Dick v. USAA (agency decision, April 16, 2024)

Plain-English summary

Curtis Dick alleged that USAA and Contracted Driver Services retaliated against him in violation of the Surface Transportation Assistance Act. The Board upheld the finding that Dick did not engage in protected activity during his USAA assignment because his concern about the electronic logging system was not objectively reasonable. His later safety complaint about vehicles used for a Thunder Ridge assignment was protected, but it did not contribute to his removal from the USAA assignment or his termination. The removal occurred before that complaint, and substantial evidence showed the decision to terminate him was made without knowledge of the complaint and was based on service, performance, and professionalism problems. The Board affirmed both the denial of the complaint and the summary decision for USAA.

Decision snapshot

• Cited authorities: 49 U.S.C. § 31105(a)(1); 49 U.S.C. § 42121; 29 C.F.R. § 1978.109(a); 29 C.F.R. § 1978.109(b); 29 C.F.R. § 1978.110(b)
• Outcome: The Board affirmed the ALJ's denial of the STAA complaint and the summary decision for USAA.
• Key point: A safety complaint cannot contribute to an earlier adverse action, and protected activity must play some role in the challenged employment decision.

Full text (DOL official public release)

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

IN THE MATTER OF:


CURTIS DICK,                              ARB CASE NO. 2022-0063

            COMPLAINANT,                  ALJ CASE NO. 2018-STA-00054
                                          ALJ TRACY A. DALY
      v.
                                          DATE: April 16, 2024
USAA,

      and

CONTRACTED DRIVER SERVICES,

            RESPONDENTS.

Appearances:

For the Complainant:
      Curtis Dick; Pro Se; Cedar Hill, Texas

For the Respondent USAA:
      Gary Visscher, Esq. and Diana Schroeher, Esq.; Law Office of Adele L.
      Abrams P.C.; Beltsville, Maryland

For the Respondent Contracted Driver Services:
      Julie A. Pace, Esq. and David A. Selden, Esq.; Pace Selden Gilman
      Marks PLLC; Phoenix, Arizona

Before HARTHILL, Chief Administrative Appeals Judge, and THOMPSON,
and ROLFE, Administrative Appeals Judges
                                            2


                              DECISION AND ORDER

ROLFE, Administrative Appeals Judge:

       This case arises under the Surface Transportation Assistance Act of 1982
(STAA), as amended, and its implementing regulations.1 Curtis Dick (Complainant)
filed a complaint with the United States Department of Labor’s Occupational Safety
and Health Administration (OSHA) alleging that United Services Automobile
Association (USAA) and Contracted Driver Services (CDS) (collectively,
Respondents) retaliated against him in violation of the STAA’s whistleblower
protection provisions. Following a hearing, a United States Department of Labor
Administrative Law Judge (ALJ) issued a Decision and Order (D. & O.) denying
Complainant’s complaint. Complainant appealed the matter to the Administrative
Review Board (ARB or Board).

       Because substantial evidence supports the ALJ’s determinations
Complainant did not engage in protected activity while assigned to USAA, and that
the protected activity he engaged in while assigned to Thunder Ridge did not
contribute to his termination, the Board affirms.

                                       BACKGROUND

      CDS is a personal staffing firm that provides intermittent, on-demand
commercial motor vehicle drivers to client companies on an as-needed basis.2 CDS
hired Complainant as a commercial motor vehicle driver in February 2017.3

        USAA provides financial services to members of the United States military,
veterans, and their families.4 USAA contracted with CDS to provide drivers to
transport a specialty commercial motor vehicle (disaster CMV) to natural disaster
sites.5 The contract with USAA required CDS to dispatch a standby driver within
twenty-four hours after USAA requested one.6 CDS would identify drivers it
believed qualified as standby drivers, and USAA screened the drivers, and if




1     49 U.S.C. § 31105(a); 29 C.F.R. Part 1978 (2023).
2     D. & O. at 6.
3     Id.
4     Appellate Exhibit (AX) 1 at 4.
5     D. & O. at 6
6     Id.
                                             3


satisfied with their qualifications, would approve them.7 USAA approved
Complainant as a standby driver.8

       Upon accepting a USAA driving assignment, a standby driver was required
to commence the job within twenty-four hours, pick up the disaster CMV at a
designated location, and travel to a disaster site.9 Standby drivers were also
obligated to timely notify USAA representatives of any delays in arriving to the
designated departure location.10

      On December 5, 2017, USAA requested a driver to transport the disaster
CMV from San Antonio, Texas to Southern California.11 CDS offered Complainant
the assignment, and Complainant accepted.12 Jeff Durante, an operations specialist
for CDS, informed Complainant of the time-sensitive nature of the job specifying
that Complainant needed to arrive in San Antonio within twenty-four hours.13
When USAA contacted Complainant to schedule his travel plans, however,
Complainant informed USAA that he could only make the flight arriving at 9:58
p.m. on December 6, outside of the required twenty-four-hour deployment
schedule.14

       To prevent further delay, Calvin Schlafke, a contemporary fleet and logistics
coordinator for USAA, drove the disaster CMV from San Antonio to El Paso.15
Schlafke contacted Complainant to discuss the adjusted travel schedule and
reiterate that the job was time-sensitive.16 In addition, Schlafke reminded
Complainant to complete his required hours-of-service form before arriving in El
Paso.17 USAA requires drivers to have the hours-of-service form completed before
arriving to pick up a vehicle.18


