Bettner, William v. LABR ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2679
W ILLIAM J. B ETTNER,
Petitioner,
v.
A DMINISTRATIVE R EVIEW B OARD ,
United States Department of Labor,
Respondent,
and
C RETE C ARRIER C ORPORATION,
Intervening Respondent.
____________
Petition for Review of
an Order of the Department of Labor.
No. 06-013
____________
S UBMITTED A PRIL 9, 2008—D ECIDED A UGUST 21, 2008
____________
Before P OSNER, R IPPLE and M ANION, Circuit Judges.
R IPPLE, Circuit Judge. On December 6, 2003, William
Bettner filed a complaint with the Occupational Safety and
Health Administration (“OSHA”), an agency within the
2 No. 07-2679
Department of Labor, alleging that his employer, Crete
Carrier Corp. (“Crete”), had discriminated against him
in violation of the Surface Transportation Assistance Act,
49 U.S.C. § 31105 (“STAA”). OSHA entered a preliminary
finding against Mr. Bettner, and he requested de novo
review before an Administrative Law Judge (“ALJ”) under
49 U.S.C. § 31105(b)(2)(C).
Before the ALJ, Crete filed a motion for summary deci-
sion under 29 C.F.R. § 18.40. On October 28, 2005, the ALJ
issued a recommendation to grant Crete’s motion for
summary decision. On May 24, 2007, the Department of
Labor’s Administrative Review Board (the “Board”) issued
a final decision granting Crete’s motion. Mr. Bettner
filed a timely petition for review. For the reasons set
forth in this opinion, we deny Mr. Bettner’s petition.
I
BACKGROUND
A.
The Department of Transportation (“DOT”) regulates,
inter alia, the number of hours a commercial truck driver
may drive in a given period. In 49 C.F.R. § 395.3, the
DOT establishes the maximum number of hours that a
driver may drive during any given day, as well as the
maximum number of hours that a driver may drive
during any given week; it also mandates the minimum
number of consecutive hours off-duty that must be ob-
served between shifts of driving. At the time relevant to
No. 07-2679 3
this appeal,1 section 395.3 prohibited a motor carrier from
requiring any driver to drive “[m]ore than 10 hours
following 8 consecutive hours off duty,” or “for any period
after . . . [h]aving been on duty 60 hours in any 7 consecu-
tive days . . . or . . . 70 hours in any period of 8 consecutive
days.” 49 C.F.R. § 395.3 (2002). In addition to these
driving limitations, 49 C.F.R. § 395.8 establishes minimum
reporting requirements. During each 24-hour period, the
driver must record in a driving log his status, the date, the
24-hour starting time, the carrier, the truck number, the
number of miles driven that day, and the total hours
spent driving and on duty. Id. § 395.8(d), (f).
Despite the DOT’s numerous regulations, however, in
the early 1980s, the United States experienced an increasing
number of deaths, injuries and property damage due to
commercial motor vehicle accidents. See 128 Cong. Rec.
32,509, 32,510 (1982) (remarks of Sen. Danforth and sum-
mary of proposed statute) (quoted in Brock v. Roadway
Express, Inc., 481 U.S. 252, 258 (1987)). Random inspections
by law enforcement officials in various parts of the
country uncovered significant and widespread violations
of safety regulations. Id. (quoted in Brock, 481 U.S. at 262).
1
In April 2003, the Department of Transportation amended the
regulation to increase the applicable hours limit, prohibiting
employers from requiring drivers to drive more than “11
cumulative hours following 10 consecutive hours off duty.” 49
C.F.R. § 395.3 (2003). Although the incidents in this case took
place between October 3 and October 8, 2003, the amended
regulation is not applicable because it did not go into effect
until January 4, 2004. 68 Fed. Reg. 22,456, 22,514 (Apr. 28, 2003).
4 No. 07-2679
Congress hypothesized that, although employees in the
transportation industry often are in the best position to
detect safety violations, fears or threats of discharge for
cooperating with enforcement agencies were preventing
these employees from reporting these violations. See
Brock, 481 U.S. at 258.
Accordingly, in 1982, Congress enacted the STAA, an
Act intended to provide employees with express protec-
tion against retaliation for reporting noncompliance with
safety regulations. Id. The STAA makes it unlawful for
an employer to “discharge an employee, or discipline or
discriminate against an employee regarding pay, terms, or
privileges of employment,” for refusing to operate a
commercial vehicle because “the operation violates a
regulation, standard, or order of the United States
related to commercial motor vehicle safety, health, or
security.” 49 U.S.C. § 31105(a)(1)(B)(i).
