[co-author: Amanda Frankel]
Tenth Circuit Judge and U.S. Supreme Court Nominee Neil Gorsuch was on thin ice during his senate hearing for his dissent in TransAm Trucking, Inc. v. Admin. Review Bd., United States DOL, 833 F.3d 1206 (10th Cir. 2016).
In TransAm, Alphonse Maddin brought suit against his former employer following a 2009 incident where the brakes of Maddin’s trailer froze when he was transporting cargo through subzero temperatures in Illinois. He called his employer, who advised that he wait for a repair truck to arrive, however, Maddin began experiencing numbness throughout his body due to the broken heater in the cab. After placing several calls to his employer about his condition, he was advised to wait for the repair truck or to drag the trailer. Maddin instead unhitched his trailer and drove away, leaving the trailer unattended until a repairman finally arrived and fixed the truck. The abandonment of the trailer lead to his termination based on violating company policy.
Maddin filed a complaint with the Occupational Safety and Health Administration (“OSHA”) alleging that TransAm violated the whistleblower provisions of the Surface Transportation Assistance Act (“STAA”). The Administrative Law Judge (“ALJ”) found that Maddin engaged in protected activity when he reported the brake issue to TransAm and again when he refused to remain with the trailer instead of dragging it or waiting for a repair truck. Maddin was awarded back pay from the date of his discharge through the date of his reinstatement as well as per diem travel allowances, which were part of his compensation. TransAm appealed to the Administrative Review Board (“ARB”), which affirmed the ALJ and affirmed the amount of back pay.
TransAm then appealed to the Tenth Circuit, where the majority upheld both the ALJ and the ARB’s decisions. Regarding the STAA claim, TransAm argued that Maddin’s report of frozen brakes did not constitute the type of complaint the STAA seeks to protect because he was simply communicating a concern about defective brakes, a condition that in and of itself does not constitute a violation of any statute or regulation. The court was unpersuaded. It held that the ARB’s ruling could be affirmed under an alternative provision of the STAA that makes it unlawful for an employer to discharge an employee for refusing to operate a vehicle because that employee has a reasonable concern about serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.
Judge Gorsuch’s dissent offered a textualist approach, which requires strict adherence to the actual words of the statute. Judge Gorsuch argued that it is not the court’s place to determine legislative intentions. Judge Gorsuch would have found that that the actual words of the statute in question would only apply to Maddin when he was “operating” both the cab and the trailer as a single unit. Because Maddin technically did not “operate” the truck and trailer together and instead drove away in the truck, he would be unprotected under the law.
This case is useful for our clients in the transportation, trucking, and logistics industries because it forecasts how Judge Gorsuch will likely rule in such cases if confirmed to replace Justice Antonin Scalia on the U.S. Supreme Court. Employers should, however, take a sensible and reasonable approach to safety concerns expressed by their employees, particularly those whose drivers face potentially dangerous weather conditions. If faced with these situations, employers should offer clear guidance and keep employees informed of any developments regarding truck repairs, weather monitoring, or provide alternatives that will not compromise safety. The law at issue in TransAm may be ambiguous depending on what judge is reviewing but courts and juries are usually going to place employee safety over property damages regardless of the exact language of the statute, so employers must be guided accordingly.
