Trucking Whistleblowers: A Look Back at Key Developments from 2015

February 2, 2016

Whistleblowers who report or oppose noncompliance of commercial motor vehicle safety regulations perform a crucial service for the health and well-being of all commuters, and the Surface Transportation Assistance Act of 1982 (STAA) protects those whistleblowers from retaliation by their employers. Truckers who believe they have been retaliated against in violation of the STAA may file a complaint with the Occupational Safety and Health Administration (OSHA). Regardless of the outcome of that complaint, the whistleblower may eventually find his or her case in front of the Administrative Review Board (ARB), the home of the final appellate review within the Labor Department.

In 2015, the ARB heard several claims brought by whistleblowers in the trucking industry. This article will explore some of the key STAA decisions issued by the ARB in 2015, review the takeaways for transportation whistleblowers and forecast what we can expect in 2016.

STAA Whistleblowers Might Be Protected when Disclosing to Third-Party Non-Employers

In Dho-Thomas v. Pacer Energy Marketing, Jaquenette Dho-Thomas brought a claim under the STAA and the Toxic Substances Control Act alleging that Pacer Energy Marketing retaliated against her in violation of the whistleblower provisions of those statutes. The ARB summarily affirmed the administrative law judge’s (ALJ) dismissal of the complaint. (The ALJ had found that Ms. Dho-Thomas failed to prove that she engaged in protected activity under the STAA and that her termination was related to the alleged activity.) Notably, although the ARB affirmed the ALJ’s dismissal of an STAA claim, it nevertheless explicitly declined to endorse the ALJ’s ruling that Ms. Dho-Thomas’s disclosures to an employee at the company’s largest customer and trade partner were not protected activity under the Act. The ALJ had so ruled because, among other reasons, that employee was not Ms. Dho-Thomas’s employer or supervisor; the ARB, however, noted that “given the requisite broad construction of remedial whistleblower law, we do not rule out entertaining protection for disclosures to third-party non-employers under certain circumstances.”

ARB Affirms Employer Can Terminate Whistleblower for History of Insubordination

Keeler v. J.E. Williams Trucking Inc. involves a retaliation claim under the STAA brought by Julie Keeler against J.E. Williams Trucking, Inc. Ms. Keeler alleged that the company terminated her after she informed her supervisor that she had reported safety complaints she received from other employees to the Department of Transportation (DOT). However, Ms. Keeler’s employment record showed many instances in which she undermined authority and engaged in other acts of insubordination. Based on this evidence, the ALJ found that her supervisor terminated her due to her past unprotected behavior. The ARB affirmed upon finding that the evidence supported the ALJ’s determination that the company would have terminated Ms. Keeler even if she did not engage in protected activity.

Whistleblower Trucker Fails to Show Causal Relationship

Salyer v. Sunstar Engineering involves a claim brought by probationally employed truck driver Beauford Salyer against his employer, Sunstar Engineering. Mr. Salyer alleged that the company extended his probationary period by 30 days because of safety complaints he made, which is protected activity under the STAA. The ALJ had held that, although Mr. Salyer showed that his complaints constituted protected activity, and the company’s extension of his probation period constituted an adverse employment, he did not provide evidence showing that his protected activity contributed to Sunstar’s decision to extend his probationary period. These factual findings were affirmed by the ARB and the Board upheld the ALJ’s dismissal of Mr. Salyer’s complaint.

Another ARB Decision Affirms Termination Due to History of Insubordination

In Jordan v. IESA PA Blue Ridge Landfill Corp., Joel Jordan, a safety and traffic coordinator for IESA PA Blue Ridge Landfill Corp., alleged that the company terminated him in retaliation for complaints he made to management about a driver’s qualifications. The ALJ found that Mr. Jordan proved that he engaged in protected activity under the STAA and that activity contributed to his termination. However, the ALJ also held that the company proved that Mr. Jordan would have been fired for his insubordination in the absence of any protected activity. The ARB affirmed both of these findings and upheld the ALJ’s dismissal of Mr. Jordan’s complaints.