7     Id.
8     Id.
9     Id.; Hearing Transcript (Tr.) at 202-03.
10    D. & O. at 6.
11    Id. at 7.
12    Id.
13    Id.; Tr. at 421-22.
14    D. & O. at 7.
15     According to Schlafke, this was unprecedented and highly unusual to transport the
disaster CMV to an alternative location. Id.; Tr. at 74, 81-82, 205.
16    D. & O. at 7.
17    Id.; Tr. at 83-85, 99, 125.
18    D. & O. at 7; Tr. at 103.
                                             4


       Complainant missed his scheduled flight without notifying USAA.19 Schlafke,
however, arrived in El Paso at 9:00 p.m. with the disaster CMV as planned.20
Complainant eventually arrived in El Paso around 1:00 a.m. on December 7, nearly
thirty-six hours after he accepted the job.21 Upon arrival, Complainant did not have
his required hours-of-service form completed.22 Complainant and Schlafke worked
together to prepare the form, finishing at approximately 2:30 a.m.23

       Schlafke also explained the Electronic Logging Device (ELD) application to
Complainant.24 USAA uses an ELD to track and record vehicle location, travel
routes, and time operating the disaster CMV.25 Complainant expressed opposition
to using the ELD several times and insisted he would record his own driving hours,
but he did not say that he thought the system presented a safety issue.26 Schlafke
reiterated that the ELD was a redundant, but different system than the driver’s
hours-of-service log used by Complainant (and other drivers), and that the ELD was
used to track the disaster CMV’s hours of operation and location.27 Conversely,
Complainant believed that Schlafke wanted him to input his past seven-days’
driving history in an incorrect manner on the ELD.28

       Complainant departed El Paso at approximately 8:25 a.m. on December 7—
nineteen hours after the required twenty-four-hour dispatch time.29 At
approximately 8:37 p.m., Complainant called USAA to report heavy traffic and
advise that he needed to stop in Blythe, California, rather than Palm Desert,
California for his required driving break.30 Complainant had not advised USAA


19    D. & O. at 7.
20      Id. USAA requested Complainant to arrive in El Paso on an earlier flight than the
flight that he ultimately took because USAA wanted Complainant to take his required ten-
hour break and be on the road between 6:00 a.m. and 7:00 a.m. the next day. Tr. at 207.
21    D. & O. at 7.
22    Id. at 8; Tr. at 122-25, 518-19.
23    D. & O. at 8.
24    Id.; Tr. at 125-27.
25    D. & O. at 8; Tr. at 123-27, 156-57.
26    D. & O. at 8; Tr. at 125-27, 140.
27    D. & O. at 8; Tr. at 125-27.
28     D. & O. at 8. “Complainant had driven only 11 hours over two days during the past
seven-day time period. He did not assert that he was being asked to drive in a manner that
would violate regulations on hours of driving service limits.” Id.
29    Id.
30    Id.
                                             5


earlier of the traffic delays, and his late notice forced USAA to cancel a hotel
reservation and incur a late cancellation charge.31

       The USAA assignment required Complainant to depart Blythe at 6:00 a.m.
on December 8, but he did not leave until approximately 7:14 a.m.32 Around 11:05
a.m., Complainant stopped at a truck wash.33 Complainant spent more than three
hours at the truck wash before leaving at 2:23 p.m.34 A portion of that time was
spent obtaining a second wash because Complainant did not believe the disaster
CMV was washed thoroughly the first time.35

       After leaving the truck wash, Complainant drove for approximately twenty-
six minutes before stopping at a truck stop in Ontario, California to take a
mandatory hours-of-service driving break.36 Complainant did not inform USAA of
his decision to stop at the truck wash, which he split with his upcoming required
hours-of-service driving break.37 USAA became aware of Complainant’s stop when
Schlafke contacted Complainant to inquire about his lack of progress toward the
wildfire destination area.38

       Upon departing from the truck stop at 5:14 p.m., Complainant took a route
contrary to the directions Schlafke provided him in El Paso.39 USAA expected
Complainant to follow the route mapped for him.40 While tracking the vehicle’s
route, Schlafke realized Complainant was driving toward a portion of the highway
impacted by fire activity, and on several occasions, called Complainant or sent him
text messages to inform him that he was not driving on the mapped route.41

     On December 8, Schlafke called Durante and requested CDS remove
Complainant from service as a driver for the USAA program due to his multiple



31    Id.; Tr. 14, 93, 118, 130-31, 219.
32    D. & O. at 9.
33    Id.; Tr. at 130-31.
34    D. & O. at 9.
35    Id.; Tr. at 164-67.
36    D. & O. at 9; Tr. at 131-32, 168, 171-73, 425.
37    D. & O. at 9; Tr. at 171-73.
38    D. & O. at 9; Tr. at 173-74.
39    D. & O. at 9; Tr. at 134-35, 208-09, 236-37.
40    Id.
41    Id.
                                             6


service failures.42 In a follow-up e-mail, Schlafke provided CDS with a list of
reasons for USAA’s request to remove Complainant as a program driver.43

       After being removed from the assignment, Complainant called Lydia Eschler,
a compliance specialist for CDS.44 During the call, Complainant told Eschler he felt
it was unsafe for him to answer USAA’s calls or respond to text messages while he
was driving, but he did not report any other safety concerns.45

       On December 9, Complainant sent Durante a one-page e-mail recognizing
“timeliness concerns regarding [his] performance,” explaining the stops he made
while driving the disaster CMV, and rebutting USAA’s opinion that he was wasting
time.46 Complainant also noted his excellent safety record, that he stopped driving
to respond to USAA’s phone calls and text messages, which hindered his driving
progress, and that he put forth “100% in [his] efforts.”47 Notably, the e-mail
contained no reference to safety concerns or efforts by USAA representatives to
have him violate commercial motor vehicle safety regulations.48

