Seyfarth Synopsis: The Tenth Circuit held that a trucking company unlawfully retaliated against a truck driver after he abandoned a trailer on a public highway, finding that his actions constituted a protected refusal to operate a vehicle in unsafe conditions.
The Tenth Circuit Court of Appeals denied a petition for review of a retaliation finding by the Administrative Review Board (ARB), finding that the employee had been retaliated against in violation of the Surface Transportation Assistance Act (STAA). TransAm Trucking, Inc. v. Department of Labor, No. 15-9504 (Tenth Circuit August 8, 2016),
The Court explained that the driver parked a tractor-trailer on the shoulder of an interstate highway. After sitting in sub-freezing temperatures, the brake lines on the trailer froze and rendered the trailer immobile. When a service vehicle failed to arrive and the driver’s heating unit stopped functioning, the driver detached the trailer and drove away in the tractor.
After his termination, the employee filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA), an agency within the Department of Labor (DOL) that administers STAA claims, asserting that the employer violated the whistleblower provisions of the STAA when it discharged him. After OSHA dismissed the driver’s complaint, the employee requested a hearing before a DOL administrative law judge (ALJ).
The employer argued that the driver’s actions were not protected under the STAA, which only creates a whistleblower claim for an employee who “refuses to operate a vehicle because … the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition,” 49 U.S.C. § 31105(a)(1)(B)(ii). Because the trailer was inoperable and the driver drove off without it, the employer argued that the driver could not have refused to “operate” in unsafe conditions; but, rather, he abandoned company property.
The ALJ concluded that the driver had engaged in protected activity when he reported the frozen brake issue to the employer, and again when he refused to obey the instruction to drive the truck while pulling the trailer. The ALJ further concluded that the protected activity was a contributing factor in the employer’s decision to terminate his employment because his refusal to operate the truck while pulling the trailer was “inextricably intertwined” with the employer’s decision to terminate him for abandoning the trailer at the side of the highway. The employer appealed to the DOL Administrative Review Board (ARB) (which affirmed the ALJ’s decision) and then to the Tenth Circuit Court of Appeals.
In denying the employer’s appeal, the Tenth Circuit noted that the Administrative Procedure Act (APA) “standard of review is narrow and highly deferential to the agency.” Compass Envtl., Inc., v. Occupational Safety & Health Review Comm’n, 663 F.3d 1164, 1167 (10th Cir. 2011). The Court concluded that the driver had refused to operate the vehicle when he left the trailer behind. Consequently, the Court upheld the ARB decision and ordered the driver to be reinstated with backpay.
This case should remind employers that the DOL takes an expansive view of the whistleblower statutes enforced by OSHA, and the kind of actions that constitute protected activity under those statutes. In this case, the employer advanced a seemingly non-retaliatory reason for the termination — abandonment of company property — as the reason for the challenged decision. However, the close connection between the trailer abandonment and the report that the brakes had frozen/refusal to pull the trailer was enough to tip the scales in the employee’s favor. Employers should exercise extreme caution when making employment decisions under circumstances in which a legitimate reason for discipline bears a close relationship to conduct that may constitute protected activity under a whistleblower statute.
OSHA enforces the whistleblower provisions of twenty-two statutes protecting employees who report violations of various workplace, commercial motor vehicle, airline, nuclear, pipeline, environmental, railroad, public transportation, maritime, consumer product, motor vehicle safety, health care reform, corporate securities, food safety, and consumer financial reform regulations.