               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 10a0245n.06

                                      No. 08-4441                               FILED
                                                                             Apr 20, 2010
                        UNITED STATES COURT OF APPEALS                  LEONARD GREEN, Clerk
                             FOR THE SIXTH CIRCUIT


RONALD JOE MELTON,                           )
                                             )
       Petitioner,                           )
                                             )
v.                                           )   ON PETITION FOR REVIEW OF
                                             )   A FINAL ORDER OF THE UNITED
UNITED STATES DEPARTMENT OF                  )   STATES DEPARTMENT OF LABOR
LABOR,                                       )   ADMINISTRATIVE REVIEW BOARD
                                             )
       Respondent,                           )
                                             )
       and                                   )
                                             )
YELLOW TRANSPORTATION, INC.,                 )
                                             )
       Intervenor.                           )



       Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.


       PER CURIAM. Petitioner Ronald Melton, an over-the-road truck driver, brought this

action against his employer, defendant Yellow Transportation, Inc., alleging a violation of

the anti-retaliation provision of the Surface Transportation Assistance Act (the

Transportation Act), 49 U.S.C. § 31105(a).        An administrative law judge and the

Administrative Review Board denied relief, and Melton seeks review in this court, arguing

both that a warning letter issued by his employer for absenteeism constituted an adverse

employment action under the Transportation Act and that Yellow Transportation’s belief
No. 08-4441
Melton v. Department of Labor

that Melton was not impaired due to fatigue was an insufficient basis for the issuance of

the warning letter.


       The administrative law judge found that Melton was not guilty of using fatigue as a

subterfuge to avoid work but, nevertheless, held that the warning letter did not constitute

discipline under the Transportation Act because it was based on the employer’s good-faith

mistake of fact. The Administrative Review Board affirmed, holding that the letter was not

a materially adverse action under the Act because it “did not affect [Melton’s] pay, terms,

or privileges of employment, did not lead to discipline, and was removed from his

personnel file without consequences.” For the reasons set out below, we conclude that the

Board’s decision is supported by substantial evidence and must, therefore, be upheld.


                      FACTUAL AND PROCEDURAL BACKGROUND


       At the administrative level, the parties stipulated that in May 2004, Melton was

working from the Yellow Freight depot in Nashville, Tennessee, a division of Yellow

Transportation. His “usual bid dispatch” was a trip from there to Jackson, Mississippi, with

a scheduled starting time of 6:00 a.m. on Wednesdays, Fridays, and Sundays and a

scheduled running time of nine hours for completion of the trip. On May 20, 2004, he

began a ten-day vacation, scheduling his return to over-the-road driving for 6:00 a.m. on

Sunday, May 30, 2004. In preparation for the resumption of his driving responsibilities,

Melton actually returned home from vacation on May 27 in order to re-establish the sleep

pattern necessary for the job. Melton testified that he went to bed between 6:30 p.m. and

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Melton v. Department of Labor

7:00 p.m. on Thursday, May 27, Friday, May 28, and Saturday, May 29, so that he could

have sufficient sleep before getting up at 4:00 a.m. on Sunday, May 30, to prepare for a

6:00 a.m. departure from Nashville. But at 3:53 a.m. on Sunday morning, Melton was

awakened by a telephone call from the dispatcher at Yellow Freight, who informed him that

the 6:00 a.m. departure would be delayed because the load was not yet ready. Having had

approximately nine hours of sleep already and unable to get back to sleep, Melton got out

of bed at approximately 4:00 a.m., “made coffee[ ] and turned the [television] on,” waiting

for a second call indicating that he should report to the freight depot.


       When Melton still had not heard back from the Yellow Freight dispatcher by noon,

he called in to check on the status of his load. At that time, Melton was told that there was

“nothing working on the dock or nothing coming inbound.” Because drivers are allowed two

hours to report to work after notification that their load is ready for delivery, Melton

calculated that, under the best of circumstances, i.e., if his load been available at the time

he had called just after noon, he still could not have departed Nashville until 2:15 p.m., and

would not have arrived in Jackson until at least 11:15 p.m., after having been awake for

more than 19 consecutive hours. As it was, Melton said, he had no idea when he would

actually be able to depart for Mississippi, so he told the dispatcher, “I’m going to become

too tired, too fatigued to be safe to take this run, so drop me to my next bid,” which would

have been the following Wednesday.




