Weatherford U.S., L.P. v. U.S. Dep't of Labor ( 2023 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0111p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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WEATHERFORD U.S., L.P.,
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Petitioner, │
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v. │ Nos. 20-4342/21-3282
>
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U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE │
BOARD, │
Respondent, │
│
│
ESTATE OF DANIEL A. AYRES, │
Intervenor. │
┘
┐
ESTATE OF DANIEL A. AYRES, │
Petitioner, │
│
│
v. > No. 21-3017
│
│
U.S. DEPARTMENT OF LABOR, ADMINISTRATIVE
│
BOARD,
│
Respondent, │
│
WEATHERFORD US, L.P., │
Intervenor. │
┘
On Petitions for Review from the United States Department of Labor.
Nos. ARB 2018-0006; 2018-007; 2018-0074.
Argued: January 25, 2023
Decided and Filed: May 24, 2023
Before: BUSH, LARSEN, and MATHIS, Circuit Judges.
Nos. 20-4342/21- Weatherford v. U.S. Dep’t of Labor Page 2
3017/3282 Estate of Ayres v. U.S. Dep’t of Labor
_________________
COUNSEL
ARGUED: Donald G. Slezak, LEWIS BRISBOIS BISGAARD & SMITH, LLP, Cleveland,
Ohio, for Weatherford. Linda Hong Hanh Wiles, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for United States Department of Labor. Martin S. Hume, MARTIN
S. HUME CO., L.P.A., Youngstown, Ohio, for Estate of Daniel Ayres. ON BRIEF: 20-
4342/21-3282: Donald G. Slezak, David A. Campbell, Andrea V. Arnold, LEWIS BRISBOIS
BISGAARD & SMITH, LLP, Cleveland, Ohio, for Weatherford. Linda Hong Hanh Wiles,
UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for United States
Department of Labor. Martin S. Hume, MARTIN S. HUME CO., L.P.A., Youngstown, Ohio,
for Estate of Daniel Ayres.
_________________
OPINION
_________________
LARSEN, Circuit Judge. Daniel Ayres brought an administrative action complaining
that his former employer, Weatherford U.S., L.P., had retaliated against him for engaging in
protected behavior under the Surface Transportation Assistance Act (STAA). An administrative
law judge (ALJ) in the Department of Labor found for Ayres and awarded him backpay,
compensatory and punitive damages, and attorneys’ fees. Ayres passed away in the middle of
the ALJ proceedings. The Administrative Review Board (Board) affirmed the ALJ’s awards,
except for punitive damages. The Board concluded that the punitive damages claim had abated
upon Ayres’s death. Ayres’s estate petitions for review of the reversal of punitive damages.
Weatherford petitions for review of the Board’s ruling that it violated the STAA and the
accompanying damages and fees. For the reasons that follow, we DENY both petitions.
I.
Daniel Ayres began working for Weatherford, an oilfield services company in April
2012. Ayres was assigned to Weatherford’s fracking operations in Williston, North Dakota,
where his duties included driving, setting up, and operating equipment. Ayres normally worked
on a cycle: three weeks on the oil field in Williston (where he was eligible for overtime and
bonuses) and two weeks at his home in Ohio (with full base pay). The parties present different
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views of Ayres’s employment success. Ayres points to coworker testimony that he was a good
employee, “pleasant,” and a “good worker,” while Weatherford emphasizes testimony that Ayres
was confrontational and involved in an altercation on his last day of work in Williston.
While Ayres was in Williston, work was slower than expected, so he was asked to
perform tasks beyond his job description. At some point between July 12 and July 31, 2012, Lee
Hammons, a crew supervisor, directed Ayres to drive a truck outside of his driving certification;
Ayres refused.1 Ayres then told Hammons and his district manager, Terry Crabb, that employees
were being asked to drive loads they were not certified for, in violation of Department of
Transportation (DOT) regulations. Crabb responded that “they needed that job done.” At an
employee meeting on August 10, 2012, Crabb said that anyone who complained to human
resources (HR) would be fired.
In August 2012, Ayres spoke on the phone with James Nicholson, a regional HR
manager. Ayres told Nicholson about being asked to drive loads in violation of DOT
regulations, violation of rules related to driving hazardous materials, Weatherford employees
drinking and driving company vehicles, and Crabb’s comments about firing anyone who
complained to HR. There was no contemporaneous documentation of this call, though the ALJ
heard testimony that Crabb was aware Ayres had contacted HR, and Ayres referenced the call in
a later email. On August 20, 2012, the last day of Ayres’s Williston rotation, he asked Crabb if
he could be transferred to a different rotation, either near his home in Ohio or at a site in Utah.
