In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2296
D ONALD J. F ORMELLA,
Petitioner,
v.
U NITED STATES D EPARTMENT OF L ABOR,
Respondent,
and
S CHNIDT C ARTAGE, INC.,
Intervening Respondent.
Petition for Review of an Order of
the Occupational Health and Safety Administration.
No. 2006-STA-035
A RGUED N OVEMBER 30, 2009—D ECIDED D ECEMBER 10, 2010
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. Truck driver Donald J. Formella
was fired by Schnidt Cartage, Inc. (“Schnidt”) after he
raised safety concerns about the truck that Schnidt had
assigned him to drive. Formella filed a complaint with
2 No. 09-2296
the Department of Labor’s Occupational Safety and
Health Administration (“OSHA”) alleging that Schnidt
fired him in retaliation for his safety-related complaints,
in violation of Section 405 of the Surface Transportation
Assistance Act of 1982, P.L. No. 97-424, 96 S. Stat. 2097
(Jan. 6, 1983) (“STAA”). See 49 U.S.C. § 31105. An admin-
istrative law judge (“ALJ”) found that Schnidt discharged
Formella not because he refused to drive a vehicle
that he believed to be unsafe but rather “because of
his provocative, intemperate, volatile, and antagonistic
conduct” in expressing his concerns. Formella v. Schnidt
Cartage, Inc., ALJ No. 2006-STA-035, Recommended
Decision and Order 10 (ALJ Jan. 30, 2008) (“ALJ Dec.”). An
administrative review board (“ARB” or the “Board”)
sustained the ALJ’s decision. Formella v. Schnidt Cartage,
Inc., ARB No. 08-050, 2009 WL 891350 (ARB Mar. 19,
2009) (“ARB Dec.”). Formella seeks review of the ARB’s
decision, contending that the Board erred in failing to
apply the more employee-friendly provisions added to
the statute in 2007 and that, in any case, his conduct,
even if it was as confrontational as Schnidt claims it
was, did not exceed the leeway to which employees
complaining of unsafe practices are entitled. We deny
the petition for review.
I.
Although Schnidt’s witnesses and Formella gave dra-
matically different accounts of what transpired on the
day he was fired, the parties do agree on this much:
Formella was dissatisfied with the condition of the truck
No. 09-2296 3
he was assigned to drive, he expressed his safety-related
concerns to his superiors at the company, and he
was fired at the conclusion of his encounter with those
individuals. Where the witnesses diverged is on what
Formella said to his superiors and his tone and demeanor
in doing so. The conflicts in the witness accounts pre-
sented classic credibility questions for the ALJ to resolve.
But before we reach the decisions of the ALJ and the
Board, we shall briefly summarize the evidence that was
presented to them.
Formella was fired after he reported for work on Febru-
ary 23, 2006. Although he had over forty years of experi-
ence as a truck driver, Formella had been driving for
Schnidt for less than five months. Schnidt is a cartage
company that transports freight within a fifty-mile
radius of Chicago; it employs some twenty-six drivers.
Schnidt owns roughly one half of the trucks in its fleet;
the rest are leased from Penske Truck Leasing. The fleet
on the whole is older, and minor problems occur with
one or more trucks on a daily basis. Schnidt has a
mechanic on site to handle minor repairs, including
repairs to the leased vehicles. If one of the Penske trucks
requires a major repair, it is sent either to Penske or to
an outside mechanic.
On the morning of February 23, Formella arrived for
work and clocked in at 7:13, ahead of his scheduled start
time of 7:30 a.m. Shortly after his arrival, Schnidt Vice-
President Linda Markus held a meeting with Formella
and several other drivers in which she spoke out against
pending efforts to unionize them: if those efforts were
4 No. 09-2296
successful, she warned, the company’s owner would
“close the doors.” Tr. 86, 90. Following that meeting,
Formella proceeded to the truck he had been assigned
to drive that day.
When Formella inspected the truck, several things
caught his attention. First, the truck was not the one he
had been driving for most of his tenure with Schnidt.
That truck, like its replacement, was a Penske rental; and
it was not unusual for Penske to recall a vehicle from
Schnidt’s fleet either because the lease period was con-
cluding or because Schnidt wanted to sell the truck to a
third party. The truck formerly assigned to Formella
had been swapped out the night before, without fore-
warning to Formella. Second, the requisite permits from
the Department of Transportation, which were supposed
to be kept in the truck at all times, were missing. Third,
the truck’s high-beam headlights were not working,
and one or more of the reflectors or lights on the rear of
the truck were missing or inoperative. Fourth, and most
important as it would turn out, the rear or “drive” tires
on the truck had mismatched tread patterns. Based upon
the knowledge he had acquired from his experience,
from trucking magazines, and from federal regulations,
Formella was concerned that the mismatch could result
in “what they call a traction spitout,” Tr. 31, which
“could cause sliding, and loss of control of the vehicle”
in wet or snowy conditions. Tr. 31; see also Tr. 33. In
conditions of extreme heat, on the other hand, the mis-
match might prevent the tires from cooling, such that
“[t]he tire would actually overheat and blow.” Tr. 34.
