Annecia M. Fort v. U.S. Department of Labor, et al

[DO NOT PUBLISH]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: 1 of 9

-- 1 of 9 --

2 Opinion of the Court 20-13998
Agency No. ARB2018-0026
____________________
Before J ORDAN, NEWSOM , and L UCK , Circuit Judges.
PER C URIAM :
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: 2 of 9

-- 2 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: 3 of 9

-- 3 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: 4 of 9

-- 4 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: 5 of 9

-- 5 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: 6 of 9

-- 6 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: 7 of 9

-- 7 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: 8 of 9

-- 8 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.
USCA11 Case: 20-13998 Document: 40-1 Date Filed: 01/11/2023 Page: 9 of 9

-- 9 of 9 --