Formella v. United States Department of Labor
628 F.3d 381
7th Cir.2010Background
- Formella, a long-time truck driver, was fired by Schnidt Cartage after raising safety concerns about a truck.
- He filed a STAA retaliation complaint with OSHA alleging discharge for safety-related activity.
- ALJ found the discharge based on his conduct, not protection for safety concerns.
- ARB affirmed the ALJ’s decision.
- Formella argued that amendments to STAA (AIR 21) favor employees and that the ALJ/ARB misapplied pre-amendment law.
- Formella’s petition for review challenges the Board’s reliance on conduct-based leeway and the statutory framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AIR 21 amendments apply to this case | Formella seeks application of amended STAA burdens | Schnidt argues amendments were not raised timely and pre-amendment standard applies | Amendments not applied; pre-amendment standard governs |
| Whether substantial evidence supports firing for intemperate conduct | Formella contends firing was for protected safety activity | Schnidt argues conduct justified discharge | Yes; Board/ALJ finding supported by substantial evidence |
| Whether Formella’s protected activity was the reason for discharge | Formella refused unsafe vehicle, protected activity | Discharge rooted in demeanor, not protected activity | Protected conduct contributed; but discharge upheld for conduct beyond leeway |
| What leeway is allowed for protected safety-related activity | Some impulsive conduct should be tolerated | Employer maintains order; misconduct can negate protection | Balance favors employer where conduct is insubordinate or disruptive beyond leeway |
| Standards of review for factual determinations under STAA | Appellate review should reevaluate credibility | Board/ALJ credibility findings deserve deference | Board/ALJ findings sustained under substantial-evidence standard |
Key Cases Cited
- Roadway Express, Inc. v. U.S. Dep't of Labor, 495 F.3d 477 (7th Cir. 2007) (substantial evidence review of factual findings under STAA)
- Thor Power Tool Co., 351 F.2d 584 (2d Cir. 1965) (balancing protected activity with employer interests; insubordination concerns)
- Jennings v. Tinley Park Community Consol. Sch. Dist. No. 146, 864 F.2d 1368 (7th Cir. 1988) (fact-intensive inquiry; credibility determinations upheld)
- Trustees of Boston Univ. v. NLRB, 548 F.2d 391 (1st Cir. 1977) (employee protection vs. disruptive conduct; balance of interests)
- Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004) (irony of protection when upset about discriminatory conduct)
- Kenneway v. Matlack, 1989 DOL Sec. Labor LEXIS 47 (—) (early STAA cases on leeway for protected activity)