Takeaway: Employers should carefully examine and be sure to document their practices when faced with allegations of safety violations and related whistleblower complaints.
The federal Surface Transportation Assistance Act (STAA) prohibits the retaliatory discharge of an employee who files a complaint or initiates a proceeding concerning a violation of a commercial motor vehicle safety or security regulation, the 4th U.S. Circuit Court of Appeals decided. The 4th Circuit affirmed the decision and order (D&O) by the Occupational Safety and Health Administration (OSHA) Administrative Review Board (ARB).
The ARB found that a former employee engaged in protected activity under the STAA, that this activity contributed to his termination and that the employer failed to prove the plaintiff would have been terminated absent his protected conduct. The plaintiff was awarded backpay and damages totaling approximately $113,000.
The plaintiff was employed by Greatwide Dedicated Transport II as a commercial truck driver. In March and April 2012, the plaintiff alleged to management certain violations of regulations proscribing the maximum driving time for drivers.
In May, the plaintiff was assigned to deliver two trailers filled with merchandise to stores in New York City and Paramus, N.J. The plaintiff said he left one trailer in Manhattan, secured it and parked a dolly in front of it to prevent theft. The plaintiff said he later took both trailers to New Jersey. He said that in the past he had dropped trailers in a similar fashion on the same route without issue while he grabbed a bite to eat. Greatwide claimed the plaintiff left the trailer in Manhattan in violation of company policy and proceeded to the second location. Greatwide suspended the plaintiff when he returned to work.
Several days later, the plaintiff was told he was under investigation for an hours-of-service violation; in short order, he was informed he was being investigated for a security issue. The plaintiff then met with Greatwide. The next day, he received a “termination request,” which indicated he was being let go for policy violations.
The plaintiff filed a complaint with OSHA in September 2012, alleging that Greatwide violated the STAA by firing him for reporting safety violations. In January 2016, OSHA dismissed the complaint, finding that the plaintiff’s protected activity was not a contributing factor to his termination. The plaintiff then requested a hearing before an Administrative Law Judge (ALJ). After some discussion and efforts by the parties to obtain a settlement, a hearing was held in the fall of 2017.
In March 2019, the ALJ ruled for the plaintiff and awarded him $107,940 in backpay and $5,000 in damages. Greatwide appealed. In a subsequent D&O, the ARB affirmed the ALJ’s decision.
Greatwide appealed and raised three main arguments:
- The ARB incorrectly affirmed the ALJ’s conclusion that the plaintiff was terminated due to his protected activity.
- The ARB improperly held that the company was not prejudiced by the Department of Labor’s delays in scheduling the hearing, issuing its decision and considering the plaintiff’s disclosures beyond the predetermined deadline.
- The ALJ erred in failing to find that a valid settlement agreement was in place.
The ARB maintained that the plaintiff engaged in protected activity under the STAA when he wrote letters to two Greatwide employees, removed and copied documents from a company lockbox, and recorded a conversation—all to support his allegations.
Greatwide disagreed, claiming that the lockbox documents were confidential under company policy. The court was not persuaded, noting that the company’s handbook does not classify drivers’ logs as confidential. Further, the plaintiff’s reason for collecting and copying the documents was to support his safety violation allegations, the court said, and thus, his actions were protected. The court also rejected Greatwide’s claim that the recording violated wiretapping law, arguing that the conversation was not subject to a reasonable expectation of privacy.
Greatwide also contended that the ARB erred in affirming the ALJ’s determination that the plaintiff’s protected activity was a contributing factor in his termination strictly based on the “temporal proximity” of his reporting safety violations and his firing. However, the court countered; in so ruling, the ARB took into consideration other factors, as well.
Further, the court said the record did not contain “clear and convincing evidence” that the company would have fired the plaintiff absent his protected activity. The court also said that Greatwide failed to provide the plaintiff with a consistent termination explanation.
The court also agreed with the ARB that Greatwide was not prejudiced by the delays in the scheduling, hearing and decision-rendering process. The ALJ’s delay in issuing its D&O more than 120 days after the hearing was not unreasonable “given its detailed analysis of conflicting testimonies,” according to the court. Also, the plaintiff’s backpay was based on a limited timeline, not impacted by the delays. The court did acknowledge that it sympathized with Greatwide’s frustration over the delays, but “such delays do not amount to prejudice or unreasonableness given the significant bandwidth the ALJ undertook to issue their D&O.”
Finally, because the ALJ determined that he was unable to enforce any settlement agreement because he lacked the equitable powers to do so, and Greatwide failed to raise its settlement agreement argument before the ARB, the court in turn declined to consider it.
Greatwide Dedicated Transport II LLC v. U.S. Department of Labor, No. 21-1797, 4th Cir. (June 30, 2023).
D.M. Fera is a freelance writer in the Washington, D.C., area.