Failure to Contact Employee Constitutes Constructive Discharge

Nevarez v. Werner Enterprises involves a claim brought by Juan Nevarez, a truck driver for Werner Enterprises, alleging that he was terminated in retaliation for raising concerns regarding the company’s transportation of hazardous materials. Mr. Nevarez did not have the proper certification to drive such cargo; therefore, when his partner reached his driving limit for the day, the pair stopped driving. A series of communications with Werner resulted in Mr. Nevarez purchasing a bus ticket to return home under the assumption that Werner would reimburse him for the cost. Mr. Nevarez never heard from the company again and assumed he had been terminated. For its part, Werner claimed Mr. Nevarez voluntarily abandoned his post. The ALJ dismissed Mr. Nevarez’s complaint.

The ARB reversed the ALJ’s decision and remanded Nevarez’s complaint, based largely upon two factors: first, it had significant concerns with the ALJ’s evidentiary findings, determining that multiple crucial findings forming the basis for the ALJ’s opinion were not supported by substantial evidence; and second, holding that when a company and a worker both failed to contact each other to determine whether the worker had been terminated, that constituted a constructive discharge. For more information on this decision, read our blog post on the topic.

Calling in Sick Can Be Protected Activity under STAA

In Kirk v. Rooney Trucking Inc., Donny Kirk, a truck driver with Rooney Trucking Inc., claims that the company retaliated against him for calling in sick with flu-like symptoms. The Board affirmed the ALJ’s determination that driving in that condition would have violated the STAA’s fatigue rule and would have been unsafe. Therefore, his refusal to come into work constituted protected activity.

ARB Awards Trucking Whistleblower After He Refuses to Carry Overweight Load

Hood v. R&M Pro Transport LLC involves an allegation brought by Chris Hood that his former employer, R&M Pro Transport LLC, terminated him in violation of the STAA’s whistleblower protection provision. The ALJ ruled in Mr. Hood’s favor, finding that Mr. Hood’s refusal to drive an overweight load constituted protected activity under the STAA and that it was a contributing factor in the company’s decision to terminate him. The Board rejected R&M’s argument that Mr. Hood could have driven the overweight load without causing a safety issue, as doing so would have violated a federal regulation. The ARB affirmed the ALJ’s ruling and upheld its award, which ordered “reinstatement, back pay, emotional damages, interest, expungement of adverse information in Hood’s personnel files maintained by Respondents and correction of any reports to consumer-reporting agencies concerning his work record, posting of the ALJ’s [decision and order] on their premises for ninety days where employee notices are customarily posted, and attorney’s fees.”

ARB Illuminates when Refusal to Drive Due to a Medical Condition Is Protected

White v. Carl Perry Enterprise Inc. involves a claim brought by truck driver Fernando White alleging that he was terminated by Carl Perry Enterprise in retaliation for refusing to drive due to a medical condition. The ALJ found that Mr. White had failed to prove that he had been terminated or that his alleged refusal to drive contrary to the advice of medical personnel was a contributing factor in any alleged adverse action. The Board affirmed the ALJ’s dismissal of Mr. White’s STAA whistleblower complaint, holding that Mr. White “failed to point to sufficient information in the record that could support a factual finding that he engaged in protected activity” under the STAA. Specifically, Mr. White did not contend that Carl Perry ordered him to drive despite his medical condition, “so his statements cannot be construed as a refusal to drive within the meaning of STAA.” This decision draws a useful contrast to the Kirk decision, issued by the Board less than a month earlier: While the STAA protects a driver from retaliation for refusing to drive due to a medical condition, a trucker merely informing his employer of his inability to safely drive does not constitute protected activity unless that statement comes in response to a request that the trucker do so.

Looking Forward

Although there was a fairly even split in the Board’s decisions to find in the case of employees or employers, transportation whistleblowers have cause for optimism in 2016. The Nevarez holding on constructive discharge, the Kirk holding on refusing to drive due to illness constituting protected activity and the Hood holding refusing to credit the employer’s argument that the employee could have safely violated a federal regulation, all help to establish a safer trucking industry for workers and the public at large. For all of us who count on safety in trucking to ensure our own safety on the roads, this should allow us to rest a bit easier in 2016.

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