That same day, Ayres was taken to the airport in a separate van from the rest of the employees
after a verbal altercation either with Crabb (Ayres’s story) or a co-worker (Hammons’
recounting). Ayres called Nicholson again while in the van.
Ayres had originally been scheduled to return to Williston on September 5, 2012;
everyone else in his work section was called back as planned. But at some point before August
20, Ayres was included on a list of non-essential employees who would not be called back for
the next rotation. This meant that Ayres would be left at home, and while paid, he would not be
eligible for overtime or bonuses. On September 20, when Weatherford still had not instructed
1
The ALJ found this was common practice at Williston.
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Ayres to return for his next rotation, Ayres emailed Nicholson asking about his assignment status
and explaining why he thought he was being “improperly retaliated against.” Those reasons
included advising Nicholson that “employees were still being asked to carry loads in violation of
DOT regulation[s].” Nicholson told Ayres that the “alleged issues” were being investigated.
Weatherford has no record of any such investigation.
On October 22, 2012, Nicholson told Ayres that he no longer had a job. His last day had
been October 19, 2012, due to a “Reduction in Force” because of a “realignment . . . due to our
customer base.” But when Ayres applied for unemployment benefits, Weatherford contested his
eligibility, claiming he had been discharged for just cause because he “failed to follow
instructions.”
Ayres sued Weatherford in Ohio state court. Weatherford removed the case to the
Northern District of Ohio. Ayres’s suit alleged retaliation under the Ohio Whistleblower’s
Protection Act (OWPA), O.R.C. § 4113.52, and the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 201, et seq. Ayres claimed that Weatherford had violated the OWPA by discharging him for
reporting his supervisors’ safety violations (including violating DOT regulations). See Ayres v.
Weatherford U.S., LP, 139 F. Supp. 3d 861, 865 (N.D. Ohio 2015). Ayres’s FLSA claim alleged
that “he was discharged for complaining that he was not properly paid overtime.” Id. The
district court granted Weatherford’s motion for summary judgment and dismissed Ayres’s
claims. See id. at 869. The court dismissed Ayres’s OWPA claim because all events giving rise
to the allegations took place in North Dakota, not Ohio. Id. at 867 (“Applying an Ohio law to
individuals and events that took place in North Dakota is a direct violation of North Dakota’s
‘undeniable and unlimited jurisdiction over all persons and things within its territorial limits’ that
the Constitution guarantees.”). And it dismissed the FLSA claim because the record did “not
support a causal connection between his complaints concerning overtime and his discharge as
part of a general reduction in force.” Id. at 869. Ayres did not appeal.
The day after Ayres filed suit in state court, Ayres also filed an STAA complaint with the
Secretary of Labor. Weatherford moved to dismiss, arguing that Ayres was collaterally estopped
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from bringing the administrative claims by his previous lawsuit. An ALJ disagreed and denied
Weatherford’s motion to dismiss.
Ayres passed away on March 30, 2016; his widow and administrator of his estate, Kim
Ayres, was substituted as the complainant. The ALJ issued his final decision in 2017. The ALJ
found that: Ayres had engaged in STAA-protected activity when he refused to drive in violation
of DOT regulations; Weatherford management knew about the protected activity; the protected
activity contributed to Ayres’s eventual discharge; and Weatherford failed to present clear and
convincing evidence that it would have taken the same actions absent Ayres’s protected
activities. The ALJ concluded that Weatherford violated the STAA when it dismissed Ayres.
The ALJ awarded Ayres $82,119 in back pay, $10,000 for emotional harm, and $25,000 in
punitive damages; the ALJ later awarded Ayres’s estate $36,219.01 in attorneys’ fees and costs.
Weatherford petitioned the Board for review of the ALJ’s decision and award of attorney
fees. The Board affirmed the ALJ’s decision except for the award of punitive damages. The
Board reversed the punitive damages award, reasoning that “penal claims, including the right to
recover punitive damages, abate upon the death of the injured party.” The Board also awarded
Ayres’s estate attorneys’ fees of $12,670.
Ayres seeks reinstatement of the punitive damages award; Weatherford seeks review of
the Board’s decision and attorneys’ fees award.
II.
A.
