USDOL/OALJ Reporter: ARB Decision Caselist -- September 2007

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Summary :

Approval of settlement agreement.

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Summary :

ARB affirms ALJ's finding that the Respondent proved that the Complainant was terminated for a legitimate, non-discriminatory reason.

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[Note: The ARB reissued this decision on Oct. 31, 2007, making slight changes to the penultimate paragraph. See Baughman v. J.P. Donmoyer, Inc. , ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Oct. 31, 2007)]

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Summary :

[STAA Digest IV A 2 d]
EMPLOYER�S KNOWLEDGE OF PROTECTED ACTIVITY AT TIME OF DECISION TO TERMINATE EMPLOYMENT

In Baughman v. J.P. Donmoyer, Inc. , ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007), the ARB affirmed the ALJ's holding that the Complainant did not prove by a preponderance of the evidence that the officials who decided to terminate his employment knew about his protected activity.

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Summary :

Complainant failed to show that his AIR21 claims were exempt from the Respondent's bankruptcy discharge.

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Summary :

[STAA Digest VI B 4]
ADVERSE ACTION; DECISION NOT TO REHIRE COMPLAINANT WHO WAS IN LAY-OFF STATUS

In Muzyk v. Carlsward Transportation , ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007), the Complainant, who was in lay-off status, was called back to work for one day to shuttle a bus and some passengers, and then returned to lay-off status.� On the day of the temporary service, the Complainant felt overcome by exhaust fumes during the trip.� The testimony conflicted about whether the Complainant brought the exhaust fume issue to the attention of the Respondent on that date, or days later when the Complainant inquired about workers� compensation.� The Respondent conceded that it had intended to rehire the Complainant when the busy season started up in the Orlando area.� The ARB agreed with the ALJ that the Complainant was in an employment relationship with the Respondent, and that the Respondent engaged in adverse employment action when it decided not to rehire the Complainant, though initially intending to do so.

[STAA Digest IV D 2]
DUAL MOTIVE; COMPLAINANT�S SUSPICIOUS AND DISHONEST ACTIVITY RAISED FOR THE RESPONDENT SECURITY CONCERNS AND LOSS OF CONFIDENCE IN THE COMPLAINANT; ALJ NEED NOT DETERMINE WHETHER ADVERSE ACTION WAS �REASONABLE� AND �JUSTIFIED� BUT ONLY WHETHER IT WAS �LEGITIMATE� AND NON-DISCRIMINATORY�

In Muzyk v. Carlsward Transportation , ARB No. 06-149, ALJ No. 2005-STA-60 (ARB Sept. 28, 2007), the ARB found that substantial evidence supported the ALJ's finding that although discrimination �played a role� in the decision not to rehire the Complainant, the Respondent would have refused to rehire the Complainant absent any of his safety-related complaints where the Complainant had engaged in suspicious and dishonest activity which raised security and loss of confidence concerns for the Respondent.� Another bus driver had informed the Respondent that the Complainant was out to get the Respondent.� In addition, the Complainant was deceptive when the Respondent confronted him over his reason for hanging around the Respondent's busses at a time when he had no business at the depot.� The Complainant admitted that he had been playing a �cat-and-mouse� game because he did not want to disclose that he was taking pictures for an upcoming meeting with an attorney. � In a footnote, the ARB noted that the ALJ had observed that the Respondent's action was �reasonable� and �justified� in addition to being legitimate and non-discriminatory.� The ARB noted that �the purpose of the STAA employee protection provision is specific to retaliation because of protected activity,� and cited decisions to the effect that the STAA was not intended as a vehicle for judicial second-guessing of employment decisions.

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Summary :

NEW EVIDENCE SUPPORTING ASSERTION OF PROTECTED ACTIVITY; FACT THAT STATE COMMISSION LATER ASSESSED A PENALTY AS THE COMPLAINANT FEARED, WAS NOT MATERIAL; SUCH AN ASSESSMENT DOES NOT RETROACTIVELY VALIDATE THE COMPLAINANT�S ACTIONS AS PROTECTED UNDER THE SOX

