In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1315
R OADWAY E XPRESS, INC.,
Petitioner,
v.
U NITED S TATES D EPARTMENT OF L ABOR,
Respondent,
and
P ETER P. C EFALU,
Intervenor.
On Petition for Review of a Final Order
of the Administrative Review Board.
ARB Case Nos. 04-103, 04-161, and 08-110
A RGUED D ECEMBER 4, 2009—D ECIDED JULY 22, 2010
Before P OSNER, R IPPLE, and W OOD , Circuit Judges.
W OOD , Circuit Judge. It has been more than seven years
since Roadway Express (“Roadway”) fired Peter Cefalu.
The litigation over this action, however, lives on; this
petition for review represents the parties’ second trip
before this court. See Roadway Exp., Inc. v. United States
2 No. 09-1315
Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007) (Roadway I). The
case originated in August 2002, when Cefalu filed a
complaint with the Occupational Safety and Health
Administration alleging that he had been sacked in vio-
lation of the Surface Transportation Assistance Act of
1982, 49 U.S.C. § 31105. Roadway dismissed Cefalu on
February 21, 2002, just after he submitted a notarized
statement at a co-worker’s grievance hearing asserting
that Roadway had instructed him to falsify his driving log.
At a hearing before an administrative law judge (“ALJ”)
at the Department of Labor, Roadway asserted that it
fired Cefalu because it recently had learned that he had
lied in 1999 on his job application. Though Cefalu’s ap-
plication stated that he had voluntarily left two pre-
vious jobs, in fact he had lost both positions on grounds
of reckless driving. During discovery, Cefalu sought to
uncover the source of Roadway’s information, but Road-
way steadfastly refused to comply with the ALJ’s discovery
order requiring it to divulge this piece of evidence. In
response, the ALJ imposed an evidentiary sanction that
prohibited Roadway from introducing any information
that the company had learned from its source. Unable
to cite Cefalu’s dishonesty or accident history, Roadway
failed to rebut Cefalu’s argument that he had been fired
for engaging in protected conduct under the Act. The
ALJ entered judgment for Cefalu and ordered his rein-
statement; the Administrative Review Board (“ARB”)
affirmed.
When Roadway filed its first petition for review with
this court, we upheld the imposition of the evidentiary
sanction against Roadway at the merits stage. See Road-
No. 09-1315 3
way I, 495 F.3d at 484-85. We found, however, that
the sanction should not have gone so far as to prevent
Roadway from arguing that public-safety concerns made
Cefalu’s reinstatement impossible or impractical. See id.
at 485-86. We remanded the case for further proceedings
to determine whether Roadway would have fired Cefalu
in the absence of his protected conduct. See id. On
remand, first the ALJ and then the ARB concluded that
Roadway failed to meet this burden. (Because the peti-
tion for review addresses the ARB’s decision, we will not
mention the ALJ separately unless there is some par-
ticular reason to do so.)
Roadway argues in its new petition that the ARB misin-
terpreted the scope of the remand order when it pre-
vented Roadway from presenting arguments related
to Cefalu’s dishonesty. In addition, Roadway points to
Cefalu’s five previous trucking accidents as evidence
that public-safety considerations weigh decisively
against Cefalu’s reinstatement. The ARB rejected these
arguments, and we find that its ruling is supported by
substantial evidence.
I
Because the parties fiercely contest the reach of Road-
way I, we should begin by rehearsing the relevant aspects
of that decision. Our opinion was careful to distinguish
between the use of the evidentiary sanction at the
merits stage from its use at the remedial stage of the
proceedings. At the merits phase, precluding Roadway
from relying on information derived from its undisclosed
4 No. 09-1315
source was an appropriate sanction, we reasoned, because
otherwise Cefalu would be unable to show that Road-
way’s proffered explanation was pretextual. Id. at 484-85.
For instance, the source could have revealed that Road-
way had known about Cefalu’s driving record long
before it fired him. Id. at 485. That the sanction effectively
doomed Roadway’s merits case was unfortunate, but
the alternative would have forced Cefalu to litigate
with one hand tied behind his back. Id.
