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.
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!”
On appeal, Maverick argued that the ALJ’s award of $75,000 in compensatory damages for emotional 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:
Kudos to Paul Taylor for this great win and his superb advocacy on behalf of whistleblowers in the trucking industry.
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