PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BEVERLY HOWARD CALHOUN,
Petitioner,
UNITED PARCEL SERVICE,
INCORPORATED,
Intervenor, No. 07-2157
v.
UNITED STATES DEPARTMENT OF
LABOR,
Respondent.
On Petition for Review of an Order
of the United States Department of Labor.
(04-108; 2002-STA-031)
Argued: March 26, 2009
Decided: August 11, 2009
Before GREGORY and DUNCAN, Circuit Judges,
and Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.
Affirmed by published opinion. Judge Gregory wrote the
opinion, in which Judge Duncan and Senior Judge Kiser
joined.
2 CALHOUN v. U.S. DEPARTMENT OF LABOR
COUNSEL
ARGUED: Paul Otto Taylor, TRUCKERS JUSTICE CEN-
TER, Burnsville, Minnesota, for Petitioner. Lee Gary Grabel,
UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Respondent. Glenn G. Patton, ALSTON &
BIRD, Atlanta, Georgia, for Intervenor. ON BRIEF: Gregory
F. Jacob, Solicitor of Labor, Joseph M. Woodward, Associate
Solicitor for Occupational Safety and Health, Michael P.
Doyle, Counsel for Appellate Litigation, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Respon-
dent. Leslie E. Wood, ALSTON & BIRD, Atlanta, Georgia,
for Intervenor.
OPINION
GREGORY, Circuit Judge:
This appeal arises out of a complaint Petitioner Beverly
Calhoun filed with the Occupational Safety and Health
Administration ("OSHA") claiming that United Parcel Service
("UPS") took adverse employment actions against him as a
result of conduct protected by the Surface Transportation
Assistance Act ("STAA"), 49 U.S.C.A. § 31105 (West 2008).
An administrative law judge ("ALJ") with the Department of
Labor ("DOL") recommended a finding that UPS had disci-
plined Calhoun for engaging in STAA-protected activity, but,
in its final order, the DOL’s Administrative Review Board
("ARB") found that Calhoun had not met his burden of show-
ing that UPS violated the STAA. Calhoun petitioned this
Court for review, and, for the following reasons, we affirm
the ARB’s denial of Calhoun’s complaint.
I.
Time is of the essence to UPS’s business, which guarantees
CALHOUN v. U.S. DEPARTMENT OF LABOR 3
package delivery by a certain date and, often, time. A problem
at one facility, even with one driver, can create a ripple effect
of delays that can seriously interfere with UPS’s delivery
commitments. Accordingly, UPS gives its drivers a time
allowance in which to inspect their vehicles ("start-work allow-
ance"1) in order to minimize delays. UPS does not discipline
drivers for being over their start-work allowance ("over
allowed") unless the time the driver is spending on inspec-
tions is significantly greater than that of other drivers.
Despite the time pressures incumbent on its business, UPS
still has a "very positive" reputation for safety in the industry.
(J.A. 627.) An expert testifying for UPS at the ALJ hearing—
a former director of the Bureau of Motor Carrier Safety at the
Department of Transportation ("DOT")—described UPS as
"one of the leaders in safety innovation and safety investment
in terms of their motor carrier operations." (J.A. 627-28.) All
UPS feeder drivers2 attend a "feeder school" that includes 40
hours of classroom training and 40 hours of on-the-job train-
ing. UPS conducts an On-Job-Supervision ("OJS") ride with
every feeder driver at least once a year. And UPS prescribes
pre-trip inspection methods for its drivers that have been
found to "meet and exceed" the requirements of the Federal
Motor Carrier Safety Regulations ("FMCSRs"). (J.A. 644.) In
June 2000, DOT conducted an inspection of the UPS facility
in Greensboro, North Carolina, where Calhoun works.3 At the
conclusion of the inspection, DOT inspectors found that "[a]ll
of the drivers observed checked each of the necessary compo-
nents thoroughly and advised that they were satisfied that the
vehicles were in good working condition." (J.A. 831.)
1
This is measured by the time between punching in at the beginning of
the work day and leaving the yard in a loaded vehicle.
2
Feeder drivers move packages between UPS terminals.
3
The inspection came as the result of a complaint filed by Calhoun with
the DOT, in which he alleged that UPS management was not giving driv-
ers enough time to conduct their pre-trip inspections.
4 CALHOUN v. U.S. DEPARTMENT OF LABOR
Calhoun worked for UPS as a feeder driver for over thirty
years, finally retiring in December 2003. As a feeder driver,
Calhoun drove double trailers from a UPS hub in Greensboro
to Carnesville, Georgia, and back four days a week. In 2002,
UPS recognized him with an award for his driving record of
32 years without an avoidable accident.