No. 09-2296 5
Formella testified that once he noticed the problems
with the lights and tires of his assigned truck, he went
into the dispatch office. After he reported the problems
to the dispatcher, the dispatcher informed him that
Markus wished to see him in her office. Formella went
to her office as requested and a discussion ensued. Paul
Landowski, who was responsible for the purchasing,
leasing, maintenance and safety of Schnidt’s fleet, came
into Markus’s office at some point during that conversa-
tion, and Formella indicated that he believed the truck
was out of compliance with federal and state regulations
in view of the inoperative headlights and reflector and
the mismatched tire treads. Markus advised him that if
he was unhappy with his job, he could quit. When
Formella refused to resign, Markus fired him. Formella
testified that he never stood up or raised his voice at
any time during this encounter, which was the one
and only interchange he had with Markus on the
morning of his discharge.
Markus portrayed events on the morning of Formella’s
discharge quite differently. She testified that she had
three successive exchanges with him on that day: First,
Formella came to the dispatch office questioning his
truck assignment, and either Markus or the dispatcher
advised him that he had been assigned a different truck
from the one he had been driving. Five or ten minutes
later, Formella came back into the office to report that
there were no permits in the truck, which Markus then
supplied to him. Approximately fifteen minutes later,
Formella came into the office a final time to voice his
safety concerns about the truck. It was this third exchange,
according to Markus, that culminated in his discharge.
6 No. 09-2296
Markus described Formella as “very boisterous” when
he re-entered the office complaining about the prob-
lems with the lights and tire treads on his truck. Tr. 68.
Markus, who was standing at the dispatch window
speaking with the dispatcher and another driver, Charles
Miehle, summoned Formella into her office. She asked
Landowski to join them. Landowski left Markus’s office
at one point during the ensuing discussion to tele-
phone Penske about the tire treads and to have
Schnidt’s mechanic fix the lights on Formella’s truck.
Markus said that Formella became both “louder” and
more “vehement” during the discussion, Tr. 72, 73, so
much so that at one point employees in the building’s
warehouse came running into the office area to see
what the commotion was and whether someone needed
help. Tr. 128. “Everybody heard the shouting,” Markus
testified. Formella, according to Markus, also criticized
Landowski’s competence. Markus advised Formella that
if he was so unhappy, he might consider working else-
where. Formella, in return, “kept pushing and getting
more and more volatile and agitated,” Tr. 127, repeatedly
asking Markus, “[A]re you telling me I’m fired?” Tr. 73.
Ultimately, based on Formella’s “volatile condition, . . . his
anger, [and] his unstableness,” Tr. 74, Markus did fire
Formella. See also Tr. 143. She acknowledged that he
made no threatening remarks and remained seated
(albeit on the edge of his seat) during their discussion;
nonetheless, she felt “[a] bit threatened” by his tone
and demeanor. Tr. 73.
Landowski’s account was consistent with Markus’s.
Landowski testified that when he was summoned to
No. 09-2296 7
Markus’s office, Formella was already there. Landowski
described Formella as “very upset” and “almost hostile” to
him. Tr. 150. “[I]t was very, very loud in that office,”
Landowski testified. Tr. 150. Formella insisted that it
was both illegal and unsafe to operate a truck with mis-
matched treads. Landowski was sitting close to Formella
and, according to Landowski, Formella “got right into
my face” as he was speaking. Tr. 167; see also Tr. 150.
After responding that he did not believe the mis-
matched treads posed a safety problem, Landowski
stepped out of Markus’s office for a moment and
returned to his own in order to telephone Penske for
that company’s input. While he was there, he also
radioed Schnidt’s mechanic and asked him to deal with
the “light situation” on Formella’s truck. Tr. 151. Landow-
ski subsequently returned to Markus’s office and
reported that Penske believed the truck safe to drive
despite the mismatched treads. Formella insisted that
both Penske and Landowski were wrong, that “this is
illegal,” and that he “[couldn’t] be driving a vehicle like
that.” Tr. 151. Formella was also upset that his old truck
had been returned to Penske still bearing the CB radio
antenna that he had attached to the truck. Landowski
testified that Formella was “very red in the face” and
“very close” to his own face and that, like Markus, he
felt threatened by Formella. Tr. 152; see also Tr. 167. At
the same time, he believed that Formella’s complaint
about the mismatched treads was borne of his genuine
concern about the safety of the truck. Markus at some
point told Formella that he should leave if he was dis-
satisfied with Schnidt. Formella reiterated his belief
8 No. 09-2296
that there was “something wrong” with the truck and
that Landowski knew it. Tr. 153. “And at that point, this
was very loud, and at that point, Linda told him, Don,
I think that’s it. You’re let go from this company.” Tr. 153.