An employee who believes that he has been retaliated
against for engaging in an activity protected under the
STAA may file a complaint with the Department of Labor.
Id. § 31105(b). OSHA then investigates the claim and
orders relief if it finds reasonable cause to believe that
the STAA has been violated. Id. § 31105(b)(2)(A). Either
party, however, may object to OSHA’s findings and
request a de novo proceeding before an ALJ. Id.
§ 31105(b)(2)(B). The ALJ may hold a hearing; alternatively,
it may issue a summary decision for either party “if the
pleadings, affidavits, material obtained by discovery or
otherwise, or matters officially noticed show that there
is no genuine issue as to any material fact and that a
party is entitled to summary decision.” 29 C.F.R. § 18.40(d).
No. 07-2679 5
Once the investigating body has recommended a deci-
sion, the parties may submit briefs to the Board. 29 C.F.R.
§ 1978.109(c)(1). The Board then makes a final determina-
tion and, if warranted, orders relief. A party aggrieved
by the final decision of the Board may petition for
review in the appropriate court of appeals. 49 U.S.C.
§ 31105(c).
B.
At all times relevant to this case, Crete, an over-the-road
trucking company, operated at least two distinct fleets of
trucks: (1) a fleet dedicated solely to shipments of goods
for a single customer, General Mills/Pillsbury (the “Dedi-
cated Fleet”), and (2) a non-designated fleet (the “National
Fleet”). For the Dedicated Fleet, Crete guaranteed that a
certain number of tractors, trailers and drivers would be
used exclusively to haul General Mills’ goods; it also
guaranteed that it would pick up and deliver freight at
specific times designated by General Mills. General Mills
tightly enforced the timing requirements for its pickups
and deliveries. Any pickup or delivery that occurred
outside the designated time window was considered a
“Service Failure,” which resulted in penalties to Crete. In
return for these timing guarantees, General Mills paid
Crete a premium rate and allocated to Crete a certain
percentage of its daily freight.
In contrast with the Dedicated Fleet, equipment and
drivers in Crete’s National Fleet were not assigned to
particular customers. Because premium payment was not
contingent upon compliance with scheduled pickup and
delivery times, proper scheduling was not as critical for
6 No. 07-2679
National Fleet drivers. Therefore, National Fleet drivers
were dispatched on a more ad-hoc basis than those as-
signed to the Dedicated Fleet.
In late August or early September 2003, Crete hired
Mr. Bettner as a truck driver and assigned him to the
Dedicated Fleet. In that position, he was tasked with
performing pickups and deliveries for General Mills, each
to be completed within certain windows of time. Crete’s
dispatchers compiled the pickup and delivery time win-
dows into planned dispatches for its drivers; from
these dispatches, however, the individual driver was
responsible for planning his specific route, driving time,
breaks, maintenance checks and all of the other details
of his trip in order to comply with both General Mills’
schedule and the DOT hours of service regulations.
On October 3, 2003, a Crete dispatcher provided Mr.
Bettner with a dispatch consisting of three separate pick-
ups and deliveries. Mr. Bettner was to pick up a load at
Geneva, Illinois that evening and deliver it in Atlanta,
Georgia on the morning of October 6. Later on October 6,
he was to pick up another load in Lavergne, Tennessee;
this load was to be delivered to a facility in Geneva, Illinois
on October 7, between noon and 11 p.m. Finally, he was
to pick up a third load in Kankakee, Illinois at 3:00 p.m.
on October 7, and deliver it in Joplin, Missouri by
11:00 p.m. the following day. The dispatch read as follows:
1. Pickup Location/Window
Geneva, Illinois - 10/03/03 - 5:00p.m.-11:59pm
Delivery Location/Window
Atlanta, Georgia - 10/06/03 - 12:01a.m.-12:00pm
No. 07-2679 7
2. Pickup Location/Window
Lavergne, Tennessee - 10/06/03 - 8:30am-5:00pm
Delivery Location/Window
Geneva, Illinois - 10/07/03 - 12:01pm-11:00pm
3. Pickup Location/Window
Kankakee, Illinois - 10/07/03 - 3:00pm
Delivery Location/Window
Joplin, Missouri - 10/08/03 - 11:00pm
R.37.
