEDURAL HISTORY

         On February 11, 2019, Complainant filed a complaint with the Occupational Safety and
 Health Administration (OSHA) alleging retaliation in violation of the STAA. On July 17, 2020,
 after an OSHA investigation, the Secretary of Labor determined that Respondent had not violated
 the Act. On September 21, 2020, Complainant appealed the Secretary’s determination and
 requested a hearing before the Office of Administrative Law Judges. On February 12, 2021, I
 issued an Order to Show Cause requiring Complainant to respond showing cause why this case
 should not be dismissed for failure to allege a protected activity under the Act. On February 27,
 2021, Complainant filed a prehearing statement. On March 5, 2021, in response to Respondent’s
 request for a continuance, I issued an Order Cancelling the Hearing. In the order, I stated that if
 Complainant filed a response to the Order to Show Cause that rendered a hearing necessary, the
 hearing would be rescheduled. On March 10, 2021, Complainant timely filed a response to the
 Order to Show Cause.

                                   STATEMENT OF FACTS

        Complainant worked as a truck driver for Respondent. On November 14, 2018,
 Complainant was instructed to participate in a Department of Transportation random drug test. He
 refused to provide a urine sample at the Respondent’s testing area. He returned later, telling
 Respondent that he would provide a sample at a medical facility instead. Respondent was
 terminated for refusal to submit to a urinalysis as instructed.
    Complainant then filed a complaint alleging that he was terminated for engaging in a

protected activity. Complainant alleges that he refused to submit to a urinalysis because the manner in which it was conducted would have been a violation of his privacy under the Department of Transportation’s rule at 49 C.F.R. § 40.43. Thus, he argues, refusing to submit to the drug test that he thought was a violation of his privacy is protected activity, and termination for that conduct, he claims, is wrongful.

                                      DISCUSSION

      To prevail on his STAA complaint, Complainant must show by a preponderance of the

evidence that: (1) he engaged in protected activity, (2) he suffered an adverse employment action, and (3) the protected activity was a contributing factor to the adverse employment action. Beatty v. Inman Trucking Management, Inc., ARB No. 13-309, ALJ No. 2008-STA-00020, slip. Op. at 4–5 (May 13, 2014). If Complainant meets his burden of proof, the burden shifts to Respondent to prove by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity. 49 U.S.C. § 42121(b); 49 U.S.C. § 31105(b)(1) (incorporating the AIR21 legal burdens of proof). Respondent will escape liability if it meets this burden.

      First, Complainant must prove that he engaged in protected activity. The STAA outlines

a variety of protected activities for which a person may not discharge, discipline, or discriminate against an employee regarding pay, terms, or privileges of employment because an employee engaged therein. 49 U.S.C. § 31105(a). Those activities include when the employee (A) has filed, is about to file, or is perceived as about to file a complaint related to a violation of commercial motor vehicle safety, (B) refuses to operate a vehicle out of concern for personal or public safety, (C) accurately reports hours on duty, (D) cooperates or is perceived to be cooperating with a safety or security investigation, or (E) furnishes or is perceived to furnish information relating to any accident resulting in injury or death to the Secretary of Transportation, Secretary of Homeland Security, National Transportation Safety Board, or any regulatory or law enforcement agency. 49 U.S.C. §§ 31105(a)(1)(A)–(E).

    The alleged protected activity in this case is refusal to submit to a random drug screening.

In Bergman v. Schneider National, it was undisputed that the complainant was terminated after refusing to take a random drug test as directed. 2004-STA-00019 (March 9, 2004). Administrative Law Judge Jennifer Gee held that refusal to take a random drug test is not an activity protected under the STAA. Id. at 2. Judge Gee issued an Order to Show Cause and found that the complainant’s response failed to offer a new argument or evidence that would establish that his refusal to take a random drug test was a protected activity. Id. at 3. On appeal, the Administrative Review Board (“ARB” or “the Board”) affirmed Judge Gee’s decision and concluded that “the ALJ was correct to conclude that refusing to take a random drug test is not protected because it is not activity that falls within the STAA’s enumerated protected activities.” Bergman v. Schneider National, A.R.B. No. 03-155 (April 29, 2005).

