Image of ARB Affirms $100,000 Compensatory Damages Award in STAA Whistleblower Retaliation Case

ARB Affirms $100,000 Compensatory Damages Award in STAA Whistleblower Retaliation Case

Truck Driver Terminated for Refusing to Drive in Unsafe Conditions

In Fink v. R&L Transfer, Inc., the ARB affirmed an award of compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000 to a truck driver who was terminated for refusing to drive in unsafe winter weather conditions.

Complainant Fink had an unblemished record of almost thirteen years operating large commercial trucks, including tractor trailers hauling double trailers. On the night of January 11, 2011, Fink refused to haul a double trailer approximately 175 miles because he concluded that it was unsafe to drive in severe winter conditions.   Fink was concerned that icy roads or high winds can result in loss of control by the driver with the possibility of jackknifing on ice and the “crack the whip” effect in high winds.  The terminal manager warned Fink that if he refused to drive his scheduled run, R&L would consider him to have resigned.  Fink refused to drive, and the following day, R&L terminated his employment.

The whistleblower protection provision of the Surface Transportation Act protects a truck driver who refuses to drive because of a reasonable apprehension of serious injury to himself or the public because of a vehicle’s unsafe condition.  The ARB affirmed the ALJ’s finding that R&L violated the STAA by terminating Fink for his refusal to drive in unsafe weather conditions.

The ALJ found that R&L violated the STAA by terminating Fink in retaliation for his refusal to drive based on his reasonable apprehension of serious injury to himself or the public from driving in dangerous conditions.  The ALJ awarded compensatory damages in the amount of $100,000.00, and punitive damages in the amount of $50,000.00.

ARB Affirms Compensatory Damages Award

The ARB affirmed the compensatory damages award, which was based on Fink’s testimony and not corroborated by any expert testimony.  The ALJ’s awarded $100,000 in compensatory damages for the following reasons:

  • Fink had to seek public assistance to pay basic living expenses.
  • Fink and his family lost their home.
  • Fink had to borrow money from family members.
  • Fink has difficulty sleeping, wondering how he will be able to support his family.

ARB Affirms Punitive Damages Award in FRSA Whistleblower Retaliation Case

The ARB also affirmed the punitive damages award:

To determine whether a punitive damages award was warranted, the ALJ found significant that R&L’s terminal manager did not make any attempt to determine if there was any substance to Fink’s concerns about driving the route in the snowy and icy weather, and only consulted persons in other states about whether the route should be driven. Id. at 22. He also observed that the terminal manager “by characterizing Mr. Fink’s termination as a “resignation,” [] foreclosed any possibility that Mr. Fink might participate in the peer review process and retain his job” and delayed Fink’s receipt of unemployment benefits. Id. The ALJ found “that the Respondent’s conduct reflects a degree of conscious disregard for how its practices obstruct Congress’ mandate in the Surface Transportation Assistance Act, and that punitive damages are appropriate to correct and deter this conduct.” Id. . . . An award of punitive damages may be warranted where there has been “reckless or callous disregard for the plaintiff’s rights, as well as intentional violations of federal law.”

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Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.