Ayres’s petition for review seeks reinstatement of the ALJ’s award of punitive damages.
The Board vacated that award on the ground that the claim for punitive damages abated upon
Ayres’s death. That decision was not contrary to law. See 49 U.S.C. § 31105(d) (incorporating
by reference 5 U.S.C. § 706). We agree with the Board.
In 2007, Congress amended the STAA to provide for punitive damages. Pub. L. No.
110–53, § 1536, 121 Stat. 266, 464–67. The Act did not address survivability, and no court has
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addressed whether the right to recover punitive damages under the STAA survives a claimant’s
death.
When Congress has not spoken to the question, “the survival of a federal cause of action
is a question of federal common law.”2 Parchman v. SLM Corp., 896 F.3d 728, 738 (6th Cir.
2018) (quoting United States v. NEC Corp., 11 F.3d 136, 137 (11th Cir. 1993), as amended (Jan.
12, 1994)). We have understood the federal common law to say that “‘remedial’ claims—
i.e., claims to compensate the plaintiff—survive a party’s death, whereas ‘punitive’ claims—
i.e., claims to punish the defendant—do not.” Haggard v. Stevens, 683 F.3d 714, 717 (6th Cir.
2012) (citing Murphy v. Household Fin. Corp., 560 F.2d 206, 208–09, 211 (6th Cir. 1977)); see
Ex parte Schreiber, 110 U.S. 76, 80 (1884) (“At common law, actions on penal statutes do not
survive.” (citing 5 John Comyns, A Digest of the Laws of England 260–61 (1822) (“Nor, [does]
an action upon a penal statute” survive.)). Other courts agree. See, e.g., Wheeler v. City of Santa
Clara, 894 F.3d 1046, 1057 (9th Cir. 2018) (citing Guenther v. Griffin Constr. Co., Inc.,
846 F.3d 979, 986 (8th Cir. 2017)); see Revock v. Cowpet Bay W. Condo. Ass’n, 853 F.3d 96,
109 (3d Cir. 2017) (“[W]e will follow the weight of authority, which applies the . . . common
law rule of survival, under which remedial claims survive, but penal claims do not.”); Malvino v.
Delluniversita, 840 F.3d 223, 229 (5th Cir. 2016) (“The general rule for the survivability of
federal statutes is that penal statutes do not survive, whereas remedial statutes do.”); United
States v. Land, Winston Cnty., 221 F.3d 1194, 1197 (11th Cir. 2000) (“The survivability of a
cause of action depends on whether the recovery is remedial, an action which compensates an
individual for specific harm suffered, or penal, an action which imposes damages upon the
defendant for a general wrong to the public.”); Case of One 1985 Nissan, 300ZX, VIN:
JN1C214SFX069854, 889 F.2d 1317, 1319 (4th Cir. 1989) (“[T]he decision on whether [the
forfeiture action] abates on death of the property owner depends on whether the provision is
2
Because federal law applies, we cannot accept Ayres’s invitation to adopt the Illinois state rule. The
Supreme Court rejected a similar request in Ex parte Schreiber, 110 U.S. 76 (1884). The Court explained that just
“as the nature of penalties and forfeitures imposed by acts of [C]ongress cannot be changed by state laws, it follows
that state statutes allowing suits on state penal statutes to be prosecuted after the death of the offender, can have no
effect on suits in the courts of the United States for the recovery of penalties imposed by an act of [C]ongress.” Id.
at 80.
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primarily civil or penal in nature.”). Applying this rule, the punitive damages award does not
survive.
A claim for punitive damages is inherently penal in nature. The very point of such an
award is to “punish the defendant and deter future wrongdoing.” Cooper Indus., Inc. v.
Leatherman Tool Grp., Inc., 532 U.S. 424, 432 (2001); see also id. (The “imposition of punitive
damages is an expression of . . . moral condemnation.”). It is little surprise then that courts
construing federal statutes routinely hold that claims for punitive damages are “penal” and do not
survive a party’s death. See, e.g., Hanson v. Atl. Rsch. Corp., No. 4:02-CV-00301 SMR, 2003
WL 430484, at *4 (E.D. Ark. Feb. 14, 2003) (holding that plaintiff’s “claim for punitive
damages under the ADA is penal in nature and did not survive his death”); Kulling v. Grinders
for Indus., Inc., 115 F. Supp. 2d 828, 850 (E.D. Mich. 2000) (finding that plaintiff’s “claim under
the ADEA survives his death, except to the extent that it seeks an award of ‘liquidated
damages’”); E.E.O.C. v. Deloitte & Touche, LLP, No. 97:CIV-6484-LMM, 2000 WL 1024700,
at *7 (S.D.N.Y. July 25, 2000) (“The claim for compensatory damages survives [plaintiff’s]
death; the claim for punitive damages, however, does not.”); Allred v. Solaray, Inc., 971 F. Supp.
