Harrison v. Admin. Review Bd., U.S. Dept. of Labor, Docket No. 03-4428.

• Citation: 390 F.3d 752
• Decision Date: 30 November 2004
• Docket Number: Docket No. 03-4428.
• Parties: Michael HARRISON, Petitioner, v. ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR, Respondent, Roadway Express, Inc., Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

390 F.3d 752

Michael HARRISON, Petitioner, v. ADMINISTRATIVE REVIEW BOARD, U.S. DEPARTMENT OF LABOR, Respondent Roadway Express, Inc., Intervenor.

Docket No. 03-4428.

United States Court of Appeals, Second Circuit.

Argued: April 15, 2004.

Decided: November 30, 2004.

Paul O. Taylor, Truckers Justice Center, Burnsville, MN, for Petitioner.

Edward D. Sieger, Senior Appellate Attorney, U.S. Department of Labor, Washington, D.C. (Howard M. Radzely, Solicitor of Labor; Allen H. Feldman, Associate Solicitor; Nathaniel I. Spiller, Deputy Associate

Solicitor, on the brief), for Respondent.

Paul M. Sansoucy, Bond, Schoeneck & King, PLLC, Syracuse, NY, for Intervenor.

Before: LEVAL and CALABRESI, Circuit Judges, and RAKOFF, District Judge.^*

LEVAL, Circuit Judge.

Michael Harrison, a laborer employed by the intervenor Roadway Express, a trucking company, brought this petition to review a decision of the Administrative Review Board of the United States Department of Labor regarding Harrison's claim that he had been wrongfully discharged in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105. He claims that he was fired in retaliation for performing activities protected by the Act, namely inspecting a "yard horse" and "red-tagging" yard horses and truck trailers in violation of company policy. We agree with the Review Board's conclusion that the Act does not protect the activities for which Harrison was discharged, and that his discharge was thus not unlawful.

Factual Background

Harrison began working for Roadway in 1989. In April 1997, he transferred to its Buffalo terminal, where he worked as a "switcher." As a switcher, he had two major duties: First, he operated a "yard horse," a tractor used to maneuver trailers from point to point within the terminal. Second, he was responsible for "dropping and hooking," which involves decoupling trailers from inbound over-the-road tractors and recoupling them to outbound tractors.

As part of its overall safety procedures, Roadway employed a "red-tagging" system. If a switcher observed any serious safety defects, he was to attach the top half of a red tag to the defective equipment, and deliver the bottom half of the tag to the Relay Department at the end of his shift. The top half of the tag then served as a notice that the equipment was out of service until mechanics could assess and repair it. Over the summer of 1997, Roadway made various changes to its red-tagging policy. A July 9 memorandum revoked the authority of switchers to red-tag. Two weeks later, a July 22 memorandum reinstated the original policy. Finally, a memorandum issued on August 6 authorized switchers to tag equipment, but only with the prior approval of Relay Department supervisors. Petitioner was personally counseled even before August 6 not to red-tag without authorization.

Petitioner admitted that he did not comply with the prior-approval policy. According to his contentions, because he occasionally found red tags that he had placed on equipment "scattered on the ground," and the equipment itself back in the yard with the same defects, he felt compelled to continue red-tagging even without approval. Between August 5, 1997 and January 14, 1998, petitioner was disciplined six times — three times by written warning and three times by suspension — for unauthorized red-tagging.

Six months later, on June 12, 1998, petitioner filed a complaint about yard horse safety with the Occupational Safety and Health Administration (OSHA), prompting OSHA representatives to make a surprise inspection of Roadway's Buffalo terminal the next week. In front of Roadway personnel, petitioner informed the inspectors that he was the one who had filed the complaint. Later that day, petitioner was told to move a defective trailer either "to the garage" (according to his recollection) or "behind the garage" (according to his supervisors' recollection); he eventually moved the trailer into the garage without having first obtained a mechanic's permission, which constituted a violation of Roadway's safety policy. For that violation, and for his "overall work record," Roadway suspended petitioner for ten days.

Two weeks later, on July 2, 1998, after a supervisor claimed to observe petitioner "performing an unsafe and unauthorized vehicle inspection" of a yard horse, Roadway terminated him. Petitioner grieved the discharge, but it was eventually upheld by the union-management committee.

