Fired for whistleblowing or insubordination?
January 3, 2011 by Fred HosierPosted in: new court decision, Special Report, Transportation safety, whistleblower, Workers' attitudes about safety
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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.)
What do you think about the court’s decision? Let us know in the Comments Box below.
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Tags: insubordination, retaliation, safety complaint, truck driver, whistleblowing
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January 3rd, 2011 at 5:30 pm
This seems pretty cut and dry. The employee was clearly fired for his unacceptable behavior and temper. The witnesses are the nail in the coffin.
January 4th, 2011 at 8:51 am
Mr. Formella might have stood a chance with the “he said - she said” situation, however his conduct as testified to by the other two drivers sealed the case against him. My curiosity is aroused as I wonder if anything was done to rectify the safety complaints with that vehicle after Mr. Formella was fired. I suppose no one will ever know…
January 4th, 2011 at 9:18 am
Was there a history of insubordination? If not, could be a case of employer getting under employee’s skin by virtue of their authority? The more smug, unemotional the employer, the more it would tick off the employee off over their careless attitudes. Either way, employee should have composed himself better than saying “I’ll kill you!” I see no problem with getting emotional over unresolved safety issues.
January 4th, 2011 at 9:36 am
Sounds like a no-brainer to us. Upon reading the case, it seems that Mr. Formella had a number of other issues - including the potential union-organizing campaign - which ‘tripped him off line’. In our business, outbursts like that get a person an immediate ride on the next ‘chopper off the rig.
January 4th, 2011 at 10:49 am
It is perfectly understandable how someone might feel “disconcerted” to the point of rage and upset when faced with the prospect of working unsafely or dying while doing so.
Management obviously did not care much as evidenced by their cavalier statement of “like it or leave it”. They should have had a culture and policy to deal with this situation…and it sounds like they needed something much more comprehensive to boot.
This is not relegated to small local companies either……yesterday when in a chain hardware store (with the big orange sign out front) an electrician working in the electrical department was instructed (not asked) to repair a live electrical circuit in one of the stores…..he felt if he did not comply he would lose his job.
Seems the union electricians miswired this circuit and did not label any circuits in the 6 or so panel box circuit breakers. He was forbidden to use his own circuit locating tools to locate the offending circuit. So what do you do…..complain/refuse and lose your job or rely on luck to not die that day.
January 5th, 2011 at 10:20 am
I agree if the employee was terminated for inappropriate behavior, what I would like to know is was the truck taken out of service? Was a report made of the truck? Or is the unsafe truck on the rode still making everyone who drives the same streets vulnerable to an accident??
January 8th, 2011 at 2:44 pm
On this day in question, I did not, in any way shape or form use any “boisterous” or “vehement” words and I was not “volatile and/or agitated”. Nor did I have any contact, let alone get into any argument with either of said drivers. However I discovered that morning when I punched in all my equipment was damaged and half missing, placed in a box in the corner. I asked where the truck that I normally drive was and was told it was in for servicing. When I came to the tuck I was assigned, I discovered there were issues with the truck and made a report. I came into the office and handed the Drivers Vehicle Inspection Report to the dispatcher and informed them the truck was not fit to drive. When the dispatcher forwarded the document to Ms. Markus, I was called to her office. I informed Ms. Markus that I was not going to driving a truck that was unsafe and did not meet the federal and state requirements. When the matter went to court, the testimony Ms. Markus gave (what I said and how I said it etc.) seemed to change every time. I believe the second attorney I hired, was not experienced and filed the incorrect paperwork, this is why the outcome was the way it was in appeals court. It’s to my understand that the drivers Miehle and Osten are no longer employed by Schnidt.
January 23rd, 2011 at 9:07 pm
Vehicle Maintenance BASIC — Failure to properly maintain a CMV. Example violations: brakes, lights, and other mechanical defects, and failure to make required repairs. (FMCSR Parts 393 and THIS IS NEW AS OF( DEC- 12 -2010 )===GOOGLE—-CSA—
January 24th, 2011 at 1:18 am
Washington, DC 20590
http://www.dot.gov/affairs/l
——————————————————————————-
FMCSA 20-10
Monday, December 13, 2010
Contact: Candice Tolliver
Tel: 202-366-9999 or 202-306-4580
FMCSA Launches New Compliance, Safety, Accountability (CSA) Program for Commercial Trucks and Buses
WASHINGTON - The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today took a major step toward improving commercial truck and bus safety with the launch of the Compliance Safety Accountability (CSA) program.