1394, 1396 (D. Utah 1997) (“[C]laims for punitive damages under the ADA do not survive the
plaintiff’s death.”); Estwick v. U.S. Air Shuttle, 950 F. Supp. 493, 498 (E.D.N.Y. 1996) (holding
that after plaintiff’s death, “[t]he punitive damages are plainly penal and must be dismissed
under either federal or state law”); Hawes v. Johnson & Johnson, 940 F. Supp. 697, 703 (D.N.J.
1996) (determining that “plaintiff’s claims for liquidated and punitive damages which are penal
in nature under the ADEA did not survive his death”); Caraballo v. S. Stevedoring, Inc., 932 F.
Supp. 1462, 1466 (S.D. Fla. 1996) (finding that punitive damages claims under the ADA and
ADEA do not survive plaintiff’s death). We can locate no authority holding otherwise.3
3
Federal courts sometimes conclude that punitive damages claims survive in cases arising under 42 U.S.C.
§ 1983. That’s because the survivability of § 1983 claims is generally governed by the survivorship rules of the
forum state, pursuant to 42 U.S.C. § 1988. See Robertson v. Wegmann, 436 U.S. 584, 588 (1978). Some states
permit punitive damages claims to survive. See, e.g., Whetstone v. Binner, 57 N.E.3d 1111, 1114 (Ohio 2016)
(“Pursuant to [O.R.C. §] 2305.21, the right to punitive damages continues when an injured plaintiff has died and the
plaintiff’s claim is pursued by a representative of his or her estate.”).
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Penal claims abate even when the deceased party is the complainant: “The typical rule
under the federal common law is that an action for a penalty does not survive the death of the
plaintiff.” Cook v. Hairston, 948 F.2d 1288, 1991 WL 253302, at *6 (6th Cir. 1991) (per
curiam) (unpublished table decision) (quoting Smith v. Dep’t of Hum. Servs., 876 F.2d 832, 834–
35 (10th Cir. 1989)); see Kilgo v. Bowman Transp., Inc., 789 F.2d 859, 876 (11th Cir. 1986)
(“[A] federal cause of action generally survives the death of the plaintiff unless it is an action for
penalties.”); James v. Home Const. Co. of Mobile, Inc., 621 F.2d 727, 730 (5th Cir. 1980)
(“Traditionally, the rule has been that actions for penalties do not survive the death of the
plaintiff. . . . Therefore we must determine whether the remedy that is part of the action . . . is a
penal sanction.”); Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407, 414 (7th Cir. 1980)
(“The general rule is that actions for penalties do not survive the death of the plaintiff.”)
overruled on other grounds by Pridegon v. Gates Credit Union, 683 F.2d 182 (7th Cir. 1982);
see also Note, Survival of Actions Brought under Federal Statutes, 63 Colum. L. Rev. 290, 290
(1963) (“[T]ort actions considered penal, as well as criminal actions, were held to be
extinguished by death; they were allowed neither for nor against representatives of the
deceased.”).
“[W]here a common-law principle is well established, . . . the courts may take it as a
given that Congress has legislated with an expectation that the principle will apply except when a
statutory purpose to the contrary is evident.” Astoria Fed. Sav. & Loan Ass’n v. Solimino,
501 U.S. 104, 108 (1991) (quotation marks and citations omitted). We see nothing in the STAA
to suggest that Congress intended to depart from this common law consensus when it added the
punitive damages remedy in 2007.4 We assume, then, that because Congress did not speak to
4
Each of the cases cited above predates Congress’s 2007 amendment of the STAA. The consensus remains
unbroken: because “punitive damages are plainly penal” a deceased plaintiffs’ claim for punitive damages does not
survive. See Fulk v. Norfolk S. Ry. Co., 35 F. Supp. 3d 749, 764 (M.D.N.C. 2014) (quotation marks and citation
omitted) (dismissing a claim for punitive damages under a Federal Railroad Safety Act’s anti-retaliation provision
after the plaintiff’s death); see also E.E.O.C. v. Coughlin, Inc., No. 2:21-CV-99-WKS, 2022 WL 1568529, at *6 (D.