      On December 11, Complainant sent a second e-mail to Durante stating, “for
some reason USAA got mad at me about something.”49 Complainant acknowledged
that he misunderstood USAA’s twenty-four-hour standby policy and made
comments about receiving calls and text messages from USAA staff while driving.50
But the e-mail again contained no reference to safety concerns or efforts by USAA
representatives to have him violate commercial motor vehicle safety regulations. To
the contrary, Complainant acknowledged USAA was “so safety cautious . . . .”51


42     D. & O. at 9; Tr. at 91-92.
43      Schlafke listed the following reasons: (1) deployment failures that resulted in
Complainant not commencing the driving job within the required twenty-four-hour period;
(2) driving failures on December 6 and 7 that delayed delivery of the disaster CMV; (3)
failing to communicate with USAA to inform it of delays; and (4) interacting with USAA
personnel in an argumentative manner. CDS replaced Complainant, which resulted in CDS
incurring approximately $767.00 in additional expenses. D. & O. at 9-10; Tr. at 91-95, 108-
09, 118-22, 128-35, 137, 207-10.
44     D. & O. at 10.
45     Id.
46     Id.
47     Id.
48     Id.
49     Id.
50     Id.
51     Id.
                                               7


Moreover, Complainant indicated that he remained interested in driving for
USAA.52

       On the afternoon of December 14, Clarke consulted with CDS senior
management and his business partner and decided to terminate Complainant’s
employment53 based upon Complainant’s failure to perform his job satisfactorily,54
his unprofessional and disrespectful interactions with CDS employees and
managers,55 and his disregard for customer service.56 According to Clarke,
Complainant did not accept responsibility for his poor job performance and client
interaction with USAA and he and Walker “were ‘not getting along.’”57 The ALJ
credited Clarke’s testimony that while making the decision to terminate
Complainant’s employment, Clarke was unaware of any safety concerns
Complainant had reported either stemming from Complainant’s assignments with
USAA or the assignment Complainant was working that day at Thunder Ridge.58

      Separately, but also on December 14, CDS gave Complainant a driving
assignment for Thunder Ridge.59 During this assignment, Complainant observed a
truck with a cracked mirror and an inoperable headlight.60 Complainant called
Eschler at 9:54 p.m., informed her of his observations, and requested contact

52    Id.
53    D. & O. at 12; Tr. at 487-88, 504-05.
54    D. & O. at 11-12.
55    Id. at 11; Tr. at 485-87. Clarke also testified:
             Curtis may not be aware of that, that whenever he
             communicates with others that he puts people in sort of
             prospective, but when you’re aggressive and you’re aggressive
             consistently, it puts people on edge and on defensive motion. So,
             our teams were - - they want to work with people, but if they like
             they can’t work with them, then my teams usually instead of
             being combative, they’ll shut down. They’re those types, right, so
             we typically will not raise our attention to that other individual.
             We don’t want to get into a fight. It’s just not a good fit. We’d
             rather move on so that’s what we decided.
      Tr. at 500.
56    D. & O. at 12; Tr. at 487-88.
57      D. & O. at 11-12. Complainant complained to CDS employees that Walker was being
idle, ignoring him, that she “can’t help with nothing,” and that she “can’t usually do too
much.” Id. at 10.
58    Id. at 12; Tr. at 492.
59    D. & O. at 11.
60    Id.
                                              8


information for senior management at Thunder Ridge.61 The next day, Eschler e-
mailed Justin Clarke, CDS’ owner and chief executive officer, Victoria Anderson,
CDS’ operations manager, and Mary Ann Pennella, Clarke’s business partner,
summarizing her discussion with Complainant. The e-mail noted Complainant’s
displeasure with his removal from the USAA assignment, that Complainant had
safety concerns with Thunder Ridge’s trucks, Complainant’s request for Thunder
Ridge’s management’s contact information, and potential lawsuits Complainant
stated he may file against USAA and Thunder Ridge.62

       On December 16, 2017, Lydia Evanson, a CDS contracted human resources
manager, called Complainant to notify him that Respondent was terminating his
employment.63 Complainant informed Evanson on the call that CDS recently
assigned him to work at Thunder Ridge, and Evanson told Complainant to continue
working for the duration of the assignment.64 Complainant’s last day of employment
with Respondent was December 19.65 Complainant submitted safety concerns
regarding the Thunder Ridge assignment to CDS on December 20.66




61     Id.; Tr. at 277-79, 283, 345.
62     Tr. at 282, 286-88. According to Eschler’s e-mail, Complainant “talked [her] ear off
about being pulled off of USAA job . . . [and] that he may be filing a DOT Law suit against
USAA for pulling him off this job with no reason. (his words, not mine)[.]” Later in the e-
mail, Eschler stated:
              Now, last night on call, he called me at 9:54 pm asking for an
              email address to Thunder Ridge higher ups so he could send
              them a list of everything wrong with their trucks, per DOT he
              feels that there may be a law suit there too! I told him to send
              the list to us, did not get anything as of yet.
              I’m just sending this because I see a problem with him in the
              future, and maybe he’s looking for a law suit with anyone or any
              company he can find one at? So just an FYI.
       Respondent CDS’ Exhibit (RX) 9.
      The record also contains a second e-mail discussing a potential lawsuit against
USAA. On December 14, 2017, April Walker, CDS’ Texas branch manager, sent an e-mail
to Anderson and copied Durante to the e-mail, which stated “[Complainant] talks about
USAA continuously but yesterday he mentioned filing a Federal complaint against them for
constantly calling him while he was driving.” RX-7.
63     D. & O. at 11; RX-11; Tr. at 490-92.
64     D. & O. at 11.
65     Id. at 12.
66     Id. at 11.
                                             9


