Roadway Exp., Inc. v. U.S. Dept. of Labor

• Decision Date: 25 July 2007
• Docket Number: No. 06-1873.,06-1873.
• Parties: ROADWAY EXPRESS, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent, and Peter Cefalu, Intervenor.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 477

ROADWAY EXPRESS, INC., Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Administrative Review Board, Respondent, and Peter Cefalu, Intervenor.

No. 06-1873.

United States Court of Appeals, Seventh Circuit.

Argued December 6, 2006.

Decided July 25, 2007.

Lisa A. McGarrity, Thomas J. Posey (argued), Franczek Sullivan, Chicago, IL, for Petitioner.

Michael P. Doyle (argued), Department of Labor Appellate Litigation, Washington, DC, Gary K. Stearman, Department of

Labor Office of the Solicitor, Washington, DC, for Respondent.

Paul O. Taylor (argued), Burnsville, MN, Amanda R. Cefalu, McGrann Shea Anderson Carnival Straughn & Lamb, Minneapolis, MN, for Intervenor.

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge.

Peter Cefalu was terminated from his position as a truck driver with Roadway Express, Inc. ("Roadway") on February 21, 2002. That happened to be the same day on which he provided testimony in support of a fellow employee's grievance hearing against Roadway. On August 19, 2002, Cefalu filed a complaint with the Occupational Safety and Health Administration ("OSHA"), an agency within the Department of Labor ("DOL"), alleging that he had been fired in retaliation for his support of his co-worker in the grievance hearing and that this activity was protected under the Surface Transportation Assistance Act of 1982 ("STAA"), 49 U.S.C. § 31105.

Roadway responded that Cefalu's termination had nothing to do with his testimony. Instead, the company asserted, he was fired because he had lied on his employment application when he failed to report previous serious truck driving accidents and the fact that he had lost his earlier job after those accidents. For reasons that are unclear, however, Roadway refused to comply with discovery orders in the DOL proceedings; one of the orders it flouted asked who first alerted the company to Cefalu's driving history. As a sanction, the DOL Administrative Law Judge ("ALJ") ruled that Roadway could not present evidence that it had learned from its undisclosed informant. This sanction prevented Roadway from defending the termination of Cefalu by using his driving record. The Administrative Review Board approved the ALJ's ultimate decision in Cefalu's favor. In its petition to this court, Roadway contests the discovery sanction as well as the substantive ruling in Cefalu's favor.

I

In 1982, Congress enacted the STAA to combat the "increasing number of deaths, injuries and property damage" resulting from commercial trucking accidents. Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987) (quoting 128 Cong. Rec. 32509, 32510 (1982)). One measure the statute adopted to further its goals was a provision forbidding an employer from discharging or discriminating against an employee for taking actions such as filing a complaint or testifying in a safety-related proceeding that point out an employer's safety violations. 49 U.S.C. § 31105(a)(1).

Cefalu worked as a commercial truck driver for Roadway from November 22, 1999, to February 21, 2002. He belonged to Teamsters' Local 200, as did Jonathan Gomaz, another Roadway driver. After Roadway discharged Gomaz for allegedly falsifying his driving log, Gomaz filed a grievance. In the ensuing proceedings, Cefalu provided a written, notarized statement asserting that a Roadway supervisor had asked Cefalu to falsify his driving log. The grievance panel reinstated Gomaz.

Thomas Forrest, Roadway's manager for labor relations, attended the grievance hearing. After it was over, he telephoned Robert Schauer, the assistant terminal manager at Roadway's Milwaukee facility, to inform him of the reinstatement. Forrest claimed that he did not tell Schauer about Cefalu's statements. Later that same afternoon, February 21, however, Schauer participated in a conference call with Phillip Stanoch, Roadway's vice-president for labor relations, and Mike Jones, Roadway's relay manager. After the call, Jones called in a union representative, telephoned Cefalu, and then fired Cefalu for falsifying his employment application. Cefalu filed a complaint with OSHA on August 19, 2002, alleging that Roadway had violated the STAA when it discharged him. After OSHA dismissed his complaint for lack of merit, Cefalu appealed and his case was assigned to an ALJ.