Vt. May 18, 2022) (finding that plaintiff’s “claims for punitive damages do not survive her death”); Hopper v.
Credit Assocs., LLC, No. 2:20-CV-522, 2021 WL 5754732, at *3 (S.D. Ohio Dec. 3, 2021), report and
recommendation adopted, No. 2:20-CV-522, 2022 WL 889054 (S.D. Ohio Mar. 25, 2022) (holding that deceased
plaintiff’s “claims for statutory damages under the FCRA survive her death, but her claims for punitive damages do
not”); E.E.O.C. v. Marquez Bros. Int’l, Inc., No. 1:17-CV-44 AWI-EPG, 2018 WL 3197796, at *10 (E.D. Cal. June
26, 2018) (under Title VII, “punitive damages are penal and do not survive a claimant’s death”); Beaudry v.
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survivability, it added punitive damages to the STAA with the understanding that they would
abate upon a plaintiff’s death.
Ayres suggests that Congress’s “use of the term ‘punitive damages’ does not convert the
STAA into a penal law.” But “respect for Congress’s prerogatives as policymaker means
carefully attending to the words it chose rather than replacing them with others of our own.”
Murphy v. Smith, 138 S. Ct. 784, 788 (2018). Here, Congress chose to label the additional
STAA damages “punitive.” That “declaration” is “controlling here.” Bowles v. Farmers Nat.
Bank of Lebanon, 147 F.2d 425, 429 (6th Cir. 1945); see also id. (“If Congress had provided that
the recoveries under this section were to be considered compensatory or liquidated
damages . . . or should not be considered a penalty, the court would be bound thereby.”). Ayres
offers no reason to believe that, in the STAA context, the damages Congress labeled as
“punitive” serve some other function. Id. Nor did Congress express an intent to depart from the
common-law rule by providing that the STAA’s “punitive” damages should survive. Yet, in at
least one other circumstance, Congress has done just that. In 2008, when Congress added
punitive damages to the “state-sponsored terrorism” exception to the Foreign Sovereign
Immunities Act—Congress made clear that punitive damages were available in cases involving
the plaintiff’s death. Pub. L. No. 110–181, § 1083, 122 Stat. 3, 338–44 (2008); 28 U.S.C.
§ 1605A(c).
Congress chose in the STAA to make “punitive” damages available. We take Congress
at its word. As such, there is no need to evaluate whether punitive damages are penal or
remedial under the Murphy factors, see 560 F.2d at 209. Congress supplied us with the answer
when they labeled the damages as punitive and failed to expressly provide for survival. Bowles,
147 F.2d at 429.
We agree with the Board that Ayres’s claims for punitive damages abated upon his death.
TeleCheck Servs., Inc., No. 3:07-0842, 2016 WL 11398115, at *14 (M.D. Tenn. Sept. 29, 2016) (“[A] claim for
punitive damages, including one brought pursuant to a generally remedial statute, abates upon the death of a
plaintiff.”); E.E.O.C. v. Timeless Invs., Inc., 734 F. Supp. 2d 1035, 1057 (E.D. Cal. 2010) (holding that liquidated
damages claims under the ADEA were penal or punitive and do not survive a claimant’s death); Kettner v. Compass
Grp. USA, Inc., 570 F. Supp. 2d 1121, 1134 (D. Minn. 2008) (holding that a deceased “[p]laintiff is entitled to all
available remedies under the ADA and Rehabilitation Act except for liquidated or punitive damages”).
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B.
Weatherford’s petition argues that Ayres’s earlier lawsuit precludes him from bringing
his claims to the Department of Labor. See B & B Hardware, Inc. v. Hargis Indus., Inc., 575
U.S. 138, 148–49 (2015) (explaining that preclusion may apply “where a single issue is before a
court and an administrative agency”). Weatherford invokes “collateral estoppel,” or issue
preclusion.5 The agency determined that Ayres’s claims are not precluded. We agree.