                                 PROCEDURAL HISTORY

     On December 18, 2017, Complainant filed a complaint against USAA and
CDS with OSHA alleging Respondents violated the STAA.67 On April 17, 2018,
OSHA concluded no reasonable cause existed to believe Respondents violated the
STAA and dismissed the complaint.68 On April 26, 2018, Complainant objected to
OSHA’s findings and requested a hearing before the Office of Administrative Law
Judges (OALJ).69

       On July 27, 2018, USAA filed a Motion for Summary Decision. On October 3,
2018, the ALJ issued a Ruling on Respondent USAA’s Motion for Summary
Decision dismissing Complainant’s claims against USAA because the ALJ found
USAA did not employ Complainant.70 Complainant filed an interlocutory appeal of
the order with the Board. On July 23, 2020, the Board dismissed the appeal and
returned the case to the ALJ to conduct a formal hearing and render a decision in
the case against CDS on its merits, including considering whether any violation of
the statute occurred when Complainant completed the USAA assignment while
CDS employed him.71

      The ALJ conducted the hearing on July 21-22, 2021. On September 2, 2022,
the ALJ issued a D. & O. denying Complainant’s complaint against CDS, finding
Complainant did not engage in any protected activity while working for CDS on the
USAA job assignment and that any protected activity on the Thunder Ridge
assignment played no part in his termination from CDS. On September 9, 2022,
Complainant filed a petition for review of the ALJ’s D. & O. with the Board.72

67     Id. at 1.
68     Id.
69     Id.
70     Id. at 2. On July 30, 2018, CDS filed a Motion to Dismiss. On October 3, 2018, the
ALJ issued a Ruling on Respondent Contracted Driver Services’ Motion to Dismiss denying
CDS’ Motion.
71     Id.
72      The Board acknowledges Complainant appealed the ALJ’s Ruling on Respondent
USAA’s Motion for Summary Decision dismissing Complainant’s claims against USAA on
the basis USAA did not employ him. Complainant’s Opening Legal Brief (Comp. Br.) at 10-
11. In its order denying the interlocutory appeal, however, the Board found that argument
“not collateral to his Complaint,” and instead “integrated with his overall claim against
Respondents[,]” which it remanded for a hearing on the merits against CDS. Order
Dismissing Interlocutory Appeal at 4. Given that we affirm the ALJ’s post-hearing finding
Complainant did not engage in protected activity while assigned to the USAA job while
working for CDS, any whistleblower claim against USAA also necessarily fails, whether it
employed Complainant or not. Halm v. Schwan’s Home Serv., Inc., ARB No. 2011-0005,
ALJ No. 2009-STA-00034, slip op. at 4 (ARB Sept. 28, 2012) (failure to prove any one of the
                                             10



                       JURISDICTION AND STANDARD OF REVIEW

      The Secretary of the Department of Labor has delegated to the Board the
authority to review ALJ decisions under STAA.73 In STAA cases, the Board reviews
questions of law presented on appeal de novo, but is bound by the ALJ’s factual
findings if they are supported by substantial evidence.74 Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”75 The Board reviews an ALJ’s determinations on procedural and
evidentiary rulings under an abuse of discretion standard.76

                                       DISCUSSION

1. Governing Law

       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 protected activity.77 To prevail
on a STAA claim, a complainant must prove by a preponderance of the evidence
that: (1) they engaged in activity that STAA protects; (2) their employer took
adverse action against him; and (3) their protected activity was a contributing



elements of a claim necessarily requires dismissal of a whistleblower complaint) (citations
omitted). The Board thus declines to review the ALJ’s initial dismissal of USAA as a party
as moot. Id.
73     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. 13,186 (Mar. 6, 2020).
74     29 C.F.R. § 1978.110(b); Stokes v. Albertson’s, LLC, ARB No. 2022-0007, ALJ Nos.
2020-STA-00080, -00082, slip op. at 5 (ARB May 20, 2022) (citing Jacobs v. Liberty
Logistics, Inc., ARB No. 2017-0080, ALJ No. 2016-STA-00007, slip op. at 2 (ARB Apr. 30,
2019) (reissued May 9, 2019)).
75     Stokes, ARB No. 2022-0007, slip op. at 5 (citing Consol. Edison Co. of N.Y. v.
N.L.R.B., 305 U.S. 197, 229 (1938)); see also Hanna v. Global Nuclear Fuel-Americas, LLC,
ARB No. 2023-0015, ALJ No. 2020-ERA-00002, slip op. at 6 (ARB Mar. 19, 2024) (citing
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)).
76    May v. AGL Servs. Co., ARB No. 2022-0015, ALJ No. 2020-PSI-00001, slip op. at 6
(ARB Sept. 14, 2023) (citing Furlong-Newberry v. Exotic Metals Forming Co., LLC, ARB No.
2022-0017, ALJ No. 2019-TSC-00001, slip op. at 22 (ARB Nov. 9, 2022)).
77      49 U.S.C. § 31105(a)(1). STAA complaints are governed by the legal burdens of proof
set forth in the employee protection provisions of the Wendell H. Ford Aviation Investment
and Reform Act for the 21st Century (AIR21). Id. § 31105(b)(1); see 49 U.S.C. § 42121.
                                              11


factor in the adverse action.78 If the complainant meets this burden of proof, the
respondent may avoid liability if it establishes an affirmative defense, proving by
clear and convincing evidence that it would have taken the same adverse action in
the absence of the complainant’s protected activity.79

