Surface Transportation Assistance Act Reinstatement Exception Is Limited To Application Of Public-Safety Concerns
ROADWAY EXPRESS v. UNITED STATES DEPARTMENT OF LABOR (July 22, 2010)
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When Peter Cefalu applied for a job as a truck driver with Roadway Express in 1999, he lied on his application. He stated that he left two prior jobs voluntarily. In fact, in both cases, he was fired for reckless driving. Roadway fired him a few years later, shortly after he supported a co-worker's grievance against Roadway. Cefalu filed an administrative complaint claiming that his dismissal violated the Surface Transportation Assistance Act of 1982. During the administrative proceedings, Roadway claimed that it fired Cefalu not because of his protected activity but because of its then recent discovery of his dishonesty on his application. Roadway refused, even when ordered, to disclose the source of its information. The administrative law judge sanctioned Roadway. The judge prohibited the introduction of any evidence learned from the undisclosed source. Without that evidence, Roadway could not rebut Cefalu's allegations. The ALJ found for Cefalu and ordered his reinstatement. The Administrative Review Board (“ARB”) affirmed. On appeal to the Seventh Circuit, the Court upheld the sanction at the merits stage but remanded to allow Roadway an opportunity to establish, for purposes of reinstatement, that it would have fired Cefalu absent the protected activity. On remand, the administrative law judge concluded that Roadway failed to meet its burden. The ARB affirmed. Roadway petitions for review.
In their opinion, Judges Posner, Ripple, and Wood denied the petition. The Court first revisited its earlier conclusions and its distinction between the use of the sanction at the merits stage and the reinstatement stage. Although the statute seems to require reinstatement, the Court borrowed the Mt. Healthy "mixed motive" framework to avoid the “absurd” result of reinstating an unsafe driver. The framework would allow Roadway to meet its burden by showing that it would have fired Cefalu because of his driving history even in the absence of his protected activity. The exception the Court adopted was limited to a showing of a public safety concern. The Court rejected Roadway's attempts to meet its burden by showing that it would have fired Cefalu for his dishonesty, as opposed to his driving. On its review of the record, the Court found the evidence of Roadway's treatment of drivers with similar records ambiguous. There was evidence that Roadway fired several drivers who were involved in accidents -- there was evidence that Roadway retained several drivers who were involved in accidents. The Court had little difficulty, therefore, in finding that the administrative decision was supported by "substantial evidence" -- the applicable standard of review.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select