United States Court of Appeals
For the First Circuit
No. 09-2148
R & B TRANSPORTATION, LLC; PAUL BEAUDRY,
Petitioners,
v.
UNITED STATES DEPARTMENT OF LABOR,
ADMINISTRATIVE REVIEW BOARD,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE ADMINISTRATIVE
REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
James F. Laboe, with whom Orr & Reno, P.A., was on brief for
petitioners.
Ronald J. Gottlieb, Attorney, Office of Solicitor, with whom
Deborah Greenfield, Acting Deputy Solicitor of Labor, Joseph M.
Woodward, Associate Solicitor for Occupational Safety and Health,
and Charles F. James, Counsel for Appellate Litigation, were on
brief for respondent.
August 26, 2010
TORRUELLA, Circuit Judge. Peter Mailloux ("Mailloux")
filed an administrative complaint against R&B Transportation, LLC
("R&B"), and its owner, Paul Beaudry ("Beaudry") (collectively
"Petitioners"), alleging that Mailloux was unlawfully discharged
from his job as a commercial trucker for his adherence to federal
safety standards. Mailloux sought relief under the employee
protection provisions of Section 405 of the Surface Transportation
Assistance Act of 1982 ("the STAA"), 49 U.S.C. § 31105.1 A final
decision and order of the U.S. Department of Labor's Administrative
Review Board ("ARB") determined that Mailloux's termination
violated the STAA, and awarded backpay and other expenses. After
careful review, we deny the petition.
1
The STAA prohibits employers from taking adverse employment
actions against employees, including drivers of commercial motor
vehicles, who engage in certain protected activities. 49 U.S.C.
§ 31105(j). Specifically, the STAA provides, in relevant part:
(a) Prohibitions.
(1) A person may not discharge an employee, or
discipline or discriminate against an employee regarding
pay, terms, or privileges of employment, because--
(A)(i) the employee, or another person at the
employee's request, has filed a complaint or begun a
proceeding related to a violation of a commercial motor
vehicle safety or security regulation, standard, or
order, or has testified or will testify in such a
proceeding . . .
(B) the employee refuses to operate a vehicle
because--
(i) the operation violates a regulation,
standard, or order of the United States related to
commercial motor vehicle safety, health, or security
. . . .
49 U.S.C. § 31105(a)(1)(A)(i)-(B)(i).
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I. Facts2
A. Mailloux's Employment
Beaudry owns two trucking companies, R&B and Beaudry
Enterprises. He also co-owns BAT Express, a third trucking
company. These three entities share office space and drivers.
Neither Beaudry Enterprises nor BAT Express is a party to this
case.
In late-August 2004, Petitioners hired Mailloux as a
driver of a commercial motor carrier, an over-the-road truck, to
deliver loads on routes between New England and Florida.3 During
the scope of his employment through December 17, 2004,4 Mailloux
reported to Heather Bagley ("Bagley"), who was Beaudry's
administrative assistant, that it was not possible to make various
deliveries on time without violating the Federal Motor Carrier
Safety Act, the Department of Transportation's ("DOT") hours of
service regulation (the "driving regulation"), which restricts the
number of hours drivers of commercial motor vehicles may work over
2
These facts are drawn from the factual findings of the
Administrative Law Judge ("ALJ"), which the ARB affirmed.
3
Mailloux's exact start date is disputed and germane to the back
pay issue, which Petitioners raise in this petition. See infra
Part III.D.
4
The ALJ found that Mailloux was fired on December 17, 2004, a
finding the ARB affirmed and is uncontested on appeal.
Notwithstanding the ALJ's finding that Mailloux was "discharged" on
December 21, 2004, and OSHA's order to Petitioners to pay Mailloux
back wages from December 26, 2004, we thus adopt December 17, 2004,
as Mailloux's undisputed termination date.
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a certain period of time. See 49 C.F.R. § 395.3(b)(2).5 Bagley
informed Mailloux that the deliveries had already been scheduled
and could not be changed.
