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.
COUNSEL

ARGUED: Paul Otto Taylor, TRUCKERS JUSTICE CENTER, Burnsville, Minnesota, for Petitioner. Lee Gary Grabel,

UNITED STATES DEPARTMENT OF LABOR, Washington, 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 Respondent. 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 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

2 CALHOUN v. U.S. DEPARTMENT OF LABOR
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.)

1This is measured by the time between punching in at the beginning of

the work day and leaving the yard in a loaded vehicle. 

2Feeder drivers move packages between UPS terminals. 

3The inspection came as the result of a complaint filed by Calhoun with

the DOT, in which he alleged that UPS management was not giving drivers enough time to conduct their pre-trip inspections. 

CALHOUN v. U.S. DEPARTMENT OF LABOR 3
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 overallowed. 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.

4Calhoun 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. 

5UPS 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. 

4 CALHOUN v. U.S. DEPARTMENT OF LABOR
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

CALHOUN v. U.S. DEPARTMENT OF LABOR 5
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

6The ALJ found that Calhoun was sent home to serve his one-day suspension. 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. 

6 CALHOUN v. U.S. DEPARTMENT OF LABOR
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

properly. Allen indicated that Calhoun should inspect equipment with a quick, visual glance and that he needed to keep

moving as he did his inspection. In a start-work audit prepared 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

7Calhoun testified at the administrative hearing that air leaks can generally be detected audibly, unless they are minute. 

CALHOUN v. U.S. DEPARTMENT OF LABOR 7
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 terminated 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 threeday suspension, the September 7 notice of termination, and

the October 30 failure to follow supervisor instructions.

May 7, 2002: Supervisors again observed Calhoun uncoupling a trailer set. Calhoun was discharged once more on May

8, 2002.

8The 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. 

9UPS discharged Calhoun several times but always ultimately rehired

him. 

8 CALHOUN v. U.S. DEPARTMENT OF LABOR
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 disciplined 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 Transportation 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 Secretary’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

CALHOUN v. U.S. DEPARTMENT OF LABOR 9
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 purpose, the STAA protects employees of commercial vehicle

operators as follows:

(1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because

—

(A) (i) the employee . . . 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 ["Complaint Clause]; or

. . .

(B) the employee refuses to operate a vehicle 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 Violation Prong"]; or

(ii) the employee has a reasonable apprehension of serious injury to the employee

or the public because of the vehicle’s

hazardous safety or security condition

["Reasonable Apprehension Prong"]

. . . .

10 CALHOUN v. U.S. DEPARTMENT OF LABOR
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 discrimination." Id. (internal quotation marks and citation omitted).

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 conduct 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" subclause, so we do not discuss its applicability here.

CALHOUN v. U.S. DEPARTMENT OF LABOR 11
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 satisfies the requirement that he refuse to drive." (J.A. 1454.)

The ARB, however, found that the ALJ erred in his interpretation 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 oneday 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 Calhoun 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.

12 CALHOUN v. U.S. DEPARTMENT OF LABOR
As the ALJ noted, "Calhoun does not allege that his vehicle’s condition was unsafe, and thus, a violation of any specific safety regulation." (J.A. 1457.) Instead, he argues that

operating his vehicle on the days in question without completing 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 provides that "[b]efore driving a motor vehicle, the driver shall

. . . be satisfied that the motor vehicle is in safe operating condition." 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 reasonableness standard should be applied but it argues that there is not

substantial evidence on the record to support the ALJ’s findings that the measures Calhoun took to satisfy himself were

in fact reasonable. According to UPS, because the UPSapproved inspection measures were themselves reasonable,

Calhoun had no objectively reasonable need to take the additional measures that he did.

10The regulation goes on to identify the following parts about which the

driver must satisfy himself: service brakes, including trailer brake connections; parking brake; steering mechanism; lighting devices and reflectors;

tires; horn; windshield wipers; mirrors; coupling devices. 49 C.F.R.

§ 392.7. 

CALHOUN v. U.S. DEPARTMENT OF LABOR 13
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 vehicle to visually inspect his brakes for proper adjustment, he has

not established that UPS’s inspection methods were unreasonable 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 circumstances reasonably may go to satisfy himself that his equipment 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 reasonable, 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

14 CALHOUN v. U.S. DEPARTMENT OF LABOR
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 packages.

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 reasonable. Nonetheless, the ALJ concluded that various of Calhoun’s extra inspection measures—including manually

checking brake hoses, lug nuts, belts, and the steering

mechanism—were also reasonable. We do not necessarily disagree 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 distinguishes 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.

CALHOUN v. U.S. DEPARTMENT OF LABOR 15
Therefore, we agree with the ARB’s conclusion that Calhoun 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 satisfy 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 malfunctioning dolly latch. But Calhoun has not shown that UPS

took any adverse action against him as a result of this protected 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

11The 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 misunderstanding of the testimony at the administrative hearing. After reviewing

the administrative record, we agree with the ARB. 

16 CALHOUN v. U.S. DEPARTMENT OF LABOR
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

12Moreover, 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. 

CALHOUN v. U.S. DEPARTMENT OF LABOR 17
§ 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 Calhoun could not satisfy the requirements of the "Complaint

Clause," Calhoun has not shown that his complaints concerned 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

18 CALHOUN v. U.S. DEPARTMENT OF LABOR
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 arbitrary, capricious, or otherwise not in accordance with the law.

On June 29 and October 30, 2001, and May 7, 2002, Calhoun complained to Allen that he wanted to be allowed to

separate his pre-assembled double trailer set. Again, Calhoun’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 doubles 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 justified 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 activity under the "Complaint Clause" on four days: June 26 (complaint 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

CALHOUN v. U.S. DEPARTMENT OF LABOR 19
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 articulate 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 September 6, namely his refusal to commit to improving his startwork 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 demonstrate that UPS’s proffered legitimate, nondiscriminatory reason was pretext for discrimination.

Calhoun’s protected conduct on September 6 did not happen 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 startwork time were "bullshit." In the face of Calhoun’s repeated

refusals to change his behavior, Calhoun’s conduct on September 6 was simply the proverbial straw that broke the

camel’s back.

Given this history of insubordinate behavior, Calhoun cannot 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 discharged for engaging in protected activity.

20 CALHOUN v. U.S. DEPARTMENT OF LABOR
IV.

For the foregoing reasons, we affirm the ARB’s denial of

Calhoun’s complaint.

AFFIRMED

CALHOUN v. U.S. DEPARTMENT OF LABOR 21