Issue preclusion bars litigation of an issue when four specific requirements are
met: (1) the “precise issue” was “raised and actually litigated” in the prior suit; (2) the
determination of the issue was “necessary to the outcome of the prior proceedings;” (3) “the
prior proceeding resulted in a final judgment on the merits;” and (4) Ayres “had a full and fair
opportunity to litigate the issue in the prior proceeding.”6 Cobbins v. Tenn. Dep’t. of Transp.,
566 F.3d 582, 589–90 (6th Cir. 2009). Here, Ayres’s OWPA claim was not “actually litigated”
in the district court. The district court concluded that Ayres did not have a claim under the
OWPA because all of the conduct took place in North Dakota, not Ohio. The court did not
address the merits of Ayres’s argument that Weatherford had retaliated against him for reporting
violations of DOT regulations. And Ayres’s FLSA claim did not involve the “precise issue” at
bar in his STAA claims, it involved other, overtime-related claims. As such, Ayres’s STAA
claims are not issue precluded.
Weatherford’s reliance on an unpublished Ninth Circuit case, Germann v. Department of
Labor, 206 F. App’x 662 (9th Cir. 2006), does not change that result. In addition to not binding
us, Germann is distinguishable. There, Germann brought the exact same complaint in state court
5
The Supreme Court has explained that the terms “claim preclusion” and “issue preclusion” have replaced
the “more confusing” terms “merger” or “bar” (for claim preclusion) and “collateral estoppel” (for issue preclusion).
Taylor v. Sturgill, 553 U.S. 880, 892 n.5 (2008). Weatherford’s brief in this court asks us to consider claim
preclusion in addition to issue preclusion. But Weatherford did not raise claim preclusion before the agency, so the
company has forfeited the argument. See 29 C.F.R. § 1978.110(a) (“The parties should identify in their petitions [to
the Board] for review the legal conclusions or orders to which they object, or the objections may be deemed
waived.”); cf. Island Creek Coal Co. v. Bryan, 937 F.3d 738, 750 (6th Cir. 2019) (reaffirming that “our decades-long
precedent has refused to consider issues that parties failed to present to the Board”).
6
We apply federal law: the ALJ applied federal law in denying Weatherford’s motion to dismiss the STAA
claims, and Weatherford did not challenge that choice of law. As such, any choice of law issue has been forfeited.
See Meridia Prods. Liab. Litig. v. Abbott Lab’ys, 447 F.3d 861, 865 (6th Cir. 2006).
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and to the Department of Labor, and the state court reached a final decision on the merits. See
id. at 665. Because Ayres’s claims are not precluded, we continue to the merits of Weatherford’s
petition.
C.
The Department of Labor concluded that Weatherford violated the STAA’s
whistleblower provisions. “[W]e review the Secretary’s decisions under the STAA applying a
substantial evidence standard.” Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir.
1994). The substantial evidence standard is highly deferential. “This court may not relitigate the
case de novo, resolve conflicts in evidence, or decide questions of credibility.” Moon v. Transp.
Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987) (per curiam). And we must uphold the agency’s
findings, “even if ‘the court would justifiably have made a different choice had the matter come
before it de novo.’” Yadav v. L-3 Commc’ns Corp., 462 F. App’x 533, 536 (6th Cir. 2012)
(quoting NLRB v. Gen. Fabrications Corp., 222 F.3d 218, 225 (6th Cir. 2000)). Substantial
evidence supports the agency’s decision here.
To make out a prima facie case of retaliation, Ayres had to show that (1) he engaged in
activity “protected under the STAA; (2) the employer knew of the protected conduct; (3) the
employer took an adverse employment action against [him]; and (4) the [protected activity] was
a contributing factor in the employer’s decision to take the adverse action.” Maverick Transp.,
LLC v. U.S. Dep’t of Lab., 739 F.3d 1149, 1155 (8th Cir. 2014), as corrected (Jan. 17, 2014); see
also TransAm Trucking, Inc. v. U.S. Dep’t of Lab., 833 F.3d 1206, 1213 (10th Cir. 2016);
Formella v. U.S. Dep’t of Lab., 628 F.3d 381, 389 (7th Cir. 2010). Once Ayres made that
showing, the burden shifted to Weatherford, to show “by clear and convincing evidence, that the
employer would have taken the same unfavorable personnel action in the absence of that
[protected] behavior.” 49 U.S.C. § 31105(b)(1); id. § 42121(b)(2)(B)(ii).