On December 17, 2004, Mailloux called Beaudry's home to
inform Beaudry that he was unable to make a particular delivery
from Florida on time both because he had a flat tire and because he
had already driven the maximum allowable number of hours under the
driving regulation. During this conversation, Beaudry told
Mailloux to return the truck to R&B's facility in New Hampshire and
Beaudry would inquire about arranging for Mailloux to be
transported back to Florida. Mailloux responded, "I guess that
means I'm fired." Beaudry said only "get the truck back up here"
before the conversation ended. When Mailloux later spoke with a
fellow R&B driver, the driver told Mailloux "yeah, you're fired."
5
49 C.F.R. § 395.3(b)(2) provides, in full:
(b) No motor carrier shall permit or require a driver of
a property-carrying commercial motor vehicle to drive,
nor shall any driver drive a property-carrying commercial
motor vehicle, regardless of the number of motor carriers
using the driver's services, for any period after . . .
(2) Having been on duty 70 hours in any period of 8
consecutive days if the employing motor carrier operates
commercial motor vehicles every day of the week.
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B. OSHA Investigation and Testimony Before the ALJ
On December 20, 2004,6 Mailloux contacted the U.S.
Department of Labor's Occupational Safety and Health Administration
("OSHA") to report that he would soon be discharged from R&B and
wanted to speak to someone. The following day, Mailloux was,
according to the ALJ, "discharged."
Later, on December 27, 2004, Mailloux met with Christine
Kidder ("Kidder"), an OSHA investigator, and told her that during
his employment with R&B he was continually required to drive in
excess of the driving regulation. During this interview, Mailloux
informed Kidder that he routinely falsified his driving logs for
R&B in order to provide the appearance that he was in compliance
with the driving regulation.
After this initial interview with Mailloux, OSHA
conducted an investigation of R&B, including an interview with
Beaudry. When Kidder contacted Beaudry, he informed her that he
had fired Mailloux due to his inability to properly plan his trips,
which were costing the company time and money. During this
interview, Kidder inquired whether R&B followed the driving
regulation. Beaudry represented that he had never violated the
6
The recommended decision and order of the ALJ indicates that
Mailloux initially called the Occupational Safety and Health
Administration ("OSHA") investigator on "December 20, 2005," and
that the investigator conducted the interview with Mailloux on
"December 27, 2005." However, it is clear from the record that
these events occurred on their respective dates in 2004.
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driving regulation. Later, during the ALJ hearing, Beaudry
testified that R&B submits written notices to drivers whose driving
logs are false or violate the driving regulation. Beaudry further
testified that he submitted such notices to Mailloux and ultimately
fired him because he was driving in excess of the maximum hours
allowable by the driving regulation.
Following her interview with Beaudry, Kidder contacted
the DOT's Federal Motor Carrier Safety Administration ("FMCSA") and
obtained compliance reviews and enforcement reports relating to R&B
("the DOT reports"). These reviews and reports are the
investigative reports prepared by "an agent"7 who visits a company
to determine whether they are in compliance with the driving
regulation. Based on an audit the FMCSA conducted of R&B and on
Kidder's own review of the DOT reports, Kidder learned that Beaudry
and all three of the companies in which he had an interest had
previously been cited for violating the driving regulation.8 The
most recent DOT report, dated April 12, 2005, showed R&B's
violations of the driving regulation, as well as other DOT
regulations, for the period August 23, 2004, to February 22, 2005,
a time frame that included Mailloux's employment. Additionally,
7
The record does not indicate what sort of "agent" conducted this
investigation.
8
The fact that these three companies share office space and
drivers is, according to testimony the Division Administrator of
the DOT's FMCSA provided to the ALJ, the reason their compliance
with the driving regulation was jointly reviewed.
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past DOT reports showed that R&B and the other two trucking
companies in which Beaudry had an interest had previously been
cited for violations on September 14, 2000; January 22, 2001; and
June 14, 2001. Petitioners paid civil penalties associated with
some of these violations.
