                United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-3004
                        ___________________________

                         Maverick Transportation, LLC

                            lllllllllllllllllllllPetitioner

                                          v.

            U.S. Department of Labor, Administrative Review Board

                           lllllllllllllllllllllRespondent

                               Albert Brian Canter

                            lllllllllllllllllllllIntervenor
                                   ____________

                      Petition for Review of an Order of the
                       Department of Labor (except OSHA)
                                  ____________

                            Submitted: June 13, 2013
                             Filed: January 16, 2014
                                 ____________

Before LOKEN, BRIGHT, and BYE, Circuit Judges.
                           ____________

BYE, Circuit Judge.

     An Administrative Law Judge found Maverick Transportation, LLC
(Maverick), liable for taking retaliatory action against Albert Brian Canter in
violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105.
The Department of Labor Administrative Review Board (ARB) affirmed. Maverick
now petitions for review, which we deny.

                                           I

       In early October of 2003, Maverick hired Canter as a commercial vehicle
driver. On November 21, 2003, while driving a tractor-trailer carrying a load for
Maverick, Canter was involved in an accident in Pennsylvania which resulted in the
death of a motorist. The Pennsylvania State Police placed the truck Canter had been
driving out of service while they investigated the accident. During the post-accident
inspection, a state trooper found the truck had defects in violation of a number of
federal safety regulations. The defects included brakes out of adjustment, a fluid leak
in the power steering box, a chaffing brake hose, and improperly secured dunnage.

       The trooper told Canter the truck would be released, provided the brakes were
adjusted immediately and Maverick assured him the other violations would be
corrected. Canter informed Maverick about the defects and the conditions for the
truck’s release. Canter corrected the dunnage defect himself and Maverick arranged
to have the truck’s brakes adjusted the following day. Canter then called Maverick
to inform it two defects remained uncorrected. Maverick’s fleet manager, Robert
Roberson, told Canter the local law enforcement officials had authorized Canter to
drive the truck to Canter’s home, provided the remaining defects were corrected there.

       Canter drove the truck approximately eighty miles to a truck stop near his
home. There, on Maverick’s instructions, he dropped off the trailer containing the
load he had been carrying. Maverick dispatched another driver to pick up Canter’s
load but did not arrange for the remaining defects in the truck to be corrected at the
truck stop. Canter then drove the truck another nine miles to his home.



                                         -2-
      As a result of the accident, Canter experienced depression. Maverick required
Canter to take a month-long medical leave. Maverick did not arrange to have the
truck’s defects corrected while Canter was on medical leave. On December 29, 2003,
Canter was cleared to return to work. He chose to resign instead.

       When Canter called to inform Maverick of his resignation, he spoke to
Roberson. Roberson asked Canter to drive the truck an additional 200 to 250 miles
to Maverick’s yard to return it. Canter refused to do so unless Maverick first fixed
the remaining defects and agreed to provide him with transportation home. Canter
told Roberson the truck had “too many deadline problems,” and the uncorrected
defects with the truck were in violation of federal safety regulations. Canter then left
the truck with the uncorrected defects at the truck stop where he had left its trailer a
month earlier, which he had authority to do, and informed Maverick of its location.

       After Canter resigned, Roberson prepared an internal memo to submit to
Maverick’s Rehiring Committee, in which Roberson indicated Canter had refused to
drive the truck because it had “too many deadline problems.” Roberson also talked
with Maverick officials about placing an abandonment notation in Canter’s Drive-A-
Check1 (DAC) report. An abandonment notation has a negative effect on a driver’s
ability to be hired and some employers refuse to hire drivers who have an
abandonment notation in their DAC report. The Rehiring Committee ultimately
placed an abandonment notation in Canter’s DAC report because Canter had refused
to drive the truck to Maverick’s yard.

     Canter secured employment one month after resigning from Maverick and
worked for five different trucking companies between 2004 and 2008. After April


      1
       A Drive-A-Check report is a consumer report describing a truck driver’s
employment history. Potential employers can access the report when making hiring
decisions.