Prevailing on the merits did not, however, mean that
Cefalu was automatically entitled to have his old job
back. Id. This may seem to be at odds with the Act,
which provides that any employee who has been fired
for engaging in protected activity must be reinstated to
her former position without any changes in pay or
other benefits. 49 U.S.C. § 31105(b)(3)(A). But reinstate-
ment is not always a proper remedy, as “it could obligate
an employer to reinstate an incompetent or unqualified
employee.” Id. To address this concern, we invoked the
“mixed motive” framework that the Supreme Court set
forth in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274, 285-86 (1977). (Although Roadway is now
trying to rely on McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352 (1995), to justify its decision to fire Cefalu,
that case is a poor fit for the facts. As the Secretary’s brief
points out, Roadway knew of and asserted dishonesty
as grounds for terminating Cefalu in the first instance,
while McKennon addresses the use of evidence acquired
after the wrongful discharge.) Under the Mt. Healthy
approach, once the plaintiff demonstrates that her pro-
tected conduct played a substantial role in the defendant’s
No. 09-1315 5
decision to fire her, the burden shifts to the defendant
to prove that it would still have terminated the plaintiff
in the absence of her protected conduct. Id. at 287.
Applying this general principle to Cefalu’s case, we
concluded that Roadway should have been given an
opportunity to argue that it would have terminated
Cefalu because of his record of trucking accidents. We
explained that a remand was necessary because:
Roadway was entitled to show that Cefalu indeed
dissembled in his employment application to the
company. Cefalu wrote that he “resigned” from his
previous position. In fact, [he was fired for reckless
driving]. Cefalu, in turn, should have the oppor-
tunity to show that Roadway does not terminate
everyone with such a record, perhaps if the person
has had a clean record for a certain number of years
in the interim, or other extenuating circumstances
exist.
Id. at 486.
We went on to note that remanding the case for further
proceedings on remedy did not implicate the same con-
cerns that motivated the imposition of the evidentiary
sanction at the merits phase:
Roadway’s withholding of the identity of its informant
in no way prevented Cefalu from contesting Road-
way’s claim that reinstatement was an inappropriate
remedy because of public safety. Nothing about how,
why, or when Roadway learned about Cefalu’s mis-
statement is pertinent to Cefalu’s effort to keep his job
6 No. 09-1315
despite his conceded earlier problems. If the facts are
as Roadway contends, then public-safety concerns, or
even regulatory rules, may make it impossible for
Roadway to reinstate Cefalu. Roadway therefore
should have been permitted to refer to Cefalu’s
earlier driving record during the remedial stage.
Id.
On remand, Roadway took our opinion as an invita-
tion to submit evidence that it would have fired Cefalu
for lying about his previous driving record. Roadway
offered evidence that it had fired a number of employees
who had made false statements. The ALJ, however,
declined to explore the issue of dishonesty, as he under-
stood the remand to be limited solely to addressing public-
safety concerns raised by Cefalu’s driving record, and
the ARB endorsed this decision.
With respect to the risk Cefalu’s driving posed to the
public, Roadway submitted the following evidence
about Cefalu’s five earlier trucking accidents.
• 1992 - Employer: United Parcel Service. Cefalu
swerved his truck out of the way of a car, lost control,
and crashed into a drainage pipe ditch. It is not clear
how much damage the truck suffered, but Cefalu was
fired for reckless driving.
• 1998 - Employer: ANR Advance Transportation.
Cefalu fell asleep while driving and his truck struck a
guardrail. The truck suffered “major damage” and
Cefalu was fired for reckless driving.
No. 09-1315 7
• August 27, 2005 - Employer: Roadway. When
Cefalu was parking, he ran his truck into the edge of
a parked truck. The trucks suffered approximately
$600 in damage. Roadway issued a warning letter
to Cefalu.
• May 29, 2006 - Employer: Roadway. While backing
up his truck in an effort to couple his truck-tractor to
a trailer, Cefalu damaged the left-wing of the truck-
tractor. Roadway issued a warning letter to Cefalu.
• October 21, 2006 - Employer: Roadway. No details
of this accident are contained in the record.
Besides Cefalu’s driving record, Roadway also offered
employment records showing that it had fired four
other drivers involved in similar or less severe acci-
dents. Cefalu countered by presenting evidence that
approximately 12 other drivers had not lost their jobs
after getting themselves into analogous or worse acci-
dents. In weighing the evidence presented by both sides,
the ALJ ultimately sided with Cefalu and found
that Roadway failed to show that it would have fired
him even in the absence of his protected activity. The
ARB agreed with the ALJ’s assessment and noted
that Cefalu’s employment as a truck driver would not
seriously endanger the public.
II
Our review of the ARB’s decision is guided by the
standard set forth in the Administrative Procedure Act, 5
U.S.C. § 706. See 49 U.S.C. § 31105(d). We may overturn
8 No. 09-1315
the ARB’s legal conclusions only if they are “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). The ARB’s
findings of fact must be upheld if supported by sub-
stantial evidence. 5 U.S.C. § 706(2)(E); Roadway I, 495
F.3d at 483. To satisfy the substantial evidence standard,
the ARB must rely on “such relevant evidence as a rea-
sonable mind might accept as adequate to support
the conclusion.” Roadway I, 495 F.3d at 483. Under this
deferential standard of review, we may not “set aside
an inference merely because [we] find[] the opposite
conclusion more reasonable.” Addis v. Dep’t of Labor, 575
F.3d 688, 690 (7th Cir. 2009) (citation omitted).