Two additional employees of Schnidt, each of whom
said that he had an encounter with Formella on the morn-
ing of his discharge, testified as witnesses for Schnidt.
Both described his behavior as hostile.
Truck driver Charles Miehle testified that when he
and Formella walked past one another, shortly after the
meeting at which Markus spoke out against efforts to
unionize the drivers, Formella said to him loudly, “[I]t’s
your fault.” Tr. 212. A discussion ensued between the
two men about the possibility of a union. When Miehle
indicated that he was not interested, Formella inquired
of Miehle, “[I]f I’m . . . going to put a contract under
your nose, you’re not going to sign the contract?” Tr. 213.
Miehle told him no. “I said it’s never going to happen.”
Tr. 213; see also Tr. 231. According to Miehle, Formella
was “in [his] face” during the conversation and was
“acting a little off,” almost “out of control.” Tr. 249, 252.
Miehle felt that the encounter “could have escalated real
easy,” Tr. 252, so he walked away from Formella. Ac-
cording to Miehle, Formella’s tone and manner in
asking Miehle about the possibility of a union contract
made it seem more like a threat than a question. Tr. 232,
233, 250, 252. And to Miehle, it was “a vile threat.” Tr. 253.
Miehle had lived through organizing disputes before
and had experienced first hand the workplace hostility,
threats, and sabotage that sometimes occur in such dis-
No. 09-2296 9
putes. Miehle found himself pacing the truck yard and
growing red in the face. In fact, he was so unsettled by
his encounter with Formella that he resolved to ask for
the day off. He discussed the incident with the dis-
patcher, who suggested that he go into the dispatch
office to calm down. He was doing just that five
minutes later when he witnessed Formella walk into
the dispatch office “making a lot of noise and ruffling
a lot of feathers in there.” Tr. 214; see also Tr. 239.
Driver Richard Osten had just arrived for work that
morning when he saw Formella exit his truck and walk
toward the dispatch office. Formella had parked his
truck in such a way that it was blocking the path of
another driver who was attempting to leave the lot. Osten
asked Formella whether he was going to move his truck,
but Formella simply gestured and walked on, so Osten
took it upon himself to move Formella’s truck. When
Formella came out of the dispatch office and saw Osten
getting out of his vehicle, he was furious. “[H]e said don’t
ever get in my fucking truck or I’ll kill you,” Osten re-
called. Tr. 180. “[H]e was up in my face and very
loud about it . . . .” Tr. 180. Osten said that Formella
appeared “dead serious” in threatening him. Tr. 196.
Osten decided that they ought to discuss the matter
with Markus, and he followed Formella back into the
dispatch office for that purpose. But before Osten could
say anything about the contretemps, Formella started
“yelling and screaming about the tires” to Markus, Tr. 200,
leaving Osten unable “to get a word in edgewise,” Tr. 199;
see also Tr. 180-81. Markus took Formella into her office.
This was evidently the last of the three encounters
that Markus had with Formella that day.
10 No. 09-2296
Having heard the testimony, the ALJ credited Schnidt’s
witnesses over Formella as to the manner in which he
voiced his safety concerns. Although the judge found
Formella’s testimony “generally credible,” ALJ Dec. 2,
and did not doubt that he had genuine concerns about
the safety of his assigned truck, the ALJ discredited
certain key aspects of Formella’s version of events, in-
cluding his testimony that he never raised his voice
during his conversations with Markus and Landowski,
that he voiced his safety concerns (and was dis-
charged) in a single conversation with these manage-
ment officials rather than the several conversations
that Markus described, and that he did not have an en-
counter with either Miehle or Osten on the morning of
his discharge. The judge found that Formella had, in
fact, had serial discussions with Markus and ultimately
Landowski as well, that he had altercations with both
Miehle and Osten during the same time frame, and that
he had “storm[ed] into the dispatch office, yelling, antago-
nizing, and provoking his superiors, by questioning their
capabilities, and repeatedly asking if he was fired . . . .”
ALJ Dec. 11. In finding the defense witnesses more
credible on these points, the ALJ noted that Markus and
Landowski had given consistent testimony concerning
Formella’s demeanor and temperament in his inter-
actions with them, the veracity of which he found to
be reinforced by the testimony of Miehle and Osten
concerning their own dramatic encounters with Formella
that same day.