2. Dick Did Not Engage in Protected Activity While Assigned to USAA But
   Did Engage in Protected Activity While Assigned to Thunder Ridge

       Under the STAA, a complainant engages in protected activity by filing a
complaint or refusing to operate a vehicle for safety reasons.80 For the complaint
clause, a complainant must demonstrate that they had a reasonable belief the
conduct complained of violated pertinent law or regulations.81 This requires
establishing a subjective belief that is objectively reasonable.82 Showing the
complainant actually believed the conduct constituted a violation of relevant law
satisfies the subjective component.83 The objective component is evaluated based on
the knowledge available to a reasonable person in the same factual circumstances
with the same training and experience as the aggrieved employee.84

       Before the ALJ, Complainant asserted that he engaged in protected activity
during the USAA assignment when he: (1) expressed concerns regarding the
disaster CMV’s ELD system; (2) was ordered to work during a DOT break; and
(3) refused to answer phone calls or text messages.85 The ALJ concluded

78     29 C.F.R. § 1978.109(a).
79     Id. § 1978.109(b).
80      49 U.S.C. § 31105(a)(1). This case pertains to § 31105(a)(1)(A)(i)-(ii). Under
§ 301105(a)(1)(A), a person may not discharge an employee, or discipline or discriminate
against an employee because: (i) the employee, or another person at the employee’s request,
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; or (ii) the person perceives that the employee has filed or is about to file
a complaint or has begun or is about to begin a proceeding related to a violation of a
commercial motor vehicle safety or security regulation, standard, or order. Id.
81    Tocci v. Miky Transp., ARB No. 2015-0029, ALJ No. 2013-STA-00071, slip op. at 8
(ARB May 18, 2017) (citing Gilbert v. Bauer’s Worldwide Transp., ARB No. 2011-0019,
ALJ No. 2010-STA-00022, slip op. at 7 (ARB Nov. 28, 2012); Dick v. J.B. Hunt Transp., Inc.,
ARB No. 2010-0036, ALJ No. 2009-STA-00061, slip op. at 6 (ARB Nov. 16, 2011)).
82     Tocci, ARB No. 2015-0029, slip op. at 8 (citations omitted).
83     Id.
84     Id.
85     D. & O. at 13-15; Complainant’s Post Hearing Brief Against Contracted Driver
Services at 4, 6; Complainant’s Post Hearing Reply Brief Against Contracted Driver
Services at 1-2.
                                             12


Complainant did not engage in protected activity as it related to his work on the
USAA driving assignment.86 As it pertained to Complainant’s ELD system
complaints, the ALJ held “while Complainant’s belief may have been subjectively
sincere . . . it was not objectively reasonable.”87

      Complainant’s appeal on protected activity concerns only the ELD system.88
Upon review, we hold substantial evidence supports the ALJ’s finding that even if
Complainant held a subjective belief the use of the system violated a safety rule,
that belief was not objectively reasonable.

       First, the ALJ’s factual determinations establish it is questionable whether
Complainant subjectively believed the mere use of the ELD system violated a safety
regulation. The ALJ found: (1) Schlafke clearly conveyed the ELD system’s purpose
and use to Complainant;89 (2) Schlafke acknowledged that Complainant was
independently obligated to retain his own driving record;90 and (3) Complainant
took no action to inform his CDS managers about any safety concerns or that
Schlafke requested he misrepresent his driving history. Rather, Complainant sent
two e-mails to CDS following his removal from the USAA job that at no point
alleged safety concerns.91 To the contrary, Complainant acknowledged in one e-mail
that “[USAA] are so safety cautious . . . .”92 Complainant does not allege error in any
of these factual findings, nor can we independently discern any.

      As recognized by the ALJ, given the temporal proximity to Complainant’s
removal from the USAA job, it thus would have been expected for him to describe
any prior safety concerns he subjectively believed contributed to his removal from


86     D. & O. at 15.
87     Id. at 14 (emphasis added).
88      Comp. Br. at 6-7. Complainant does not address or challenge the ALJ’s other USAA
protected activity finding that “Complainant’s asserted protected activity related to work
during a break and refusing to answer phone calls or texts lacks convincing evidentiary
proof.” D. & O. at 14. Nor have we independently found any such proof.
89     D. & O. at 14. Schlafke described the difference between a driver’s logbook, a seven-
day service form, and USAA’s ELD system. The logbook is a journal that a commercial
motor vehicle driver has to keep every single day; the seven-day hour service form tracks
the hours that a driver provided to their previous client, and the USAA’s ELD system is an
application that drivers can download on their phone or use the application on the provided
iPad in the disaster CMV, which tracks the vehicle location, hours driving, and breaks.
Tr. 122-24.
90     D. & O. at 14; Tr. at 122-24.
91     D. & O. at 14; RX-4; RX-5.
92     RX-5.
                                              13


the assignment within these e-mails.93 Instead, the Complainant’s e-mails reflect he
had no safety-related problems with either USAA or Schlafke.

       Second, regardless of Complainant’s subjective point of view, substantial
evidence supports the ALJ’s determination that Complainant did not establish an
objectively reasonable belief that the ELD system was unsafe. The simple use of a
system to track a truck’s location does not intrinsically suggest a violation of any
safety regulation, standard, or order. Indeed, other drivers routinely used it (or
similar systems) without any concern that doing so would misrepresent past driving
hours, cause safety concerns, or violate regulations.94

      Nor did Complainant submit any evidence or attempt to develop any
argument beyond his conclusory allegation suggesting the mere use of an ELD
system violates a safety rule or regulation. Given that complete lack of proof,
substantial evidence supports the ALJ’s determination that even if Complainant
subjectively believed the ELD system presented safety concerns, he did not meet his
burden to establish that belief was objectively reasonable.95 We therefore affirm the
ALJ’s determination Complainant did not engage in protected activity while
performing the USAA assignment for CDS.96




93     D. & O. at 14.
94     Tr. at 127.
95     Stokes, ARB No. 2022-0007, slip op. at 5 (holding substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”).
96      Although Complainant did not engage in protected activity while assigned to USAA,
the Board agrees with the ALJ and Complainant that Complainant’s safety complaints
during the Thunder Ridge assignment constituted protected activity under the STAA.
D. & O. at 15; Comp. Br. at 7. Complainant notified Eschler and Thunder Ridge’s
management that he observed a vehicle with a broken mirror and inoperable light. D. & O.
at 15. And the ALJ correctly determined Complainant suffered two forms of adverse action:
CDS removed Complainant from the USAA assignment and terminated Complainant’s
employment. D. & O. at 15. We accept these findings as final because they
are unchallenged by the parties on appeal. See 29 C.F.R. 1978.110(a) (“The parties should
identify in their petitions for review the legal conclusions or orders to which they object, or
the objections may be deemed waived.”); Leiva v. Union Pac. R.R., ARB Nos. 2014-0016,
-0017, ALJ No. 2013-FRS-00019, slip op. at 8 (ARB May 29, 2015) (affirming ALJ’s finding
as unchallenged on appeal under a parallel whistleblower statute). As explained above,
however, the lack of any protected activity on the USAA job eliminates any potential
liability for USAA. Halm, ARB No. 2011-0005, slip op. at 4.
                                              14


3. Dick’s Protected Activity While Assigned to Thunder Ridge Did Not
   Contribute to His Employment Termination

       A contributing factor is “any factor which, alone or in connection with other
factors, tends to affect in any way the outcome of the decision.”97 The Board has
noted that this is a relatively low standard for an employee to meet—the activity
need only play some role and “need not be ‘significant, motivating, substantial or
predominant.”98

       The ALJ concluded Complainant’s Thunder Ridge safety complaint “played
absolutely no role in him being removed from the USAA wildfire driving job, nor
was it considered when his employment as an at-will, intermittent driver for CDS
was terminated.”99 In coming to this conclusion, the ALJ permissibly determined
that Clarke: (1) had no knowledge of any safety concerns raised or reports made by
Complainant prior to deciding to terminate his employment; and (2) based the
decision to terminate Complainant on non-retaliatory reasons.100

       On appeal, Complainant claims his concerns regarding the electronic logs and
efforts “to report truck (CMV) defects” were a contributing factor in CDS’ decision to
terminate his employment.101 CDS counters that the ALJ correctly determined CDS
terminated Complainant solely for his “intolerable job performance” and “not for
engaging in any protected activity.”102

97      Simpson v. Equity Transp. Co., ARB No. 2019-0010, ALJ No. 2017-STA-00076, slip
op. at 8 (ARB May 13, 2020) (quoting Palmer v. Canadian Nat’l Ry., ARB No. 2016-0035,
ALJ No. 2014-FRS-00154, slip op. at 53 (ARB Jan. 4, 2017)).
98      Id. at 9 (quoting Palmer, ARB No. 2016-0035, slip op. at 53). The United States
Supreme Court recently issued Murray v. UBS Securities, LLC, a whistleblower case under
the Sarbanes-Oxley Act of 2002 (SOX) examining whether a whistleblower must prove
“retaliatory intent” to satisfy the contributing factor element. Murray v. UBS Secs., LLC,
601 U.S. 23 (2024). The Court held a whistleblower bears the burden to prove his protected
activity “was a contributing factor in the unfavorable personnel action alleged . . . but he is
not required to make some further showing that his employer acted with ‘retaliatory
intent.’” Id. at 39. The Court noted that Congress “incorporated the easier-to-satisfy
‘contributing factor’ framework” into whistleblower statutes that protect employees in
industries where whistleblowing plays an especially important role in protecting the public
welfare, including the airline industry (AIR21) and securities industry. Id. at 28. As noted
previously, the STAA applies the legal burdens of proof set forth within AIR21. Supra note
77. Thus, the Board uses this “easier-to-satisfy” contributing factor framework in STAA
cases.
99     D. & O. at 17.
100    Id.
101    Comp. Br. at 5-8.
102    Respondent Contracted Driver Services, Inc.’s Response Brief at 33.
                                              15



        We agree with CDS that substantial evidence supports the ALJ’s finding that
any protected activity Complainant engaged in on the Thunder Ridge assignment
did not contribute to either his removal from the USAA assignment or his
termination. As a preliminary matter, Complainant’s removal from the USAA
assignment occurred well-before his Thunder Ridge safety complaints. Complainant
was removed from the USAA assignment on December 8, 2017. Complainant first
reported his safety concerns to Eschler on December 14, 2017, and later submitted a
written summary of his concerns to CDS managers on December 20, 2017.103 Given
that timeline, the Thunder Ridge safety report could not have been a contributing
factor in his removal from the USAA assignment as a matter of both law and
logic.104