Calhoun filed the OSHA complaint at issue in this case on
December 6, 2001. In it, he claimed that on several days
between June 26 and October 31, 2001, UPS took adverse
action against him as a result of activity protected under the
STAA.4 Specifically, Calhoun alleged that he was warned,
suspended, and discharged for engaging in daily vehicle
inspections that exceeded the UPS inspection guidelines but
that he felt were necessary to comply with FMCSRs that
require a driver to be satisfied with the safe operating condi-
tion of a vehicle prior to driving. At the administrative hear-
ing before the ALJ, several of Calhoun’s fellow drivers
testified that they also engaged in inspection measures that
exceeded those prescribed by UPS.
UPS’s start-work allowance for a feeder driver operating a
double trailer like Calhoun is 23.5 minutes if the trailer set
comes pre-assembled and 32.5 minutes if the driver has to
assemble the unit himself. In 2001, on average, UPS drivers
ran about 25 minutes over the allowance. Other drivers on
Calhoun’s particular route were an average of 36 minutes
over-allowed. Calhoun, on average, was 76 minutes over-
allowed. Between January and June 2002, Calhoun’s pre-trip
inspection delays caused him to return more than 30 minutes
late for the "Twilight Sort"5 on 60 percent of the days he
worked.
4
Calhoun has filed a number of grievances with UPS under his union’s
collective bargaining agreement expressing his interest in being allowed
to satisfy himself that his equipment was in safe operating condition
before he drove.
5
UPS needs all of its loads to be at a hub facility by twilight in order
to be unloaded, processed, and moved on in time to make it to their final
destinations promptly. The Twilight Sort begins at 8:00 p.m.
CALHOUN v. U.S. DEPARTMENT OF LABOR 5
Over the years, UPS informed Calhoun on numerous occa-
sions that he needed to reduce his start-work times. Nonethe-
less, as of January 1998, Calhoun was the most over-allowed
driver at the Greensboro facility, and his times only worsened
between 1998 and 2001. Calhoun’s pre-trip inspection delays
have both caused multiple service failures and forced UPS to
take costly measures to prevent service failures. From January
2000, Calhoun was the most frequent cause of service failures
at the Greensboro facility.
Calhoun’s appeal requires us to determine whether on ten
days between June 2001 and June 2002 Calhoun was subject
to adverse employment action as a result of engaging in
STAA-protected activity. The events of those days are as fol-
lows:
June 26, 2001: Don Allen, Calhoun’s supervisor, did an
OJS ride with Calhoun. Allen observed Calhoun wipe down
the dash, steering wheel, gear shifter and buttons, and touch
lug nuts, belts, hoses, and engine-compartment steering com-
ponents. Calhoun then performed an unapproved brake test.
Allen asked him to stop because such measures exceeded
UPS’s prescribed inspection methods and were causing
delays, but Calhoun told Allen his instructions were "bullshit"
(J.A. 235) and continued using his own inspection methods.
During his inspection, Calhoun found the dolly latch that
controlled the trailer coupling device was not working prop-
erly. Allen initially instructed him to hook up the dolly any-
way, but Calhoun took the trailer to the shop, where a
mechanic found the dolly’s brake drum was defective. Cal-
houn was given a replacement. After the OJS ride was com-
pleted, Allen prepared a report noting that Calhoun engaged
in an over-exaggerated inspection of his vehicle with "no
sense of urgency." (J.A. 1048.)
June 27, 2001: Allen again observed Calhoun’s pre-trip
inspection on June 27, 2001. Allen advised Calhoun that UPS
6 CALHOUN v. U.S. DEPARTMENT OF LABOR
methods prescribe that air lines be checked by walking around
the truck and listening and looking for leaks. Calhoun ignored
Allen’s instructions not to touch the air lines, and in doing so,
he found two air lines that needed to be replaced because they
had air bubbles in them.
June 28, 2001: Both Allen and shop steward Randall Wil-
liams accompanied Calhoun on his pre-trip inspection on this
day. After Calhoun grabbed and twisted the steering rod,
pulled on the drag link, and touched some lug nuts, Allen
asked him to come back to the UPS office. There, Allen
informed Calhoun that because he continued to disregard
instructions he was being given another warning letter. Cal-
houn responded that he needed to touch the equipment "for
safety" (J.A. 98) and he resumed his inspection by touching
some more lug nuts and wiping off the steering wheel and
gearshift lever. Allen then gave Calhoun a one-day suspen-
sion without pay. Calhoun did not drive that day.6
June 29, 2001: Allen again accompanied Calhoun on his
pre-trip inspection, during which Calhoun found an air leak in
the brake system. However, after Calhoun began separating a
pre-assembled trailer set, Allen stopped him, and Calhoun
became belligerent, stating that he wanted to check the equip-
ment his way. As a result, Calhoun was taken out of service
the next day. Calhoun apparently still drove his vehicle on
June 29, although he indicated that he was "working under
protest." (J.A. 108.)
