Holovatyuk v. EM Cargo, LLC, ARB No. 2021-0046, ALJ No. 2020-STA-00071 (ARB Jan. 12, 2022) (per curiam) (Decision and Order)

[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; HOURS OF SERVICE; E-MAIL CONTAINING REFERENCE TO 34-HOUR RULE WAS INSUFFICIENT TO ESTABLISH PROTECTED ACTIVITY WHERE, IN CONTEXT, THE E-MAIL WAS ABOUT COMPLAINANT’S REQUEST FOR TAX INFORMATION TO PROVE THAT HE WAS AN EMPLOYEE RATHER THAN AN INDEPENDENT CONTRACTOR, AND THE REFERENCE TO THE 34-HOUR RULE COULD NOT BE DISCERNED AS A SAFETY COMPLAINT TO A SUPERVISOR

[STAA Digest IV G]
[STAA Digest IV H]
CONTRIBUTORY FACTOR CAUSATION AND AFFIRMATIVE DEFENSE; REFERENCE TO 34-HOUR RULE IN AN E-MAIL WAS NOT SHOWN TO HAVE BEEN A CONTRIBUTING FACTOR TO COMPLAINANT’S TERMINATION AS INDEPENDENT CONTRACT DRIVER AND A LATER POOR REFERENCE, WHERE THE PARTIES WERE ALREADY CONTEMPLATING TERMINATION OF THE DRIVING AGREEMENT; WHERE THE REFERENCE TO THE RULE WAS BRIEF AND RELATED TO A REQUEST FOR TAX INFORMATION; WHERE COMPLAINANT HAD BEEN ARGUMENTATIVE AND DISRESPECTFUL; AND WHERE COMPLAINANT’S ACTION OF EFFECTIVELY REMOVING HIS ASSIGNED RENTAL TRUCK FROM SERVICE DURING A WEEK-LONG VACATION CAUSED HARM TO RESPONDENT’S BUSINESS; THESE FACTORS ALSO ESTABLISHED RESPONDENT’S AFFIRMATIVE DEFENSE BY CLEAR AND CONVINCING EVIDENCE

In Holovatyuk v. EM Cargo, LLC, ARB No. 2021-0046, ALJ No. 2020-STA-00071 (ARB Jan. 12, 2022) (per curiam), Complainant was working under an independent contractor agreement with Respondent that included a truck rental agreement.  Complainant ended a route at his home in Florida in order to take a one-week vacation.  Complainant, however, had not informed Respondent of his intent to take the vacation.  The consequent communications between Complainant and Respondent were contentious.  Complainant at one point sent Respondent’s owner an e-mail stating:

  • I’m requesting EM Cargo, LLC identification number that I need to fill out IRS Form SS-8 to establish my employment status in company.  This issue arose, when I got info about company’s different attitude to drivers. I have to work 4 weeks without days off, 34-h ‘restarts,’ can’t refuse to haul cheap loads (any load) an can get only 3.5 days of home time…I came home on 10/14/19 and on 10/17/19 you start to send me messages, trying to force me put on the road from 10/18/19, threatened to take back truck, despite on contract provision…So, definitely, you treat me as employee and this will be a question for IRS, DOL, etc.

Slip op. at 3 (footnote omitted).  When Complainant eventually returned the truck to Respondent’s facility in Chicago, Respondent terminated the driving agreement.  Later, when receiving a reference form from a third-party recruiting company, Respondent’s owner selected scores of 2 or 3 out of 5; stated that he would not recommend Complainant for a similar role;  and stated that Complainant left the company due to poor communication skills.  Complainant filed a STAA complaint with OSHA alleging that Respondent terminated him in retaliation for refusing to drive over authorized hours of service.

The ALJ considered Complainant’s contention that his e-mailed reference to the 34-hour restart rule was protected activity.  See 49 C.F.R. § 395.3 (driver must be off duty for 34 or more hours after driving 70 hours within eight consecutive days).   Finding no evidence of a recent 34-hour violation, the ALJ concluded that the reference to the 34-hour rule in the e-mail was a general comment that Respondent was not allowing him to take time off, and that in context, the e-mail was too vague to establish that Complainant was making a safety complaint.  The ALJ thus found that Complainant had not proved that he engaged in protected activity.

 The ALJ went on to consider whether Complainant’s reference to the 34-hour rule in the e-mail contributed to the adverse employment actions of termination and a poor reference.  The ALJ found temporal proximity to the termination, but that other factors undercut the weight of that circumstance.  The ALJ found that both parties had already contemplated ending the driving relationship, that the reference to the 34-hour rule was referenced only once in an e-mail requesting tax information, and that Respondent reasonably needed to know about Complainant’s vacation.  The ALJ thus found that Complainant did not prove that protected activity contributed to the termination.

