Adriano Budri v. Administrative Review Board

Case: 18-60579 Document: 00514908591 Page: 1 Date Filed: 04/09/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60579
FILED
April 9, 2019
Summary Calendar
Lyle W. Cayce
Clerk
ADRIANO BUDRI,
Petitioner
v.
ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT
OF LABOR,
Respondent
Petition for Review of the Final Decision and Order of the
United States Department of Labor Administrative Review Board
LABR No. 18-025
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Adriano Budri challenges an Administrative Review Board’s decision in
favor of his former employer, Firstfleet, Inc. The decision concluded that Budri
could not establish causation in his whistleblower retaliation claim under the
Surface Transportation Assistance Act (“STAA”), 49 U.S.C. § 31105. We agree
and deny the petition for review.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60579 Document: 00514908591 Page: 2 Date Filed: 04/09/2019
No. 18-60579
The STAA “insure[s] that employees in the commercial motor
transportation industry who make safety complaints, participate in STAA
proceedings, or refuse to commit unsafe acts do not suffer adverse employment
consequences because of their actions.” Roadway Express, Inc. v. Dole, 929
F.2d 1060, 1065 (5th Cir. 1991).
After Budri was terminated by Firstfleet at the end of his first month of
employment, he filed a claim with the Occupational Safety and Health
Administration. Under the STAA, Budri needed to demonstrate “by a
preponderance of the evidence that protected activity was a contributing factor
in” his termination. 29 C.F.R. § 1978.109(a). An administrative law judge
(“ALJ”) found there to be “no genuine dispute as to any material fact” on the
causation element and granted summary decision to Firstfleet. 29 C.F.R. §
18.72(a). Budri then petitioned for review by the Department of Labor’s
Administrative Review Board (“ARB”). See Budri v. Firstfleet, Inc., No. 18-025,
2018 WL 6978226 (U.S. Dep’t of Labor Admin. Rev. Bd. June 19, 2018).
The ARB found that, in the one month that Budri was employed by
Firstfleet, “he caused several accidents, failed to report accidents, failed to
deliver a time-sensitive order, drove on a flat tire to a truck stop when he had
been told to wait for a service crew to repair the tire, and had a customer ban
him from its facility for refusing to follow instructions.” Id. at *1. It also
referred to the ALJ’s findings that “undisputed evidence demonstrated”
Firstfleet “immediately remedied” a complaint Budri asserted in protected
activity, “took no action against Budri” after he engaged in other alleged
protected activity, and that all of Budri’s mistakes on the job occurred after
purported protected activity. Id. Thus, though Budri had undertaken
protected activity, the ARB found he had “fail[ed] to present any evidence that
[the activity] contributed to the termination decision.” Id.2
Case: 18-60579 Document: 00514908591 Page: 3 Date Filed: 04/09/2019
No. 18-60579
The ARB affirmed the ALJ’s grant of summary decision in Firstfleet’s
favor, finding no genuine disputes of material fact and holding as a matter of
law that Firstfleet was entitled to judgment. Id. at *2; see also 29 C.F.R. §
18.72(a).
Burdri proceeds pro se in this court. We review an ARB decision to make
sure it is not “arbitrary, capricious, an abuse of discretion, or otherwise
contrary to law, or . . . not supported by substantial evidence.” Macktal v.
United States Dep’t of Labor, 171 F.3d 323, 326 (5th Cir. 1999) (citing 5 U.S.C.
§ 706(2)(A)). We review conclusions of law de novo. Ameristar Airways, Inc. v.
Admin. Review Bd., 771 F.3d 268, 272 (5th Cir. 2014).
In his petition for review, Budri first argues the ARB erred by failing to
consider certain occurrences to have been protected activity. The ARB in fact
did consider one of these, pertaining to an inoperative headlamp on a truck, to
be a protected activity, and it factored the incident into its analysis. See Budri,
2018 WL 6978226, at *1 n.5. As to an event pertaining to Budri’s driving on a
flat tire after being instructed not to do so, the ALJ concluded that Budri
waived that argument because he raised it too late. Budri briefed the point in
his appeal, but the ARB did not address it. We conclude the ARB’s silence was
effectively an adoption of the waiver holding. Budri does not explain in his
petition for review in this court why the ARB’s decision to deem the argument
waived would be arbitrary or capricious. Even though we construe pro se briefs
liberally, Budri must still adequately contest the Agency’s determinations to
have them addressed in this forum. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). He has failed to do that as to this scenario involving the flat
tire.
Budri also contends his motion to compel discovery should have been
granted. Budri filed requests on November 25 and December 21, 2017. In an
order issued on December 29, 2017, the ALJ ordered Firstfleet to respond to
3
Case: 18-60579 Document: 00514908591 Page: 4 Date Filed: 04/09/2019
No. 18-60579
Budri’s discovery requests or object to them. Budri argued to the ARB that
Firstfleet only partially complied with the order. The ARB’s decision does not
discuss these contentions. Even if the ARB should have discussed that issue,
its failure to do so is not reversible error if it “clearly had no bearing on the
procedure used or the substance of decision reached.” Worldcall Interconnect,
Inc. v. F.C.C., 907 F.3d 810, 818 (5th Cir. 2018) (citation omitted). We see no
significance to the issue regarding discovery, and there is no reversible error.
This case concerns Budri’s commission of a series of errors during his
only month of employment. His termination took place after those mistakes
and not directly after the protected activity recognized by the ARB. Budri does
not dispute these facts. The record also indicates that Firstfleet’s human
resources manager authorized Budri’s termination after an email request from
Budri’s supervisor that detailed Budri’s on-the-job mistakes and did not
mention any of the protected activity. We therefore agree there is no genuine
dispute of material fact as to the element of causation. Firstfleet was due a
favorable decision as a matter of law.
Finally, Budri argues the Agency erred in not considering his prehearing
statements, but he insufficiently briefs the argument.
The petition for review is DENIED. All pending motions are DENIED.
4