July 5, 2001: Allen once again accompanied Calhoun on
his pre-trip inspection. Calhoun turned off the air to the rear
trailer in order to inspect for leaks. Allen later prepared a
6
The ALJ found that Calhoun was sent home to serve his one-day sus-
pension. The ARB, however, concluded from Calhoun’s testimony at the
administrative hearing that Calhoun was upset after his meeting with Allen
and took himself out of service. Either way, it is undisputed that Calhoun
did not operate his vehicle that day.
CALHOUN v. U.S. DEPARTMENT OF LABOR 7
start-work audit in which he indicated that Calhoun had
engaged in an exaggerated inspection and had unnecessarily
turned off the air to the rear trailer instead of simply listening
for a leak.7
July 6, 2001: Allen and union steward Thomas Hope
accompanied Calhoun on his pre-trip inspection. Calhoun
reported a problem with the air pressure in his brake system
fluctuating significantly. After the issue was fixed, Allen hur-
ried him through the rest of his inspection, pressuring him to
get on the road despite the fact that Calhoun was not satisfied
with the state of his equipment.
July 10, 2001: Allen again accompanied Calhoun on his
pre-trip inspection and found him again to be engaged in an
over-exaggerated inspection, including draining the air off the
dolly, manually inspecting brake hoses, and looking under the
cab door area and looking under the rear of the truck. After-
wards, Allen asked Calhoun to join him in a meeting with
another supervisor, Mark Hamilton. At that meeting, Calhoun
was given a three-day suspension for not scanning equipment
properly. Allen indicated that Calhoun should inspect equip-
ment with a quick, visual glance and that he needed to keep
moving as he did his inspection. In a start-work audit pre-
pared that day, Allen indicated that Calhoun was "purposely
overextending" his inspections and "ha[d] not improved [his]
sense of urgency about departing on schedule." (J.A. 1070.)
September 6, 2001: Allen and Feeder Manager Harry
Wolfe met with Calhoun at the beginning of the day. At the
meeting, Calhoun was asked to make a commitment to
improving his start-work time and following instructions, but
he refused. Allen then accompanied Calhoun on his pre-trip
inspection, where Calhoun continued to manually inspect
equipment and looked under the tractor cab multiple times. At
7
Calhoun testified at the administrative hearing that air leaks can gener-
ally be detected audibly, unless they are minute.
8 CALHOUN v. U.S. DEPARTMENT OF LABOR
one point in the inspection, Calhoun dropped to one knee and
looked under the dolly to inspect the springs and brakes. In
doing so, Calhoun saw a dolly brake was out of adjustment
and told Allen that he wanted to take it to the UPS shop. Allen
responded that "the brake test felt okay" and that Calhoun
"needed to move on and go." (J.A. 135.) Calhoun left but
when he got to Carnesville, GA, he felt that the brakes were
not working properly, and a mechanic found that the brake
parts were severely rusted. At a meeting the next day with
Allen, Union Steward Williams, and Feeder Manager Wolfe,
Calhoun was discharged for insubordination. In a discharge
letter dated September 11, UPS cited Calhoun’s September 6
conduct8 and Calhoun’s other failures to follow instructions
on June 28 and July 10 as reasons for the discharge.9
October 30, 2001: Before doing his pre-trip inspection,
Calhoun was given a pre-assembled trailer set to hook up.
During his inspection, he proceeded to uncouple the set in
order to inspect the coupling device and brakes. Allen
approached and told Calhoun that he was not to separate and
inspect pre-assembled doubles and that he would be termi-
nated again if he continued to do it. On October 31, 2001,
Calhoun received a discharge letter as a result of a warning
letter on July 2, a July 3 one-day suspension, a July 17 three-
day suspension, the September 7 notice of termination, and
the October 30 failure to follow supervisor instructions.
May 7, 2002: Supervisors again observed Calhoun uncou-
pling a trailer set. Calhoun was discharged once more on May
8, 2002.
8
The letter actually cites September 7, not September 6, as the day on
which Calhoun committed the infractions leading to his termination. This
appears to be an error, as the ALJ found that Calhoun was discharged on
September 7 as a result of his conduct on September 6.
9
UPS discharged Calhoun several times but always ultimately rehired
him.