Proceedings Below

Petitioner filed a complaint with OSHA, charging that his termination constituted unlawful retaliation for safety-related activities protected by the STAA, namely his OSHA complaint about the yard horses, the yard horse inspection that immediately precipitated his termination, and his red-tagging of yard horses and trailers. The OSHA Administrator found the complaint without merit. Harrison next requested a hearing before an administrative law judge ("ALJ"). After hearing testimony, the ALJ found that petitioner's yard horse activity was not protected by the STAA because yard horses are not "commercial motor vehicles" under the statutory and regulatory definition. But the ALJ also found that petitioner's red-tagging of trailers (trailers being commercial motor vehicles) was protected under the "filed a complaint" subsection of the STAA, and that Roadway had impermissibly terminated petitioner in part for red-tagging trailers. See 49 U.S.C. § 31105(a)(1)(A). In response to Roadway's assertion that it legitimately fired petitioner not for red-tagging per se but for red-tagging without supervisory approval in contravention of policy, the ALJ found that the policy was not dispositive so long as the red-tagging was in "good faith." The ALJ reasoned that Roadway's "legitimate interest in preventing delays is entitled to less weight than Complainant's legitimate concern about safety defects he discovered in the course of performing his duties." The ALJ further found that two of Roadway's other asserted reasons for terminating petitioner — the unauthorized yard horse inspection, and petitioner's overall work performance — were pretexts for retaliation. Although the ALJ accepted that the June 1998 suspension for moving the trailer into the garage was not pretextual, he found that Roadway had not established that it would have fired petitioner even if he had not engaged in the protected red-tagging activity.

The Department of Labor Administrative Review Board reversed the ALJ's ruling and denied Harrison's complaint. The Board agreed that yard horses were not covered by the STAA, and that the only potentially protected activity was petitioner's red-tagging of trailers. The Board accepted the contention that internal complaints to management about trailer safety would be protected under the "filed a complaint" language of the STAA. But the Board found that because petitioner's red-tagging invariably followed radio notifications to supervisors, the red-tagging itself was no more than a mechanism for communicating safety concerns to nonsupervisory coworkers, which the Board held was not protected by the statute. Even assuming that the STAA protects safety communications with coworkers, the Board found that petitioner had not been discharged for red-tagging per se, but for violating Roadway's legitimate policy requiring supervisory approval before tagging.

Petitioner now seeks review of the Board's decision, and Roadway intervenes on the Board's behalf.

Discussion

On appeal, petitioner contends (1) that yard horse inspections, complaints, and red-tagging are protected under the STAA; (2) that red-tagging, insofar as it includes safety communications with coworkers, is protected activity under the STAA; and (3) that his discharge was motivated, at least in part, by his red-tagging of trailers. Roadway counters (1) that yard horse activities are not protected because yard horses are not commercial motor vehicles under the STAA; (2) that internal safety complaints are protected by the STAA only if communicated to management; and (3) that in any case, petitioner was fired not for complaining but for violating its legitimate red-tagging procedures.

We sustain the Review Board's determinations that petitioner's yard horse inspections were not protected and that to the extent his discharge was based on red-tagging trailers, it was based not on protected activity but on the violation of Roadway's legitimate red-tagging policy. These determinations were supported by substantial evidence and were not arbitrary. 5 U.S.C. § 706; Brink's, Inc. v. Herman, 148 F.3d 175, 178-79 (2d Cir.1998).

1. Yard Horses Are Not Commercial Motor Vehicles.

We begin by affirming the Review Board's decision that petitioner's inspection and red-tagging of Roadway's yard horses was not protected under the STAA's "filed a complaint" subsection, because the yard horses are not commercial motor vehicles. The statute provides:

A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because ... (A) 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 regulation, standard, or order, or has testified or will testify in such a proceeding....

49 U.S.C. § 31105(a)(1) (emphasis added). Section 31101(1) of the same Title defines "commercial motor vehicle" as "a self-propelled or towed vehicle used on the highways in commerce principally to transport passengers or cargo" (emphasis added), with other caveats not relevant here. Department of Transportation regulations in turn define "highway" as

any road, street, or way, whether on public or private property, open to public travel."Open to public travel" means that the road section is available, except during scheduled periods, extreme weather or emergency conditions, passable by four-wheel standard...