Although the ALJ readily agreed that Formella
engaged in activity protected by the STAA when he
No. 09-2296 11
refused to drive the truck that had been assigned to him
based on his concerns about the safety of the vehicle,
and further that Formella had suffered an adverse em-
ployment action when he was discharged on the heels
of that protected activity, the judge also found that it
was Formella’s inappropriate behavior in complaining
about the condition of the truck rather than the fact of
his complaints which was the basis for his discharge.
“I conclude that Complainant was not terminated be-
cause of his protected activity. Rather he was terminated
because of his provocative, intemperate, volatile, and
antagonistic behavior.” ALJ Dec. 10.
The judge credited Markus’s testimony in this regard
despite his acknowledgment that she had not given
wholly consistent accounts of her reasons for terminating
Formella. In opposing the claim for unemployment com-
pensation that Formella filed after he was fired, Markus
had cited his behavior toward Miehle and Osten as
the basis for his termination. Yet, Markus later acknowl-
edged that she did not learn of Formella’s altercation
with Miehle until after she had already discharged
Formella, and the judge believed it unlikely that Markus
knew anything about Formella’s encounters with Osten
either when she fired Formella. At the hearing before the
ALJ, Markus testified that it was Formella’s behavior
during his discussions with her and with Landowski
that led her to fire him. The ALJ credited that later testi-
mony despite the conflict with her earlier position,
noting that the encounters Formella had with Markus,
Miehle, and Osten occurred closely in time, and “it is
reasonable that she could perceive the entire sequence of
12 No. 09-2296
events that morning as a single incident or fail to
correctly remember the sequence of when she became
aware of each event that occurred that morning.” ALJ Dec.
11 (footnote omitted).
The judge acknowledged that an employee like
Formella with a safety-related complaint should be
given some leeway for impulsive behavior in pursing
that complaint, but added that this leeway did not
include the right to engage in insubordinate and disrup-
tive behavior. ALJ Dec. 11. “ ‘An employee’s entitlement
to submit a complaint about a vehicle’s safety would
not mean that the employee was similarly entitled to
attach the complaint to a rock and throw it through
his supervisor’s window.’ ” ALJ Dec. 10 (quoting Harrison
v. Admin. Review Bd., U.S. Dep’t of Labor, 390 F.3d 752, 759
(2d Cir. 2004)). In the judge’s view, that is effectively
what Formella did when he barged into the dispatch
office and proceeded to antagonize and provoke
Markus and Landowski. “While Complainant may
have acted in response to legitimate safety concerns,
his behavior far exceeded any leeway to which he was
entitled.” ALJ Dec. 11.
Formella appealed the ALJ’s decision to the Admin-
istrative Review Board, which affirmed. 2009 WL 891350.
The ARB had no quarrel with the ALJ’s finding
that Formella, because he had a reasonable apprehen-
sion that he might lose control of the truck due to the
mismatched tire treads, engaged in STAA-protected
activity by refusing to drive the vehicle and that he suf-
fered an adverse employment action when he was dis-
No. 09-2296 13
charged. But the Board found substantial evidence sup-
porting the ALJ’s further finding that Formella’s intem-
perate behavior exceeded the leeway to which he was
entitled in raising his safety concerns. It cited the
testimony of Markus and Landowski as to Formella’s
demeanor and tone, as well as the testimony of Miehle
and Osten in corroboration of the fact that Formella
was angry and upset that morning. Like the ALJ, the
Board rejected the notion that Markus’s change in ex-
planation as to her reason for firing Formella—
from his confrontations with Osten and Miehle to his
confrontation with her and Landowski—compelled
the conclusion that her stated rationale was pretextual.
Even if Markus was embellishing when she referred to
the Osten and Miehle confrontations when she opposed
Formella’s claim for unemployment compensation, the
Board reasoned, substantial evidence nonetheless sup-
ported Schnidt’s contention that he was discharged for
his “loud and threatening conduct, not for his protected
activity.” Id. at *4.
II.
Section 405 of the STAA protects a commercial truck
driver from being discharged, disciplined, or otherwise
penalized because he has refused to operate a vehicle
that does not comply with the safety- and health-related
rules applicable to commercial motor vehicles or because
he has a reasonable apprehension of serious injury to
himself or to the public because the vehicle is unsafe to
14 No. 09-2296
operate. 49 U.S.C. § 31105(a)(1)(B)(i) and (ii).1 “Congress
recognized that employees in the transportation industry
are often best able to detect safety violations and yet,
because they may be threatened with discharge for co-
operating with enforcement agencies, they need express
protection against retaliation for reporting these viola-
tions.” Brock v. Roadway Express, Inc., 481 U.S. 252, 258, 107
S. Ct. 1740, 1745-46 (1987). A worker who believes his
employer has retaliated against him for engaging in
protected activity may file a complaint with the U.S.