Weatherford argues that the McDonnell Douglas test, applicable in Title VII claims,
applies instead. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This
argument is meritless. In 2007, Congress amended the STAA to incorporate the burdens of
proof set forth in the whistleblower provision of the Wendell H. Ford Aviation Investment and
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Reform Act for the 21st Century, 49 U.S.C. § 42121(b)(2)(B). Compare § 31105(b)(1), with
49 U.S.C. § 2305(c) (1982). The ALJ and the Board applied the statutorily required test.
Weatherford’s reliance on our prior cases—Yellow Freight System, Inc., 27 F.3d at 1138; Melton
v. U.S. Department of Labor, 373 F. App’x. 572, 576–77 (6th Cir. 2010); and Ridgley v. U.S.
Department of Labor, 298 F. App’x 447, 452 (6th Cir. 2008)—does not help its cause. Those
cases were either decided prior to the STAA’s amendment (Yellow Freight) or involved conduct
that occurred prior to the amendment’s effective date (Melton and Ridgley). No legal error
occurred.
Applying this test, substantial evidence supports the agency’s conclusion that Ayres
engaged in protected activity when he refused to drive outside of his certification and raised
concerns about the incident (and other safety violations). The STAA protects employees who
refuse to operate vehicles in violation of federal regulations and who have filed complaints
relating to violations of such regulations. See id. § 31105(a). The ALJ heard testimony from
Ayres, Hammons, and Ayres’s co-worker, Richard Hanson, that Ayres had made such a refusal.
And substantial evidence supports Ayres’s contention that he complained to Nicholson about
safety violations; Nicholson confirmed that Ayres did so.7
Weatherford’s contention that the ALJ gave improper weight to Ayres’s testimony and
that of his coworkers over manager testimony is unpersuasive; this court will not “decide
questions of credibility.” Moon, 836 F.2d at 229. Further, the ALJ took care to note Ayres’s
credibility issues and included them in his analysis. See AR Vol. I, A-00101–02.
The agency’s conclusion that Weatherford managers were aware of Ayres’s protected
activity is also supported by substantial evidence. Hammons and Nicholson, both managers,
respectively confirmed Ayres’s refusal to drive and complaints in their testimony.
Nor was it error for the agency to conclude that Ayres’s protected activity played a role in
taking adverse employment actions against Ayres.8 The Board noted the “abundance of
7
Weatherford also says Ayres’s complaints were too vague, but substantial evidence (Hammons’ and
Nicholson’s testimony) supports the ALJ’s conclusion to the contrary.
8
The parties do not contest that Ayres’s placement on the non-essential list and dismissal were adverse
employment actions.
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circumstantial evidence involving animus, temporal proximity, and pretext supporting a
conclusion that Ayres’s protected activity contributed to his being placed on the non-essential list
and discharge.” This evidence was enough for the agency to conclude that Ayres’s protected
activity “was a contributing factor in the unfavorable personnel action alleged in the complaint.”
49 U.S.C. § 42121(b)(2)(B)(iii); see Consol. Rail Corp. v. U.S. Dep’t of Lab., 567 F. App’x 334,
338 (6th Cir. 2014) (“[T]he contributing factor standard has been understood to mean ‘any factor
which, alone or in connection with other factors, tends to affect in any way the outcome of the
decision.’” (quoting Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 158 (3d Cir.
2013))).
Testimony supports the agency’s findings that Weatherford displayed animus toward
Ayres, see Consol. Rail Corp., 567 F. App’x at 338, and that Ayres’s dismissal was close in time
to the protected actions. Weatherford’s contention that the timing does not matter because of
Ayres’s short employment tenure is unconvincing. See Mickey v. Zeidler Tool & Die Co., 516
F.3d 516, 525 (6th Cir. 2008) (“Where an adverse employment action occurs very close in time
after an employer learns of a protected activity, such temporal proximity between the events is
significant enough to constitute evidence of a causal connection for the purposes of satisfying a
prima facie case of retaliation.”); see also Howington v. Quality Rest. Concepts, LLC, 298 F.
App’x 436, 446 (6th Cir. 2008) (finding a causal connection based on temporal proximity
between the protected activity and adverse employment action during a three-month employment
period).
And substantial evidence supports the agency’s findings that Weatherford’s explanations
for Ayres’s placement on the non-essential list and dismissal were a pretext for retaliation.