   Here, Complainant was fired for refusing to submit to a random urinalysis. Complainant

argues that his refusal was justified due to Respondent’s failure to conduct the urinalysis in a

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manner that, he claimed, failed to protect his privacy.1 Refusal to submit to a random drug test is not an enumerated protected activity under the STAA. See 49 U.S.C. § 31105. Moreover, the Board has concluded that refusal to take a random drug test is not a protected activity. See Bergman, A.R.B. No. 03-155. Thus, I find that Complainant’s refusal to submit to a drug test is not a protected activity under the STAA. Therefore, Complainant has failed to allege or prove an essential element of an STAA complaint—that he was engaged in a protected activity.

  Because Complainant is unable to establish one of the three required elements to prevail in

an STAA complaint, his complaint must be dismissed.2

                                                  ORDER

  IT IS ORDERED that Complainant’s February 11, 2019 complaint alleging that

Respondent violated the Act is DISMISSED.

                                                        LARRY W. PRICE
                                                        Administrative Law Judge

LWP/KRS/jcb
Newport News, Virginia

NOTICE OF APPEAL RIGHTS: To appeal, you must file a Petition for Review ("Petition") with the Administrative Review Board ("Board") within fourteen (14) days of the date of the administrative law judge's decision.

Your Petition is considered filed on the date of its postmark, facsimile transmittal, or e-filing; but if you file it in person, by hand-delivery or other means, it is filed when the Board receives it. See 29 C.F.R. § 1978.110(a). Your Petition must specifically identify the findings, conclusions or orders to which you object. You may be found to have waived any objections you do not raise specifically. See 29 C.F.R. § 1978.110(a).

1
Complainant articulated in his complaint documentation, prehearing statement, and response to the Order to Show Cause that he refused to submit to a random drug screening due to what he perceived as Respondent’s failure to protect his privacy. However, these allegations do not change the fact that refusing to submit to a urinalysis is not a protected activity under the STAA. 2 Because Complainant has failed to establish one essential element—that he engaged in a protected activity—I do not reach the questions of whether he suffered an adverse employment action or whether the protected activity was a contributing factor to said employment action.

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At the time you file the Petition with the Board, you must serve it on all parties as well as the Chief Administrative Law Judge, U.S. Department of Labor, Office of Administrative Law Judges. You must also serve the Assistant Secretary, Occupational Safety and Health Administration and, in cases in which the Assistant Secretary is a party, the Associate Solicitor, Division of Occupational Safety and Health. See 29 C.F.R. § 1978.110(a).

If no Petition is timely filed, the administrative law judge's decision becomes the final order of the Secretary of Labor pursuant to 29 C.F.R. §§ 1978.109(e) and 1978.110(b). Even if a Petition is timely filed, the administrative law judge's decision becomes the final order of the Secretary of Labor unless the Board issues an order within thirty (30) days of the date the Petition is filed notifying the parties that it has accepted the case for review. See 29 C.F.R. § 1978.110(b).

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-4-
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                                       SERVICE SHEET

Case Name: HEYWARD_BRIAN_v_BENORE_LOGISTIC_SYST_

Case Number: 2020STA00117

Document Title: Decision and Order Dismissing Complaint

I hereby certify that a copy of the above-referenced document was sent to the following this 16th day of March, 2021:

JOAN BUCHANAN
Paralegal Specialist

OSHA, Whistlebl Director OSHA-Region 4 Regional Administrator Directorate of Whistleblower Protection Programs Regional Administrator U S Department of Labor, OSHA Region 4 Room N 4618 FPB U. S. Department of Labor, OSHA 200 CONSTITUTION AVE NW 61 Forsyth Street, S.W. WASHINGTON DC 20210 ATLANTA GA 30303
{Electronic - Regular Email} {Electronic - Regular Email}

Review Board Administrative Brian Heyward Administrative Review Board [Redacted - EX6] U. S. Dept. of Labor Suite S-5220, FPB {Electronic - Regular Email} 200 Constitution Ave., N.W. WASHINGTON DC 20210 Maria VanHees, Esq
{Electronic - Regular Email} [email protected]
General Counsel
Atlanta Regional Solicitor Benore Logistic Systems Inc. U. S. Department of Labor 2500 East Erie Road Sam Nunn Federal Center ERIE MI 48133 Room 7T10 {Electronic - Regular Email} 61 Forsyth Street, S.W. ATLANTA GA 30303
{Electronic - Regular Email}
SERVICE SHEET continued (2020STA00117 Case Decision) Page: 2

A. Jack Finklea
[email protected]
Scopelitis, Garvin, Light, Hanson & Feary, P.C.
Scopelitis Garvin Light Hanson & Feary, P.C.
10 West Market Street
INDIANAPOLIS IN 46204
{Electronic - Regular Email}