As to the reference check, the ALJ noted less temporal proximity, and that Respondent had only mentioned Complainant’s communication skills, and not the protected activity, as a reason for the termination.  The ALJ found the low scores in the reference check understandable given Complainant’s actions.  The ALJ thus found that Complainant did not prove that protected activity contributed to the poor evaluation.

The ALJ also found that Respondent met its burden for an affirmative defense, finding that Respondent’s decision to fire Complainant “was reasonable and expected given the loss of revenue by not having the truck on the road.”  Id. at 7 (footnote omitted).

On appeal, the ARB affirmed the ALJ’s determination that Complainant failed to establish that he engaged in protected activity.  The ARB noted that the purpose of the e-mail was to seek tax information; that the reference to the 34-hour rule was vague and part of list of other issues; that it was uncertain whether Complainant was contending that Respondent forced him to violate the rule, or only that he worked so frequently that he was required to take rest time; and that Complainant did not discuss the 34-hour rule any further with Respondent’s owner, making it impossible to discern whether he was making a safety complaint to a supervisor.

The ARB also found that the ALJ’s determinations that Complainant failed to establish contributory factor causation, and that Respondent established its affirmative defense, were supported by substantial evidence.  The ARB wrote:

  • . . . Complainant’s behavior, including failing to tell his employer he was taking a week off, keeping a truck that could have been used by another driver, and being argumentative and disrespectful toward his employer, reasonably caused Respondent to end the employment relationship and give his work performance low ratings. While Complainant may expect more leeway in his work as an independent contractor, his actions caused harm to the business that could have been easily prevented with basic communication with his employer.

Id. at 9-10 (footnote omitted).
 

Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Jan. 6, 2022) (per curiam) (Order Dismissing Petition for Review)

TIMELINESS OF PETITION FOR ARB REVIEW; A TIMELY MOTION FOR RECONSIDERATION TOLLS THE START OF THE APPEAL PERIOD UNTIL ENTRY OF AN ORDER DENYING OR GRANTING THE MOTION; HOWEVER, WHERE THE MOTION FOR RECONSIDERATION WAS NOT TIMELY FILED, THE APPEAL PERIOD IS NOT TOLLED

TIMELINESS OF PETITION FOR ARB REVIEW; THE MERE FACT THAT THE PARTY WAS PROCEEDING PRO SE DOES NOT EXCUSE THAT PARTY’S FAILURE TO EFFECT A TIMELY APPEAL

In Phox v. The Savoy at 21c, ARB No. 2021-0057, ALJ No. 2019-FDA-00014 (ARB Jan. 6, 2022) (per curiam), Complainant filed a Food Safety Modernization Act employee protection complaint.  The ALJ issued a “Decision and Order Denying Complaint” on May 25, 2021.  On June 9, 2021, Complainant filed with the ALJ a “Motion to Stay and Motion to Reconsider or Motion for Extension of Time."  On July 14, 2021, the ALJ denied the motions, finding that the motion for reconsideration was not timely filed.

On July 28, 2021, Complainant filed a petition for review with the ARB.  The issues for appeal identified in the petition related solely to the ALJ's May decision, and did not address the July denial of reconsideration.  The ARB issued a briefing schedule, to which Complainant replied by filing a motion requesting the ARB to accept his petition as the opening brief.  Respondent then filed a motion to deny the petition on the ground that Complainant did not timely appeal the ALJ’s May decision. 

The ARB found that Complainant's petition was of the ALJ's May decision only, and that it was not timely because it was not filed within 14 days of the date of the ALJ's decision as required by 29 C.F.R. § 1987.110(a).   The ARB noted that under the Federal Rules of Appellate Procedure, the filing of a timely motion for reconsideration tolls the start of the appeal period until the entry of the order granting or denying the motion—but that an untimely motion for reconsideration does not delay the start of the appeal period.  Here, the ALJ denied the motion for reconsideration as untimely because it had been filed more than 10 days after service of the decision as required by 29 C.F.R. § 18.93.  The ARB thus determined that "the appeal period began when the ALJ issued her May 25, 2021, decision, and Complainant’s Petition for Review of the decision, filed July 28, 2021, is therefore untimely."  Slip op. at 3.  Accordingly, the ARB dismissed the petition for review.

In a footnote the ARB stated that Complainant had seemingly addressed the timeliness issue by contending that she made an effort to comply with the procedural rules while acting pro se.  The ARB was not persuaded by this argument, noting that a pro se party is given a degree of latitude, but when that party fails to comply with administrative procedures, it is a risk of failure that attended the party's decision to forgo expert assistance.