       Moreover, the record further supports the ALJ’s determination Clarke
likewise did not know about Complainant’s Thunder Ridge safety concerns before
deciding to terminate his continued employment with CDS.105 Clarke testified that
he consulted with CDS senior management and his business partner in the
afternoon on December 14, while Complainant reported his initial concerns to
Eschler at 9:54 p.m. later that day.106 Clarke also testified Complainant’s removal
from the USAA assignment and employment termination resulted from service
failures, performance issues, and unacceptable personal interaction with CDS
clients and employees.107 The ALJ, in his role as factfinder, found Clarke’s
testimony “reliable” and “well-supported” and noted that it contained “no internal
inconsistencies.”108 He therefore gave it “considerable weight.”109

      We reject Complainant’s invitation on appeal to reinterpret Clarke’s
testimony. The Board gives great significance to an ALJ’s credibility
determinations, deferring to an ALJ unless their witness evaluations are
“inherently incredible or patently unreasonable.”110 Complainant neither points to

103    D. & O. at 11; RX-2; RX-3; RX-18; RX-19.
104    Kirschmann v. Hampton Rds. Transit, ARB No. 2023-0002, ALJ No. 2021-NTS-
00006, slip op. at 9 n.30 (ARB Feb. 14, 2024) (stating “[i]t is axiomatic that, to constitute
actionable retaliation, the alleged action must post-date the protected activity.”) (citing
Nieman v. Se. Grocers, LLC, ARB No. 2018-0058, ALJ No. 2018-LCA-00021, slip op. at 14
n.85 (ARB Oct. 5, 2020) (internal citations omitted)).
105    D. & O. at 12; Tr. at 492.
106    D. & O. at 12; RX-11; Tr. at 487-89, 504-05.
107    D. & O. at 11-12; RX-1; RX-8; Tr. at 485-88.
108    D. & O. at 6.
109    Id.
110  Jacobs, ARB No. 2017-0080, slip op. at 2; Cottier v. Bayou Concrete Pumping, LLC,
ARB No. 2020-0069, ALJ No. 2019-STA-00046, slip op. at 15 (ARB Jan. 18, 2022) (holding
                                              16


any evidence the ALJ did not consider in crediting Clarke’s testimony about the
timeline of his termination, nor does he identify any error of law. And while
Complainant makes various arguments regarding different aspects of Clarke’s
testimony that he alleges impact his overall credibility, they concern facts unrelated
to the timeline of his termination.111

       On its face, Complainant’s argument thus falls far short of meeting the high
burden to demonstrate the ALJ’s crediting of Clarke’s testimony about the
termination decision was inherently incredible or patently unreasonable.112
Moreover, other contemporaneous record evidence corroborates Clarke’s account,
including, for example: USAA’s e-mail requesting CDS to replace Complainant as a
driver;113 e-mails amongst CDS staff regarding Complainant’s inappropriate
behavior;114 and witness testimony.115

       Complainant, in effect, thus simply asks us to reweigh the evidence in his
favor, something our standard of review does not permit.116 We instead affirm the
ALJ’s contributing factor causation analysis as related to the decision to terminate
his CDS employment as supported by substantial evidence.117 While that affirmance
is fatal to Complainant’s claim, CDS’s successful establishment of its affirmative
defense is equally dispositive.

that “[t]he Board affords such deference because the ALJ is able to observe the ‘witnesses’
demeanor while testifying. . . .’”) (citations omitted).
111    See, e.g., Comp. Br. at 7-8, suggesting Clarke’s testimony is incredible regarding: (1)
not receiving information from Durante about the USAA assignment; (2) not
communicating with Walker about voicemails or e-mails she had received from
Complainant; (3) his knowledge that CDS was looking for a replacement driver for the
USAA assignment; and (4) other drivers vetted for USAA assignments.
112     Folger v. SimplexGrinnell, LLC, ARB No. 2015-0021, ALJ No. 2013-SOX-00042, slip
op. at 4 (ARB Feb. 18, 2016) (noting that “[m]aking credibility determinations of this sort is
exactly why ALJs hold elaborate, trial-like hearings . . . and exactly why we afford great
deference to an ALJ’s credibility determinations.”) (citations omitted).
113    RX-1.
114    Id.; RX-7; RX-9; RX-10.
115    Tr. at 92-93, 118.
116     See Clem v. Comput. Scis. Corp., ARB 2020-0025, ALJ Nos. 2015-ERA-00003,
-00004, slip op. at 13 (ARB Mar. 10, 2021) (holding that the substantial evidence standard
“limits the reviewing court from ‘deciding the facts anew, making credibility
determinations, or re-weighing evidence.’”) (citations omitted).
117    See Butler v. Neier, Inc., ARB No. 2016-0084, ALJ No. 2014-STA-00068, slip op. at 9-
10 (ARB June 22, 2018) (affirming the ALJ’s causation findings based on, in part, the ALJ’s
witness credibility determination and reliance on the witness’ uncontradicted timeline of
events).
                                             17



4. CDS Demonstrated by Clear and Convincing Evidence It Would Have
   Terminated Dick’s Employment in the Absence of His Protected Activity

       If a complainant demonstrates that their protected activity was a
contributing factor in the adverse action, the respondent may avoid liability if it
demonstrates by clear and convincing evidence that it would have taken the same
adverse action in the absence of the complainant’s protected activity.118 The Board
has previously held an employer satisfies this burden when it shows that it is
“highly probable” it would have taken the action in the absence of protected
activity.119

       The ALJ determined CDS proved by clear and convincing evidence that it
would have taken the same action against Complainant in the absence of
Complainant’s protected activity.120 The ALJ relied upon the same reasons that
were discussed in his contributing factor analysis, including service failures,
performance issues, and unacceptable personal interaction with CDS clients and
employees.121 On appeal, Complainant argues that the ALJ erred in finding that
Respondent met its burden. In so doing, Complainant does not point to any error of
law the ALJ committed, but once again asks us to reweigh facts in a different
light.122

      We decline to do so. The record contains ample evidence from which any
reasonable observer could determine that CDS terminated Complainant’s
employment because Complainant failed to provide adequate, time-sensitive service
to USAA.