CALHOUN v. U.S. DEPARTMENT OF LABOR 9
In a Recommended Decision and Order, issued on June 2,
2004, the ALJ found that Calhoun had established a prima
facie case of discriminatory action by UPS on June 26, June
28, June 29, July 10, and September 6, 2001. The ALJ further
found that UPS had "failed to establish that Calhoun was dis-
ciplined for legitimate, non-retaliatory reasons." (J.A. 1476.)
It therefore found him entitled to back pay and compensatory
damages for emotional distress. The ARB, however, declined
to follow the ALJ’s recommendation in its Final Decision and
Order issued on September 14, 2007. The ARB found that on
each of the given days on which Calhoun claimed UPS acted
adversely against him, he either could not make out a prima
facie case of discrimination under the STAA or could not
show that the nondiscriminatory reason proffered by UPS for
the adverse action was pretextual. Calhoun now petitions this
Court for review of the ARB’s Final Decision and Order, and
UPS has been granted leave to intervene.
II.
"Under the scheme established by Congress, the Secretary
of Labor makes final determinations on Surface Transporta-
tion Assistance Act violations . . . subject to appellate court
review . . . ." Yellow Freight Sys., Inc. v. Reich (Yellow
Freight I), 8 F.3d 980, 984 (4th Cir. 1993) (internal citations
omitted); see also 49 U.S.C.A. § 31105(d) (West 2008). We
must sustain the Secretary’s legal conclusions unless they are
"arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law." Yellow Freight I, 8 F.3d at 984
(internal quotation marks and citation omitted). While "the
Secretary must adopt the ALJ’s findings of fact if they are
supported by substantial evidence," we must in the course of
our review remain "mindful . . . of the deference due the Sec-
retary’s interpretation of a statute Congress charged him with
administering." Id.
III.
The STAA was passed to "promote the safe operation of
commercial motor vehicles," "to minimize dangers to the
10 CALHOUN v. U.S. DEPARTMENT OF LABOR
health of operators of commercial motor vehicles," and "to
ensure increased compliance with traffic laws and with . . .
commercial motor vehicle safety and health regulations and
standards." 49 U.S.C. § 31131(a) (2006). To achieve this pur-
pose, the STAA protects employees of commercial vehicle
operators as follows:
(1) A person may not discharge an employee, or dis-
cipline or discriminate against an employee regard-
ing pay, terms, or privileges of employment, because
—
(A) (i) the employee . . . has filed a com-
plaint or begun a proceeding related to a
violation of a commercial motor vehicle
safety or security regulation, standard, or
order, or has testified or will testify in such
a proceeding ["Complaint Clause]; or
...
(B) the employee refuses to operate a vehi-
cle because ["Refusal to Drive Clause"]—
(i) the operation violates a regulation,
standard, or order of the United States
related to commercial motor vehicle
safety, health, or security ["Actual Viola-
tion Prong"]; or
(ii) the employee has a reasonable appre-
hension of serious injury to the employee
or the public because of the vehicle’s
hazardous safety or security condition
["Reasonable Apprehension Prong"]
....
CALHOUN v. U.S. DEPARTMENT OF LABOR 11
49 U.S.C.A. § 31105(a); see also Brock v. Roadway Express,
Inc., 481 U.S. 252, 255 (1987).
To prevail on a claim under § 31105(a)(1), Calhoun must
establish a prima facie case that (1) he engaged in protected
activity, (2) his employer took adverse employment action
against him, and (3) there is a causal relationship between his
protected activity and the adverse employment action. Yellow
Freight Sys., Inc. v. Reich (Yellow Freight II), 27 F.3d 1133,
1138 (6th Cir. 1994). The burden then shifts to his employer
to articulate a legitimate, nondiscriminatory reason for the
adverse action. Id. If the employer successfully rebuts the
complainant’s prima facie case, the complainant "bears the
ultimate burden of demonstrating by a preponderance of the
evidence that the legitimate reasons were a pretext for dis-
crimination." Id. (internal quotation marks and citation omit-
ted).
Calhoun argues that he can satisfy the "protected activity"
element of his prima facie case under both the "Refusal to
Drive Clause" and the "Complaint Clause" of § 31105(a)(1).
UPS disputes that he can make out a prima facie case under
either clause.
A.
Calhoun first challenges the ARB’s conclusion that his con-
duct on June 26, June 28, June 29, July 10, and September 6,
2001 does not constitute protected activity under the "Refusal
to Drive Clause." In order to make out a prima facie case
under this subsection of § 31105, Calhoun needs to show (1)
that he refused to operate his vehicle (2) because either (a)
operating the vehicle would constitute an actual violation of
the FMCSRs, or (b) he had a reasonable apprehension that
operating the vehicle would result in harm to the public or to
himself. 49 U.S.C.A. § 31105(a)(1)(B). Calhoun does not
argue that he can satisfy the "Reasonable Apprehension" sub-
clause, so we do not discuss its applicability here.
