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Transam Trucking, Inc. v. Administrative Review Board

United States Court of Appeals, Tenth Circuit

August 8, 2016

TRANSAM TRUCKING, INC., Petitioner,
v.
ADMINISTRATIVE REVIEW BOARD, UNITED STATES DEPARTMENT OF LABOR, Respondent. ALPHONSE MADDIN, Intervenor.

         APPEAL FROM THE DEPARTMENT OF LABOR (except OSHA) (ARB No. 13-031)

          Brad K. Thoenen (Kendra D. Hanson with him on the briefs), Seigfreid Bingham, PC, Kansas City, Missouri, for Petitioner.

          Scott 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.

          Robert D. Fetter, Miller Cohen, P.L.C., Detroit, Michigan, for Intervenor.

          Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.

          MURPHY, Circuit Judge.

         I. Introduction

         Alphonse 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.

         Both an 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.

         II. Factual Background

         Maddin 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.

         Maddin 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.

         Maddin 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."

         About 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.[1] 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.

         When 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.

         After 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.

         After 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.

         The ALJ 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 ...


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