Department of Labor’s Occupational Safety & Health
Administration. The Department of Labor conducts an
investigation to determine whether there is probable cause
to believe that the anti-retaliation provision of the STAA
has been violated. Either party has the right to object to
this initial finding and to request a hearing before an
ALJ. After conducting such a hearing, the ALJ issues a
decision and order, which is subject to review by the
ARB, to whom the Secretary of Labor has delegated
1
The statute also protects an employee who has “filed a
complaint . . . related to a violation of a commercial motor
vehicle safety or security regulation, standard, or order . . . .”
§ 31105(a)(1)(A)(i). However, this provision may not reach
Formella’s complaint, which was oral rather than written.
See Kasten v. Saint-Gobain Performance Plastics Corp., 570 F.3d
834 (7th Cir. 2009) (intracompany complaints are covered by
“filed any complaint” language of Fair Labor Standards Act’s
anti-retaliation provision, 29 U.S.C. § 215(a)(3), but such
complaints must be in writing in order to be deemed “filed”),
reh’g en banc denied over dissent, 585 F.3d 310 (7th Cir. 2009),
cert. granted, 130 S. Ct. 1890 (2010).
No. 09-2296 15
her final decisionmaking authority in such cases. See 29
C.F.R. § 1978.109(c)(1). The decision of the ARB is in
turn subject to review in the appropriate court of ap-
peals. See 49 U.S.C. § 31105(d).
We have noted that the STAA prohibits an employer
from taking adverse action against an employee “be-
cause” he has engaged in a form of activity that the
statute protects. § 31105(a). Standing alone, that
language would require the complaining employee to
show that his protected conduct was a but-for cause of
the discharge or other penalty imposed on him. See Gross
v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009); Serafinn
v. Local 722, Int’l Brotherhood of Teamsters, 597 F.3d 908, 915
(7th Cir. 2010); Serwatka v. Rockwell Automation, Inc., 591
F.3d 957, 961-62 (7th Cir. 2010); Fairley v. Andrews, 578
F.3d 518, 525-26 (7th Cir. 2009), cert. denied, 130 S. Ct. 3320
(2010). However, the statute was amended in 2007 to
incorporate the legal burdens of proof set forth in
the whistleblower provision of the Wendall H. Ford
Aviation Investment and Reform Act for the 21st
Century, 49 U.S.C. § 42121(b)(2)(B) (“AIR 21”). See 49
U.S.C. § 31105(b). Under the AIR 21 provision, a com-
plainant need only make a prima facie showing, by a
preponderance of the evidence, that his protected
activity was a contributing factor in the adverse action
taken against him; in the face of such proof, the
employer must demonstrate by clear and convincing
evidence that it would have taken the same action
against the complainant in the absence of his protected
activity. § 42121(b)(2)(B)(i) and(iv); see Harp v. Charter
16 No. 09-2296
Commc’ns, Inc., 558 F.3d 722, 723 (7th Cir. 2009) (inter-
preting Sarbanes-Oxley Act, 18 U.S.C. § 1514A(b)(2)(C),
which like STAA, incorporates burdens of proof set
forth in AIR 21). The statute as amended is thus more
favorable to the complaining employee. See Addis v. Dep’t
of Labor, 575 F.3d 688, 690-91 (7th Cir. 2009) (discussing
comparable language of Energy Reorganization Act,
42 U.S.C. § 5851(b)(3)(C)-(D)).
Formella has forfeited his belated contention that the
evidence should be evaluated under the statute as
amended. The statute was modified after the hearing
before the ALJ concluded, but nearly six months before
the ALJ rendered his decision. Yet, Formella did not
ask the ALJ to consider the applicability of the amend-
ments to his complaint, and the ALJ applied the statute
in its pre-amendment form. The ARB, in turn, noted
that the statute had been amended but, in the belief that
the amendments were irrelevant to the issues presented,
abstained from deciding whether they applied to this
case. 2009 WL 891350, at *1 n.1. For his part, Formella
did not argue to the ARB that it should apply the statute
in its amended form. Only in this court has Formella
raised the new burdens of proof specified by the amend-
ments and contended that he should enjoy their benefit.
It is far too late in the day to be making this contention.