1. Geneva to Atlanta dispatch
Mr. Bettner picked up his first dispatch in Geneva on the
evening of October 3, within the pickup window desig-
nated by General Mills. He then went off duty until
1:00 a.m. on October 5, when he began his drive to Atlanta.
He logged 10.75 hours of driving on October 5.
On October 6, beginning at 7:00 a.m., Mr. Bettner drove
the remaining 3 hours to Atlanta, taking a lengthy break
around 8:00 a.m. He arrived in Atlanta around 11:00 a.m.,
which was within the specified 12:01 a.m. to 12:00 p.m.
delivery window. Because of delays at the Atlanta facility,
however, his trailer actually was not unloaded until
12:45 p.m., almost one hour after the delivery window
had closed. Accordingly, the load was considered late
by General Mills. Mr. Bettner testified in his deposition
that he knew that waits in the Atlanta depot were not
uncommon, and he acknowledged that his truck might
have been unloaded within the delivery window had he
arrived earlier. R.33, Ex. A at 161, 164-65.
8 No. 07-2679
2. Lavergne to Geneva dispatch
Mr. Bettner left Atlanta around 1 p.m. on October 6 and
drove approximately 1.5 hours toward Lavergne. He then
contacted the customer in Lavergne to see if his next
load was ready to be picked up, but he was told that the
load would not be ready until later that night. Because
that load was delayed, he went off duty for a few hours
and then completed the 4-hour drive to Lavergne. He
arrived in Lavergne at 7:45 p.m.; he picked up his second
load and then drove for approximately 1 hour toward
the delivery point in Geneva, before going off duty for
the night at 10:00 p.m. Mr. Bettner logged a total of 8.75
hours of driving on October 6.
After an 11.5-hour rest, Mr. Bettner went on duty at 9:30
a.m. on October 7. He inspected his truck, and then he
resumed the drive to Geneva. Sometime around 3:00 p.m.,
when he was scheduled to pick up his next load in
Kankakee, Mr. Bettner sent Crete a message stating that
his pickup time in Kankakee needed to be rescheduled
because he had not yet completed his Geneva delivery.
Crete later sent Mr. Bettner a message informing him
that the Kankakee load had been rescheduled and could
be picked up early the next morning.
Mr. Bettner dropped off his load in Geneva at 8:45 p.m.
on October 7, within the 12:01 p.m. to 11:00 p.m. delivery
window. Kankakee, Illinois, was 70 miles from Geneva
via state highways. He had driven 8.75 hours already that
day, and he did not believe that he could complete the
trip to Kankakee without exhausting his permitted number
of hours under the DOT regulations. Accordingly, he
drove for one hour to a truck stop in Morris, Illinois, where
No. 07-2679 9
he entered his sleeping berth at 11:15 p.m. and stayed
overnight. Mr. Bettner logged a total of 9.75 hours of
driving on October 7.
While stopped in Morris, Mr. Bettner sent a Qualcomm
message to Crete inquiring about the rescheduled pickup
time in Kankakee. Crete responded that he had a new
pickup appointment for 7:00 a.m. Mr. Bettner sent a
message to Crete stating: “WILL NOT BE ABLE TO BE @
SHIPPER @ 7:00, OUT OF HOURS.” Supp. App. at 69.
At 7:30 a.m. on October 8, approximately 8 hours after
he had ended his shift the night before, Mr. Bettner in-
spected his truck and resumed driving. He arrived in
Kankakee, Illinois at 9:00 a.m., 18 hours after his original
pickup time and 2 hours after his rescheduled pickup time.
3. Kankakee to Joplin dispatch
At 11:15 a.m. on October 8, after his trailer was loaded,
Mr. Bettner left Kankakee, Illinois and began his drive to
Joplin, Missouri. He stopped for a 45 minute lunch break
and, later, an unexplained 3.75 hour break from 2:45 p.m.
to 6:30 p.m. During that break, Mr. Bettner sent another
Qualcomm message to Crete: “WILL NOT BE ABLE TO
GET TO RECEIVER BY END OF DAY, WILL BE OUT OF
HOURS FOR ONE THING, WILL BE THERE FIRST
THING IN MORNING . . . .” Id. at 72. Mr. Bettner drove
until 11:30 p.m., stopping in Doolittle, Missouri to sleep.
He logged a total of 8.5 hours of driving on October 8. He
did not reach Joplin, Missouri in time for his 11:00 p.m.
delivery window.
