Where a truck driver was terminated soon after he revealed that he had collected and submitted evidence showing his company violating the law, and the company admitted that it terminated him in part because he removed and copied documents and recorded employee conversations, he was awarded $107,940.07 in backpay and $5,000 in emotional distress damages.
Background
While Theodore Huang was employed as a truck driver at Greatwide Dedicated Transport II LLC, he witnessed certain drivers receive additional driving assignments in violation of 49 C.F.R. § 395.3, which regulates the maximum driving time for property-carrying vehicles. After collecting evidence related to the violations, Huang submitted anonymous letters to management reporting his findings. Soon thereafter, Huang revealed to management personnel that he was the author of the letters.
The following month, Huang was assigned to deliver two trailers filled with merchandise to two Nordstrom store locations in New York and New Jersey. However, when Huang returned from this assignment, he was suspended for — what Greatwide claimed to be — violations of company policy. Greatwide subsequently terminated and dismissed Huang without a more explicit explanation.
Huang promptly filed a whistleblower complaint with the Occupational Safety and Health Administration. The administrative law judge, or ALJ, ruled in Huang’s favor, ordering Greatwide to pay $107,940.07 in backpay and $5,000 in emotional distress damages. The Administrative Review Board, or ARB, affirmed.
Merits
Greatwide challenges the ARB’s conclusion that there was substantial evidence to support (1) that Huang showed by a preponderance of the evidence that he engaged in protected activity, (2) that his protected activity was a contributing factor in his termination and (3) that Greatwide failed to demonstrate by clear and convincing evidence that it would have terminated Huang absent his protected activity.
The ARB affirmed the ALJ’s conclusion that Huang’s recording of the dispatchers’ bullpen meeting is protected activity. In challenging that decision, Greatwide argues that Huang’s recording was unlawful under Maryland wiretap laws and that, because Huang failed to obtain consent from the dispatchers, his actions were a punishable criminal offense. Not so. Substantial evidence also supports the ALJ’s finding that Huang engaged in protected activity when he removed — and subsequently photocopied — an “insider” driver’s paperwork from the distribution center’s lockbox.
The next step in the test is whether Huang’s protected activity was a contributing factor in Greatwide’s decision to terminate. The court deems that it was. Greatwide admitted that it fired Huang in part because he removed and copied documents and recorded employee conversations. These facts — taken in tandem with the temporal proximity and employer knowledge — are sufficient to establish that Huang’s protected activity was a contributing factor to his termination.
Finally, the court agrees with the ARB that Greatwide failed to show, by clear and convincing evidence, that Huang would have been terminated absent his protected activity. The court also notes that Greatwide failed to provide Huang with a consistent termination explanation and holds that these contradictions alone do enough damage to undermine Greatwide’s capacity to overcome this step.
Delay
Greatwide argues that it was prejudiced by the delays in the hearing process. The ALJ’s delay in issuing their decision and order more than 120 days after the hearing was not unreasonable given its detailed analysis of conflicting testimonies. Also, Huang’s backpay was based on a limited timeline, unimpacted by the delays.
Greatwide argues that these findings were improper given the record before the ARB. Although there were several delays on behalf of the agency, the record does not support Greatwide’s contentions that it was prejudiced.
Settlement
Greatwide finally argues that the court should enforce what the company posits is a valid settlement agreement between the parties. However Greatwide’s counsel conceded that it failed to challenge the ALJ’s decision not to enforce the settlement agreement before the ARB.
While the decision and order did mention on its own the settlement agreement in passing, this argument was not properly raised and argued before the ARB. Therefore, Greatwide has failed to preserve the settlement agreement claim.
Affirmed.
Greatwide Dedicated Transport II LLC v. United States Department of Labor, Case No. 21-1797, June 30, 2023. 4th Cir. (Gregory), from United States Department of Labor Administrative Review Board. Renee Lynn Bowen for Petitioner. Stephanie MacInnes and Christopher Thomas Staiti for Respondents. VLW 023-2-172. 30 pp.
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