As part of Kidder's investigation, she also interviewed
Bagley, who informed her that R&B drivers routinely violated the
driving regulation because they often could not otherwise complete
their trips on time. Bagley stated that drivers would complain to
her about driving in excess of the regulation, and the company
consequently experienced high turnover. Bagley later testified to
the ALJ in a deposition that when she hired drivers and they
inquired about compliance with the driving regulation, she would
tell them that the company complied with the regulation, even
though she knew Beaudry would soon have them driving in excess of
it. Bagley also testified to the ALJ that Trish Patrick, Beaudry's
daughter and employee, instructed Bagley to separate toll receipts
from a truck driver's time log when they did not match in order to
conceal violations of the driving regulation.
Scott Hill ("Hill"), another R&B driver, testified about
his experience working for Petitioners. Like Mailloux, Hill worked
for R&B from August 2004 until December 2004. Hill testified that,
during his employment with Petitioners, he consistently made
deliveries in excess of the driving regulation. Hill stated that
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he falsified his driving logs to make it appear as if he were
driving within the legal limitations. Hill further testified that
Beaudry met with him about his violations, and used Mapquest to
illustrate how a driver could make his deliveries on time and still
comply with the driving regulation. Hill also testified that
Beaudry suggested that when Hill was driving in Florida he could
log his driving hours as a local delivery, even though it was an
interstate one. Hill additionally testified that he brought up the
driving regulation issue with Beaudry. Hill stated he told Beaudry
at one point that he needed "a break, I got to slow down, I want to
run legal," and that Beaudry responded that he had "other drivers
that will run." Hill testified that he stopped working for R&B on
December 30, 2004, because he was exhausted.
II. Procedural History
A. OSHA Findings and Petitioners' Appeal (2006)
On January 9, 2006, OSHA issued its findings. OSHA
determined that Petitioners violated the STAA by discharging
Mailloux after his complaint to Petitioners regarding his work
hours. OSHA ordered Petitioners to pay Mailloux back wages from
December 26, 2004, through February 27, 2005, the date on which he
commenced his new employment.
The same day OSHA issued its findings, Petitioners
appealed OSHA's order to the ALJ. Petitioners argued that Mailloux
was terminated for performing poorly, violating the driving
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regulation, and failing to communicate with the company's
dispatcher in a timely manner.
B. ALJ's Recommended Decision and Order (2007)
Following a hearing, the ALJ issued a recommended
decision and order on June 8, 2007. The ALJ observed that the DOT
reports revealed that R&B's violations of the driving regulation
existed before, during, and after Mailloux's employment with the
company. The ALJ noted that the DOT reports suggested a pattern of
violations associated with R&B's day-to-day operations.
Additionally, the ALJ relied on these records and other evidence to
find that Mailloux was terminated in violation of the STAA. The
ALJ concluded that Mailloux was entitled to relief, which included
reinstatement and compensatory damages, such as back pay, pursuant
to 49 U.S.C. § 31105(b)(3)(A).9 Because Mailloux was not seeking
reinstatement, the ALJ granted him back pay from December 17, 2004,
9
49 U.S.C. § 31105(b)(3)(A), concerning "Filing complaints and
procedures," provides, in full:
(3) (A) If the Secretary of Labor decides, on the basis
of a complaint, a person violated subsection (a) of this
section, the Secretary of Labor shall order the person
to--
(i) take affirmative action to abate the violation;
(ii) reinstate the complainant to the former
position with the same pay and terms and privileges of
employment; and
(iii) pay compensatory damages, including backpay
with interest and compensation for any special damages
sustained as a result of the discrimination, including
litigation costs, expert witness fees, and reasonable
attorney fees.
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the date of his termination, to February 27, 2005, when he obtained
new employment, as well as travel expenses associated with the
litigation. The ALJ's order suggested that Petitioners compensate
Mailloux in the amount of $9,946.80 plus interest for back pay,10
and $314.58 for reimbursed travel expenses. Pursuant to 29 C.F.R.
§ 1978.109(a), the ALJ's recommendation was automatically forwarded
for review to the ARB.
