Firing of truck driver over safety standards unlawful

A commercial trucker who was fired for his adherence to federal safety standards could be awarded back pay pursuant to the Surface Transportation Assistance Act of 1982, the 1st U.S. Circuit Court of Appeals has ruled.

The employer argued that there was a legitimate, non-retaliatory reason for the firing: the driver’s falsification of his data logs.

But the 1st Circuit disagreed.

“[S]ubstantial evidence supports the findings that a causal connection existed between [the driver]’s protected activity and the adverse employment action against him, and that [the employer’s] proffered reason for terminating [the driver] was actually a pretext for unlawful retaliation,” Judge Juan R. Torruella wrote for a three-judge panel.

The 23-page decision is R&B Transportation, LLC, et al. v. United States Department of Labor, Administrative Review Board.

James F. Laboe of New Hampshire represented the employer. He was opposed by Ronald J. Gottlieb of the U.S. Department of Labor.

Rocky road

The petitioners, R&B Transportation and its owner, Paul Beaudry, hired Peter Mailloux as a commercial truck driver to deliver loads on routes between New England and Florida.

During the scope of his employment, the driver reported to Heather Bagley, Beaudry’s administrative assistant, that it was not possible to make various deliveries on time without violating the Department of Transportation’s hours of service regulation, which restricts the number of hours drivers of commercial motor vehicles may work over a certain period of time.

Bagley informed him that the deliveries had already been scheduled and could not be changed.

On Dec. 17, 2004, Mailloux called Beaudry’s home to inform him that he was unable to make a particular delivery from Florida on time because he had a flat tire and because he had already driven the maximum allowable number of hours under the driving regulation.

During the conversation, Beaudry told Mailloux to return the truck to R&B’s facility in New Hampshire. Beaudry would inquire about arranging for the driver to be transported back to Florida.

Mailloux responded, “I guess that means I’m fired.” Beaudry said only, “Get the truck back up here.”

Mailloux later spoke with a coworker who told him, “Yeah, you’re fired.”

In 2004, the fired driver met with Christine Kidder, an investigator with the Occupational Safety and Health Administration, and told her that during his employment with R&B he was continually required to drive in excess of the driving regulation.

During the interview, he informed Kidder that he routinely falsified his driving logs in order to provide the appearance that he was in compliance with the driving regulation.

After interviewing Beaudry, who claimed he had never violated the driving regulation, the OSHA investigator obtained Department of Transportation compliance reviews and enforcement reports, which indicated that Beaudry and all three of the companies in which he had an interest had previously been cited for violating the driving regulation.

OSHA, finding that the employer violated the STAA by firing the driver, ordered the payment of back wages from Dec. 26, 2004, through Feb. 27, 2005, the date on which the terminated employee commenced his new employment.

The employer appealed to an administrative law judge, claiming that Mailloux was terminated for performing poorly, violating the driving regulation, and failing to communicate with the company’s dispatcher in a timely manner.

The judge observed that the DOT reports revealed that the employer’s violations of the driving regulation existed before, during and after Mailloux’s employment and suggested a pattern of violations associated with R&B’s day-to-day operations.

The judge concluded that Mailloux was entitled to relief, which included reinstatement and compensatory damages. That ruling was upheld by the U.S. Department of Labor’s
Administrative Review Board.

Pretext found

The employer asserted on appeal that the administrative law judge improperly relied on the DOT reports as “highly prejudicial character evidence.”

Torruella found, however, that “it was not an abuse of the ALJ’s broad discretion to admit the
DOT reports not as character evidence but both pursuant to the ‘[p]ublic records and reports’ hearsay exception and as proof of Petitioners’ knowledge concerning their history of complying with the driving regulation.”

The employer contended that Mailloux, of his own accord, falsified his data logs due to his bleak financial situation because he would have earned less money by following the driving regulation. Thus, the company claimed, Mailloux was terminated for a legitimate business purpose: because he refused to conform his conduct to the company’s standards of properly logging driving time and keeping within the requirements of the driving regulation.

Torruella noted that the ALJ found the owner to lack credibility on that issue. As the finder of fact and a witness to Beaudry’s testimony, the ALJ’s credibility determination was entitled to great deference, Torruella said.

“The ALJ could thus find that Beaudry’s testimony about Mailloux’s on-the-job conduct was pretext for Mailloux’s unlawful termination because the ALJ had found Beaudry’s proffered explanation to be unworthy of credence,” he continued.

The 1st Circuit found other evidence in the record to support the ALJ’s finding that Mailloux’s termination was on account of his protected activity and not his non-compliance with the driving regulation.

Bagley, the owner’s administrative assistant, testified that the company and the owner were aware that their drivers exceeded the hours allotted by the driving regulation and, further, that they expected their drivers to do so.

Scott Hill, who worked as a driver, testified that the petitioners regularly pressured their drivers to violate the driving regulation.

“Thus, based on the testimonies of Mailloux, Beaudry, Bagley, and Hill, and the DOT reports, we find that substantial evidence supports the findings that a causal connection existed between Mailloux’s protected activity and the adverse employment action against him, and that Petitioners’ proffered reason for terminating Mailloux was actually a pretext for unlawful retaliation,” Torruella concluded.