10 No. 07-2679
While in Doolittle, Mr. Bettner received another pre-
planned dispatch from Crete. It indicated that his next
shipment would be from Joplin, MO to Kalamazoo, MI,
and it would be loaded in Joplin at 9:00 a.m. on October 9.
Crete then sent a message to Mr. Bettner requesting his
estimated time of arrival in Joplin as well as an update
on his service hours from the previous day. Mr. Bettner
responded that his 8-hour break would not be complete
for another half hour, and he was still 3 or 4 hours away
from his delivery destination in Joplin.
Crete and Mr. Bettner then exchanged several Qualcomm
messages regarding Mr. Bettner’s late loads. As part of this
conversation, Crete stated:
PPLAN INFO WAS SENT TO U LAST FRIDAY
SHOWING U IT LIVE LOADED TUESDAY AFTER-
NOON WHICH WLD HAVE ALLOWED U TO BE ON
TIME LAST NIGHT TO JOPLIN, PLSE KEEP CLOSE
ATTN TO PPLAN TIMES.
Id. at 42. Mr. Bettner sent the following response:
I SEND IN MY HOURS EVERY DAY SO YOU
SHOULD BE AWARE OF MY HOURS. . . . IT IS NICE
TO HAVE PRE-PLANNED LOADS, BUT I AM ONE
PERSON AND NOT A TEAM.
Id. at 45. A Crete dispatcher sent a reply, stating:
its up to you to keep track of your hrs, I am planning
loads based on approx 500mi a day and when a load is
picked up late . . . it throws the rest of the week off.
Id. at 46. Mr. Bettner answered:
No. 07-2679 11
I DO KEEP TRAK OF MY HOURS AND I KNOW
WHEN YOU LOAD AND UNLOAD 6 TIMES A
WEEK, FUEL UP, VI’S AND OTHER THINGS THAT
TAKE ON DUTY TIME I WILL RUN UP AGAINST
THE CLOCK. SHORT RUNS RUN A DRIVER RIGHT
INTO THE GROUND, THERE IS NO GETTING
AROUND THAT.
Id. at 49. Crete’s dispatcher then stated:
LAST FRI U PICK UP IL TO GA, SHOWED U 2
PPLANS, MON TN TO IL, THEN TUES LIVE LD IN IL
TO DLV JOPLIN YESTERDAY. U PICKED UP LOAD
U HAVE NOW LATE . . . IT HAD TO BE RESET, NOW
U ARE DELIVERING IT LATE, NOW WE WILL BE
LATE PICKING UP YOUR PPLAN OUT OF JOPLIN
TODAY . . . .
LOAD THAT DLV TO GA THIS PAST MONDAY
SHLD HAVE BEEN DROPPED EARLY MON MORN-
ING RATHER THAN AROUND 1200, THIS PUT THE
WHOLE WEEK BEHIND & DIDN’T ALLOW U TO
PICK UP TN LD TILL MONDAY NIGHT THEN
DIDN’T ALLOW U TO DLV TO IL TO TUES NIGHT
WHICH MISSED THE PICK UP TIME FOR LD U ARE
ON NOW.
Id. at 50-51.
Mr. Bettner responded that he had picked up his loads
in Atlanta and Lavergne within the specified window of
time; he also noted that the load in Lavergne had just
been loaded when he got there, so an earlier arrival “would
have made no difference” in his ability to meet the dead-
12 No. 07-2679
line for his later shipments. Id. at 53. Crete, in turn,
replied that Mr. Bettner needed to plan properly for
contingencies. Id. at 58.
Accordingly, after conducting a vehicle inspection,
Mr. Bettner resumed his driving at 9 a.m. on October 9. He
took a brief lunch break, and he arrived in Joplin to deliver
his shipment at 1:00 p.m., 14 hours after the original
delivery window had closed. He asserts that the drive from
Morris, Illinois to Kankakee, Illinois, to Joplin, MO took
11.5 hours; therefore, he submits, he could not have
completed it within a single day under the then-existing
DOT regulations. See 49 C.F.R. § 395.3 (2002).
4. Subsequent Events
Because Mr. Bettner was late dropping off his load in
Joplin, he also was unable to pick up his next load at the
previously scheduled 9:00 a.m. pickup time. Instead, he
picked up his new load at 2:30 p.m. in Joplin; he then
began driving to Kalamazoo.