The centerpiece of CSA is the Safety Measurement System (SMS), which will analyze all safety-based violations from inspections and crash data to determine a commercial motor carrier’s on-road performance. The new safety program will allow FMCSA to reach more carriers earlier and deploy a range of corrective interventions to address a carrier’s specific safety problems.
“The CSA program will help us more easily identify unsafe commercial truck and bus companies,” said U.S. Transportation Secretary Ray LaHood. “Better data and targeted enforcement will raise the safety bar for commercial carriers and empower them to take action before safety problems occur.”
The program also advances the Obama Administration’s open government initiative by providing the public with safety data in a more user-friendly format. This will give consumers a better picture of those carriers that pose a safety risk. CSA was also tested in nine pilot states before the program was launched.
“We worked closely with our partners in the motor vehicle community to develop this powerful new program,” said FMCSA Administrator Anne S. Ferro. “CSA is an important new tool that will help reduce commercial vehicle-related crashes and save lives.”
The SMS uses seven safety improvement categories called BASICs to examine a carrier’s on-road performance and potential crash risk. The BASICs are Unsafe Driving, Fatigued Driving (Hours-of-Service), Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Cargo-Related and Crash Indicator. Under FMCSA’s old measurement system, carrier performance was assessed in only four broad categories.
By looking at a carrier’s safety violations in each SMS category, FMCSA and state law enforcement will be better equipped to identify carriers with patterns of high-risk behaviors and apply interventions that provide carriers the information necessary to change unsafe practices early on.
Safety interventions include early warning letters, targeted roadside inspections and focused compliance reviews that concentrate enforcement resources on specific issues identified by the SMS.
FMCSA will continue to conduct onsite comprehensive compliance reviews for carriers with safety issues across multiple BASICs. And, where a carrier has not taken the appropriate corrective action, FMCSA will invoke strong civil penalties.
To learn more about the new CSA program, visit http://csa.fmcsa.dot.gov/. To see the new SMS, visit http://ai.fmcsa.dot.gov/sms.
Find this page at: http://www.fmcsa.dot.gov/about/news/news-releases/2010/CSA-Program-for-Commercial-Trucks-and-Buses.aspx
January 24th, 2011 at 1:23 am
Program for Commercial Trucks and Buses
WASHINGTON - The U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) today took a major step toward improving commercial truck and bus safety with the launch of the Compliance Safety Accountability (CSA) program.
The centerpiece of CSA is the Safety Measurement System (SMS), which will analyze all safety-based violations from inspections and crash data to determine a commercial motor carrier’s on-road performance. The new safety program will allow FMCSA to reach more carriers earlier and deploy a range of corrective interventions to address a carrier’s specific safety problems.
“The CSA program will help us more easily identify unsafe commercial truck and bus companies,” said U.S. Transportation Secretary Ray LaHood. “Better data and targeted enforcement will raise the safety bar for commercial carriers and empower them to take action before safety problems occur.”
The program also advances the Obama Administration’s open government initiative by providing the public with safety data in a more user-friendly format. This will give consumers a better picture of those carriers that pose a safety risk. CSA was also tested in nine pilot states before the program was launched.
“We worked closely with our partners in the motor vehicle community to develop this powerful new program,” said FMCSA Administrator Anne S. Ferro. “CSA is an important new tool that will help reduce commercial vehicle-related crashes and save lives.”
The SMS uses seven safety improvement categories called BASICs to examine a carrier’s on-road performance and potential crash risk. The BASICs are Unsafe Driving, Fatigued Driving (Hours-of-Service), Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance, Cargo-Related and Crash Indicator. Under FMCSA’s old measurement system, carrier performance was assessed in only four broad categories.
By looking at a carrier’s safety violations in each SMS category, FMCSA and state law enforcement will be better equipped to identify carriers with patterns of high-risk behaviors and apply interventions that provide carriers the information necessary to change unsafe practices early on.
Safety interventions include early warning letters, targeted roadside inspections and focused compliance reviews that concentrate enforcement resources on specific issues identified by the SMS.
FMCSA will continue to conduct onsite comprehensive compliance reviews for carriers with safety issues across multiple BASICs. And, where a carrier has not taken the appropriate corrective action, FMCSA will invoke strong civil penalties.
To learn more about the new CSA program, visit http://csa.fmcsa.dot.gov/. To see the new SMS, visit http://ai.fmcsa.dot.gov/sms.
March 26th, 2011 at 6:31 am
Even if he did yell and speak rather loudly, the volume of his voice might not have been unreasonable,” Judge Karen Moore wrote for the court. “Finally, … Kentucky law does not criminalize arguments and noise that disturb only police officers because such conduct does not risk public alarm.” (Emphasis in original.)