C. ARB's Final Decision and Order (2009)
On June 26, 2009, the ARB issued its final decision and
order. The ARB affirmed the recommendation by the ALJ and ruled
that Mailloux had proven by a preponderance of the evidence that he
had engaged in a protected activity (when Mailloux informed Beaudry
during the December 17, 2004, telephone conversation that Mailloux
could not complete the delivery then assigned to him without
violating the driving regulation), that R&B was aware of the
protected activity, and that R&B took an adverse employment action
(the December 17, 2004, termination) against Mailloux because of
it.
10
The ALJ calculated this wage rate loss using the following
figures. Mailloux worked for a total of 108 days between his start
date on August 25, 2004, and his end date on December 17, 2004.
During that time, he earned $14,919.66, which, when divided by 108,
yielded a daily wage rate of $138.15. Given that Mailloux was out
of work for 72 days between his end date with R&B and the start
date of his new employment on February 27, 2005, his daily wage of
$138.15 multiplied by 72 days out of work yielded the $9,946.80
wage rate loss.
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The ARB held that substantial evidence on the record
supported the ALJ's factual findings, and that those findings were
conclusive. The ARB also held that the ALJ did not abuse its
discretion in admitting the DOT reports to which Kidder and a DOT
representative testified, and that these reports were reliable
indicators of R&B's actual violations of the driving regulation.
Additionally, the ARB found that there was substantial evidence to
support the ALJ's finding that R&B required its drivers to drive in
excess of the driving regulation and that its drivers were not
disciplined for hours of service violations. Furthermore, the ARB
found substantial evidence in the record, including the fact that
Beaudry did not have Mailloux's driver's log record indicating a
violation of the driving regulation at the time he terminated him,
to support the ALJ's finding of a causal connection between
Mailloux's protected activity and his termination.
Petitioners had also argued that the ALJ erred in
calculating Mailloux's daily average wage rate with R&B, asserting
that Mailloux's actual start date was August 7, 2004, which, if
used instead of August 25, 2004, would reduce his award for the 72-
day period during which he was unemployed because it would increase
the total number of days he worked and thus decrease his daily
average wage rate. Nevertheless, because the ARB found that R&B
did not properly raise this issue before the ALJ, the ARB declined
to consider the issue on appeal and affirmed the recommended award.
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D. Petition for Judicial Review (2009)
In August 2009, R&B and Beaudry timely petitioned this
court to review the ARB's final decision and order. Petitioners'
petition raises three issues. They argue that (1) evidence that
R&B and other trucking companies owned by Beaudry had violated DOT
regulations was improperly admitted by the ALJ into evidence; (2)
the ARB erroneously upheld the ALJ's decision that a causal
connection existed between Mailloux's protected activity and the
adverse employment action against him; and (3) the ARB erred in
finding that substantial evidence existed in the record to justify
the ALJ's decision regarding back pay.
III. Discussion
A. Standard / Scope of Review
"We review the ARB's final decision in accordance with
the dictates of the Administrative Procedure Act, 5 U.S.C. § 701 et
seq." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 19
(1st Cir. 1998). "The ARB's decision must be affirmed unless its
legal conclusions are arbitrary, capricious, or otherwise not in
accordance with law, or its factual conclusions are unsupported by
substantial evidence." Id.; see also 5 U.S.C. § 706(2)("The
reviewing court shall . . . hold unlawful and set aside agency
action, findings, and conclusions found to be (A) arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law; . . . [or] (E) unsupported by substantial evidence . . .
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."). "Substantial evidence is more than a scintilla, and must do
more than create a suspicion of the existence of the fact to be
established. It means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." BSP Trans, Inc.
v. United States Dep't of Labor, 160 F.3d 38, 47 (1st Cir.
1998)(quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S.
292, 300 (1939)(citation and internal quotation marks omitted)).
B. The DOT Reports
i. Standard / Scope of Review
Since whether the ARB properly affirmed the ALJ's
decision to admit the DOT reports is an evidentiary ruling, we
review it for abuse of discretion. See, e.g., United States v.