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Melton v. Department of Labor

       Approximately ten days later, on June 10, 2004, Jeff Bacon, an operations manager

at Yellow Freight, sent Melton a letter of warning that read:


       On May 20, 2004 you arrived Nashville, Tennessee at 1154 hours. You
       marked to return to your 0600 hours bid on May 30, 2004 due to “vacation.”
       On May 30, 2004 you were delayed at 0353 hours. You called in at 1212
       hours on May 30, 2004 claiming fatigue. You claimed fatigue after being
       home for 240 hours.
       This is a letter of warning for using fatigue as a subterfuge to avoid work
       (absenteeism). Any further occurrences of this nature will subject you to
       more severe disciplinary action. This action is taken in accordance with
       Article 45 of the National Master Freight Agreement and Southern Region
       Area Over-the-Road Supplemental Agreement.


According to Bacon, it “was a suspicious pretense, coming back off of ten days vacation,

and then marking off fatigued on his first run [after] that vacation.” Moreover, Bacon

testified that Melton’s Sunday morning run was more often delayed than not. In 2004, he

said, the Nashville-Jackson trip had been delayed 75 percent of the time, sometimes as

late as 2:00 p.m., and yet Melton had not claimed fatigue on other occasions. When

Melton offered no further explanation for his absence during the week following his refusal

to make the Jackson run, Bacon decided that a warning letter was justified.


       Melton testified that he received the letter by certified mail on June 12, 2004. Four

days later, he filled out a complaint form supplied by his union representative that stated:


       I, R.J. Melton, am protesting this letter of warning which I received on June
       12, 04. As the law states under Federal Motor Carrier Safety Regulation
       392.3, “No driver shall operate a motor vehicle nor can a motor carrier



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Melton v. Department of Labor

        require or permit a driver to operate a motor vehicle, while the driver’s ability
        or alertness is so impaired.
        This letter of warning is totally against this safety regulation. It is unfair to
        expect drivers at Yellow Freight to refrain from getting ill over a weekend
        period. Sickness is something totally out of a person’s control.


Under the terms of the collective bargaining agreement that controlled the disciplinary

process at Yellow Freight, a warning of the kind contained in the letter was a precondition

to any actual discipline, but under the collective bargaining agreement between the

Teamsters and Yellow Freight, such a warning could not be the subject of a formal

grievance procedure on behalf of the union member.                         As a result, Melton’s union

representative negotiated informally with Yellow Freight to have the letter removed from

Melton’s file, but was unsuccessful.1


        In late December 2004, the warning letter was removed from the petitioner’s

personnel file in accordance with a provision of the collective bargaining agreement that

“[a] warning notice . . . shall not remain in effect for a period of more than six (6) months

from the date of said warning notice.” In the meantime, Melton filed an administrative

complaint under the Transportation Act that was, eventually, the subject of a two-day

hearing before an administrative law judge.                  At the conclusion of the hearing, the

administrative law judge determined that Melton had engaged in protected activity under


        1
          The com pany balked at rem oving the warning letter because the reason Melton gave for his absence
on May 20 was fatigue, but the grievance form later supplied by the union representative indicated that Melton
was relying on illness as an excuse. Melton conceded that the “grievance form ” subm itted to Yellow Freight
inaccurately asserted retaliation for a claim of illness rather than fatigue. He testified, however, that he had
m erely signed a preprinted form provided by the union that was used as the basis for a possible settlem ent.

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Melton v. Department of Labor

the Transportation Act when he chose not to drive in anticipation of fatigue. Even so, the

judge also concluded that Yellow Freight’s issuance of the warning letter was based upon

the reasonable belief that Melton had not engaged in protected activity but, rather, was

seeking merely to prolong his period of vacation. Finally, the administrative law judge ruled

that the petitioner had suffered no adverse employment action as a result of the warning

letter because the letter did not affect Melton’s “hours, work assignments, pay,

opportunities for advancement, or retirement benefits [and, thus, t]he letter had no

immediate impact on any term or condition of his employment.”


       Melton appealed that decision to the Administrative Review Board. The Board

unanimously affirmed the administrative law judge’s determinations, holding that the

petitioner had indeed engaged in protected activity, that the company’s letter of warning

did not constitute discipline or discrimination under the Transportation Act, and that Melton

failed to establish “that his putative protected activity was the reason for the warning letter.”

