USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-13998 Non-Argument Calendar ____________________
ANNECIA M. FORT, Petitioner, versus U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, LANDSTAR TRANSPORTATION LOGISTICS, INC.,
Respondents.
Petition for Review of a Decision of the Department of Labor USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 2 of 9
2 Opinion of the Court 20-13998
Agency No. ARB2018-0026 ____________________
Before JORDAN, NEWSOM, and LUCK, Circuit Judges. PER CURIAM: Proceeding pro se, Annecia Fort alleged that her employer, Landstar Transportation Logistics, Inc., retaliated against her, in vi- olation of the Surface Transportation Assistance Act, 49 U.S.C. sec- tion 31105. She petitions us to review the affirmance of the sum- mary decision for Landstar. We deny her petition. FACTUAL BACKGROUND
From November 2004 to October 2015, Fort worked for Landstar as a Log Compliance Representative. In this position, Fort made sure that Landstar’s truck drivers complied with Depart- ment of Transportation regulations about hours of service. The three incidents that allegedly constituted Fort’s protected activity occurred between November 2014 and August 2015. First, in November 2014, Fort recommended that driver Mi- chael Pease be disqualified from driving for Landstar because he had multiple log violations. Although Fort’s immediate supervisor agreed with her recommendation, Compliance Director Mahal Ca- son, at an agent’s request, sent Mr. Pease for retraining on the elec- tronic logging device instead of disqualifying him. After learning that Mr. Pease got into two accidents in one day, Fort went above Director Cason’s head to Mike Cobb, Vice President for Safety and USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 3 of 9
20-13998 Opinion of the Court 3
Compliance, and told him about her disqualification recommenda- tion. Because Mr. Pease had two accidents on the same day, he was disqualified. Second, in January 2015, Fort complained to Director Cason about how a driver’s call was handled. About half of the Log Com- pliance Department, including Fort, was attending a training ses- sion when driver Jose Martinez called Fort back about training on the electronic logging device. Because Fort was in training and the department was short-staffed, an employee told Mr. Martinez to call back the next day and to use paper logs in the meantime. Fort thought that having a driver call back contradicted company pol- icy, so she instructed the employee that it did, spoke with the su- pervisor who had approved the response, and reported the incident to Director Cason. Director Cason counseled the supervisor about managing employee availability to avoid being short-staffed, and she determined that the incident didn’t violate any regulations. And third, in August 2015, Fort told Vice President Cobb that a driver’s record had been improperly changed. Landstar con- ducted a mock Department of Transportation audit of driver rec- ords and discovered that driver Andrea Hurddrobneck’s logs showed that she had been in her sleeper berth for the past three weeks. Ms. Hurddrobneck simply forgot to log off when she took her truck in for repairs. Because she couldn’t access her truck to log off in the usual way, an employee logged her off from Land- star’s demonstration terminal. Landstar did not inform Ms. USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 4 of 9
4 Opinion of the Court 20-13998
Hurddrobneck that it remotely changed her status in the system until after it had done so. Fort submitted a one-page complaint to human resources al- leging that because she complained about the three incidents, Landstar retaliated against her by writing her up “with false accu- sations,” fabricating a “demeaning annual review” for her, attempt- ing to lie about events, and pursuing her “constructive termina- tion.” Sensing an irreparably “broken relationship” between Fort and the management in the Log Compliance Department, Land- star put Fort on leave, with full pay and benefits, so she could in- terview for positions elsewhere in the company. Eventually, Fort assumed the position of Carrier Qualifications Service Specialist, making the same pay as before. PROCEDURAL HISTORY
Fort filed a whistleblower screening form with the Occupa- tional Safety and Health Administration. The Department of La- bor construed the form as asserting that Landstar retaliated against Fort, in violation of the Act. After an investigation, the Depart- ment of Labor found “no reasonable cause to believe” that Land- star violated the Act. Fort appealed the Department’s decision to the Office of Administrative Law Judges. Landstar moved for summary decision. It argued that Fort could not show that she engaged in protected activity because the incidents with Mr. Pease, Mr. Martinez, and Ms. Hurddrobneck didn’t involve Landstar’s violation of federal law and because Fort USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 5 of 9
20-13998 Opinion of the Court 5
