T.J. Jacobs v. U.S. Department of Labor

Case: 19-11832 Date Filed: 03/24/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11832
Non-Argument Calendar
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Agency No. ARB - 2017-0080
T.J. JACOBS,
Petitioner,
versus
U.S. DEPARTMENT OF LABOR,
Respondent.
________________________
Petition for Review of a Decision of the
Department of Labor
________________________
(March 24, 2020)
Before WILLIAM PRYOR, LAGOA and BLACK, Circuit Judges.
PER CURIAM:
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T.J. Jacobs, proceeding pro se, seeks review of the Administrative Review
Board’s (ARB) summary affirmance of the Administrative Law Judge’s (ALJ)
denial of his whistleblower complaint brought under the Surface Transportation
Assistance Act (STAA), 49 U.S.C. § 31105(a). After review, 1 we deny Jacobs’
petition in part, and dismiss in part.
First, Jacobs contends the ARB erred in affirming the ALJ’s finding that he
voluntarily resigned from his employment with Liberty Logistics Inc. (Liberty).
The STAA prohibits employers from retaliating against employees based on
complaints or actions related to commercial motor vehicle safety. See 49 U.S.C.
§ 31105(a). The STAA protects an employee who refuses to operate a vehicle
because the operation would violate a regulation, standard, or order of the United
States related to commercial vehicle safety, health, or security. Id. If a party
alleges a violation of that provision, he can file a complaint with the Secretary of
Labor, who must issue a final order on the complaint. Id. § 31105(b). A
complainant bears the burden of demonstrating that: (1) his action was a protected
activity; (2) the company took an adverse employment action against him; and
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“In reviewing appeals arising from the STAA’s whistleblower provision, we conform to
the standard of review set forth in the Administrative Procedure Act.” Koch Foods, Inc. v. Sec’y,
U.S. Dep’t of Labor, 712 F.3d 476, 480 (11th Cir. 2013). We will only overturn the ARB’s
findings if they are arbitrary, capricious, an abuse of discretion, or not in accordance with the
law. 5 U.S.C. § 706(2)(A); Stone & Webster Const., Inc. v. U.S. Dep’t of Labor, 684 F.3d 1127,
1132 (11th Cir. 2012). We review the ARB’s legal conclusions de novo. Stone & Webster
Const., Inc., 684 F.3d at 1132. Moreover, we will accept the ARB’s factual findings unless they
are unsupported by substantial evidence in the record. 5 U.S.C. § 706(2)(E).
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(3) his protected activity was a contributing factor in the adverse action. Id.
(stating that the legal burdens in 49 U.S.C. § 42121(b) govern complaints under the
STAA); 49 U.S.C. § 42121(b)(2)(B)(iii). If the complainant is able to make such a
showing by a preponderance of the evidence, the employer can avoid liability by
showing, through clear and convincing evidence, that it would have taken the same
action in absence of the alleged protected activity. 49 U.S.C. § 42121(b)(2)(B)(iv).
As an initial matter, Jacobs has abandoned his arguments regarding the
ALJ’s finding that he voluntarily resigned, because he fails to support his argument
with anything beyond conclusory statements in his briefs. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008) (stating issues not briefed on appeal by a pro se
litigant are deemed abandoned). Moreover, Jacobs failed to ensure the record on
appeal was complete because he failed to include a complete transcript of his
hearing before the ALJ. See Fed. R. App. P. 10(b)(2) (providing “[i]f the appellant
intends to urge on appeal that a finding or conclusion is unsupported by the
evidence or is contrary to the evidence, the appellant must include in the record a
transcript of all evidence relevant to that finding or conclusion”).
However, regardless of those deficiencies, substantial evidence supports the
ALJ’s finding that Jacobs voluntarily resigned from his employment with Liberty.
The ALJ stated the plain language of Jacobs’ June 19 email where he rescinded all
agreements with Liberty showed his intent to resign. In his June 19 email, Jacobs
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stated “any and all [a]greements . . . are hereby RESCINDED,” and he requested
he be paid for his services up to June 19. Moreover, Jacobs stated he would return
his truck to Penske for a final inspection, and a meeting with Liberty would no
longer be necessary. Thus, he had the choice to continue his discussions with
Liberty about his grievances or terminate his employment. See Hargray v. City of
Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (stating a resignation is voluntary
as long as the employee had a choice, even if the alternatives are unpleasant).
