NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EDWARD EVANS

,

Plaintiff

- Appellant

,

v.

USF REDDAWAY, INC.

, an Oregon Corporation,

Defendant

- Appellee

. No. 17

- 35603

D.C. No.

1:15

- cv

- 00499

- EJL

- REB

MEMORANDUM *

Appeal from the United States District Court

for the District of Idaho Edward J. Lodge , District Judge, Presiding

Submitted July 12, 2018 ** Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW, *** District Judge.

Edward Evans appeals following the district court’s final order granting

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Joan Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

JUL 16 2018

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

summary judgment to USF Reddaway, Inc. As the parties are familiar with the

facts , we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

Having fil ed a complaint alleging retaliation in violation of the “complaints

clause” of the Surface Transportation Assis tance Act (“STAA”), 49 U.S.C.

§ 31105(a)(1)(A), Evans was required to show that he engaged in a statutorily

protected activity. Id. § 42121(b)(2) (B)(i). 1 This portion of the STAA protects

employees who have “filed a complaint or begun a proceeding related to a

violation of a commercial motor vehicle safety or security regulation, standard or

order.” Id. § 31105(a)(1)(A)(i).

Evans argues that his complaints to the Occupational Safety and Health

Administration and Reddaway management about poor conditions at two terminal

lots on his trucking route were related to several Federal Motor Carrier Safety

Regulations that govern the commercial trucking in dustry. Specifically, Evans

points to regulations of driving in extreme w eather and road conditions (49 C.F.R

.

1 Because the STAA was amended in 2007 to incorporate the burdens of proof in the whistleblower provision of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR

- 21”), we apply the AIR

- 21 burden

shifting framework. See 49 U.S.C. § 31105(b)(1) (“ All complaints initiated under this section shall be governed by the legal burdens of proof set forth in section 42121(b) .”); cf. Van Asdale v. Int’l Game Tech. , 577 F.3d 989, 996 (9th Cir. 2009) (applying AIR

- 21 burden

- shifting framework to retaliation claim under the

Sarbanes

- O xley Act).3

§ 392.14), driving while the operator’s alertness is impaired by “fatigue, illnes s, or

another other cause ” (49 C.F.R . § 392.3), and conducting mandatory vehicle safety

inspections (49 C.F.R . §§ 392.7, 392.9).

Evans’ complaints

— dirt, dust, gravel, ruts, poor lighting, and lack of

fencing/security at the two Reddaway terminals

— relate to general workplace

safety conditio ns at the lots , rather than commercial motor vehicle safety or

security. Thus, his complaints are not reasonably related to a violation of a

commercial motor vehicle safety regulation and are therefore not protected activity

under the STAA.

AFFIRMED

.