Koch Foods, Inc. v. Sec'y, U.S. Dep't of Labor

• Decision Date: 11 March 2013
• Docket Number: No. 11–14850.,11–14850.
• Citation: 712 F.3d 476
• Parties: KOCH FOODS, INC., Petitioner, v. SECRETARY, UNITED STATES DEPARTMENT OF LABOR, and Timothy Bailey, Respondents.
• Court: U.S. Court of Appeals — Eleventh Circuit

712 F.3d 476

KOCH FOODS, INC., Petitioner,

v.SECRETARY, UNITED STATES DEPARTMENT OF LABOR, and Timothy Bailey, Respondents.

No. 11–14850.

United States Court of Appeals, Eleventh Circuit.

March 11, 2013.

Elizabeth K. Dorminey, James Larry Stine, Wimberly, Lawson, Steckel, Schneider & Stine, PC, Atlanta, GA, for Petitioner.

Lisa A. Wilson, Ronald Joseph Gottlieb, Charles F. James, Hilda Solis, U.S. Dept. of Labor, Washington, DC, Channah S. Broyle, U.S. Dept. of Labor, Atlanta, GA, for Respondent.

Petition for Review of a Decision of the Administrative Review Board.

Before MARCUS and PRYOR, Circuit Judges, and FRIEDMAN,^* District Judge.

FRIEDMAN, District Judge:

Petitioner Koch Foods, Inc. appeals the final decision and order issued by the Administrative Review Board (ARB) of the Department of Labor (DOL), in which the ARB determined that Koch Foods had violated the whistleblower protection provision of the Surface Transportation AssistanceAct (STAA) by firing its employee, respondent Timothy Bailey.

Congress passed the STAA's whistleblower provision in 1983 to “protect [ ] employees in the commercial motor transportation industry from being discharged in retaliation for refusing to operate a motor vehicle that does not comply with applicable state and federal safety regulations or for filing complaints alleging such noncompliance.” Brock v. Roadway Express, 481 U.S. 252, 255, 107 S.Ct. 1740, 95 L.Ed.2d 239 (1987). The current version of the statute protects from retaliation employees who engage in certain protected activities, one of which is refusing to operate a motor vehicle “because ... the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security.” 49 U.S.C. § 31105(a)(1)(B)(i) (Supp. V 2012). This appeal presents a question of statutory interpretation: Is protection under Section 31105(a)(1)(B)(i) triggered only when operation of the motor vehicle would result in an actual violation of law? Or may the ARB interpret the provision to cover circumstances in which a driver reasonably but incorrectly believes that operation would result in a legal violation?

Koch Foods argues that Section 31105(a)(1)(B)(i) unambiguously protects an employee's refusal to drive only if driving would have resulted in an actual violation of law. Respondent, the Secretary of Labor, contends that the statute is ambiguous, and that the ARB's interpretation of this clause as incorporating a subjective belief element is reasonable and entitled to Chevron deference. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)

After reviewing the plain language of the provision and its statutory context, as well as the relevant statutory history, we hold that the phrase “refuses to operate a vehicle because ... the operation violates a regulation, standard, or order,” as used in 49 U.S.C. § 31105(a)(1)(B)(i), refers only to circumstances in which operation would result in an actual violation of law. Accordingly, we vacate the ARB's decision and remand so that the ARB may evaluate whether the operation of Mr. Bailey's assigned vehicle would have resulted in an actual violation of a regulation, standard or order related to commercial motor vehicle safety, health, or security.

I. BACKGROUND

Timothy Bailey worked as a driver transporting chickens from farms to a Tyson Foods plant for four years until May 2007, when Koch Foods purchased the plant where Mr. Bailey worked and became his new employer. Koch Foods introduced to the company fleet a new type of trailer, which was longer and could carry more chicken cages. Soon after, Bailey noticed that some of the new trailers were arriving at Koch Foods' processing plant overweight—that is, above the 80,000 pound weight limit mandated by federal and state law.

On his July 25, 2007 drive, Mr. Bailey observed that his tractor-trailer, at approximately 84,000 pounds, was overweight, but he did not inform his supervisor of the problem. The next day, when Bailey arrived at the farm and found the same type of trailer waiting for him, he perceived it as overweight and refused to drive it back to the plant. Another driver pulled the trailer assigned to Bailey, who then waited about half an hour while the crew loaded a different type of trailer, which Bailey pulled back to the plant. Although Bailey could have called his boss from the farm, he did not do so that day.