couldn’t establish that she reasonably believed that Landstar was violating a motor vehicle safety regulation. Fort also couldn’t es- tablish an adverse employment action, Landstar said, because she didn’t suffer any economic harm and because human resources— not a supervisor involved with the three incidents—put her on paid leave until she found another position in a different department in the company. And Landstar argued that Fort couldn’t show causa- tion because too much time passed between the alleged protected activity and adverse action for temporal proximity to support an inference of causation, because Landstar encouraged safety com- plaints and compliance with federal regulations, and because Land- star had legitimate nonretaliatory reasons for removing Fort from the Log Compliance Department: her deep resentments and “de- structive influence on others.” The administrative law judge granted summary decision for Landstar because Fort couldn’t show that she engaged in protected activity. A reasonable person with Fort’s training and experience, the administrative law judge explained, wouldn’t believe that any of the three incidents violated a motor vehicle regulation. As to the incident with Ms. Hurddrobneck, the administrative law judge said that “[a] reasonable person with more than a decade of experi- ence in log compliance would not have an objectively reasonable belief” that Landstar had to get Ms. Hurddrobneck’s “consent be- fore correcting an obviously incorrect log.” The regulation requir- ing a driver to confirm or reject a change to the driver’s record of USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 6 of 9
6 Opinion of the Court 20-13998
duty status did not go into effect until six months after the incident with Ms. Hurddrobneck. Fort appealed the summary decision to the Administrative Review Board, which affirmed. The Board agreed with the admin- istrative law judge that Fort failed to show any protected activity. It explained that “none of [Fort]’s reports concerned violations of the [Act] or safety related matters; rather, each complained-of inci- dent had to do with electronic logging device problems and not safety matters.” Fort asked the Board to reconsider its affirmance, and it de- nied her request. Fort petitioned us to review the Board’s deci- sion.1
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USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 1 of 9
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-13998 Non-Argument Calendar ____________________
ANNECIA M. FORT, Petitioner, versus U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE REVIEW BOARD, LANDSTAR TRANSPORTATION LOGISTICS, INC.,
Respondents.
Petition for Review of a Decision of the Department of Labor USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 2 of 9
2 Opinion of the Court 20-13998
Agency No. ARB2018-0026 ____________________
Before JORDAN, NEWSOM, and LUCK, Circuit Judges. PER CURIAM: Proceeding pro se, Annecia Fort alleged that her employer, Landstar Transportation Logistics, Inc., retaliated against her, in vi- olation of the Surface Transportation Assistance Act, 49 U.S.C. sec- tion 31105. She petitions us to review the affirmance of the sum- mary decision for Landstar. We deny her petition. FACTUAL BACKGROUND
From November 2004 to October 2015, Fort worked for Landstar as a Log Compliance Representative. In this position, Fort made sure that Landstar’s truck drivers complied with Depart- ment of Transportation regulations about hours of service. The three incidents that allegedly constituted Fort’s protected activity occurred between November 2014 and August 2015. First, in November 2014, Fort recommended that driver Mi- chael Pease be disqualified from driving for Landstar because he had multiple log violations. Although Fort’s immediate supervisor agreed with her recommendation, Compliance Director Mahal Ca- son, at an agent’s request, sent Mr. Pease for retraining on the elec- tronic logging device instead of disqualifying him. After learning that Mr. Pease got into two accidents in one day, Fort went above Director Cason’s head to Mike Cobb, Vice President for Safety and USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 3 of 9
20-13998 Opinion of the Court 3
Compliance, and told him about her disqualification recommenda- tion. Because Mr. Pease had two accidents on the same day, he was disqualified. Second, in January 2015, Fort complained to Director Cason about how a driver’s call was handled. About half of the Log Com- pliance Department, including Fort, was attending a training ses- sion when driver Jose Martinez called Fort back about training on the electronic logging device. Because Fort was in training and the department was short-staffed, an employee told Mr. Martinez to call back the next day and to use paper logs in the meantime. Fort thought that having a driver call back contradicted company pol- icy, so she instructed the employee that it did, spoke with the su- pervisor who had approved the response, and reported the incident to Director Cason. Director Cason counseled the supervisor about managing employee availability to avoid being short-staffed, and she determined that the incident didn’t violate any regulations. And third, in August 2015, Fort told Vice President Cobb that a driver’s record had been improperly changed. Landstar con- ducted a mock Department of Transportation audit of driver rec- ords and discovered that driver Andrea Hurddrobneck’s logs showed that she had been in her sleeper berth for the past three weeks. Ms. Hurddrobneck simply forgot to log off when she took her truck in for repairs. Because she couldn’t access her truck to log off in the usual way, an employee logged her off from Land- star’s demonstration terminal. Landstar did not inform Ms. USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 4 of 9