On October 10, after he also missed the delivery window
in Kalamazoo by a significant amount of time, Crete sent
Mr. Bettner a message indicating that it was transferring
him from a truck-driving position with the Dedicated Fleet
to a truck-driving position with the National Fleet. The
next day, Mr. Bettner spoke with a manager, who told him
that he was being transferred because he routinely failed to
pick up and deliver his loads on time.
Mr. Bettner returned to Crete’s terminal on October 12,
2003, to have his assigned truck serviced; he was informed
No. 07-2679 13
that his truck would not be ready until the next day. The
next morning, when he arrived to pick up his truck, Mr.
Bettner was informed that the remainder of his pre-
planned dispatch on the Dedicated Fleet had been reas-
signed to another driver. Based on this information, Mr.
Bettner assumed that he had been fired. He removed his
belongings from his truck and sent Crete a Qualcomm
message indicating that he believed that he had been fired
when he was switched from the Dedicated Fleet to the
National Fleet. Mr. Bettner did not report to work again.
C.
Mr. Bettner filed a complaint with OSHA on December
6, 2003. He claimed that Crete transferred him to the
National Fleet in retaliation for his refusal to violate DOT
hour restrictions, in violation of the STAA. In his view, the
position with the National Fleet was inferior to the position
with the Dedicated Fleet because (1) National Fleet drivers
are away from home for greater periods of time than
drivers for the Dedicated Fleet, (2) Dedicated Fleet drivers
carry a greater number of “drop-and-hook” loads than the
National Fleet drivers, and therefore they spend less time
in the terminals loading and unloading trailers and more
time driving, and (3) a number of the National Fleet
deliveries require the driver to help load and unload, a
physically difficult task. Mr. Bettner requested reinstate-
ment to his former position on Crete’s Dedicated Fleet.
OSHA investigated the claim and, on February 23, 2004,
found that it lacked merit. Mr. Bettner then requested that
the matter be assigned to an ALJ. On October 28, 2005, after
14 No. 07-2679
reviewing the pleadings and the evidence, the ALJ also
recommended that Mr. Bettner’s complaint be dismissed,
finding that Mr. Bettner had failed to establish a genuine
issue of material fact relevant to his STAA claim. Specifi-
cally, it found that Mr. Bettner had failed to establish that:
(1) he engaged in protected activity; (2) he suffered an
adverse employment action; and (3) Crete’s legitimate,
non-discriminatory justification for transferring him
was mere pretext for retaliation.
The parties filed supplemental briefs with the Board. On
May 24, 2007, the Board accepted the ALJ’s recommenda-
tion and dismissed Mr. Bettner’s complaint. The Board
noted that Crete had presented unrebutted evidence that
it had transferred Mr. Bettner to the National Fleet, where
proper timing of deliveries was not as critical, because of
its belief that Mr. Bettner had difficulty in planning his
timing and routes in order to complete his dispatches
on time. Because Mr. Bettner failed to adduce any evi-
dence that Crete’s proffered reason for transferring him
to the National Fleet was pretextual, the Board concluded
that there was no question of fact as to Crete’s legitimate,
non-discriminatory justification. It did not address the
other issues addressed by the ALJ.2 Mr. Bettner then timely
filed a petition for review.
2
Accordingly, we also do not address whether Mr. Bettner
engaged in protected activity or whether he suffered an ad-
verse employment action. See Moab v. Gonzales, 500 F.3d 656, 659-
60 (7th Cir. 2007) (discussing SEC v. Chenery Corp., 318 U.S.
80 (1943), and SEC v. Chenery Corp., 332 U.S. 194 (1947), and
noting that “the opinion of the Board is free-standing and,
therefore, must be the exclusive focus of our review”).
No. 07-2679 15
II
DISCUSSION
Under 29 C.F.R. § 18.40(d), an ALJ “may enter summary
judgment for either party if the pleadings, affidavits,
material obtained by discovery or otherwise, or matters
officially noticed show that there is no genuine issue as to
any material fact and that a party is entitled to summary
decision.” Although we generally review a final decision
and order of the Board with some level of deference, the
parties here each assert that, because the ALJ’s decision
was made without a hearing on “summary judgment,” we
should review the Board’s decision de novo. We need not
resolve this issue here, however, because the result in
this case is the same under either standard of review.