The proceedings in the Department of Labor were ad-
versarial, and in an adversarial setting it is reasonable
to expect the parties to raise and develop any issues that
they want the ALJ and the ARB to address, on pain of
forfeiting any issues that they do not mention. See Sims
v. Apfel, 530 U.S. 103, 109-10, 120 S. Ct. 2080, 2085 (2000)
No. 09-2296 17
(“Where the parties are expected to develop the issues
in an adversarial administrative proceeding, it seems to
us that the rationale for requiring issue exhaustion is at
its greatest.”); id. at 112-13, 120 S. Ct. at 2086 (O’Connor,
J., concurring) (“In most cases, an issue not presented to
an administrative decisionmaker cannot be argued
for the first time in federal court. On this underlying
principle of administrative law, the Court is unani-
mous.”); id. at 114, 120 S. Ct. at 2087 (Breyer, J., dissenting)
(“Under ordinary principles of administrative law a
reviewing court will not consider arguments that a
party failed to raise in timely fashion before an admin-
istrative agency.”). As we are not convinced that any
manifest injustice will result from applying the statute
as it stood prior to the 2007 amendments, we may set
the amendments aside. See Russian Media Group, LLC
v. Cable Am., Inc., 598 F.3d 302, 308 (7th Cir. 2010).
Formella was therefore obliged, consistent with the pre-
amendment version of the statute, to prove that he
would not have been discharged had he not engaged in
activity that is protected by the STAA.2
2
The ALJ found that Formella engaged in protected conduct
by refusing to drive his assigned truck based on his reasonable
apprehension that the mismatched tire treads posed a serious
danger to himself or to the public. We note that both Markus
and Landowski denied having ever ordered Formella to
drive the truck despite his concerns; and Osten and Miehle
testified that when a driver was dissatisfied with the condi-
tion of his assigned vehicle, Schnidt would arrange for a
(continued...)
18 No. 09-2296
Apart from his forfeited argument as to the statutory
framework that the ALJ and the Board applied in their
examination of the evidence, Formella has not contested
the evidentiary support for the ALJ’s determina-
tion that Schnidt fired him based on his behavior in com-
plaining about the truck rather than on the exercise of
his right to voice safety-related concerns. Nor could he
reasonably make such a challenge. A finding as to an
employer’s true reason for discharging an employee is a
factual determination, see, e.g., Burnett v. LFW Inc., 472
F.3d 471, 482 (7th Cir. 2006), and in the present context,
we must accept that determination so long as it is sup-
ported by substantial evidence, see, e.g., Roadway
Express, Inc. v. U.S. Dep’t of Labor, 495 F.3d 477, 483 (7th
Cir. 2007) (citing Brink’s, Inc. v. Herman, 148 F.3d 175, 178
(2d Cir. 1998)); 49 U.S.C. § 3105(d); 5 U.S.C. § 706(2)(E). In
this case, the ALJ’s findings as to Formella’s tone, de-
meanor, and conduct in complaining about the truck’s
condition draw direct support from the testimony of
Markus and Landowski, and indirect support from the
2
(...continued)
replacement. Still, the ALJ determined that Formella had
effectively refused to drive the truck when, in response to
Landowski’s report that Penske believed the mismatched tire
treads posed no safety problem, Formella told Landowski
that “[he] was wrong and Penske was wrong” and “[t]hat is
illegal and I can’t be driving a vehicle like that.” Tr. 151.
Construing Formella’s remarks as a statutorily-protected
refusal to drive the truck was a reasonable interpretation of
the testimony, and Schnidt does not contend otherwise.
No. 09-2296 19
testimony of Osten and Miehle, who described their
own encounters with Formella on the morning of his
discharge in terms that were consistent with how
Markus and Landowski characterized their own discus-
sions with Formella. Formella, of course, denied any
encounters with Miehle and Osten and described his
interaction with Landowski and Markus in much more
moderate terms. 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. See, e.g., Roadway Express, 495
F.3d at 483.
What Formella does contend is that the ALJ and the
Board erred in concluding that his behavior, even if it
was as intemperate as Schnidt’s witnesses described it,
fell outside the latitude owed to an employee who is
making a safety-related complaint. The right to engage
in activity protected by the STAA “permits some
leeway for impulsive employee behavior.” Combs v.
Lambda Link, ARB No. 96-066, 1997 WL 665483, at *3 (ARB
Oct. 17, 1997); see also Kenneway v. Matlack, 1988-STA-020,
1989 DOL Sec. Labor LEXIS 47, at *7-*8 (Sec’y June 15,
1989). This principle derives from the broader labor
context, where it has been recognized that a worker’s
statutory right to engage in concerted activity affords
him some leeway to stray beyond the boundaries of
workplace propriety in doing so without losing the pro-
tection of the statute. See Dreis & Krump Mfg. Co. v. NLRB,
544 F.2d 320, 329 (7th Cir. 1976) (quoting NLRB v. Thor
Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965)). However,
20 No. 09-2296
the employee’s entitlement to some indulgence for the
manner in which he engages in protected activity “must be
balanced against the employer’s right to maintain order
and respect.” Id. (quoting Thor Power Tool, 351 F.2d at 587);
see also Kenneway, 1989 DOL Sec. Labor LEXIS 47, at *8 (“[a]
key inquiry is whether [the] employee has upset the
balance that must be maintained between protected
activity and shop discipline . . . .”); NLRB v. Caval Tool Div.,
262 F.3d 184, 191-92 (2d Cir. 2001); Mobil Exploration &
Producing U.S., Inc. v. NLRB, 200 F.3d 230, 243 (5th Cir.