Jacobs chose to voluntarily resign, which shows he was not constructively
discharged or subject to a materially adverse employment action. See id.
Accordingly, because Jacobs voluntarily resigned, we deny the petition as to this
issue.
Second, he asserts the ARB erred in affirming the ALJ’s finding his claims
were not based on adverse employment actions covered by the STAA. Again,
Jacobs has abandoned any arguments regarding the ALJ’s findings that Liberty
failed to pay him, ignored his emails, and his truck lease violated federal law
because he fails to support his arguments with anything beyond conclusory
statements in his briefs. Timson, 518 F.3d at 874. Additionally, Jacobs has
abandoned any arguments about Liberty’s failure to pay him a signing bonus
because he raises that issue for the first time on appeal. See Mahon v. U.S. Dep’t of
Agric., 485 F.3d 1247, 1254-55 (11th Cir. 2007) (explaining “a reviewing court
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will not consider arguments that a party failed to raise in a timely fashion before an
administrative agency”).
Nevertheless, even if he had not abandoned his arguments, Jacobs cannot
meet his burden to show that Liberty subjected him to a materially adverse action.
See 49 U.S.C. § 31105(b). He did not offer evidence showing that Liberty failed to
pay him for 3,081 miles of freight services or explain how such a failure would
dissuade a reasonable worker from making or supporting a charge of
discrimination. Further, the record was clear that Liberty replied to his emails, and
he also failed to show how ignoring emails would equate to a materially adverse
action. Lastly, although Jacobs repeatedly states that his truck lease violated
federal law, he does not show how the lease violated federal law or how such a
violation would be a materially adverse action that would dissuade him from
making a whistleblower complaint. See Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (Title VII) (explaining that materially adverse
actions are those that would dissuade a reasonable worker from making or
supporting a charge of discrimination); Crawford v. Carroll, 529 F.3d 961, 973
(11th Cir. 2008) (stating for employer conduct to be actionable, it must have a
materially adverse effect on the employee). Accordingly, we deny the petition as
to this issue.
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Lastly, Jacobs asserts that Liberty engaged in fraudulent conduct, and he
suffered a violation of his due process rights. The Government responds that he
failed to state a claim for fraud and a violation of his due process rights, and it
argues that he waived his remaining arguments because he failed to raise them
during his administrative proceedings.
Jacobs’ remaining claims should be dismissed because the record, as it
presently exists, shows he failed to state a claim showing that his due process
rights were violated or Liberty engaged in criminal activity, and he waived his
remaining arguments by not raising them below. See Cont’l Tech. Serv., Inc. v.
Rockwell Int’l. Corp., 927 F.2d 1198, 1199 (11th Cir. 1991) (“An argument not
made is waived.”). As to his due process claim, Jacobs fails to identify any of the
three elements necessary to state a due process violation. See Grayden v. Rhodes,
345 F.3d 1225, 1232 (11th Cir. 2003) (stating to allege a claim for denial of
procedural due process, a plaintiff must show: “(1) a deprivation of a
constitutionally-protected liberty or property interest; (2) state action; and
(3) constitutionally-inadequate process”). Jacobs makes blanket assertions that his
due process rights were violated throughout the administrative process, but he does
not substantiate his claims or cite to relevant caselaw. Similarly, Jacobs alleges
that Liberty engaged in a RICO scheme with nothing more than conclusory
statements and generalized grievances about his employment with Liberty. See
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Fla. Stat. § 772.103 (prohibiting an individual from using or investing proceeds
from a criminal activity to establish an enterprise, acquiring interest in an
enterprise through criminal activity, conducting an enterprise through criminal
activity, or conspiring to do any of the preceding).
As to his remaining claims regarding the OSHA investigation, his
evidentiary objections, and the appointment of ALJs, Jacobs failed to raise them
before the ALJ and ARB. See Mahon, 485 F.3d at 1284-85. Thus, he has waived
his arguments and cannot raise them before this Court for the first time on appeal.
Accordingly, as to this claim, we deny the petition in part, and dismiss in part.
PETITION DENIED IN PART AND DISMISSED IN PART.
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