118    29 C.F.R. § 1978.109(b).
119     Simpson, ARB No. 2019-0010, slip op. at 9 (citing Palmer, ARB No. 2016-0035, slip
op. at 52)).
120    D. & O. at 18-19.
121     See id. at 16-17, 19. The ALJ noted Clarke’s persuasive testimony pertaining to
these interactions, the timeline of events leading up to Complainant’s termination, and his
lack of knowledge of Complainant’s alleged protected activities. Id. at 19.
122    Comp. Br. at 4. Complainant states:
       Respondent CDS, has cited the primary reason for Complainant’s
       termination was for service failures at Respondent USAA. (TR. 560). Then
       CDS makes a blanket statement that Complainant was acting rude, and
       dignified. (Tr. 561, lines 17 thru 23). Respondent CDS cited three (3)
       telephonic events, that contributed to Complainant’s termination. (Tr. 562),
       which CDS decision-maker misrepresented the content of the phone call
       conversations (CX-29 & CX-30) [sic throughout].
       Comp. Br. at 4.
                                            18



      For example, according to USAA’s email requesting Complainant’s removal
from the assignment and credible witness testimony, Complainant: (1) failed to
commence the driving job within the required 24-hour period; (2) committed several
driving failures that delayed delivery of the disaster CMV to California; (3) failed to
communicate with USAA and inform it of delays, which caused additional costs for
USAA; and (4) interacted with USAA personnel in an argumentative manner.123
Complainant even acknowledged USAA’s dissatisfaction with his job performance in
an e-mail to Durante.124

      In addition to the significant problems with the USAA assignment that
occurred while in CDS’s employment, the record also contains distinct evidence that
CDS terminated Complainant’s employment due to additional professionalism and
customer service concerns. The ALJ reasonably credited Clarke’s persuasive
testimony that he considered Complainant’s interactions and conduct toward
Schlafke and CDS employees to be combative, unprofessional, and unacceptable,
and the timeline of Complainant’s termination corroborates that testimony.125

       Conversely, Complainant has not provided any evidence or argument to
establish the ALJ erred in making these factual determinations. While
Complainant may have legitimate concerns regarding his termination that go
beyond raising safety issues, the STAA is not a general employee grievance
statute.126 Accordingly, the Board affirms the ALJ’s affirmative defense finding as
supported by substantial evidence and in accordance with law.127




123   D. & O. at 18-19; RX-1; Tr. at 92-93, 118.
124   RX-5.
125   D. & O. at 19; RX-7; RX-9; Tr. at 535-36.
126     The purpose of the STAA is to promote highway safety and protect employees from
retaliatory discharge. Cottier, ARB No. 2020-0069, slip op. at 9 (citations omitted). The
STAA is not a general remedy for employment grievances unrelated to commercial vehicle
safety. See e.g. Kirschmann, ARB No. 2023-0002, slip op. at 9 n.31 (noting the NTSAA and
other whistleblower statutes administered by the Board are not general anti-retaliation
statutes).
127    We further reject Complainant’s suggestion the ALJ abused his wide discretion in
conducting procedural matters during the hearing in this claim. Complainant claims the
ALJ did not permit Complainant to question witnesses and present his case in the manner
that he desired which prejudiced him. The Rules of Practice and Procedure for the
Department of Labor’s Office of Administrative Law Judges, however, authorize the ALJ to
exercise reasonable control over the mode and order of interrogation and presentation of
evidence, which includes making the interrogation and presentation effective for the
                                             19


                                       CONCLUSION

    For the foregoing reasons, the Board AFFIRMS the ALJ’s D. & O., and
AFFIRMS the ALJ’s Ruling on Respondent USAA’s Motion for Summary Decision.

       SO ORDERED.




                                           ____________________________________
                                           JONATHAN ROLFE
                                           Administrative Appeals Judge



                                           ____________________________________
                                           SUSAN HARTHILL
                                           Chief Administrative Appeals Judge



                                           ____________________________________
                                           ANGELA W. THOMPSON
                                           Administrative Appeals Judge




ascertainment of the truth, avoiding needless consumption, and protecting witnesses from
harassment or undue embarrassment. 29 C.F.R. § 18.611(a).
        Here, the ALJ originally permitted Complainant to take the lead in questioning
witnesses until it became apparent Complainant was argumentative and did not
understand evidentiary rules. On numerous occasions, Complainant asked compound
questions, irrelevant questions, and/or failed to lay proper foundation before questioning
witnesses. Tr. 68, 72-73, 78, 105, 121, 135-36, 175-76. After several failed attempts by
Complainant and unnecessary time spent on witnesses, the ALJ took the lead in
questioning witnesses to expedite the process, rephrased questions for Complainant, and
then, permitted Complainant to follow-up with additional, relevant questions. Id. at 62, 79-
80, 83, 85, 94-95, 112, 116, 120-22, 140-41, 151, 155, 163, 167, 174, 261, 283, 286, 288, 293,
296-98. The ALJ aided Complainant throughout the proceedings with explanations and
extended deadlines, which are not typically afforded to litigants at that stage of the
proceedings. Id. at 21, 33, 48-51, 142, 179-80, 191-92. Accordingly, the Board finds that ALJ
did not abuse his discretion.