Early the next morning, Mr. Bailey notified his supervisor, Tim Graul, of the event. Bailey was suspended for three days; upon returning to work after his suspension, he was notified that he was fired for refusing a reasonable assignment and causing a slowdown in production. Bailey was unemployed from August until December 2007, when he took a job as a dispatcher at Tyson Foods.

Mr. Bailey filed a complaint with the Occupational Safety and Health Administration (OSHA), arguing that he was fired for refusing to drive a vehicle he believed was overweight in violation of state and federal law. Bailey claimed that his termination violated the whistleblower protections of the STAA, and OSHA determined that Bailey's complaint had merit. At an administrative hearing on the merits, the administrative law judge (ALJ) heard testimony from Bailey that he had seen overweight trailers on the scales in the scale house and had made a few runs with overweight trailers. The ALJ admitted into the record weight tickets dated July 16, 2007 and July 25, 2007 for tractor-trailers weighing over the 80,000 pound weight limit.

The ALJ also heard testimony from Bailey's supervisor, Tim Graul, that the farm staff had been instructed to cease over-packing chickens into trailers, and that the supervisor who had overseen the packing of chickens on July 16, 2007 had been removed from his supervisory position. The safety manager for Koch Foods, Jon Burdick, also testified that the issue of overweight tractor-trailers had been addressed. In addition, Mr. Graul testified that he had seen the weight ticket for the tractor-trailer that Bailey refused to drive and that the trailer, in fact, was not overweight. The weight ticket was not admitted into the record.

The ALJ found that Mr. Bailey's belief that the vehicle was unlawfully overweight was objectively reasonable. The ALJ made no formal findings as to whether the vehicle Bailey refused to operate actually was overweight, concluding that Bailey's reasonable belief was sufficient to render Bailey's refusal a protected activity under the STAA. The ALJ issued a recommended decision and order in favor of Mr. Bailey.

The ARB affirmed the ALJ's decision. In doing so, the ARB undertook a detailed examination of the statute. It acknowledged that its prior decisions “appear[ed] to require that the employee's refusal to haul be based on an ‘actual’ violation of a safety regulation.” Nevertheless, the ARB concluded that the statute was ambiguous as to whether the operation of a vehicle by an employee actually had to violate the law for that refusal to be protected.

The ARB then stated that, in light of the history and purpose of the statute, “the protection afforded under Section 31105(a)(1)(B)(i) also includes refusals where the operation of a vehicle would actually violate safety laws under the employee's reasonable belief of the facts at the time he refuses to operate a vehicle, and that the reasonableness of the refusal must be subjectively and objectively determined.” The ARB thus upheld the ALJ's conclusion that an employee was not required to show that operation of the vehicle actually would have violated a safety law.

The ARB also affirmed the ALJ's award to Mr. Bailey of $944.68 per week during the time that he was suspended or unemployed, $339.24 per week during the time that he was employed but earning a reduced wage, and $8000 in compensatory damages.

Koch Foods appeals this decision on two grounds. First, it argues that the ARB has misread the statute and imposed a “reasonable belief” standard where none exists. Koch Foods contends that Mr. Bailey's refusal to drive cannot be a protected activity unless the record shows that operation of the vehicle would have resulted in an actual violation of law. Second, Koch Foods asserts that the award of damages is not supported by substantial evidence.

II. STANDARD OF REVIEW

In reviewing appeals arising from the STAA's whistleblower provision, we conform to the standard of review set forth in the Administrative Procedure Act, 5 U.S.C. § 701 et seq.49 U.S.C. § 31105(d). “The Secretary's interpretation of the [Surface Transportation Assistance] Act will be deemed correct ‘if it reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress' expressed intent.’ ” Trans Fleet Enters., Inc. v. Boone, 987 F.2d 1000, 1004 (4th Cir.1993) (quoting Rust v. Sullivan, 500 U.S. 173, 184, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)); see also Fields v. U.S. Dep't of Labor Admin. Review Bd., 173 F.3d 811, 813 (11th Cir.1999) (“Appropriate deference must be given to statutory interpretation by the ARB.”). But the court “appl[ies] the statutory language as written when it is unambiguous.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1299 (11th Cir.2011) (citing Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778).

When determining whether to defer to an agency's interpretation of a statute it implements, the court follows the established Chevron framework. “In the first step ... we apply the traditional tools of statutory construction to ascertain whether Congress had a specific intent on the precise question before us.” Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1222–23 (11th Cir.2009). “If Congress did, then the statute is not ambiguous and Chevron has no role to play.” Id. at 1223. The court reaches Chevron step two only if the statute “is silent or ambiguous with...