Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

• Email This
• Print
• Comments
• Trackbacks
• Share Link

FORMELLA v. UNITED STATES DEPARTMENT OF LABOR (December 10, 2010)

Don Formella has been driving a truck for more than four decades. In late 2005, he started driving for Schnidt Cartage, a small, local transportation company near Chicago. On a February morning in 2006, Formella arrived at work and discovered that he had been assigned to a different truck than he had been driving. Formella inspected the vehicle and discovered missing permits, non-operable lights, and mismatched tires. Formella was particularly concerned about the potential safety hazard of the mismatched tires. Formella complained to the company's vice president, Linda Marcus. Marcus' and Formella's versions of what happened next vary greatly. Formella claims it was a professional exchange, in which he indicated his belief that the truck was not in compliance with federal and state law -- after which Marcus fired him. Marcus, on the other hand claims that Formella was loud and volatile, that she listened to and made arrangements to correct each of his safety complaints -- and that she fired him only after he became more and more agitated and unstable. Other Schnidt employees confirmed several aspects of Marcus' account of the exchange. Formella filed a complaint with the Department of Labor, alleging that Schnidt fired him for in retaliation for his safety complaints, in violation of the Surface Transportation Assistance Act. After an evidentiary hearing, the ALJ found that Schnidt discharged Formella because of his volatile conduct, not in retaliation for his complaints. An administrative review board upheld the decision. Formella seeks review.

In their opinion, Seventh Circuit Judges Kanne, Rovner, and Williams denied review. The Surface Transportation Assistance Act prohibits an employer from taking any disciplinary action against a driver who refuses to drive a vehicle that does not comply with regulations. The statute was amended in 2007 to make it easier for a driver to sustain his burden. Prior to 2007, a driver had to show that his protected conduct was a but-for cause of the discipline. Since the amendment, a driver only has to show that his protected conduct was a contributing factor in the discipline. The employer then must demonstrate by clear and convincing evidence that it would have acted similarly even in the absence of the protected conduct. The ALJ considered the pre-amendment burden, since the amendment took effect after the conclusion of the hearing but before the decision. The Court rejected Formella's argument that it should consider his case under the amended statute. Because he asked neither the ALJ nor the review board to consider the amendments, Formella has forfeited that argument. On the merits, the Court accepted the ALJ's findings regarding Schmidt's reason for termination since they were supported by the record. The Court then noted that this case was, nevertheless, a close one. Employees are given some degree of latitude in expressing their safety complaints to their employers. Here, Formella assaulted no one, threatened no one, and prevented no one from doing his work. He did lose his temper and shout. Although it concluded that reasonable people could differ, the Court found that the review board was neither arbitrary nor illogical in concluding that Formella’s conduct exceeded that latitude.