At that point, Cefalu served interrogatories on Roadway, including one asking the company to identify all persons who provided information relevant to his discharge. Roadway refused to furnish the name of the confidential source who first informed the company about Cefalu's driving record. Roadway claimed that revealing its source would put the informant at risk of retaliation and hurt its business operations. The ALJ rejected this argument and granted Cefalu's motion to compel the information. The judge noted that Roadway had not invoked any recognized privilege for withholding the information, and that it had even acknowledged that its stance warranted a sanction. Cefalu requested an entry of default judgment, but the ALJ instead chose the lesser sanction of precluding Roadway from presenting any evidence that arose from the confidential source.

As a practical matter, this sanction spelled the end to Roadway's defense, since Roadway had no other independent evidence indicating that the termination was not retaliatory. The ALJ therefore concluded that Cefalu had proved by a preponderance of the evidence that he was fired for engaging in the protected activity of providing testimony at the Gomaz grievance hearing. The Board affirmed the ALJ's decision.

II

Roadway has petitioned for review of the Board's order requiring reinstatement (an automatic remedy for an STAA violation), back pay, and attorney's fees and expenses for Cefalu. It argues first that the ALJ deprived it of its "fundamental right to due process" by imposing the evidentiary sanction; on the merits, it argues that Cefalu's discharge did not violate the STAA; and finally, it urges that it would violate public policy to reinstate Cefalu.

We find it preferable first to take up Roadway's argument that Cefalu failed to make out a prima facie case that the company's discharge of Cefalu violated the STAA. If this were correct, we would not need to evaluate the discovery sanction imposed on Roadway because its effect did not come into play until the point at which Roadway was obliged to offer a legitimate reason for the adverse action against the employee.

A

This circuit allows a wide variety of retaliation claims to be approached for purposes of summary judgment motions either through a direct or an indirect approach. Rogers v. City of Chicago, 320 F.3d 748, 753-54 (7th Cir.2003). The parties seem confused about which was used here, but the dispute is beside the point. In this case, as in any in which the decisionmaker ruled on the ultimate question, the taxonomy loses its importance. We review the method that the ALJ seems to have used only to highlight the questions he was asking. It was similar to the familiar one launched by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The employee has the initial burden of showing "1) that he engaged in protected activity under the STAA; 2) that he was the subject of adverse employment action; and 3) that there was a causal link between his protected activity and the adverse action of his employer." Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir.1987). Once he has done so, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's rejection. Then the employee has an opportunity to show that the employer's stated reason for the adverse action was pretextual and that intentional discrimination was at work. Buie v. Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir.2004). In retaliation cases, this court has observed that "[t]he fact that the defendant may be able to produce evidence that the plaintiff was fired for a lawful reason just creates an issue of fact: what was the true cause of the discharge." Stone v. City of Indianapolis, 281 F.3d 640, 643 (7th Cir.2002).

But, as we said earlier, the burden-shifting tests are normally used to decide whether summary judgment is proper. Here, the ALJ reached a final decision on the merits of Cefalu's claim. We thus look at the various steps along the way to the judge's result only for whatever light they throw on the ultimate conclusion.

B

Roadway contends that the Gomaz hearing was not an activity protected under the STAA because it was not a "proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order." 49 U.S.C.App. § 2305(a) (STAA). Roadway is therefore arguing that the alleged falsification of driving logs, the misconduct Gomaz had allegedly committed, is unrelated to vehicle safety. DOL sees matters differently: it takes the position that "driving logs serve important safety purposes of ascertaining whether a driver has reached his maximum hours."

Even apart from any deference we might owe to the Department's views, DOL has the better of this argument. At least two of our fellow circuits have characterized driving logs as a measure of safety compliance, and driving-log rules as safety regulations. See United States v. Anderson, 339 F.3d 720, 723 (8th Cir.2003) (labeling "an incomplete driving log" as a "violation of ... [a] safety regulation[]"); Darrell Andrews Trucking, Inc. v. Fed. Motor Carrier Safety Admin., 296 F.3d 1120, 1123 (D.C.Cir.2002) (identifying the underlying purpose of mandatory driving logs as "ensur[ing] that truck drivers are awake and alert on the road"). The same message is conveyed by the applicable transportation regulations, which describe driving logs as

the primary regulatory tool used by the Federal government, State governments, drivers, and commercial motor carriers to determine a driver's compliance with the...