12 CALHOUN v. U.S. DEPARTMENT OF LABOR
Looking at the first requirement of the "Refusal to Drive
Clause" — a refusal to drive—the ALJ found that "Calhoun’s
refusal to drive until he completed his pre-trip inspections sat-
isfies the requirement that he refuse to drive." (J.A. 1454.)
The ARB, however, found that the ALJ erred in his interpreta-
tion of the law because "Calhoun cannot seek protection
under the refusal to drive clause on the days he drove his
vehicle." (J.A. 1528.)
The plain language of § 31105(a)(1)(B) makes clear that to
qualify for protection under the "Refusal to Drive Clause," an
employee must have "refuse[d] to operate a vehicle." Thus,
there was nothing arbitrary or capricious about the ARB’s
conclusion that Calhoun did not "refuse to drive" for purposes
of § 31105(a)(1)(B) on June 29, when he drove his vehicle but
indicated that he was "working under protest." (J.A. 108.) We
similarly find no fault with the ARB’s finding that Calhoun
did not "refuse to drive" on September 6, when he drove his
route despite his concerns about the dolly brake. The question
of whether Calhoun’s conduct on June 26, June 28, and July
10 meets the "refusal to drive" requirement of
§ 31105(a)(1)(B) is a closer one. On June 28, Calhoun did not
operate his vehicle at all, either because he was serving a one-
day suspension or because he took himself out of service. On
June 26 and July 10, Calhoun did not operate his vehicle until
he had completed his vehicle inspection to his satisfaction.
Yet, we need not decide whether this conduct is sufficient to
constitute a "refusal to drive," because we are satisfied that
Calhoun still cannot make out a prima facie case under the
"Refusal to Drive Clause" for these days.
With respect to June 28 and July 10, we affirm the ARB’s
conclusion that Calhoun did not engage in protected activity
under the "Refusal to Drive Clause" because we find that Cal-
houn cannot satisfy the second prong of that clause: he has
not shown that operating the vehicle would have resulted in
an actual violation of an FMCSR.
CALHOUN v. U.S. DEPARTMENT OF LABOR 13
As the ALJ noted, "Calhoun does not allege that his vehi-
cle’s condition was unsafe, and thus, a violation of any spe-
cific safety regulation." (J.A. 1457.) Instead, he argues that
operating his vehicle on the days in question without complet-
ing his preferred pre-trip inspection would have violated two
general FMCSRs, 49 C.F.R. §§ 392.7 and 396.13 (2008). The
first of these regulations provides that "[n]o commercial
motor vehicle shall be driven unless the driver is satisfied that
the . . . parts and accessories are in good working order."10 49
C.F.R. § 392.7 (emphasis added). The second similarly pro-
vides that "[b]efore driving a motor vehicle, the driver shall
. . . be satisfied that the motor vehicle is in safe operating con-
dition." 49 C.F.R. § 396.13 (emphasis added). Calhoun claims
that, although his inspection methods were more extensive
than those prescribed by UPS, they were necessary to satisfy
himself that his vehicle was safe to operate and therefore were
necessary to comply with these two FMCSRs.
Calhoun accepts that he was not entitled to take unlimited
measures to satisfy himself under the regulations but he
argues that he was allowed to "take those additional measures
that are reasonably necessary for him to assure himself that
his assigned vehicles were in safe condition." (Pet’r’s Br. 27
(emphasis added).) UPS does not dispute that a reasonable-
ness standard should be applied but it argues that there is not
substantial evidence on the record to support the ALJ’s find-
ings that the measures Calhoun took to satisfy himself were
in fact reasonable. According to UPS, because the UPS-
approved inspection measures were themselves reasonable,
Calhoun had no objectively reasonable need to take the addi-
tional measures that he did.
10
The regulation goes on to identify the following parts about which the
driver must satisfy himself: service brakes, including trailer brake connec-
tions; parking brake; steering mechanism; lighting devices and reflectors;
tires; horn; windshield wipers; mirrors; coupling devices. 49 C.F.R.
§ 392.7.