In STAA retaliation cases, the Board has adopted the
familiar burden-of-proof framework that we developed
for pretext analysis under other federal discrimination
laws, such as Title VII. Feltner v. Century Trucking, Ltd.,
ARB No. 03-118 (Oct. 27, 2004). Under this framework,
a party attempting to prove a retaliation claim may pro-
ceed under either the direct or indirect method of proof.
See Roadway Express, Inc. v. Dep’t of Labor, 495 F.3d 477, 481
(7th Cir. 2007).
Before the ALJ and the Board, Mr. Bettner elected to
proceed only under the indirect, burden-shifting method
of proof. According to that method, the employee can
create an inference of discrimination or retaliation by
introducing the evidence necessary to establish a prima
facie case. Id. at 481-82. As we noted in Roadway Express, an
employee may establish a prima facie case of retaliation
16 No. 07-2679
under the STAA by showing: “1) that he engaged in
protected activity under the STAA; 2) that he was the
subject of adverse employment action; and 3) that there
was a causal link between his protected activity and the
adverse action of his employer.” Id. Once that inference
is established, the burden shifts to the employer to articu-
late a legitimate, non-discriminatory reason for the ad-
verse employment action. Id. at 482. If the employer
satisfies this burden, then the rebuttable presumption of
discrimination is dissolved, and the employee must
produce evidence to suggest that the employer’s
proffered reason for the termination is a mere pretext for
an unlawful discharge. Id.; Bellaver v. Quanex Corp., 200
F.3d 485, 493 (7th Cir. 2000). Summary judgment may be
granted in favor of the defendant if he “presents unrebut-
ted evidence that he would have taken the adverse em-
ployment action against the plaintiff even if he had no
retaliatory motive.” Culver v. Gorman & Co., 416 F.3d 540,
546 (7th Cir. 2005).
Here, Mr. Bettner submits that he engaged in protected
activity when he refused to drive more hours than were
permitted under the DOT regulations. He contends that
Crete’s decision to transfer him to the National Fleet was
an adverse employment action, and he submits that the
action was taken in retaliation for his engaging in pro-
tected conduct. As evidence of causation, Mr. Bettner
relies solely upon the “suspicious timing” of the trans-
fer—a few days after his refusal—as circumstantial evi-
dence suggesting retaliation.
Assuming, as the Board did, without deciding, that Mr.
Bettner has succeeded in establishing a prima facie case of
No. 07-2679 17
discrimination, we look to whether Crete articulated a
legitimate, non-discriminatory reason for Mr. Bettner’s
transfer. Crete submits that Mr. Bettner was transferred
because the company believed that he had poor planning
skills and a history of late deliveries. Because planning
and timing were essential for drivers on the Dedicated
Fleet, but not nearly as critical for drivers in the National
Fleet, Crete simply transferred Mr. Bettner to an assign-
ment where it could best utilize his driving skills.
Crete’s explanation finds ample support in the record. It
is undisputed that timely pickups and deliveries on the
Dedicated Fleet were critical both to General Mills, in an
effort to control its inventory, and to Crete, in an effort
to avoid penalties. During the brief time that Mr. Bettner
drove for the Dedicated Fleet, Crete’s dispatcher, Chris
Lingbloom, complained often to Mr. Bettner about his
late deliveries and his failure to plan a proper route. See
Supp. App. at 42, 46, 50-51, 58-59, 67. Lingbloom testified
in an affidavit that he informed Crete’s management
about Mr. Bettner’s difficulties in planning and completing
routes on time, and soon thereafter Mr. Bettner was
transferred from the Dedicated Fleet to the National Fleet.
Id. at 89. Threne Greenfield, a manager, also submitted an
affidavit stating that Mr. Bettner was transferred to the
National Fleet because “he routinely failed to timely
deliver and/or pick up loads.” Id. at 86.
Before the ALJ, Mr. Bettner produced no evidence
challenging Crete’s proffered explanation. Indeed, he
failed even to address the issue in his response to Crete’s
motion for summary decision. He merely reasserted that
18 No. 07-2679
the suspicious timing of his transfer alone could support
a finding that Crete transferred him because of his pro-
tected activities. As we consistently have held, however,
suspicious timing may be enough to fulfill the plaintiff’s
minimal burden of establishing a prima facie case, but
suspicious timing alone generally is insufficient to estab-
lish a genuine issue of material fact for trial. Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 506-07 (7th Cir. 2004);
Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th
Cir. 2004); Foster v. Arthur Anderson, LLP, 168 F.3d 1029,
1034 (7th Cir. 1999).