1999); YMCA of Pikes Peak Region, Inc. v. NLRB, 914
F.2d 1442, 1446 (10th Cir. 1990); Trustees of Boston Univ. v.
NLRB, 548 F.2d 391, 393 (1st Cir. 1977). Whereas modest
improprieties will be overlooked, “flagrant,” “indefensi-
ble,” “abusive,” or “egregious” misconduct will not be.
Thor Power Tool, 351 F.2d at 587 (“flagrant”); Roadmaster
Corp. v. NLRB, 874 F.2d 448, 452 (7th Cir. 1989) (“indefensi-
ble or abusive”); Kenneway, 1989 DOL Sec. Labor LEXIS 47,
at *7-*8 (“indefensible”); see also NLRB v. City Disposal Sys.,
Inc., 465 U.S. 822, 837, 104 S. Ct. 1505, 1514 (1984) (“abu-
sive”); Mobil Exploration, 200 F.3d at 242-43 (“abusive” or
“flagrantly insubordinate”); Precision Window Mfg., Inc. v.
NLRB, 963 F.2d 1105, 1107-08 (8th Cir. 1992) (“indefensible”
or “wanton”); YMCA of Pikes Peak Region, 914 F.2d at
1452 (“egregious”). Conduct that is disruptive or that
amounts to blatant insubordination typically will fall
into the category of unprotected behavior, as both the
ALJ and the Board recognized. See Kahn v. Sec’y of Labor,
64 F.3d 271, 279 (7th Cir. 1995) (insubordination);
Harrison v. Admin. Review Bd. of U.S. Dep’t of Labor, supra,
No. 09-2296 21
390 F.3d at 759 (insubordinate and disruptive activity); see
also Culver v. Gorman & Co., 416 F.3d 540, 548 (7th Cir.
2005) (insubordination); Vukadinovich v. Bd. of Sch. Trustees
of N. Newton Sch. Corp., 278 F.3d 693, 700 (7th Cir. 2002)
(insubordination); Bob Evans Farms, Inc. v. NLRB, 163
F.3d 1012, 1024 (7th Cir. 1998) (“unduly and dispropor-
tionately disruptive or intemperate”).
Because one cannot easily demarcate the extent of the
leeway to be granted an employee engaging in pro-
tected activity, each case must be evaluated on its own
facts with careful attention to the competing interests of
the employee and the employer. For example, although
a number of courts (including this one) have said that
the right to oppose unlawful practices in the workplace
does not grant a worker the right to engage in insub-
ordination, e.g., Kahn, 64 F.3d at 279, the STAA, by
granting a worker the right to refuse to operate a motor
vehicle that he reasonably believes to be unsafe, ex-
pressly grants the worker to engage in conduct that
could otherwise be viewed as insubordinate. See
Kenneway, 1989 DOL Sec. Labor LEXIS 47, at *7-*8 (citing
NLRB v. Florida Med. Ctr., 576 F.2d 666, 672 (5th Cir.
1978)). At the same time, where a driver believes that
the condition of his assigned vehicle jeopardizes his
own safety and that of the public, it is foreseeable that
he may lose his composure in voicing that concern to
his employer. As the Tenth Circuit has observed in
another context, “It would be ironic, if not absurd, to
hold that one loses the protection of an antidiscrimina-
tion statute if one gets visibly (or audibly) upset about
discriminatory conduct.” Hertz v. Luzenac Am., Inc., 370
22 No. 09-2296
F.3d 1014, 1022 (10th Cir. 2004). Moreover, as Formella
rightly points out, an employer’s own inaction or indif-
ference in response to the safety concerns a driver has
raised may understandably contribute to the driver’s
upset. “An employer cannot provoke an employee to
the point where [he] commits such an indiscretion as is
shown here and then rely on this to terminate [his] em-
ployment.” Trustees of Boston Univ., 548 F.2d at 393
(quoting NLRB v. M & B Headware Co., 349 F.2d 170, 174
(4th Cir. 1965)); see also Precision Window Mfg., 963 F.2d
at 1108. In short, judges must take care in balancing
the right of an employee to voice his safety concerns
against the employer’s right to an orderly workplace,
lest the protection of the statute be denied to all but
the most self-restrained and obsequious employee.