Two of the three Board members wrote separately to incorporate the Supreme Court’s

then-recent decision in Burlington Northern & Santa Fe Railway Co. v. White, in which the

Court held in a Title VII retaliation case that a plaintiff must establish that the employer’s

allegedly retaliatory action was “materially adverse,” that is, that the action “could well

dissuade a reasonable worker from making or supporting a charge of discrimination.” 548

U.S. 53, 57 (2006). The third member of the Board agreed that the warning letter was not

actionable under the Transportation Act, but he declined to join his colleagues in

abandoning the “tangible employment consequence” test that had been applied to

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Melton v. Department of Labor

retaliation cases brought under the Transportation Act up to that time. He further observed

that the result would be the same under either test.


       Melton appeals the Board’s decision, pointing to a co-worker’s affidavit suggesting

that some warning letters of the kind Melton received remained in Yellow Freight’s

personnel files indefinitely and could be taken into account in some limited circumstances2

even beyond the six-month limit provided in the collective bargaining agreement. This

evidence, he argues, proves that a warning letter could later “dissuade a reasonable

worker from making or supporting a charge of discrimination” for fear of receiving a second

letter that would then result in termination.


                                       DISCUSSION


       In passing the Transportation Act, Congress “recognized that employees in the

transportation industry are often best able to detect safety violations and yet, because they

may be threatened with discharge for cooperating with enforcement agencies, they need

express protection against retaliation for reporting these violations.” Yellow Freight Sys.,

Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994) (citations omitted). As a result, Congress

enacted section 405 of the Surface Transportation Assistance Act, 49 U.S.C. § 31105, to

protect “employees in the commercial motor transportation industry from being discharged



       2
         The record indicates that the existence of a stale warning letter might be relevant
in a later disciplinary hearing to impeach a statement by an employee that he had never
had any prior trouble on the job.

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Melton v. Department of Labor

in retaliation for refusing to operate a motor vehicle that does not comply with applicable

state and federal safety regulations or for filing complaints alleging such noncompliance.”

Brock v. Roadway Express, Inc., 481 U.S. 252, 255 (1987).


       Section 31105(a)(1)(B) provides:


       A person may not discharge an employee, or discipline or discriminate
       against an employee regarding pay, terms, or privileges of employment
       because the employee refuses to operate a vehicle because (i) the operation
       violates a regulation, standard, or order of the United States related to
       commercial motor vehicle safety or health; or (ii) the employee has a
       reasonable apprehension of serious injury to the employee or the public
       because of the vehicle’s unsafe condition.


Throughout this litigation, Melton has asserted that Yellow Freight violated this proscription

by disciplining him, i.e., by issuing a warning letter, when he had done nothing more than

comply with safety regulations that prohibit the operation of a commercial motor vehicle

while fatigued.


       In order to make out a prima facie case of a violation of section 31105(a)(1)(B), the

petitioner must first demonstrate “(1) that [he] engaged in a protected activity; (2) that the

defendant had knowledge of [his] protected conduct; (3) that the defendant took an

adverse employment action towards [him]; and (4) that there was a causal connection

between the protected activity and the adverse employment action.” Mickey v. Zeidler Tool

and Die Co., 516 F.3d 516, 523 (6th Cir. 2008) (citations omitted). “The burden of




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Melton v. Department of Labor

establishing a prima facie case in a retaliation action is not onerous, but one easily met.”

Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000) (citation omitted).


       If the employee successfully establishes such a prima facie case,


       the court makes its determination of liability by adapting the familiar Title VII
       McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973),] burden-shifting
       rules to the [Transportation Act]. At this point, “the burden of production
       shifts to the defendant to articulate a legitimate, nondiscriminatory reason for
       its employment decision. If the defendant is successful in rebutting the
       inference of retaliation, the plaintiff bears the ultimate burden of
       demonstrating by a preponderance of the evidence that the legitimate
       reasons were a pretext for discrimination.”


Yellow Freight Sys., Inc. v. Reich, 27 F.3d at 1138 (citation omitted).


       We review the Board’s decision under the substantial-evidence standard. Thus, we

must uphold the administrative determination as long as it is supported by “such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion,” Moon

v. Transp. Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (quoting Richardson v. Perales,

402 U.S. 389, 401 (1971)), and as long as the Board’s legal conclusions are neither

“arbitrary, capricious, involve an abuse of discretion, [n]or otherwise are not in accordance

with law.” Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992).


