Law-Abiding Trucker Takes Winding Road to Whistleblower Protection Victory

December 8, 2015

On Oct. 30, 2015, the Department of Labor’s Administrative Review Board (“ARB”) reversed the earlier decision of the administrative law judge (“ALJ”), remanding the case for further review in Nevarez v. Werner Enterprises, a whistleblower retaliation case brought under the Surface Transportation Assistance Act of 1982 (“STAA”). The ARB held that the findings in the ALJ’s November 2013 decision to dismiss Nevarez’s claim were not supported by substantial evidence.

The complainant, Juan Nevarez, was a truck driver for Werner from March 2011 until June 21, 2011, at which point his employment ended. Nevarez asserted he had been terminated in retaliation for having raised concerns regarding the company’s transportation of hazardous materials, whereas Werner claimed Nevarez had voluntarily abandoned his post.

Employer Retaliation: A Question of Termination vs. Job Abandonment

It was undisputed that on June 18, 2011, Nevarez’s co-driver, Manuel Menchaca, picked up a hazardous materials load. Because Menchaca was the only one certified to drive hazardous cargo, the two drivers were thus forced to cease transport after Menchaca reached his maximum allowable driving hours for the day. Nevarez then contacted a company dispatch hotline that night to request guidance. (He also asserted that Menchaca threatened him, a significant evidentiary dispute that the ALJ did not reconcile.) Werner’s dispatch hotline representative advised Nevarez to call 911 and to stay at a hotel for the night, which he would be required to pay for himself out of his advance check.

The next day, June 19, Nevarez made several calls to the company but received little response. The ALJ found that Nevarez ultimately informed a company representative that he would buy his own bus ticket home, as he could no longer afford hotel and food costs; Nevarez’s decision was noted in an incident report at 2 p.m. that day, seven hours before his 9:05 p.m. bus ride, but the company failed to contact Nevarez before he boarded. While still on the bus the following morning, one of Nevarez’s managers instructed him to return to Missouri but refused to reimburse the return cost; the call was disconnected, and Nevarez continued to Las Vegas, arriving on June 21.

A few days after he returned to Las Vegas, the same manager informed Nevarez that the company believed that Nevarez had resigned his position voluntarily, which Nevarez disputed. On Aug. 4, 2011, Nevarez filed a STAA retaliation complaint with the Occupational Safety and Health Administration (“OSHA”), asserting that Werner engaged in unlawful retaliatory actions when it refused to pay for lodging and terminated him.

OSHA dismissed his complaint on Oct. 23, 2012, and Nevarez requested a hearing before an ALJ. On Nov. 15, 2013, the ALJ dismissed Nevarez’s complaint.

A Reversal by the ARB

The ARB reversed the ALJ’s decision and remanded Nevarez’s complaint due to significant concerns with the ALJ’s evidentiary and legal findings, in particular the legal interpretation that Nevarez’s termination constituted constructive discharge. The ARB described that determination as a “fatal error” in the ALJ’s analysis, finding that “the uncontroverted evidence of record indicates that …Nevarez, believing he had no other alternative, boarded a bus for the sole purpose of returning home;” that “Respondent believed that Nevarez quit, interpreting his decision to return home as a voluntary resignation;” and that “an employer who decides to interpret an employee’s actions as a [voluntary] quit or resignation has in fact decided to discharge that employee.”

Thus, the ARB found that “as a matter of law…Werner Enterprises subjected Nevarez to adverse employment action.” The ARB also held that Werner subjected Nevarez to further adverse action when it required him to pay for lodging out of his own funds in violation of the company’s own standard practice, noting that the ALJ erred in holding otherwise. The ARB also noted that the ALJ failed to consider the possible significance of two previous incidents where Nevarez raised safety concerns.

The Bottom Line: Presumed Abandonment Equals Termination

This case is encouraging news for potential whistleblowers within the transportation industry, as well as other drivers who take comfort in knowing that drivers of trucks containing hazardous materials are qualified to do so safely. The decision demonstrates that, although the ARB will generally defer to evidentiary findings of the ALJ, it will not do so when those findings are not supported by substantial evidence. Moreover, the ARB maintained the position it took in Klosterman v. E.J. Davies, Inc., a 2012 decision in which it held that an employer’s assertion or assumption that an employee had resigned was tantamount to the employer discharging that employee and therefore could constitute an adverse employment action for the purposes of a STAA employer retaliation claim.

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