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January 2023

Las Vegas Office Prevails in U.S. Department of Labor Trial

Managing Partner Robert E. Schumacher and Senior Counsel Dione C. Wrenn of the Las Vegas office obtained a defense award for a firm client after a three-day administrative trial arising under the employee protection provisions of 49 U.S.C. § 31105 of the Surface Transportation Assistance Act of 1982 (“STAA”), and the regulations of the Secretary of Labor published at 29 C.F.R. Part 1978 before the San Francisco Office of the United States Department of Labor (“OALJ”). 

The complainant, a former truck driver (“complainant”), was fired due to numerous instances of insubordination and repeated violations of the policies and procedures articulated in the employer’s handbook. The complainant received verbal warnings, counseling, and formal disciplinary write-ups during his employment. The complainant contended that he was terminated during a phone call with the employer immediately after reporting systemic violations of the Federal Motor Carrier Safety Regulations (“FMCSR”), including those relating to records keeping, duration of hauls, and mandatory “downtime” for drivers. The employer contended that the phone call was the complainant’s exit interview, and the decision to terminate his employment was made several days earlier.  

After his termination, the complainant filed a whistleblower complaint under the STAA against the employer with the federal Occupational Safety and Health Administration (“OSHA”), wherein he alleged that he was terminated in retaliation for reporting systemic violations of the FMCSR. After receiving an unsatisfactory determination from OSHA, the complainant appealed to the OALJ. 

The complainant sought damages (back and front pay) in excess of $1.5 million, not including statutory penalties, punitive damages, attorney’s fees, costs, and interest. The complainant also alleged that he was entitled to compensatory damages because he was subjected to discrimination and was wrongfully denied raises and bonuses that were given to other non-diverse drivers. He also alleged that other drivers were offered “ownership” positions with the company whereby they could lease to own, or purchase trucks and essentially share in profits derived by the company from the hauls they made with those trucks.  

The judge certified several issues for trial, including: 

1. Did the complainant engage in protected activity within the meaning of the STAA when, after being hired, his supervisor asked him to drive more than the daily allowable hourly limits, and the falsified driving logs imposed by the FMCSR, and during a phone conversation on March 10, 2020, when he complained about safety violations?

2. Did the complainant suffer an adverse action on March 10, 2020, when he was terminated for refusal to commit safety violations under the FMCSR? 

3. Has the complainant shown by a preponderance of the evidence that the protected activity contributed to the alleged adverse action? 29 C.F.R. § 1978.109(a). 

4. If the complainant establishes the elements of his claim by a preponderance of the evidence, then has the respondent established by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant’s protected activity? 29 C.F.R. § 1978.109(b)(1). 

During litigation and at trial, the Gordon & Rees team elicited and presented evidence establishing that the complainant was not a bonafide whistleblower because he reported violations of the FMCSR that he committed and did so only after his termination. The trial team further argued that the complainant’s claims lacked credibility and his actions were in contravention of the spirit and protections underlying federal statutes and regulations—namely, that the complainant’s intent in reporting was opportunistic self-enrichment, as opposed to protecting public safety.  

The judge determined that, although the record suggested that the employer violated certain provisions of the FMCSR, the complainant failed to establish by a preponderance of the evidence that he engaged in any protected activity and that he was a whistleblower under the STAA. Accordingly, the judge denied all requests for relief. 

Robert E. Schumacher
Dione C. Wrenn