In Nixon v. Stewart & Stevenson Services, Inc. , ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007), the Complainant was the environmental manager for a federal defense contractor.� He asserted that he engaged in protected activity when he reported information to officers that showed violations of environmental laws, which he reasonably believed would result in legal proceedings and financial penalties, which, in turn, would invoke reporting requirements mandated by the SEC.� On appeal to the ARB, the Complainant sought to have the ARB consider new evidence in the form of an excerpt from a Texas commission showing that a penalty against the Respondent was assessed, thus proving that legal proceedings occurred.� Before addressing the admissibility of the new evidence, the ARB had found that the Complainant had not adequately briefed on appeal the ALJ's finding that there was no evidence of pending environmental litigation or a known environmental proceeding contemplated by government officials that would have triggered the Respondent's duty to disclose under the SEC rule.� Thus, the ARB found any argument on this issue waived.� Rather, the ARB found that the only argument on appeal concerned whether the Respondent engaged in mail fraud.� The Board found that there was no evidence that the Complainant communicated the allegation of mail fraud prior to the hearing before the ALJ. Thus, the ARB, observing that it had found no protected activity, declined to consider the new evidence, finding that it was not material because �[t]he fact that what Nixon anticipated would happen did happen, namely that the Texas Commission did assess a penalty against the Respondent for environmental violations, does not retroactively make any activity Nixon engaged in prior to his termination activity protected under the SOX.�

BRIEFING OF ISSUES BEFORE THE ARB; PRO SE STATUS OF COMPLAINANT DOES NOT NEGATE RESPONSIBILITY TO PROVIDE LEGAL ARGUMENT WITH SUPPORTING AUTHORITY; MERE GENERAL ASSERTION OF ERROR BY ALJ IS A WAIVER OF THE ISSUE ON APPEAL

In Nixon v. Stewart & Stevenson Services, Inc. , ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007), the Complainant was the environmental manager for a federal defense contractor.� He asserted that he engaged in protected activity when he reported information to officers that showed violations of environmental laws, which he reasonably believed would result in legal proceedings and financial penalties, which, in turn, would invoke reporting requirements mandated by the SEC.� On appeal, the Complainant only made a general assertion that the ALJ's finding in this respect was in error, and did not make any supporting argument.� Citing authority to effect that even pro se litigants must provide some legal argument with supporting authority, the ARB found the issue waived on appeal.

PROTECTED ACTIVITY; MAIL FRAUD; ISSUE IS NOT WHETHER RESPONDENT ACTUALLY VIOLATED MAIL FRAUD LAW, BUT WHETHER COMPLAINANT REASONABLY BELIEVED THAT THERE WAS A VIOLATION AND CONVEYED THAT BELIEF TO THE RESPONDENT PRIOR TO THE ADVERSE EMPLOYMENT ACTION

In Nixon v. Stewart & Stevenson Services, Inc. , ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007), the Complainant was the environmental manager for a federal defense contractor.� Among other allegations, the Complainant alleged that he engaged in protected activity because the Respondent engaged in mail fraud under 18 U.S.C.A. � 1341 when it sent letters to a state commission falsely asserting that it was immune from environmental penalties.� The ALJ had granted summary decision in favor of the Respondent because the Complainant failed to show that the letters were part of a 'scheme or artifice to defraud, or for obtaining money or property,� as required by 18 U.S.C.A. � 1341, and that there was no evidence that the Complainant, prior to his termination, considered the Respondent's conduct to constitute mail fraud.� On appeal, the ARB indicated that the ALJ had partly mischaracterized the issue because under the SOX whistleblower provision, an employee is not required to provide information about an actual violation of Section 1341, but only to show that he reasonably believed that there was a violation and conveyed that belief to his employer.� The ARB, however, affirmed the ALJ's grant of summary decision because he had correctly found that there was no evidence that the Complainant actually communicated his Section 1341 concerns to the Respondent prior to his termination.� Rather, the first mention of the mail fraud statute was in response to a conference call during which the ALJ had asked if there was any other basis for the Complainant's complaint beyond an SEC rule violation alleged in the complaint.

REMOVAL TO FEDERAL COURT; COMPLAINANT IS NOT REQUIRED TO WITHDRAW DOL COMPLAINT PRIOR TO FILING IN FEDERAL DISTRICT COURT

A complainant is not required to withdraw his SOX complaint before DOL prior to filing a de novo action in federal district court where DOL has not made a final decision in his case within 180 days of the filing of the complainant with OSHA.� Nixon v. Stewart & Stevenson Services, Inc. , ARB No. 05-066, ALJ No. 2005-SOX-1 (ARB Sept. 28, 2007).

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Summary :

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; GRIEVANCE PROCEDURE

In Reeves v. Old Dominion Freight Line , ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant appealed his termination through the Respondent's internal appeal process.� His later STAA whistleblower complaint was filed 248 days after his termination.� The Complainant argued that the filing period for his STAA complaint did not begin to run until the date upon which the committee responsible for deciding his internal appeal rendered a decision.� The ARB rejected this argument, citing the regulation at 29 C.F.R. § 1978.102(d)(3), and stating that �[t]he plain language of the STAA precludes tolling of the limitations period during the pendency of Reeves's internal appeal of his termination. Slip op. at 4 (footnote omitted).