14 CALHOUN v. U.S. DEPARTMENT OF LABOR
In Krahn, No. 04-097, 2006 DOL Ad. Rev. Bd. LEXIS 55,
at *21-23 (ARB May 9, 2006), pet. for review denied by, 275
Fed. App’x 683 (9th Cir. 2008), a UPS feeder driver invoked
49 C.F.R. §§ 392.7 and 396.13 to justify his slow driving and
frequent braking. Id. at *21. The driver, who was not allowed
by his supervisor to crawl underneath his vehicle to visually
inspect his brakes, claimed his driving at slow speeds and
excessive braking were STAA-protected activity because he
otherwise would not have been satisfied that his brakes were
in good working order. Id. at *22-23. The ARB found that
"[w]hile Krahn may have preferred crawling beneath his vehi-
cle to visually inspect his brakes for proper adjustment, he has
not established that UPS’s inspection methods were unreason-
able and in violation of 49 C.F.R. §§ 392.7 and 396.13." Id.
Similarly in Monde, No. 02-071, 2003 DOL Ad. Rev. Bd.
LEXIS 109, at *8-9 (Oct. 31, 2003), the ARB considered a
claim that complainant Monde engaged in protected activity
under § 31105(a)(1)(B)(i) when he refused to drive without
being allowed to complete a tire inspection every two hours
or 100 miles. According to Monde, a failure to allow him to
do such inspections violated 49 C.F.R. §§ 392.7 and 396.13
because, without these inspections, he could not be satisfied
that his vehicle was safe to operate. Id. The ARB was "unable
. . . to construe the general regulations as Monde urges. . . .
[because it] found nothing [in the regulatory guidance] to
establish the lengths to which a driver in Monde’s circum-
stances reasonably may go to satisfy himself that his equip-
ment is safe." Id. at *41-42. Meanwhile, "the record [was]
replete with testimony as to Roadway’s safety record and
experience with blowouts." Id. at *42.
As Krahn and Monde persuasively suggest, where an
employer’s prescribed inspection methods are themselves rea-
sonable, an employee’s additional inspection measures will
typically not be reasonably necessary to satisfy him that his
vehicle is safe to drive under 49 C.F.R. §§ 392.7 and 396.13.
This makes sense as a matter of policy. Under Calhoun’s
CALHOUN v. U.S. DEPARTMENT OF LABOR 15
approach, carriers and regulators would be placed in the
untenable position of having to assess the reasonableness of
as many different safety inspections as there are drivers.
Clearly, an approach in which every driver is permitted to
design his own inspection routine would seriously undermine
the ability of carriers to ensure the timely delivery of pack-
ages.
Here, UPS has been found to be a leader in industry safety,
and the DOT inspection of the Greensboro facility found that
drivers’ pre-trip inspections were thorough and that vehicles
were in good operating condition. Even the ALJ found that
UPS’s recommended pre-trip inspection methods were rea-
sonable. Nonetheless, the ALJ concluded that various of Cal-
houn’s extra inspection measures—including manually
checking brake hoses, lug nuts, belts, and the steering
mechanism—were also reasonable. We do not necessarily dis-
agree with this conclusion. These measures undoubtedly have
the potential to detect safety-related defects that might not be
discovered using UPS’s prescribed visual inspection methods.
But Calhoun was not disciplined simply for using pre-trip
inspection techniques beyond those prescribed by UPS. The
record shows that a number of other UPS drivers used the
same or similar measures to check their equipment, and UPS
did not take any disciplinary action against them. What distin-
guishes Calhoun’s conduct from that of the other drivers, and
what prompted UPS to take action, was the significant delays
caused by Calhoun’s lengthy pre-trip inspections. The time by
which Calhoun was over-allowed in his pre-trip inspection
was more than double the average of the other drivers on his
route, leading to numerous delays and service failures for
UPS. Calhoun has not shown that the extra time he spent in
his inspection regimen beyond that of other drivers made any
appreciable difference in the safety of his vehicle, and thus
has not shown that it was reasonably necessary to take this
additional time.
16 CALHOUN v. U.S. DEPARTMENT OF LABOR
Therefore, we agree with the ARB’s conclusion that Cal-
houn cannot invoke the "Refusal to Drive Clause" to establish
that he was engaged in STAA-protected activity on June 28
or July 10. UPS’s prescribed pre-trip inspection methods were
themselves reasonable and Calhoun cannot show that his
extended inspection regimen was reasonably necessary to sat-
isfy himself about the operating condition of his vehicle for
purposes of 49 C.F.R. §§ 392.7 and 396.13.
Finally, with respect to Calhoun’s conduct on June 26, the
record demonstrates that Calhoun did have a specific safety
concern about operating his vehicle that day, namely a mal-
functioning dolly latch. But Calhoun has not shown that UPS
took any adverse action against him as a result of this pro-
tected activity.11 As a result, he has failed to establish a prima
facie case under § 31105(a)(1)(B) for his conduct on this day
as well.