A
Our first task is to clear up the lingering uncertainty
about the scope of our remand order. Cefalu and the
Department of Labor assert that the repeated references
to public-safety in Roadway I “clearly” indicate that the
remand was limited to this topic. Roadway counters
that the underlying logic of the Mt. Healthy approach
entitles it to present any reason it would have fired
Cefalu. With regard to Cefalu’s dishonesty, Roadway
points out that we specifically mentioned that “Roadway
was entitled to show that Cefalu indeed dissembled in
his employment application to the company.” Roadway I,
495 F.3d at 486.
We find little support for Roadway’s reading of our
first opinion in this case. Cefalu’s false employment
application was mentioned only to signal that, for pur-
No. 09-1315 9
poses of the remedy, Roadway was entitled to introduce
evidence that Cefalu had in fact been in two serious
accidents before joining Roadway. His history would
thus be one piece of evidence tending to show that he
was an unsafe driver. This reading is consistent with our
explanation a few sentences later that Cefalu might be
able to refute Roadway’s case by presenting evidence
that Roadway did not fire employees with comparable
driving records. If dishonesty were also at issue, our
explanation of Cefalu’s defense tactics would have been
jarringly incomplete. While Roadway believes that our
reliance on the Mt. Healthy framework opened the door
to its dishonesty arguments, our emphasis on public
safety belies the idea that we intended to open the door
for Roadway to offer other reasons for firing Cefalu.
We drew this distinction between public safety and other
lawful motives for terminating Cefalu’s employment in
order to respect the Act’s remedial structure. Anything
that we do must give effect to the automatic reinstate-
ment remedy set forth in the statute. We thus carved
out only an exception for cases where reinstatement is
impossible or impractical because of public-safety con-
cerns. See Roadway I, 495 F.3d at 485 (explaining that the
Act’s mandatory reinstatement provision must be tem-
pered by the practicality of returning the employee to
her prior position). Failure to recognize such an excep-
tion would be absurd, as it could result in the reinstate-
ment of unsafe drivers in contravention of applicable
regulatory rules. To avoid similarly illogical results,
analogous limitations on reinstatement are recognized
10 No. 09-1315
in the Title VII context. See, e.g., Williams v. Pharmacia,
Inc., 137 F.3d 944, 952 (7th Cir. 1998) (noting that reinstate-
ment is not available under Title VII if it is not possible
for employee to return to work). As impracticality is the
guiding principle for limitations on reinstatement, there
is little reason to allow Roadway to argue about Cefalu’s
dishonesty. While Roadway may not like to employ
truck drivers who have been dishonest, it is difficult to
say that requiring Roadway to retain these drivers is not
feasible.
Despite Roadway’s assertions to the contrary, our
decision to employ the Mt. Healthy framework is
consistent with a particular focus on public-safety con-
cerns. Instead of limiting the proceedings on remand to
an examination of the applicable driving safety laws, we
instructed the agency to determine whether Roadway
would have fired Cefalu because of his driving record.
Though this approach takes Roadway’s perspective
into consideration, it did not contemplate opening the
door to an examination of other possible motives behind
Roadway’s decision to dismiss Cefalu. Rather, we are
interested only in what Roadway would have done with
a person with Cefalu’s driving record who had not en-
gaged in protected activity. That inquiry serves as a
useful proxy for determining whether Cefalu’s reinstate-
ment would present a public-safety hazard. Given that
Roadway has experience in this field and presumably
bears the costs for unsafe drivers, it should be a rea-
sonable judge of an employee’s suitability for driving.
No. 09-1315 11
B
Under the Mt. Healthy framework, Roadway must
prove that it would have fired Cefalu because of his
accident history regardless of whether he engaged in
protected conduct. See Roadway I, 495 F.3d at 486. Road-
way need not, however, show that Cefalu’s employment
would violate any regulatory rules. If Roadway employs
more stringent safety standards than those required by
law, then it is entitled to hold Cefalu to them. Nonethe-
less, in order to satisfy its burden, Roadway cannot
simply cite “standards established in its employee man-
ual.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1048 (7th Cir.