4 Opinion of the Court 20-13998
Hurddrobneck that it remotely changed her status in the system until after it had done so. Fort submitted a one-page complaint to human resources al- leging that because she complained about the three incidents, Landstar retaliated against her by writing her up “with false accu- sations,” fabricating a “demeaning annual review” for her, attempt- ing to lie about events, and pursuing her “constructive termina- tion.” Sensing an irreparably “broken relationship” between Fort and the management in the Log Compliance Department, Land- star put Fort on leave, with full pay and benefits, so she could in- terview for positions elsewhere in the company. Eventually, Fort assumed the position of Carrier Qualifications Service Specialist, making the same pay as before. PROCEDURAL HISTORY
Fort filed a whistleblower screening form with the Occupa- tional Safety and Health Administration. The Department of La- bor construed the form as asserting that Landstar retaliated against Fort, in violation of the Act. After an investigation, the Depart- ment of Labor found “no reasonable cause to believe” that Land- star violated the Act. Fort appealed the Department’s decision to the Office of Administrative Law Judges. Landstar moved for summary decision. It argued that Fort could not show that she engaged in protected activity because the incidents with Mr. Pease, Mr. Martinez, and Ms. Hurddrobneck didn’t involve Landstar’s violation of federal law and because Fort USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 5 of 9
20-13998 Opinion of the Court 5
couldn’t establish that she reasonably believed that Landstar was violating a motor vehicle safety regulation. Fort also couldn’t es- tablish an adverse employment action, Landstar said, because she didn’t suffer any economic harm and because human resources— not a supervisor involved with the three incidents—put her on paid leave until she found another position in a different department in the company. And Landstar argued that Fort couldn’t show causa- tion because too much time passed between the alleged protected activity and adverse action for temporal proximity to support an inference of causation, because Landstar encouraged safety com- plaints and compliance with federal regulations, and because Land- star had legitimate nonretaliatory reasons for removing Fort from the Log Compliance Department: her deep resentments and “de- structive influence on others.” The administrative law judge granted summary decision for Landstar because Fort couldn’t show that she engaged in protected activity. A reasonable person with Fort’s training and experience, the administrative law judge explained, wouldn’t believe that any of the three incidents violated a motor vehicle regulation. As to the incident with Ms. Hurddrobneck, the administrative law judge said that “[a] reasonable person with more than a decade of experi- ence in log compliance would not have an objectively reasonable belief” that Landstar had to get Ms. Hurddrobneck’s “consent be- fore correcting an obviously incorrect log.” The regulation requir- ing a driver to confirm or reject a change to the driver’s record of USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 6 of 9
6 Opinion of the Court 20-13998
duty status did not go into effect until six months after the incident with Ms. Hurddrobneck. Fort appealed the summary decision to the Administrative Review Board, which affirmed. The Board agreed with the admin- istrative law judge that Fort failed to show any protected activity. It explained that “none of [Fort]’s reports concerned violations of the [Act] or safety related matters; rather, each complained-of inci- dent had to do with electronic logging device problems and not safety matters.” Fort asked the Board to reconsider its affirmance, and it de- nied her request. Fort petitioned us to review the Board’s deci- sion.1
1 We asked the parties to address jurisdictional questions about whether the Board’s summary decision affirmance was a final agency decision even though Fort did not receive a formal evidentiary hearing, whether we can construe Fort’s petition as seeking review of the affirmance, and whether Fort’s request for reconsideration of the affirmance tolled the time for her to petition for re- view. After considering the parties’ responses, we agree with the respondents that the Board’s affirmance was a final agency decision, Fields v. U.S. Dep’t of Lab. Admin. Rev. Bd., 173 F.3d 811, 812 (11th Cir. 1999), United States v. Cheramie Bo-Truc No. 5, Inc., 538 F.2d 696, 698 (5th Cir. 1976), and we can— and do—construe Fort’s pro se petition as seeking review of that decision. And we agree with the Department that Fort’s appeal is timely because her request for reconsideration tolled the period for her to petition us for review. See Interstate Com. Comm’n v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 284 (1987) (“[T]he timely petition for administrative reconsideration stayed the running of the . . . limitation period until the petition had been acted upon by the [Board].”). Thus, we have jurisdiction to consider Fort’s petition. USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 7 of 9
