Image of Eighth Circuit Rules that Whistleblower’s Testimony Alone Suffices to Prove Emotional Distress Damages

Eighth Circuit Rules that Whistleblower’s Testimony Alone Suffices to Prove Emotional Distress Damages

On January 16, 2014, the Eight Circuit issued a decision in Maverick Transportation v. U.S. Department of Labor that will be very helpful to whistleblowers seeking emotional distress damages.  The Eight Circuit affirmed the Administrative Review Board’s decision holding that Maverick retaliated against an employee for his refusal to drive a truck based on the truck’s safety defects.  In particular, Albert Canter refused to drive a truck that had a chaffing brake hose and steering fluid leak, conditions that could lead to catastrophic failure of the service brakes.

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.

STAA Whistleblower Protection Provision Bars Blacklisting

The employer’s retaliation against Canter was especially egregious in that the employer prevented Canter from obtaining work with other commercial trucking companies by placing an abandonment notation in Canter’s Drive-A-Check Employment Report (DAC Report).  The DAC Report  sets forth the employment history of truck drivers and an abandonment notation on a driver’s DAC Report will hinder the driver’s ability to work in the commercial trucking industry.   Maverick’s animus for Canter’s protected conduct was evident in the notification of termination entry that it placed in his DAC Report:  “Complainant is not eligible for rehire ―ever! ever!”

Whistleblower’s Testimony Alone Sufficient to Prove Emotional Distress Damages

On appeal, Maverick argued that the ALJ’s award of $75,000 in compensatory damages for emotion distress was excessive and was supported only by Canter’s testimony.  The court held:  “A plaintiff’s own testimony can be sufficient for a finding of emotional distress, and medical evidence is not necessary.”  In addition, the court found that the ARB affirmed similar awards in other whistleblower cases and therefore there was no abuse of discretion.

The Administrative Law Judge’s opinion indicates that Canter’s testimony about the emotional distress he has suffered is quite compelling:

  • Canter experienced a loss of appetite and suicidal thoughts, and on one occasion, put a pistol to his head and as he started pulling the trigger moved his head out of the way and put a bullet hole through the ceiling and roof.
  • Cantor’s  receipt of debt collection notices and calls from collection agencies have caused him great distress.
  • His checking accounts were closed due to insufficient funds, and he currently owes bank fees and charges for overdrafts.
  • Canter was forced to vacate his manufactured home in Alabama and move in with his sister in Colorado in July 2008
  • He could not visit his stepchildren because he could not afford to travel.

Kudos to Paul Taylor for this great win and his superb advocacy on behalf of whistleblowers in the trucking industry.

Damages in Whistleblower Retaliation Cases

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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.