Posted in: new court decision, Special Report, Transportation safety, whistleblower, Workers' attitudes about safety
An employee complains about unsafe equipment on the job. He’s fired the same day. Was this retaliation for complaining, or did his behavior justify his firing?
Donald Formella drove trucks for Schnidt Cartage of Hanover Park, IL.
One day at work, after inspecting the truck he was assigned to drive, he found:
- permits required by the Department of Transportation weren’t in the truck
- the truck’s high beams weren’t working
- one or more reflectors or lights on the rear of the truck were missing or inoperative, and
- the rear drive tires had mismatched tread patterns.
Formella took his concerns to Schnidt’s Vice President, Linda Markus.
That’s where agreement ends on what took place on the day Formella was fired.
Both sides got to present their points of view because Formella took his case to OSHA, alleging that Schnidt fired him in retaliation for his safety-related complaints.
Classic case of he said, she said
Formella said Markus told him if he was unhappy with his job, he could quit. When he refused to resign, Markus fired him.
The truck driver said he never stood up or raised his voice at any time during his one encounter with Markus that day.
Markus remembers the situation differently. She says Formella came to her office not once but three times.
She described Formella as “very boisterous,” “vehement,” and “volatile and agitated.”
Markus testified Formella made no threatening remarks and remained seated, but she felt “a bit threatened,” by his tone and demeanor.
When Formella shouted, “Are you telling me I’m fired?” Markus said she told him it was time for him to leave the company.
Markus’ version of events agreed with another manager’s, who was in the office with them for at least part of the exchange.
Also, two other truck drivers testified that Formella was “almost out of control” that day. One of the drivers said, when he had to move Formella’s truck because it was blocking others, Formella said to him, “Don’t ever get in my [expletive] truck or I’ll kill you.”
An administrative law judge agreed that Formella’s safety complaint was protected by the Surface Transportation Assistance Act (STAA).
However, the judge also found it was Formella’s inappropriate behavior which led to his firing. “He was terminated because of his provocative, intemperate, volatile, and antagonistic behavior,” the judge wrote.
Formella appealed to an administrative review board. It upheld the finding.
Then the fired driver took the case to a U.S. Court of Appeals.
After reviewing the case, the appeals judges wrote, “The conflict between his testimony and that of the other witnesses presented a classic credibility contest, the resolution of which belongs in all but the extraordinary case to the judge who heard and observed the witnesses first hand.”
Formella argued that the previous courts erred in concluding that his behavior fell outside the latitude owed to an employee who is making a safety complaint.
The judge who originally heard the case acknowledged that an employee with a safety complaint should be given some leeway for impulsive behavior when addressing the situation, but that leeway doesn’t include the right to engage in insubordinate and disruptive behavior.
For that reason, the appeals court upheld the decision of the previous two courts. It said the company could rightfully fire Formella for his actions and that this was not a case of retaliation for raising a safety issue.
(Formella v. U.S. Dept. of Labor, U.S. Circuit Court 7, No. 09-2296, 12/10/10. A PDF of the court’s decision is here.)
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