20-13998 Opinion of the Court 7
STANDARD OF REVIEW
We review “agency action[s], findings, and conclusions” to determine whether they are “arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A); see 49 U.S.C. § 31105(d). We review the Department’s legal conclusions de novo and its factual findings for substantial ev- idence. Stone & Webster Constr., Inc. v. U.S. Dep’t of Lab., 684 F.3d 1127, 1132 (11th Cir. 2012). DISCUSSION
Fort contends that the Board erred in affirming the sum- mary decision against her because the summary decision conflicted with the law and the evidence and because the Board credited Landstar’s version of events over hers and overlooked that Land- star admitted to engaging in unacceptable behavior. Landstar re- taliated against Fort, she says, because she “reported unethical, un- lawful events” like the incident with Ms. Hurddrobneck. Fort also argues that Mr. Pease’s “egregious behavior put public safety at risk,” Landstar’s “violations were performed with intent,” and un- der Dick v. Tango Transp., ARB No. 14-054, ALJ No. 2013-STA-60, slip op. at *7 (Dep’t of Lab. Admin. Rev. Bd. Aug. 30, 2016), she didn’t need to “complain about a specific safety regulation”; she just needed to complain “‘related to’ safety regulations.” The Act prohibits an employer from “discharg[ing,] . . . dis- ciplin[ing,] or discriminat[ing] against an employee regarding pay, terms, or privileges of employment” because the employee “has USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 8 of 9
8 Opinion of the Court 20-13998
filed a complaint . . . related to a violation of a commercial motor vehicle safety or security regulation, standard, or order.” 49 U.S.C. § 31105(a)(1)(A)(i). Here, a “violation” includes “an act reasonably perceived to be a violation.” Koch Foods v. Sec’y, U.S. Dep’t of Lab., 712 F.3d 476, 482 (11th Cir. 2013). The employee has the in- itial burden of making a prima facie case that her protected activity “was a contributing factor in” the adverse employment action against her. 49 U.S.C. §§ 31105(b)(1), 42121(b)(2)(B)(i). To make a prima facie case, she must show: (1) she engaged in activity pro- tected under the Act; (2) she suffered an adverse employment ac- tion; and (3) a causal connection exists between the protected ac- tivity and adverse action. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir. 2006) (Family and Medical Leave Act); Bechtel Constr. Co. v. Sec’y of Lab., 50 F.3d 926, 933 (11th Cir. 1995) (Energy Reorganization Act). To establish protected activity, Fort had to show that she reasonably believed that Landstar violated a motor vehicle safety regulation. Dick, slip op. at *7. The belief had to be both subjec- tively and objectively reasonable. Id. To determine whether the belief was objectively reasonable, we consider the information available to a reasonable person in the same circumstances with the same training and experience as Fort. Id. Although, under Dick, Fort didn’t have to prove an actual violation of a specific safety regulation, she still had to show an ob- jectively reasonable belief related to violations of safety regula- tions. Id. But she failed to do so. The incidents with Mr. Pease, USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 9 of 9
20-13998 Opinion of the Court 9
Mr. Martinez, and Ms. Hurddrobneck don’t relate to safety viola- tions, and a reasonable Log Compliance Representative with Fort’s extensive work experience wouldn’t believe that they do. Fort her- self recognized that Director Cason didn’t violate any safety regu- lations in sending Mr. Pease for retraining instead of disqualifying him. Fort described the incidents as violations of company policy, not federal regulations. She could have made a colorable argument that Landstar violated 49 C.F.R. section 395.30(d) when it corrected Ms. Hurddrobneck’s obviously incorrect record without the driver’s consent—if the regulation had been in effect at the time. But the regulation wasn’t yet in effect, and a reasonable person in Fort’s position wouldn’t have believed it was. Thus, Fort failed to establish protected activity to make a prima facie case of retaliation. Fort’s other arguments lack merit. The Board properly ap- plied the Act and viewed the record in the light most favorable to her. Substantial evidence supported the factual findings. And Landstar never admitted to violating a federal motor vehicle safety regulation with respect to the three complained-of incidents. Because Fort didn’t establish that she engaged in activity protected under the Act, the summary decision for Landstar was proper, and we deny her petition for review. PETITION DENIED.