       On appeal, Yellow Transportation makes no more than a technical challenge to the

administrative finding that Melton engaged in protected activity when he declined to make

the May 30 run to Jackson, Mississippi. Furthermore, there is no dispute that Melton also


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Melton v. Department of Labor

established the second prong of his prima facie case by adducing uncontroverted evidence

that the company was aware that the petitioner had called in claiming to be too fatigued

to operate his truck safely. Instead, the crux of the dispute in this case concerns the third

prong, i.e., whether the issuance of the warning was sufficiently adverse to be actionable

under the Transportation Act. In this regard, Melton points to the language in the letter

threatening “more severe disciplinary action” in the event of a further claim of fatigue that

is judged to be a subterfuge for unexcused absenteeism. The Department of Labor and

Yellow Transportation dispute the petitioner’s contention that issuance of the warning

constituted an adverse action under applicable law, describing it as merely a pre-condition

to discipline under the collective bargaining agreement and as essentially moot once the

letter itself was removed from Melton’s file.


       In addition, the parties disagree about what standard we should apply to resolve the

dispositive question now before us: how serious must the retaliation be in order to become

actionable under the Transportation Act? Both the Department of Labor and Melton urge

us to uphold the decision of a majority of the Board adopting and applying the holding of

Burlington Northern to proof of retaliation under the Transportation Act. As intervenor here,

Yellow Transportation disagrees, arguing that Burlington Northern cannot provide the

appropriate standard in a Transportation Act case because the Transportation Act, unlike

Title VII, prohibits retribution against employees only to the extent that the retaliation takes

the form of discharge from employment or other discipline or discrimination “regarding pay,

terms, or privileges of employment.” 49 U.S.C. § 31105(a)(1).

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Melton v. Department of Labor

       As it turns out, however, the question need not be addressed in this case because,

regardless of which standard is applied, the result is the same, as demonstrated by the fact

that both the majority and minority opinions from the Board resolve the issue in favor of the

employer. Applying Burlington Northern’s test, two members of the Board concluded that

in order to establish a prima facie case of retaliation, Melton would have to “show that a

reasonable employee would have found the challenged action materially adverse, which

in this context means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 68 (citations and

internal quotation marks omitted). The two-member majority noted, first, that the warning

functioned merely as a pre-condition to discipline set out in and controlled by the terms of

the collective bargaining agreement; second, that the warning could not be considered

“materially adverse” because the recipient experienced no change in pay, benefits, or

working conditions; and, third, that the warning letter would not deter a reasonable

employee from later exercising his or her rights under the Act, especially since the effect

of the original warning would expire six months after its issuance. The remaining member

of the Board, although resistant to importing Title VII analysis into the agency’s

interpretation of the Transportation Act, noted that courts applying the Burlington Northern

standard under Title VII and other protective legislation such as the Family and Medical

Leave Act, U.S.C. §§ 2601-2654, have uniformly held that issuance of a warning letter

without tangible employment consequences does not constitute discipline or discrimination

under those statutes. Moreover, this third member of the Board agreed that Melton had


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Melton v. Department of Labor

“failed to prove that he suffered an adverse action, a requisite element of his case” and,

for that reason, that “his entire claim must fail.”


       The Board’s ruling in the employer’s favor was clearly supported by substantial

evidence, as the administrative law judge found and as the Board also concluded. In

addition, a letter in the record indicates that the union – another player in the drama,

although not a party to the lawsuit – did not consider the warning to constitute discipline

under the collective bargaining agreement and, therefore, would not file a grievance on

Melton’s behalf until some form of actual discipline was imposed by Yellow Freight. If, for

example, Melton had been fired on the basis of a second warning issued within six months

after the first, at that point both warning letters would have been subject to challenge as

the basis for his termination. To us, it seems counter-intuitive to view a warning letter that

was not considered sufficiently “adverse” to warrant invocation of a union’s grievance

procedure under a collective bargaining agreement as nevertheless actionable under the

Transportation Act. We cannot say that the Board erred in reaching the same conclusion.


                                       CONCLUSION


       We conclude that the Board’s decision in favor of Yellow Transportation should be

upheld because substantial evidence supports the determination that the warning letter

Melton received had no effect on his conditions of his employment and, therefore, was not

“discipline” and not actionable as retaliation under the Transportation Act. Given that

conclusion, we pretermit discussion of two other issues raised by the employer, i.e., whether

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Melton v. Department of Labor

Melton’s supervisor acted in good faith in sending the letter and whether the complaint

became moot once the letter was removed from Melton’s personnel file. Both of those

questions involved disputes of fact that need not be resolved here.


      Review is DENIED.




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