B.
The ARB further found that Calhoun could not make out a
prima facie case under the "Complaint Clause" of
§ 31105(a)(1) on June 28, June 29, July 5, July 10, or October
30, 2001, or on May 7, 2002. Calhoun argues now that that
this was error. We disagree. Calhoun’s "complaints" do not
qualify for protection under the "Complaint Clause" because
they either were not communicated to his supervisors or
because they did not relate to an actual violation of an
FMCSR.
Section 31105(a)(1)’s "Complaint Clause" protects from
retaliation an "employee . . . [who] has filed a complaint or
begun a proceeding related to a violation of a commercial
11
The ALJ found that Calhoun was given a one-day suspension for his
conduct on June 26, but the ARB found that this was based on a misunder-
standing of the testimony at the administrative hearing. After reviewing
the administrative record, we agree with the ARB.
CALHOUN v. U.S. DEPARTMENT OF LABOR 17
motor vehicle safety or security regulation, standard, or
order." In Yellow Freight I, this Circuit adopted the ARB’s
view that internal complaints to company management,
whether written or oral, suffice to satisfy the complaint
requirement of § 31105(a)(1)(A)(i). See 8 F.3d at 986; see
also Clean Harbors Envtl. Serv., Inc. v. Herman, 146 F.3d 12,
19 (1st Cir. 1998); Zurenda, 1998 DOL Ad. Rev. Bd. LEXIS
46, at *9. To qualify for protection, a complaint must be based
on a "reasonable belief that the company was engaging in a
violation of a motor vehicle safety regulation," Dutkiewicz,
No. 97-090, 1997 DOL Ad. Rev. Bd. LEXIS 98, at *6 (Aug.
8, 1997), aff’d sub nom. Clean Harbors, 146 F.3d 12.
Calhoun does not identify any complaint, written or oral,
that he made to Allen or any other supervisor on July 5 or
July 10.12 Calhoun suggests instead that he complained sub
silentio on those days, by turning off air to the rear trailer on
July 5 and engaging in a prolonged inspection on July 10. The
ARB concluded that Calhoun’s conduct on those days did not
amount to a complaint for purposes of the "Complaint
Clause" since "[h]e did not inform Allen or anyone else at
UPS that his vehicle was unsafe or that a regulation was being
violated." (J.A. 1534.) Calhoun argues that his actions can be
read as complaints considered in the context of his history of
oral and written complaints.
Calhoun believes that the First Circuit’s review of the
ARB’s decision in Dutkiewicz, see Clean Harbors, 146 F.3d
12, offers support for this proposition. In that case, the
employer appealed the ARB decision, arguing that there was
not substantial evidence to support the ARB’s finding that
Dutkiewicz had "filed a complaint" for purposes of
12
Moreover, Calhoun does not identify any adverse action taken against
him as a result of his conduct on July 5. The record shows that the only
action Allen took that day was to prepare a start-work audit, which, as the
ALJ found, was not adverse action because it did not affect Calhoun’s pay
or promotion potential.
18 CALHOUN v. U.S. DEPARTMENT OF LABOR
§ 31105(a)(1)(A)(i). Id. at 22. The First Circuit, however,
affirmed the ARB, finding that "Dutkiewicz’s oral and written
complaints were sufficiently definite to put Clean Harbors on
notice that he was engaging in protected activity." Id. It did
not say or even suggest that conduct other than an oral or
written complaint to a supervisor can constitute a complaint.
Still, Calhoun contends that as a matter of policy we should
construe the complaint requirement of § 31105(a)(1)(A)(i)
broadly. But however broadly we construe the statute,
"[c]learly there is a point at which an employee’s concerns
and comments are too generalized and informal to constitute
‘complaints’ that are ‘filed’ with an employer within the
meaning of the STAA." Id. Under Calhoun’s interpretation of
the "Complaint Clause," virtually any action he took that
strayed from UPS’s prescribed methods could (and should) be
read as a complaint. This is clearly untenable. Even against
the backdrop of Calhoun’s verbal complaints on other days,
his silent departures from UPS practice in his supervisor’s
presence do not suffice to constitute the filing of a complaint
for purposes of the statute. Thus, we find nothing arbitrary or
capricious about the ARB’s conclusion that Calhoun did not
engage in protected activity on July 5 and 10.