This case is difficult in the sense that what caused
Schnidt to fire Formella was primarily his disrespectful
and disruptive tone and demeanor in expressing the
safety-related concerns about his truck rather than
some overt action that could be so characterized, or even
particular language that could be characterized as out
of line. Although Markus and Landowski both testified
that they felt somewhat threatened by Formella, he
did not assault anyone, he did not threaten violence, he
did not disobey an order, and he did not attempt to
prevent anyone else from doing his or her job (the fact
that he parked his truck in such a way as to block
another driver, causing Osten to move it, appears to
have been inadvertent). What he did do was lose his
temper, speak more and more loudly until he was
No. 09-2296 23
shouting at his supervisors, question Landowski’s ability
and judgment, and repeatedly ask “Am I fired?” until
Markus finally did fire him. Keeping in mind that, by
all accounts, Formella was genuinely concerned about
the mismatched tire treads on his truck, we may
assume that reasonable people might disagree as to
whether Formella’s intemperate manner in expressing
that concern was so out-of-line as to deprive him of the
protection of the statute.
But the responsibility for deciding whether particular
conduct falls within or without the leeway to which an
employee is entitled belongs to the Board, whose judg-
ment in this regard we must uphold so long as it is not
arbitrary or illogical. See Roadmaster Corp., 874 F.2d at
452; Dreis & Krump Mfg., 544 F.2d at 329; Thor Power
Tool, 351 F.2d at 587; see also Int’l Union, UAW v. NLRB,
514 F.3d 574, 581 (6th Cir. 2008); NLRB v. Allied Aviation
Fueling of Dallas LP, 490 F.3d 374, 379 (5th Cir. 2007); Earle
Indus., Inc. v. NLRB, 75 F.3d 400, 405 (8th Cir. 1996).
The ALJ characterized Formella’s behavior as both insub-
ordinate and disruptive, and although the testimony
may not compel that characterization, it nonetheless
does support it. Formella emphasizes that the ALJ merely
described his tone and demeanor as “boisterous,” “loud,”
and “vehement,” Formella Br. 24, but this does not do
justice to the whole of the accounts that Markus and
Landowski gave, or to the ALJ’s finding that Formella
was “provocative, intemperate, volatile, and antagonis-
tic,” ALJ Dec. 10. Markus testified that Formella became
so loud and so vehement that he drew other employees
toward her office at a run to see what was happening.
24 No. 09-2296
She used words like “volatile,” “angry,” and “unstable[ ]”
to describe his deportment, Tr. 73, 74, 83, 127, 130, 135, 143,
and although she agreed that he never made a threat,
she did say that she felt threatened by his tone and de-
meanor, Tr. 73, 139. Landowski confirmed Markus’s
impressions, describing Formella as “almost hostile,”
“fired up,” “in my face,” and “red in the face.” Tr. 150,
152. Their testimony lends adequate support to the ALJ’s
determination that Formella became disruptive and
insubordinate in dealing with his superiors. See Jennings
v. Tinley Park Community Consol. Sch. Dist. No. 146, 864
F.2d 1368, 1374-75 (7th Cir. 1988) (emphasizing the
factual nature of such determinations). Moreover, the
fact that Formella managed in quick succession to
alienate and upset two of his fellow drivers in
unrelated encounters on the same morning suggests
that Markus and Landowski were not merely being
overly sensitive to dissent in their reactions to Formella.
Their testimony confirmed that Formella’s tone and
manner were not simply loud and forceful, but “in your
face,” intimidating, and antagonizing.
We cannot say that the Board was either arbitrary or
illogical in agreeing with the ALJ that Formella’s con-
duct exceeded the leeway to which he was entitled in
refusing to drive the truck that Schnidt had assigned
to him. Although some allowance must be made for
impulsive and emotional behavior on the part of a driver
with safety-related concerns, he can nonetheless be ex-
pected to demonstrate civility and respect for his
superiors in voicing those concerns. The Board could
reasonably conclude that in shouting so loudly that
No. 09-2296 25
other employees ran toward Markus’s office to see what
was the matter, for example, Formella exceeded any
leeway to which he was entitled in pursuing his statu-
tory rights.
III.
The ALJ’s factual determination that Schnidt fired
Formella not because he refused to drive the truck
assigned to him but because he was insubordinate and
disruptive in expressing his safety concerns is sup-
ported by substantial evidence. Although Formella was
entitled to some leeway for inappropriate behavior in
voicing his concerns and refusing to drive his assigned
vehicle, the Board was neither illogical nor arbitrary
in sustaining the ALJ’s determination that Formella
exceeded that leeway in provoking and antagonizing
his superiors. Formella’s petition for review of the
Board’s adverse decision is therefore D ENIED.
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