Richardson, 515 F.3d 74, 84 (1st Cir. 2008); Curtin v. Office of
Pers. Mgmt., 846 F.2d 1373, 1378-79 (1st Cir. 1988); see also
Barker v. Admin. Review Bd., 302 Fed. Appx. 248, 249 (5th Cir.
2008)("An ALJ is granted broad discretion to make evidentiary
determinations."). "An abuse of discretion occurs when a relevant
factor deserving significant weight is overlooked, or when an
improper factor is accorded significant weight, or when the court
considers the appropriate mix of factors, but commits a palpable
error of judgment in calibrating the decisional scales." United
States v. DeCicco, 370 F.3d 206, 210 (1st Cir. 2004)(citation and
quotation marks omitted).
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ii. Legal Framework
The Federal Rules of Evidence do not apply in APA
proceedings. Instead, the rules of evidence in administrative
hearings before an ALJ provide, in part, that
[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a
person in order to show action in conformity
therewith. It may, however, be admissible for
other purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or
accident.
29 C.F.R. § 18.404(b) (emphasis added). These rules of evidence
also provide the following hearsay exception, concerning "[p]ublic
records and reports": "Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting
forth . . . [f]actual findings resulting from an investigation made
pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of
trustworthiness." 29 C.F.R. § 18.803(a)(8).
iii. Analysis
The ARB held that the ALJ did not abuse its discretion in
admitting the DOT reports, considering them within the "[p]ublic
records and reports" hearsay exception and "only to the extent that
they reflect R&B's knowledge of its obligations pursuant to the
hours of service regulations." Petitioners argue that the ALJ
improperly relied on the DOT reports as highly prejudicial
character evidence that showed, besides R&B's knowledge of its
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legal obligations, which Petitioners claim was undisputed, that R&B
was acting in conformity with its past violations of the driving
regulation. Respondent counters that the DOT reports were properly
admitted as "[p]ublic records and reports" and to show Beaudry's
motive and knowledge in terminating Mailloux's employment.
First, Petitioners do not dispute that the DOT reports
are "[f]actual findings resulting from an investigation made
pursuant to authority granted by law." Petitioners do contend,
however, that the DOT reports "indicate lack of trustworthiness."
In making this claim, Petitioners cite to a New Jersey Superior
Court case from 1988 that quotes a 1985 opinion from the Fifth
Circuit stating that "OSHA citations are the opinions of
investigators and ordinarily do not 'carry with [them] the indicia
of reliability that is inherent in government adopted safety
standards.'" Millison v. E.I. du Pont de Nemours & Co., 545 A.2d
213, 224 (N.J. Super. Ct. App. Div. 1988)(alteration in original)
(quoting Dixon v. Int'l Harvester Co., 754 F.2d 573, 581 n.5 (5th
Cir. 1985)). In any event, as the ARB observed, R&B paid the
penalties imposed by the DOT as a result of the admitted reports,
the terms of which explicitly stated that such payments "constitute
admission of the violation(s)." These admissions bolstered the
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trustworthiness of the DOT reports, supporting the ALJ's
consideration of the reports as being within its discretion.11
Second, Beaudry's knowledge in discharging Mailloux is,
as discussed in Part III.C., relevant to the instant case. The DOT
reports suggested that Beaudry knew or should have known of the
driving regulation and R&B's failure to comply with it in the past.
The DOT reports indicated that Beaudry knew or should have known he
was not telling the truth when he told Kidder that he had never
violated the driving regulation, which undermined his credibility
when testifying. The Ninth Circuit has observed that, "[w]hen
offered to prove knowledge, . . . the prior act need not be similar
to the charged act as long as the prior act was one which would
tend to make the existence of the defendant's knowledge more
probable than it would be without the evidence." United States v.
Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992). Here, the
prior acts of Petitioners were their violations of the driving
regulation. These acts would certainly be relevant as tending to
show that Petitioners were aware of their obligations under the
driving regulation, that their employees were supposed to comply
11
Petitioners argue that their payment of the DOT penalties should
not be taken as an admission of the underlying violations because,
Petitioners claim, they paid the penalties merely "in an effort to
avoid litigation and to resolve the outstanding disputes." This
argument is unavailing because Petitioners' reason for paying the
penalties is irrelevant to their constructive admission.
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with it, and that Petitioners had repeatedly violated that
regulation in the past.
We thus hold that it was not an abuse of the ALJ's broad
discretion to admit the DOT reports not as character evidence but
both pursuant to the "[p]ublic records and reports" hearsay
exception and as proof of Petitioners' knowledge concerning their
history of complying with the driving regulation. However, even if
the ALJ abused its discretion here, any purported error was
harmless in light of the other evidence against Petitioners, which
was substantial, as discussed in the next Part. See Mekhoukh v.
Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004) (reviewing an
evidentiary ruling in the administrative law context for
harmlessness).
C. The STAA Claim
i. Legal Framework
"A prima facie case of unlawful termination under the
STAA requires a showing that the employee engaged in protected
activity, that the employee was subjected to adverse employment
action, and that there was a causal connection between the
protected activity and the adverse action." Clean Harbors Envtl.
Servs., Inc., 146 F.3d at 21. "If a complainant makes out a prima
facie case, the employer may rebut that showing with evidence of a
legitimate, non-retaliatory reason for the adverse employment
action. The burden then shifts back to the complainant to prove
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that the proffered reason is actually a pretext for unlawful
retaliation." BSP Trans, Inc., 160 F.3d at 46; see also Day v.
Staples, Inc., 555 F.3d 42, 53 (1st Cir. 2009).
ii. Analysis
Mailloux engaged in protected activity when he informed
Beaudry on December 17, 2004, that he refused to exceed the driving
regulation to make a particular delivery on time. Because Mailloux
was speaking to Beaudry, Petitioners knew of Mailloux's protected
activity. Mailloux was then subjected to an adverse employment
action when Beaudry terminated him during the same conversation.
These three ALJ findings are undisputed. We thus consider whether
substantial evidence supports the ARB's affirmance of the ALJ's
conclusions that there was a causal connection between Mailloux's
protected activity and the adverse action against him, and that
Petitioners' proffered reason for the adverse action was actually
a pretext for unlawful retaliation. We find that such substantial
evidence exists.
Petitioners argue that Mailloux failed to prove a causal
connection between his protected activity and termination. In so
doing, they assert that substantial evidence in the record,
including Beaudry's testimony, supports a determination that there
was a legitimate, non-retaliatory reason for discharging Mailloux,
and that the ARB erred in upholding the ALJ's contrary decision.
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Petitioners submit that R&B diligently processes its
drivers' paperwork and relies heavily upon them to provide accurate
and timely information regarding their hours of duty. Petitioners
also contend that Mailloux, of his own accord and without informing
R&B, falsified his data logs due to his bleak financial situation,
because if he had followed the driving regulation, Mailloux would
have earned less money. Petitioners claim that R&B later uncovered
these violations and informed Mailloux of them in order to compel
him to conform to R&B's policy of requiring its drivers to comply
with the driving regulation. Thus, Petitioners claim that, rather
than as a result of his protected activity, Mailloux was terminated
for a legitimate business purpose: because he refused to conform
his conduct to the company's standards of properly logging driving
time and keeping within the requirements of the driving regulation.