1999). It must instead demonstrate that it had an “actual
employment practice[]” of firing drivers with records
analogous to Cefalu’s. Id.; Price Waterhouse v. Hopkins, 490
U.S. 228, 252 (1989) (“Proving that the same decision would
have been justified is not the same as proving that the
same decision would have been made.”). On remand, the
parties both submitted evidence about the way that
Roadway treated other drivers with accident records.
Given the conflicting evidence on Roadway’s termina-
tion practices, the ARB found that Roadway had failed
to carry its burden.
Although we acknowledge that reasonable people
might differ about the outcome here, we have no trouble
finding that substantial evidence supported the ARB’s
decision. Cf. Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004)
(concluding that defendant failed to carry its burden of
proof under Mt. Healthy). Cefalu’s three most recent
accidents were all relatively minor incidents resulting
12 No. 09-1315
in little property damage. His only two serious accidents
occurred between 12 and 17 years ago. Cefalu presented
evidence that Roadway had retained drivers who had
been involved in much more egregious accidents. For
instance, Roadway did not fire Eric Jorgensen after he
drove his truck into a power line—a mishap that caused
the truck to roll over and spill hazardous materials.
Nor did Roadway terminate Kevin Embry’s employment
after he propelled his truck into a low bridge that was
clearly marked. Roadway has also continued to employ
drivers who had been responsible for multiple acci-
dents. The most extreme example is Donna Sexton, who
was still employed after getting herself into at least
10 chargeable accidents while working for Roadway.
Roadway’s evidence that it fired four drivers because
they were involved in accidents does little to undercut
the view that the ARB took of Cefalu’s case. At most,
it shows that there was evidence on the other side that
might have swayed the decision. Three of the drivers that
Roadway sacked were involved in what Roadway de-
scribed as “serious” accidents caused by their reckless-
ness. The other driver was involved in three preventable
accidents in a single month. In contrast, Cefalu’s recent
accidents took place over a year-long period and Roadway
described the accidents as “preventable” but not serious.
Shifting its line of attack, Roadway urges that we
should accord little weight to Cefalu’s evidence that the
company in the past has retained other drivers with
serious accident records. Their retention, Roadway says,
came as the result of a settlement with the union; those
No. 09-1315 13
settlements provided that Roadway could suspend the
offending drivers rather than fire them. Roadway im-
plies that it would have taken the more drastic step but
for the union’s intervention. There is some evidence
that Roadway had a practice of issuing discharge notices
that would then be reduced to suspensions after negotia-
tions with the union or by order of a grievance panel.
Roadway therefore claims that its agreement with the
union to settle these termination disputes provides
little indication of whether it would have fired Cefalu,
since the union did not side with Cefalu when he con-
tested his discharge.
Yet Roadway fails to recognize that the union may
have declined to take up Cefalu’s grievance because
it believed that he had been dishonest, which was
Roadway’s proffered reason for firing Cefalu. There is
nothing to indicate that the union had a problem with
Cefalu’s driving record. As the Department of Labor
points out, it is unlikely that the union would take such
a position given that it had defended drivers involved
in much worse accidents. Furthermore, Roadway has
done little to support a finding that it would have fired
every driver involved in a serious accident if the union
had not stepped in. Simply because its practice is to
issue discharge orders and then negotiate with the
union does not mean that it would never settle a termina-
tion proceeding with an employee who lacked union
support.
Lastly, assuming that Cefalu’s driving record would not
have constituted grounds for termination, Roadway con-
14 No. 09-1315
tends that it would violate the public policy underlying
the Surface Transportation Assistance Act to reinstate
Cefalu, an allegedly dangerous driver. But, as the ARB
noted and Roadway does not deny, Roadway routinely
retains drivers even though they have some safety prob-
lems in their record. The ARB was entitled to conclude
that Roadway failed to demonstrate that Cefalu’s rein-
statement puts the public in harm’s way. It demonstrated
neither that Cefalu’s continued employment would vio-
late any regulatory rules nor that it would violate any
internal practices Roadway actually uses. As our dis-
cussion shows, there is more than enough evidentiary
support for the ARB’s conclusion that Cefalu’s driving
history does not indicate that he is unfit to drive a truck.
We therefore conclude that the ARB was entitled to
find that reinstatement was an appropriate remedy in
this case. In reaching this conclusion, we emphasize that
Cefalu has no right to any preferential treatment as a
result of his protected activity. Roadway was (and will
be) free to terminate Cefalu’s employment for any
reason unrelated to his protected activity. Thus, if Cefalu
proves to be a danger on the road in the future or other-
wise engages in impermissible conduct, Roadway is in
no way inhibited from firing him.
* * *
We D ENY Roadway’s petition for review.
7-22-10