Court Finds Grievance Hearing Testimony Protect If DOT Regs. At Issue.

[Opie]

In Roadway Express v. U. S. Dept. of Labor issued July 25, 2007, the U. S. Court of Appeals for the Seventh Circuit has upheld a decision by the DOL's Administrative Review Board finding that Roadway Express discharged Peter P. Cefalu in violation of the employee protection provisions of the Surface Transportation Assistance Act ("STAA"). The case addresses several interesting issues including burden of proof, sanctions and remedy.

1. Protected Activity. Cefalu testified at a grievance hearing relating to a grievance filed by another employee that he had been asked by a Roadway dispatcher to falsify his own logbook on two separate occasions. Roadway claimed that the testimony was not in a proceeding related to a violation of a commercial vehicle safety regulation and thus, it claimed, such testimony was not protected under the STAA. The Court of Appeals upheld the DOL's finding that testimony about log falsification in a union-management grievance hearing is protected testimony under STAA.

2. Burdens of Proof. Roadway argued that Cefalu did not prove his case in the administrative hearing. Cefalu had little evidence of causation other than temporal proximity. Cefalu's notarized statement was read at a grievance committee in the morning and he was fired in the afternoon. The Court found that, in order to prove a violation of the STAA, a complainant need only show that the protected activity "was a substantial or motivating factor" for adverse employment action. The court stated as follows:

[Cefalu] has proven, as the Board found, that his protected conduct was a substantial or motivating factor behind his termination. For purposes of the STAA, that is enough to show that Roadway violated the law. But it is not necessarily the case that Cefalu is entitled to reinstatement, if after appropriate proceedings Roadway can show that it would have terminated him even in the absence of his protected conduct.

Thus, it appears that in the Seventh Circuit a complainant is entitled to relief under STAA when protected activity it is "a substantial or motivating factor" in the adverse employment action, even when the employer can meet its burden under a mixed-motive analysis.

3. Sanction Did Not Deprive Roadway of Due Process. Roadway had claimed that Cefalu was fired because he lied on his employment application when he failed to report previous driving accidents and the fact that he had been fired from previous employment due to those accidents. Roadway refused to comply with a discover order specifically directing it to identify the source for the information that Cefalu had falsified his employment application with Roadway. As a sanction, the DOL ALJ ruled that Roadway could not present evidence that it had learned from its undisclosed. As the Court of Appeals noted "this sanction spelled the end to Roadway's defense, since Roadway had no other independent evidence indicating that the termination was not retaliatory."

Roadway argued that the sanction deprive it of due process. Not surprisingly, the Court soundly rejected this argument stating as follows:

Roadway knew that its non-compliance with the discovery order could lead to significant sanctions. Yet even after the ALJ gave Roadway three more days to comply while refraining from ruling on Cefalu's motion for default judgment, Roadway decided not to disclose the identity of its confidential informant. Again, the ALJ noted that Roadway "alleged [no] recognized privilege that would protect the source's identity from discovery." To this day, Roadway has not challenged that assessment. There is no due process violation on these facts.

The Court also rejected Roadway's argument that the sanction was disproportionately harsh finding that the ALJ did not abuse his discretion to impose sanctions for violations of discovery orders.

4. Reinstatement Not Automatic Under STAA. The Court accepted Roadway's argument that it should have been allowed to introduce evidence of Cefalu's past driving record at other employers at the remedial stage of the proceeding before the ALJ. This information was derived as the result of information received from the source that Roadway refused to identify. The Court noted that there are necessarily some limitations to the STAA's apparently mandatory reinstatement remedy. As the Court noted, "[i]f, for example, Cefalu were now blind, we would not require Roadway to reinstate him as a truck driver."

The Court noted that the alternative remedy must be the functional equivalent to reinstatement stating as follows:

In short, if the premise behind the statutory remedy, that the status quo ante can be restored, fails, then the Board is entitled to adopt a remedy that is the functional equivalent of the one prescribed by the statute.

On the issue of remedy, the Court of Appeals held that the DOL's abused its discretion in disallowing Roadway's public-safety argument against reinstatement. The Court remanded the case to the Board for a determination as to the appropriate remedy and consideration of Roadway's argument public safety concerns over Cefalu's driving record militates against reinstatement.

Thomas Posey of Franczek-Sullivan represented Roadway Express. Mike Doyle of the Solictior's Office represented the Secretary of Labor. Amanda Cefalu and yours truly represented Peter Cefalu.

A copy of the Court's opinion can be found by following this link:
http://www.ca7.uscourts.gov/tmp/540WVJBI.pdf

Paul O. Taylor
Truckers Justice Center
Tel. No. 651-454-5800
paul.taylor@truckersjusticecenter.com

NOTHING IN THIS POST SHOULD BE CONSTRUED AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP.