Formella v. U.S. Dept. of Labor

• Decision Date: 10 December 2010
• Docket Number: No. 09-2296,09-2296
• Citation: 628 F.3d 381
• Parties: Donald J. FORMELLA, Petitioner, v. UNITED STATES DEPARTMENT OF LABOR, Respondent, and Schnidt Cartage, Inc., Intervening Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

628 F.3d 381

Donald J. FORMELLA, Petitioner,

v. UNITED STATES DEPARTMENT OF LABOR, Respondent,andSchnidt Cartage, Inc., Intervening Respondent.

No. 09-2296.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 30, 2009.

Decided Dec. 10, 2010.

Timothy Huizenga, Attorney, Legal Assistance Foundation of Metropolitan Chicago, Peter M. Stasiewicz, Attorney (argued), Kirkland & Ellis LLP, Chicago, IL, for Petitioner.

Lauren Goodman, Attorney (argued), Department of Labor, Office of the Solicitor, Washington, DC, for Respondent.

Walter J. Liszka, Attorney, Wessels & Pautsch, Chicago, IL, for Intervening Respondent.

Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge.

Truck driver Donald J. Formella was fired by Schnidt Cartage, Inc. ("Schnidt") after he raised safety concerns about the truck that Schnidt had assigned him to drive. Formella filed a complaint with the Department of Labor's Occupational Safety and Health Administration ("OSHA") alleging that Schnidt fired him in retaliation for his safety-related complaints, in violation of Section 405 of the Surface Transportation Assistance Act of 1982, P.L. No. 97-424, 96 S. Stat. 2097 (Jan. 6, 1983) ("STAA"). See 49 U.S.C. § 31105. An administrative law judge ("ALJ") found that Schnidt discharged Formella not because he refused to drive a vehicle that he believed to be unsafe but rather "because of his provocative, intemperate, volatile, and antagonistic conduct" in expressing his concerns. Formella v. Schnidt Cartage, Inc., ALJ No. 2006-STA-035, Recommended Decision and Order 10 (ALJ Jan. 30, 2008) ("ALJ Dec."). An administrative review board ("ARB" or the "Board") sustained the ALJ's decision. Formella v. Schnidt Cartage, Inc., ARB No. 08-050, 2009 WL 891350 (ARB Mar. 19, 2009) ("ARB Dec."). Formella seeks review of the ARB's decision, contending that the Board erred in failing to apply the more employee-friendly provisions added to the statute in 2007 and that, in any case, his conduct, even if it was as confrontational as Schnidt claims it was, did not exceed the leeway to which employees complaining of unsafe practices are entitled. We deny the petition for review.

I.

Although Schnidt's witnesses and Formella gave dramatically different accounts of what transpired on the day he was fired, the parties do agree on this much: Formella was dissatisfied with the condition of the truck he was assigned to drive, he expressed his safety-related concerns to his superiors at the company, and he was fired at the conclusion of his encounter with those individuals. Where the witnesses diverged is on what Formella said to his superiors and his tone and demeanor in doing so. The conflicts in the witness accounts presented classic credibility questions for the ALJ to resolve. But before we reach the decisions of the ALJ and the Board, we shall briefly summarize the evidence that was presented to them.

Formella was fired after he reported for work on February 23, 2006. Although he had over forty years of experience as a truck driver, Formella had been driving for Schnidt for less than five months. Schnidt is a cartage company that transports freight within a fifty-mile radius of Chicago; it employs some twenty-six drivers. Schnidt owns roughly one-half of the trucks in its fleet; the rest are leased from Penske Truck Leasing. The fleet on the whole is older, and minor problems occur with one or more trucks on a daily basis. Schnidt has a mechanic on site to handle minor repairs, including repairs to the leased vehicles. If one of the Penske trucks requires a major repair, it is sent either to Penske or to an outside mechanic.

On the morning of February 23, Formella arrived for work and clocked in at 7:13, ahead of his scheduled start time of 7:30 a.m. Shortly after his arrival, Schnidt Vice-President Linda Markus held a meeting with Formella and several other drivers in which she spoke out against pending efforts to unionize them: if those efforts were successful, she warned, the company's owner would "close the doors." Tr. 86, 90. Following that meeting, Formella proceeded to the truck he had been assigned to drive that day.

When Formella inspected the truck, several things caught his attention. First, the truck was not the one he had been driving for most of his tenure with Schnidt. That truck, like its replacement, was a Penske rental; and it was not unusual for Penske to recall a vehicle from Schnidt's fleet either because the lease period was concluding or because Schnidt wanted to sell the truck to a third party. The truck formerly assigned to Formella had been swapped out the night before, without forewarning to Formella. Second, the requisite permits from the Department of Transportation, which were supposed to be kept in the truck at all times, were missing. Third, the truck's high-beam headlights were not working, and one or more of the reflectors or lights on the rear of the truck were missing or inoperative. Fourth, and most important as it would turn out, the rear or "drive" tires on the truck had mismatched tread patterns. Based upon the knowledge he had acquired from his experience, from trucking magazines, and from federal regulations, Formella was concerned that the mismatch could result in "what they call a traction spitout," Tr. 31, which "could cause sliding, and loss of control of the vehicle" in wet or snowy conditions. Tr. 31; see also Tr. 33. In conditions of extreme heat, on the other hand, the mismatch might prevent the tires from cooling, such that "[t]he tire would actually overheat and blow." Tr. 34.

Formella testified that once he noticed the problems with the lights and tires of his assigned truck, he went into the dispatch office. After he reported the problems to the dispatcher, the dispatcher informed him that Markus wished to see him in her office. Formella went to her officeas requested and a discussion ensued. Paul Landowski, who was responsible for the purchasing, leasing, maintenance and safety of Schnidt's fleet, came into Markus's office at some point during that conversation, and Formella indicated that he believed the truck was out of compliance with federal and state regulations in view of the inoperative headlights and reflector and the mismatched tire treads. Markus advised him that if he was unhappy with his job, he could quit. When Formella refused to resign, Markus fired him. Formella testified that he never stood up or raised his voice at any time during this encounter, which was the one and only interchange he had with Markus on the morning of his discharge.

Markus portrayed events on the morning of Formella's discharge quite differently. She testified that she had three successive exchanges with him on that day: First, Formella came to the dispatch office questioning his truck assignment, and either Markus or the dispatcher advised him that he had been assigned a different truck from the one he had been driving. Five or ten minutes later, Formella came back into the office to report that there were no permits in the truck, which Markus then supplied to him. Approximately fifteen minutes later, Formella came into the office a final time to voice his safety concerns about the truck. It was this third exchange, according to Markus, that culminated in his discharge.

Markus described Formella as "very boisterous" when he re-entered the office complaining about the problems with the lights and tire treads on his truck. Tr. 68. Markus, who was standing at the dispatch window speaking with the dispatcher and another driver, Charles Miehle, summoned Formella into her office. She asked Landowski to join them. Landowski left Markus's office at one point during the ensuing discussion to telephone Penske about the tire treads and to have Schnidt's mechanic fix the lights on Formella's truck. Markus said that Formella became both "louder" and more "vehement" during the discussion, Tr. 72, 73, so much so that at one point employees in the building's warehouse came running into the office area to see what the commotion was and whether someone needed help. Tr. 128. "Everybody heard the shouting," Markus testified. Formella, according to Markus, also criticized Landowski's competence. Markus advised Formella that if he was so unhappy, he might consider working elsewhere. Formella, in return, "kept pushing and getting more and more volatile and agitated," Tr. 127, repeatedly asking Markus, "[A]re you telling me I'm fired?" Tr. 73. Ultimately, based on Formella's "volatile condition, ... his anger, [and] his unstableness," Tr. 74, Markus did fire Formella. See also Tr. 143. She acknowledged that he made no threatening remarks and remained seated (albeit on the edge of his seat) during their discussion; nonetheless, she felt "[a] bit threatened" by his tone and demeanor. Tr. 73.

Landowski's account was consistent with Markus's. Landowski testified that when he was summoned to Markus's office, Formella was already there. Landowski described Formella as "very upset" and "almost hostile" to him. Tr. 150. "[I]t was very, very loud in that office," Landowski testified. Tr. 150. Formella insisted that it was both illegal and unsafe to operate a truck with mismatched treads. Landowski was sitting close to Formella and, according to Landowski, Formella "got right into my face" as he was speaking. Tr. 167; see also Tr. 150. After responding that he did not believe the mismatched treads posed a safety problem, Landowski stepped out of Markus's office for a moment and returned to his own in order to telephone Penske for that company's input. While he wasthere, he also radioed Schnidt's mechanic and asked him to deal with the "light situation" on Formella's truck. Tr. 151. Landowski subsequently returned to Markus's office and reported that Penske believed the truck safe to drive despite the mismatched treads. Formella insisted that both Penske and Landowski were wrong, that "this is illegal," and that he "[couldn't] be driving a...