Calhoun v. U.S. Dept. of Labor

• Decision Date: 11 August 2009
• Docket Number: No. 07-2157.,07-2157.
• Citation: 576 F.3d 201
• Parties: Beverly Howard CALHOUN, Petitioner, United Parcel Service, Incorporated, Intervenor, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

576 F.3d 201

Beverly Howard CALHOUN, Petitioner United Parcel Service, Incorporated, Intervenor, v. UNITED STATES DEPARTMENT OF LABOR, Respondent.

No. 07-2157.

United States Court of Appeals, Fourth Circuit.

Argued March 26, 2009.

Decided August 11, 2009.

ARGUED:

Paul Otto Taylor, Truckers Justice Center, Burnsville, Minnesota, for

Petitioner. Lee Gary Grabel, United States Department of Labor, Washington, DC, 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, DC, for Respondent. Leslie E. Wood, Alston & Bird, Atlanta, Georgia, for Intervenor.

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.

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 disciplined 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 showing 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 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 allowance"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 inspections 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 training. 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 components thoroughly and advised that they were satisfied that the vehicles were in good working condition." (J.A. 831.)

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 condition of a vehicle prior to driving. At the administrative hearing 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.

Over the years, UPS informed Calhoun on numerous occasions that he needed to reduce his start-work times. Nonetheless, 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 follows:

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 components. 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 properly. Allen initially instructed him to hook up the dolly anyway, but Calhoun took the trailer to the shop, where a mechanic found the dolly's brake drum was defective. Calhoun was given a replacement. After the OJS ride was completed, 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 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 Williams 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. Calhoun 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 suspension 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 equipment 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 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 hurried 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. Afterwards, 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...