[STAA Digest II B 2 d ii]
TIMELINESS OF COMPLAINT; EQUITABLE TOLLING; INCAPACITY MUST PREVENT, NOT MERELY HAMPER MANAGEMENT OF ONE'S AFFAIRS

In Reeves v. Old Dominion Freight Line , ARB No. 05-128, ALJ No. 2005-STA-34 (ARB Sept. 28, 2007), the Complainant did not file his complaint with 180 days of the date of his termination.� On appeal he contended that he was entitled to equitable tolling because he had been incapacitated due to his treatment for Hepatitis C.� The ARB found that the Complainant had failed to establish that his medical condition was so severe that it prevented him from pursuing his STAA complaint in a timely manner.� Rather, the Complainant had only contended that it had been �difficult� for him to stay on top of his legal affairs.� Moreover, the ARB noted that he had been able to pursue an internal appeal process during the STAA limitations period.

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Summary :

DISMISSAL FOR FAILURE TO PROSECUTE ARB APPEAL; ALJ�S DECISION BECOMES THE DOL�S FINAL ORDER

In Riedell v. Verizon Communications , ARB No. 06-144, ALJ No. 2005-SOX-77 (ARB Sept. 28, 2007), the ARB ordered the Complainant to show cause why his complaint should not be dismissed for failure to prosecute.� The Complainant notified that he did not challenge such a dismissal. The ARB construed the response as a withdrawal of objections to the ALJ's decision pursuant to 29 C.F.R. § 1980.111(c) (2007).� Accordingly, the Board dismissed the appeal, and noted that the ALJ's decision had become DOL's final order in the case.

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Summary :

BANKRUPTCY; ACTIONS OF RESPONDENT OCCURRING AFTER FILING OF BANKRUPTCY

In Sassman v. United Airlines , ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the Complainant had financed a loan for a van through an employee credit union.� The Complainant filed an AIR21 whistleblower complaint after his discharge, which was dismissed because it had been discharged as part of the Respondent airline's bankruptcy reorganization.� While that complaint was pending, the credit union repossessed the van, sold it at auction, and sought to collect the balance of the loan from the Complainant.� The Complainant filed a new whistleblower complaint alleging that the Respondent airline caused the credit union to treat him more harshly upon default than other credit union members because of his protected activity.� The ALJ dismissed the complaint.� While on appeal to the ARB, the airline informed the ARB that the Bankruptcy Court had entered a confirmation order discharging the airline from any claims of any nature that arose before the confirmation date.� The Complainant argued that the current case arose after the Respondent filed for bankruptcy and therefore was not discharged; he cited no authority for this argument.� The ARB held that the AIR21 claim against the airline, �whether characterized as a pre-petition claim or as a post-petition claim, was discharged in bankruptcy because it arose before the Confirmation Order was entered �.�

TIMELINESS OF COMPLAINT; COLLECTION LETTER FOUND NOT TO BE A SEPARATE, ACTIONABLE ADVERSE ACTION; CONTINUING VIOLATION DOCTRINE DOES NOT APPLY TO AIR21 WHISTLEBLOWER CASES

In Sassman v. United Airlines , ARB No. 05-077, ALJ Nos. 2005-AIR-4 (ARB Sept. 28, 2007), the Complainant had financed a loan for a van through an employee credit union.� The Complainant filed an AIR21 whistleblower complaint after his discharge, which was dismissed because it had been discharged as part of the Respondent airline's bankruptcy reorganization.� While that complaint was pending, the credit union repossessed the van, sold it at auction, and sought to collect the balance of the loan from the Complainant.� After receiving a collection letter from the credit union several years after the repossession, the Complainant filed a new whistleblower complaint alleging that the Respondent airline caused the credit union to treat him more harshly upon default than other credit union members because of his protected activity.� Assuming for purposes of deciding the appeal that the credit union was a properly named respondent under AIR21 (the airline having been discharged in bankruptcy), the ARB found that the complaint should have been filed within 90 days of when the Complainant was informed that the van had been repossessed and that he would be liable for any deficiency on the loan balance after a sale at auction.� The collection letter several years later was a consequence of the repossession, and not a separate, actionable adverse action.� The ARB rejected the Complainant's argument that his complaint was timely under the �continuing violation� doctrine, because he continued to engage in protected activity during the period of the repossession and collection efforts.� The ARB found that continuing violation doctrine has nothing to do with when the protected activity took place, and that in any event, continuing violation doctrine does not apply to AIR21 whistleblower cases.