Weatherford points to the fact that another employee who refused to drive a load outside of his
certification was not placed on the non-essential list. Weatherford also contends that Ayres’s
placement was based on lower-than-expected activity at Williston and Ayres’s performance
issues. But the ALJ found that Weatherford’s rationale for Ayres’s termination and placement
on the non-essential list was inconsistent. “An employer’s changing rationale for making an
adverse employment decision can be evidence of pretext.” See Thurman v. Yellow Freight Sys.,
Inc., 90 F.3d 1160, 1167 (6th Cir. 1996). And substantial evidence supports this finding of
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inconsistency. The ALJ heard evidence that even while Ayres was on the non-essential list,
Weatherford hired new employees in Ayres’s job category (undermining the economic
explanation), and Ayres was initially told that he was not being called back so Weatherford could
investigate his safety complaints. And Weatherford told the state unemployment agency that
Ayres was fired because he “failed to follow instructions,” not because of a reduction in force.
So the Board’s finding of pretext is also supported by substantial evidence.
Finally, the Board found that Weatherford did not meet its rebuttal burden, as it could not
show by clear and convincing evidence that it would have taken the same adverse actions absent
Ayres’s protected activities. See 49 U.S.C. § 31105(b)(1). The ALJ and the Board considered
Weatherford’s changing reasons for Ayres’s termination and placement on the non-essential list
and conflicting evidence about Ayres’s performance issues. Substantial evidence supports the
Board’s factfinding, and its conclusion that Weatherford had not presented clear and convincing
rebuttal evidence is not arbitrary, capricious, or otherwise an abuse of discretion. As a result,
Weatherford has not shown that the Department of Labor erred when it found that Weatherford
violated the STAA whistleblower provisions.
D.
Weatherford next challenges the ALJ and Board’s awards of compensatory damages and
attorneys’ fees to Ayres. The STAA permits the payment of “compensatory damages, including
backpay with interest and compensation for any special damages sustained as a result of the
discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.”
49 U.S.C. § 31105(b)(3)(A)(iii).
Backpay. The Board reasonably considered relevant factors in approving the ALJ’s
backpay award. The Board noted that the ALJ’s analysis was based on Ayres’s earnings from
the date of his discharge until the hearing (Ayres passed away shortly after the hearing). The
Board also considered that the ALJ “denied pay for a six-month period during which Ayres did
not seek comparable employment, subtracted [Ayres’s] ‘business income’ earnings in 2014, and
subtracted the salary Ayres earned while employed at other employers following his discharge.”
This was reasoned decision making.
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Weatherford argues that Ayres’s backpay should have ended in October 2014 under the
after-acquired evidence doctrine because Weatherford discovered false statements on Ayres’s
employment application that would have resulted in his termination. But the ALJ considered this
contention. Substantial evidence supports the ALJ’s findings that Weatherford did not show it
would have terminated Ayres upon learning of the false statements, as its own HR representative
testified that she was unsure if it would have resulted in Ayres’s termination.
The Board considered and rejected Weatherford’s contention that Ayres failed to mitigate
damages because he was discharged from subsequent employment for cause. The Board
reasonably considered the ALJ’s conclusion and lack of evidence and affirmed the ALJ. Finally,
the Board affirmed the ALJ’s consideration of Ayres’s subsequent wages and Social Security
benefits; Weatherford’s contentions otherwise are unavailing.
Attorneys’ Fees. Weatherford challenges the ALJ and Board’s respective awards of
attorney fees and costs to Ayres’s estate. The STAA allows a prevailing party to be reimbursed
for attorney costs and litigation fees. 49 U.S.C. § 31105(b)(3)(B). The agency considered and
rejected the arguments that Weatherford raises on appeal: the ALJ explicitly considered and
discounted hours that prepared for the district court case and the Board found that “the attorney
hours expended were reasonably incurred and the requested hourly rate was reasonable.” This
was not arbitrary, capricious, or an abuse of discretion. The ALJ and Board used the “lodestar”
method which “approximates the fee that the prevailing attorney would have received if he or
she had been representing a paying client who was billed by the hour in a comparable case,”
based on the local rates. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010). There is
“a ‘strong presumption’ that the lodestar figure is reasonable.” Id. at 554.
Weatherford also argues that attorneys’ fees should not be awarded because this case was
close. But the statute states, without regard to the closeness of a case, that “the Secretary of
Labor may assess against the person against whom the order is issued the costs (including
attorney fees) reasonably incurred by the complainant in bringing the complaint.” 49 U.S.C.
§ 31105(b)(3)(B). Weatherford also relies on the district court’s dismissal of Ayres’s claims, but
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since that was a separate case with separate issues, that does not affect the award of attorneys’
fees in the agency proceedings.
***
We DENY the petitions for review.