Mr. Bettner’s contention on appeal—that it was, in fact,
impossible for him to complete the planned dispatches
without violating the DOT hours requirement—also is
insufficient to create a genuine issue of material fact. He
does not allege that it was impossible for any driver to
comply with both the planned dispatches and the DOT
hours-of-service regulations;3 he contends only that the
circumstances of his trip made it impossible for him to
complete his deliveries on time, and that his failure to
pick up and deliver his shipments timely therefore was
not his fault. Whether Mr. Bettner’s failure to complete
his assignments timely was due to his own inability to
plan his routes or to circumstances beyond his control,
3
Of course, if the company had dispatched drivers on routes
that were objectively impossible to complete while complying
with the DOT regulations, and then threatened them with an
adverse employment action if they did not complete their
deliveries on time, this would be a different case.
No. 07-2679 19
however, is irrelevant to his retaliation claim. Our
inquiry in a retaliation claim is limited to the belief of the
decisionmakers, whether or not that belief is reasonable.
See Culver, 416 F.3d at 547 (noting that “the issue before
us is not whether an employer’s evaluation of the em-
ployee was correct but whether it was honestly believed”);
see also Wyninger, 361 F.3d at 981; Kahn v. Sec’y of Labor,
64 F.3d 271, 278 (7th Cir. 1995).
Moreover, Mr. Bettner likely waived this issue by failing
to assert it before the ALJ. As the Board noted in its
opinion:
In this case, Bettner failed to adduce any evidence,
either direct or indirect, that Crete’s proffered reason
for transferring him to the national fleet was untrue.
As indicated above, the ALJ found that not only did
Bettner fail to produce any evidence to suggest that
the transfer was a pretext for discrimination, he did not
even address the issue. Moreover, once alerted to this
deficiency by the ALJ, Bettner made no attempt to
rectify his omission or rebut the ALJ’s conclusion on
appeal. While Bettner expended a large part of his
appeal brief attempting to convince the Board that it
was not his fault that he failed to timely deliver and
pick up his loads, he made no attempt to show that
Crete did not believe that his failure to timely pick
up and deliver his loads was due to poor planning
on his part.
Bettner v. Crete Carrier Corp., ARB No. 06-013, at 15 (May 24,
2007).
Crete presented evidence that it honestly believed that
Mr. Bettner lacked the planning skills necessary to com-
20 No. 07-2679
plete timely the deliveries on the Dedicated Fleet and
that this had been the motivation for its decision to
transfer him to the National Fleet. Our task is not to
determine whether Crete was correct in its view, but
whether the record establishes that it had a reasonable,
non-retaliatory basis for its decision. Here, we believe
that Crete has made such a showing. The record estab-
lishes that, out of the three deliveries originating from
the pre-planned dispatch, Mr. Bettner was late delivering
his shipments to Atlanta and Joplin, and he failed to
arrive on time to pick up his loads in Lavergne and
Kankakee. Four service failures were issued to Crete due
to Mr. Bettner’s failure to deliver or pick up shipments
in a timely manner. Numerous Qualcomm messages
between the parties substantiate Crete’s belief that
Mr. Bettner’s failure to plan ahead was the reason for
his tardy deliveries.
Crete is entitled to summary judgment if it presents
“unrebutted evidence” that it would have taken the
same action in the absence of the employee’s protected
conduct. Culver, 416 F.3d at 546 (“The persuasiveness of
the defendant’s explanation is normally for the finder of
fact to assess, unless . . . the defendant presents unrebutted
evidence that he would have taken the adverse employ-
ment action against the plaintiff even if he had no retalia-
tory motive.” (internal citations and quotation marks
omitted)); Stone v. City of Indianapolis Pub. Utils. Div., 281
F.3d 640, 644 (7th Cir. 2002). The ALJ determined that
Crete had presented unrebutted evidence of a non-retalia-
tory motive for its action, and it found in favor of Crete.
The Board agreed. We conclude that the ALJ and the
No. 07-2679 21
Board correctly determined that Mr. Bettner failed to
carry his burden to produce evidence rebutting Crete’s
proffered non-retaliatory justification; accordingly, they
properly granted summary decision in favor of Crete.
Conclusion
For the reasons explained in this opinion, we deny
Mr. Bettner’s petition for review.
P ETITION for review D ENIED
8-21-08