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Summary :

SERVICE CONTRACT ACT SUBSTANTIAL VARIANCE HEARING; EXTRAORDINARY CIRCUMSTANCES JUSTIFYING WAIVER OF TIME LIMITS FOR REQUESTING HEARING

In V-Tech Services, Inc. , ARB No. 05-100 (ARB Sept. 28, 2007), the ARB affirmed the Administrator's determination that �extraordinary circumstances� did not exist that would justify waiving the timeliness requirement for a successor service contractor to request a substantial variance hearing under the SCA regulation at 29 C.F.R. § 4.10(b)(3)(ii).� The successor contractor relied on E.O. 13204 � which revoked E.O. 12933 which had required a successor contractor to offer a right of first refusal of employment to its predecessor's employees � to draw the conclusion that it did not need to pay its employees at the CBA-negotiated rate paid by its predecessor.� Section 4(c) of the SCA, however, operates to require payment of the CBA rate regardless of the revocation of E.O. 12933.� The successor contractor noted that it was a new federal contractor, and was not aware of the applicability of the CBA wage rates until informed of it by the contracting agency after it had already begun performing the contract.� It observed that the bid solicitation did not indicate that the CBA rate had to be paid.� The ARB rejected the successor contractor's contentions, observing that Section 4(c) expressly requires payment of the wage rates contained in a predecessor's CBA irrespective of whether the successor's employees were or were not employed by the predecessor contractor.� The ARB found that the successor contractor's miscalculation of the required wage rate was not reasonable, and that the Administrator reasonably refused to waive the time limits for requesting a hearing.

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Summary :

[STAA Digest X D]
SETTLEMENTS; SETTLEMENTS MAY NOT BE SUBMITTED UNDER SEAL, BUT PARTIES MAY REQUEST PREDISCLOSURE NOTIFICATION UNDER 29 C.F.R. § 70.26

In Bettner v. Crete Carrier Corp. , ARB No. 07-093, ALJ No. 2006-STA-33 (ARB Sept. 27, 2007), the ALJ stated in a recommended decision and order approving a settlement that the settlement had been filed �under seal.�  The ARB noted that in Porter v. Brown & Root, Inc., 1991-ERA-004 (Sec�y Feb. 25, 1994), the Secretary of Labor refused to approve a settlement in which the parties had agreed that the settlement of the complainant's whistleblower complaint would be maintained under seal.  Rather, the ARB indicated that the settlement would be subject to the 29 C.F.R. § 70.26 pre-disclosure notification procedure prior to any release under FOIA, but that the ALJ's statement that the settlement is filed �under seal� was not in accordance with law.

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Summary :

[Nuclear & Environmental Digest VII D 6]
TIMELINESS OF RESPONSE TO MOTION FOR SUMMARY DECISION SERVED BY MAIL; ALJ�S ORDER PERMITTING FILING BY FAX DOES NOT CUT OFF THE FIVE ADDITIONAL DAYS FOR MAILING PROVIDED FOR BY 29 C.F.R. § 18.4(c)(3)

In Ellison v. Washington Demilitarization Co. , ARB No. 05-098, ALJ No. 2005-CAA-9 (ARB Sept. 25, 2007), the Respondent served a motion for summary decision by mail.� The ALJ erred when he failed to afford the Complainant the additional five days for mailing a response provided for by 29 C.F.R. § 18.4(c)(3), prior to ruling on the motion for summary decision.� The ALJ had evidently believed that he had ordered the parties to file responsive documents by fax, and therefore the additional mailing days provided for by section 18.4(c)(3) were inapplicable.� However, the text of the ALJ's order had only permitted the filing of pleadings and other documents by fax, and had not directed it.

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Summary :

Removal to federal district court.

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Summary :

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; GENERAL DISSATISFACTION WITH THE RESPONDENT�S PRE-TRIP INSPECTION METHODS DOES NOT CONSTITUTE PROTECTED ACTIVITY

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that he had the responsibility under the FMCSR, 49 C.F.R. 392.7 and 396.13, to assure himself that his assigned truck was in safe operating condition before he drove it.  The Complainant argued that he had the right to conduct the inspection to his standards no matter how long it took.� The ARB rejected this contention, holding that the Complainant could complain about the safety of his vehicle during or following inspections pursuant to 49 C.F.R. §� 392.7 and 396.13, but that, under the complaint clause of the STAA, he had to be at least be acting on a reasonable belief regarding the existence of a safety violation.  The ARB stated that this standard required the Complainant to prove that a person with his expertise and knowledge would have a �reasonable belief� that the Respondent's inspection methods were in violation of the regulations and that the Complainant's use of the Respondent's pre-trip inspection methods would lead the Complainant to reasonably believe that the truck was not in good operating order and safe to drive.� In the instant case, the record was not only devoid of evidence that the Respondent's pre-trip inspection methods violated the regulations, but contained substantial evidence showing that its methods exceeded both industry practice and the requirements of the FMCSRs.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; DRIVING UNDER PROTEST IS NOT A REFUSAL TO DRIVE

