FROM THE DEPARTMENT OF LABOR (except OSHA) (ARB No. 13-031)
K. Thoenen (Kendra D. Hanson with him on the briefs),
Seigfreid Bingham, PC, Kansas City, Missouri, for Petitioner.
Glabman, Senior Appellate Attorney (M. Patricia Smith,
Solicitor of Labor; Ann Rosenthal, Associate Solicitor for
Occupational Safety and Health; Heather R. Phillips, Counsel
for Appellate Litigation, with him on the brief), U.S.
Department of Labor, Washington, D.C., for Respondent.
D. Fetter, Miller Cohen, P.L.C., Detroit, Michigan, for
GORSUCH, MURPHY, and McHUGH, Circuit Judges.
MURPHY, Circuit Judge.
Maddin was employed as a truck driver by Petitioner TransAm
Trucking ("TransAm"). In January 2009, Maddin was
transporting cargo through Illinois when the brakes on his
trailer froze because of subzero temperatures. After
reporting the problem to TransAm and waiting several hours
for a repair truck to arrive, Maddin unhitched his truck from
the trailer and drove away, leaving the trailer unattended.
He was terminated for abandoning the trailer.
administrative law judge ("ALJ") and Respondent,
the Department of Labor ("DOL") Administrative
Review Board ("ARB"), concluded Maddin was
terminated in violation of the whistleblower provisions of
the Surface Transportation Assistance Act ("STAA").
He was ordered reinstated with backpay. TransAm filed a
Petition for Review of the ARB's Final Decision and Order
with this court. Exercising jurisdiction pursuant to 49
U.S.C. § 31105(d), we deny the petition for review.
was employed by TransAm as a truck driver. In January 2009,
he was driving a tractor-trailer for TransAm on I-88 in
Illinois. At approximately 11:00 p.m., Maddin pulled to the
side of the highway because he was unable to find the
TransAm-mandated fuel station and his gas gauge was below
empty. When he attempted to pull back onto the road ten
minutes later, he discovered the brakes on the trailer had
locked up because of the frigid temperatures.
reported the frozen brakes to TransAm at 11:17 p.m. and was
advised by TransAm's Road Assist service that a
repairperson would be sent to his location. While waiting for
the repair truck, Maddin discovered that his auxiliary power
unit ("APU" or "bunk heater") was not
working and there was no heat in the cab of the truck.
eventually fell asleep in the truck but was awakened at
approximately 1:18 a.m. when he received a telephone call
from his cousin, Gregory Nelson. According to Nelson,
Maddin's speech was slurred and he sounded confused. When
Maddin sat up, he realized his torso was numb and he could
not feel his feet. He called Road Assist again and told the
dispatcher his bunk heater was not working. He also told the
dispatcher about his physical condition and asked when the
repairperson would arrive. The dispatcher told Maddin to
"hang in there."
thirty minutes after his second call to Road Assist, Maddin
became concerned about continuing to wait in the freezing
temperatures without heat. He unhitched the trailer from the
truck, pulled the truck about three feet away, and called his
supervisor, Larry Cluck. Maddin told Cluck he couldn't feel
his feet and was having trouble breathing because of the
cold. Cluck repeatedly told Maddin to turn on the APU even
though Maddin told Cluck several times it was not working.
Maddin told Cluck he was leaving to seek help, Cluck told
Maddin not to leave the trailer, instructing him to either
drag the trailer with its frozen brakes or remain with the
trailer until the repairperson arrived. Maddin did not follow
either instruction but, instead, drove off in the truck
leaving the trailer unattended. The repair truck arrived less
than fifteen minutes after Maddin left. Maddin drove the
truck back to the trailer and met with the repairperson.
the repairs to the brakes were completed, Maddin called Cluck
for instructions on where to purchase fuel. During this
conversation, Cluck threatened to write Maddin up for either
a late load or for missing his fuel stop earlier. During a
subsequent conversation, Cluck informed Maddin he was being
written up for abandoning the trailer. Less than a week
later, Maddin was fired for violating company policy by
abandoning his load while under dispatch.
his termination, Maddin filed a complaint with OSHA, an
agency within the DOL, asserting TransAm violated the
whistle-blower provisions of the STAA when it discharged him.
After the complaint was dismissed by OSHA, Maddin requested a
hearing before a DOL ALJ. 49 U.S.C. § 31105(b)(2)(B).
The ALJ issued a written interim decision and order on
October 26, 2012, ruling that Maddin was terminated in
violation of the STAA. Specifically, the ALJ concluded Maddin
engaged in protected activity when he reported the frozen
brake issue to TransAm and again when he refused to obey Mr.
Cluck's instruction to drive the truck while dragging the
trailer. The ALJ further concluded Maddin's protected
activity was a contributing factor in TransAm's decision
to fire him because Maddin's refusal to operate the truck
while dragging the trailer was "inextricably
intertwined" with TransAm's decision to terminate
him for abandoning the trailer at the side of the highway.
The ALJ provided Maddin with an opportunity to present
evidence of economic damages.
issued a final decision and order on January 7, 2013,
awarding backpay to Maddin in an amount calculated from the
date of his discharge to the date of his reinstatement.
Included in the award were per diem travel allowances which
the ALJ concluded were part of Maddin's compensation.
Maddin's interim earnings were not deducted based on the
ALJ's finding that those earnings were more than offset
by interim expenses that Maddin would not have incurred but
for his ...