On the remaining days for which the ARB found that Cal-
houn could not satisfy the requirements of the "Complaint
Clause," Calhoun has not shown that his complaints con-
cerned actual violations of the FMCSRs. Calhoun argues first
that on June 28, 2001, he made a protected complaint to a
supervisor when he told Allen he needed to manually inspect
the equipment on his vehicle "for safety." (J.A. 98.) The ARB
found that this was not "a complaint related to a violation of
a commercial motor vehicle safety regulation, standard, or
order." (J.A. 1531.) Calhoun cites no specific regulation that
UPS violated by not allowing him to touch his equipment.
The only regulations that he points us to are, once again, the
general regulations 49 C.F.R. §§ 392.7 and 396.13. Just as
this did not suffice under the "Refusal to Drive Clause," it
CALHOUN v. U.S. DEPARTMENT OF LABOR 19
does not suffice here. While it may have been reasonable for
Calhoun to engage in some manual inspection of his vehicle’s
equipment, Calhoun’s own lengthy inspection regimen has
not been shown to be reasonably necessary to satisfy himself
about the safety of his vehicle. Accordingly, Calhoun cannot
use these regulations to demonstrate a "reasonable belief that
the company was engaging in a violation of a motor vehicle
safety regulation." Dutkiewicz, 1997 DOL Ad. Rev. Bd.
LEXIS 98, at *6. The ARB’s conclusion on this was not arbi-
trary, capricious, or otherwise not in accordance with the law.
On June 29 and October 30, 2001, and May 7, 2002, Cal-
houn complained to Allen that he wanted to be allowed to
separate his pre-assembled double trailer set. Again, Cal-
houn’s complaint to Allen did not involve a concern about
violation of a specific safety regulation, nor did it concern
conduct that was reasonably necessary to satisfy Calhoun
about the safe operating condition of his vehicle. The record
shows that other drivers only pulled apart pre-assembled dou-
bles when they had specific concerns about them. Calhoun
would disassemble them as a matter of course. Even the ALJ
found that "Calhoun’s decision to pull apart pre-assembled
doubles without any specific reason for so doing has not been
shown to be reasonable." (J.A. 1466.) Thus the ARB was jus-
tified in finding that Calhoun’s complaints on these days did
not amount to protected activity.
C.
The ARB found that Calhoun did engage in protected activ-
ity under the "Complaint Clause" on four days: June 26 (com-
plaint regarding defective dolly latch), June 27 (bulges found
in air lines), July 6 (reported problem with brake system’s air
pressure), and September 6 (complaint regarding dolly brake).
But, as the ARB notes, Calhoun has not shown that UPS took
any adverse action against him as a result of his conduct on
three of these days (June 26, June 27, and July 6). He does
argue, though, that he was discharged on September 7 as a
20 CALHOUN v. U.S. DEPARTMENT OF LABOR
result of engaging in protected activity on September 6, and
the ARB’s decision acknowledges that this discharge was an
adverse action. Thus, Calhoun can make out a prima facie
case of discrimination under the STAA for his conduct on
September 6, 2001, and the burden then shifts to UPS to artic-
ulate a legitimate, non-discriminatory reason for Calhoun’s
discharge. See Yellow Freight II, 27 F.3d at 1138. To satisfy
this burden, UPS points to Calhoun’s insubordination on Sep-
tember 6, namely his refusal to commit to improving his start-
work times and his continued failure to follow supervisors’
instructions. With the burden shifting back to Calhoun, we
affirm the ARB’s finding that Calhoun has failed to demon-
strate that UPS’s proffered legitimate, nondiscriminatory rea-
son was pretext for discrimination.
Calhoun’s protected conduct on September 6 did not hap-
pen in isolation. Rather, it was only after refusing to improve
his inspection times and in the midst of inspecting his vehicle
in defiance of his supervisor’s instructions, that Calhoun
found the dolly brake defect and complained about it to Allen.
The record establishes that it was for Calhoun’s marked
insubordination, and not for his protected complaint, that he
was discharged on September 7. Moreover, Calhoun had a
long history of insubordinate behavior—including at one
point telling Allen that his efforts to reduce Calhoun’s start-
work time were "bullshit." In the face of Calhoun’s repeated
refusals to change his behavior, Calhoun’s conduct on Sep-
tember 6 was simply the proverbial straw that broke the
camel’s back.
Given this history of insubordinate behavior, Calhoun can-
not show that UPS’s decision to discharge him on September
7 for insubordination was pretext for discrimination. We
therefore affirm the ARB’s conclusion that Calhoun has failed
to meet his burden under the "Complaint Clause," 49
U.S.C.A. § 31105(a)(1)(A)(i), of proving that he was dis-
charged for engaging in protected activity.
CALHOUN v. U.S. DEPARTMENT OF LABOR 21
IV.
For the foregoing reasons, we affirm the ARB’s denial of
Calhoun’s complaint.
AFFIRMED