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant argued that he engaged in protected activity when he drove under protest because he was not able to conduct the pre-trip inspection according to his own methods, but was required to use the Respondent's methods. The ALJ found that a conditional refusal to drive satisfied the �refusal to drive� element of a prima facie case under the STAA.� The ARB disagreed, holding that the plain language of 49 C.F.R. §� 31105 (a)(B)(i or ii) limits protection under this section to a person who �refuses to drive. Thus, the Complainant could not seek protection under the refusal to drive provision of the STAA for his driving under protest.

[STAA Digest V B 2 b]
PROTECTED ACTIVITY; REFUSAL TO DRIVE; TAKING ONESELF OUT OF SERVICE BECAUSE OF PERSONAL UPSET OVER BEING SUPERVISED DURING A PRE-TRIP INSPECTION IS NOT PROTECTED ACTIVITY

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant took himself out of service because he was too upset to drive because he was being required to conduct his pre-trip inspection in the presence of his supervisor and a shop steward.� The ARB held that this was not protected activity under the refusal to drive provisions of the STAA because the Complainant did not refuse to drive because to he was concerned about an actual violation of a FMCSR or because he had a reasonable concern about injury to himself or the public because of his vehicle's unsafe condition.

[STAA Digest V A 4 c iii]
PROTECTED ACTIVITY; COMMUNICATION TO RESPONDENT; MERELY CONDUCTING A PRE-TRIP INSPECTION THAT WAS MORE RIGOROUS THAN THE RESPONDENT�S ETHODS DOES NOT CONSTITUTE PROTECTED ACTIVITY

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the ALJ concluded that the Complainant's pre-trip inspections that exceeded the Respondent's methods were protected under the STAA because they were reasonable.� The ARB disagreed, holding that although internal complaints about violations of commercial motor vehicle regulations may be oral, informal or unofficial, they cannot be merely implied.� Rather, they must be communicated to a manager or supervisor. The ARB wrote:� �Specific components of Calhoun's pre-trip inspection such as touching the lug nuts or the brake hoses, standing alone, did not convey to UPS that Calhoun was aware of specific vehicle defects on the dates relevant to this case or that UPS's methods were in violation of the STAA.  The employee protection provision of the STAA requires an employee to communicate his or her concerns by either refusing to drive or initiating a complaint. USDOL/OALJ Reporter at 14 (footnote omitted).� The Complainant's added inspections standing alone, therefore, did not constitute protected activity under the STAA.� In other words, the Complainant �did not engage in protected activity simply by inspecting his vehicle in defiance of UPS methods. USDOL/OALJ Reporter at 15.� Where, however, the Complainant actually told the Respondent about actual defects, he did engage in protected activity.

[STAA Digest VI B 4]
ADVERSE ACTION; SUPERVISION OF PRE-TRIP INSPECTIONS

In Calhoun v. United Parcel Service , ARB No. 04-108, ALJ No. 2002-STA-31 (ARB Sept. 14, 2007), the Complainant was a truck driver with an excellent driving record and a strong commitment to safe driving.� He alleged that the Respondent retaliated against him by conducting �excessive supervision� because of �his refusal to violate 49 C.F.R. §� 392.3 and 396.13� which requires drivers not to drive unless they are satisfied that the assigned vehicle is in good working order and safe operating condition.� The Respondent started supervising the Complainant's pre-trip inspections because other feeder drivers on the Complainant's route averaged 36 minutes for their pre-trip inspection, while the Complainant's average was between 100 minutes (for a preassembled double) and 109 minutes (assembling of doubles required).� The additional time disrupted service, caused late package deliveries or caused other workers to work overtime, and resulted in larger annual pay to the Complainant than other drivers.� The ARB found that the Respondent's supervision of the Complainant's pre-trip inspections was not adverse action (1) because the Complainant's interpretation of his rights pursuant to the FMCSRs was unreasonable, and (2) because the Respondent had not discriminated against the Complainant in regard to his pay, terms or privileges of employment, but had taken legitimate actions designed to reduce the amount of time that the Complainant was spending on his pre-trip inspection.

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