However, the ALJ specifically disbelieved Beaudry's
testimony. First, the ALJ found that Beaudry's testimony that R&B
required its drivers to comply with the driving regulation was
undermined by the DOT reports. Second, the ALJ concluded that
Beaudry was "lying" when he told Kidder that he had never received
any previous citations from the DOT for hours of service
violations.12 As the finder of fact and a witness to Beaudry's
12
Although Kidder clarified on cross examination that Beaudry had
actually said that he never violated the regulations –- not that he
received no citations –- the ALJ's logic and conclusion here are
still valid: because Beaudry's payment of the fines constituted an
admission of the underlying violations, the testimony by Kidder on
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testimony, the ALJ's "credibility determinations are entitled to
great deference." See P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d
100, 108 (1st Cir. 1997). We have previously observed in another
case involving alleged retaliation when an employee engaged in
protected activity that a fact finder can find pretext for unlawful
termination where "the employer's proffered explanation is unworthy
of credence." See McDonough v. City of Quincy, 452 F.3d 8, 18 (1st
Cir. 2006) (quoting Reeves v. Sanderson Plumbing Prods. Inc., 530
U.S. 133, 143 (2000))(internal quotation marks omitted). The ALJ
could thus find that Beaudry's testimony about Mailloux's on-the-
job conduct was pretext for Mailloux's unlawful termination because
the ALJ had found Beaudry's proferred explanation to be unworthy of
credence.
Other evidence in the record further supports the ALJ's
finding that Mailloux's termination was on account of his protected
activity and not his non-compliance with the driving regulation.
Bagley testified that Petitioners were aware that their drivers
exceeded the hours allotted by the driving regulation, and,
further, that they expected their drivers to do so. Hill testified
that Petitioners regularly pressured their drivers to violate the
driving regulation. Thus, based on the testimonies of Mailloux,
Beaudry, Bagley, and Hill, and the DOT reports, we find that
which the ALJ based the finding that Beaudry was lying did in fact
support this finding.
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substantial evidence supports the findings that a causal connection
existed between Mailloux's protected activity and the adverse
employment action against him, and that Petitioners' proffered
reason for terminating Mailloux was actually a pretext for unlawful
retaliation.
D. The Back Pay Award
The ALJ noted in its recommended decision and order that
Petitioners "have not challenged August 25, 2004 as [Mailloux's]
initial start date." Moreover, the ALJ found that Mailloux began
work on August 25, 2004, based in part on an absence of any
objection from Petitioners.
The ARB found that, as the ALJ noted, R&B did not raise
before the ALJ any issue regarding or dispute concerning the
calculation of Mailloux's back pay award. Consequently, based on
its precedent declining "to consider issues or arguments raised for
the first time on appeal," the ARB declined to consider the matter,
finding both that R&B had waived this argument on appeal and that
substantial evidence supported the ALJ's recommended back pay
award. As a result, the ARB affirmed the ALJ's recommended back
pay award.
Petitioners argue on appeal that the ALJ erred in
determining that the start date of Mailloux's employment was
August 25, 2004. Petitioners contend that their post-hearing
brief, which the ALJ ordered on July 28, 2006, and which
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Petitioners filed on October 30, 2006, specifically addressed the
issue of damages, and established Mailloux's start date as
August 7, 2004.
Petitioners did explicitly raise this matter in its post-
hearing brief. Under the "Statement of All Issues" in that brief,
Petitioners claimed that Mailloux's employment with R&B spanned 133
days, which Petitioners reiterated in the "Statement of Facts"
section of that brief and noted was based on an initial start date
of August 7, 2004. However, despite the ALJ's instructions in its
briefing order and warning about waiver,13 this statement was
unaccompanied by any argumentation in this brief and is also not
addressed in any way in Petitioners' December 8, 2006, response to
the post-hearing reply brief. Only on appeal do Petitioners
proffer an argument for their proposed alternate start date:
Mailloux signed a receipt for his copy of the Federal Motor Carrier
Safety Regulations Pocket Book on that date, indicating he
commenced employment then. As Petitioners, despite the ALJ's
instructions and warning, did not specifically address in their
post-hearing brief arguments concerning the back pay award, the
ARB's legal ruling that they waived the matter was not "arbitrary,
13
In its July 28, 2006 briefing order, the ALJ stated that each
brief shall include an argument "addressing each issue in a
separately numbered section." Furthermore, the ALJ noted that
"issues or arguments not specifically addressed in the brief will
be deemed to have been waived."
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capricious, an abuse of discretion, or otherwise not in accordance
with law," 5 U.S.C. § 706(2).
IV. Conclusion
For the reasons stated above, we deny review.
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