                                          -3-
2008, Canter began experiencing difficulty finding work. Sometime on or after June
1, 2008, a recruiter told Canter information in his DAC report had prevented Canter
from being hired. Canter requested the report and received it thirty days later,
sometime in July or August of 2008. This was the first time Canter had seen his DAC
report or the abandonment notation.

       Canter’s final trucking job was with DSCO, Inc. (DSCO). He began working
for DSCO in July 2008 and resigned in September 2008 when DSCO requested he
violate federal hour-of-service regulations. Canter subsequently sought employment
with K&B Transportation (K&B). Canter met all of K&B’s hiring requirements, but
K&B refused to hire him because of the abandonment notation in his DAC report.
Canter’s inability to find work negatively affected his mental state. He lost his home,
became depressed, suffered a loss of appetite, and experienced suicidal thoughts.
Canter eventually found work as a produce clerk.

      On December 16, 2008, Canter filed a STAA complaint against Maverick with
the Occupational Safety and Health Administration (OSHA) alleging retaliation.
OSHA’s investigation concluded the complaint lacked merit, and Canter sought
review by an Administrative Law Judge (ALJ).

       Before the ALJ, Maverick argued Canter had not timely filed his STAA claim,
which it also argued failed on the merits. In its recommended decision, the ALJ
concluded the claim was timely. Relying on ARB precedent interpreting the STAA
limitations period to begin to run when the employee receives definitive notice of an
adverse action, the ALJ found Canter had filed his claim within 180 days of receiving
definitive notice of the abandonment notation. The ALJ also concluded Maverick
had unlawfully retaliated against Canter. The ALJ reasoned Canter’s refusal to drive
the truck was protected by the STAA because the truck still had defects which
violated federal regulations, and of which Maverick was aware. The ALJ reasoned
in the alternative Canter had a reasonable fear of danger because of the truck’s unsafe

                                         -4-
condition. The ALJ further found the refusal had motivated Maverick to place the
abandonment notation in Canter’s DAC report, which the ALJ concluded was an
adverse action. Ultimately, the ALJ recommended awarding Canter back pay,
compensatory damages for emotional distress, and other relief not currently at issue.
Maverick sought review by the ARB.

      The ARB concluded the ALJ’s findings had all been supported by substantial
evidence and affirmed the ALJ’s conclusion Canter’s claim was timely. The ARB,
however, noted sua sponte the ALJ had erred in applying the standard under the
STAA as it had existed prior to being amended in 2007, in ruling on Canter’s claim.
Reviewing Canter’s STAA claim de novo under the post-2007 standard, the ARB
concluded Canter had prevailed on his retaliation claim.2 Finally, the ARB affirmed
the damage awards as supported by substantial evidence.

       Maverick now petitions for review. In its petition, Maverick argues the ARB
erred in (1) concluding Canter’s complaint was timely, (2) concluding Canter had
proven his retaliation claim, and (3) affirming the damages as awarded by the ALJ.3


      2
        In 2007, Congress amended the STAA to require a showing that protected
activity had been a “contributing factor” in the employer’s decision to take adverse
action against the employee. 49 U.S.C. § 42121(b)(2)(B)(i). The 2007 amendments
impose a lower burden on the employee than existed previously, when the employee
was required to show the protected activity had “motivated” the adverse action. See
Formella v. U.S. Dep’t of Labor, 628 F.3d 381, 389 (7th Cir. 2010) (discussing the
effect of the 2007 amendments to the STAA).
      3
       Before this court, Maverick argues for the first time the ALJ erred in (1) using
the pre-2007 STAA standard; and, more specifically, (2) not requiring Canter to
prove the refusal had been a “contributing factor” under the post-2007 standard. We
do not consider those issues. See Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th
Cir. 2005) (“[T]here is a basic principle of administrative law that ‘[o]rdinarily an
appellate court does not give consideration to issues not raised below.’” (quoting
Hormel v. Helvering, 312 U.S. 552, 556 (1941))).

                                         -5-
                                          II

       We review the ARB’s decision under the deferential standard articulated in the
Administrative Procedure Act, 5 U.S.C. § 706(2). 49 U.S.C. § 31105(d). Under this
standard we must affirm the ARB’s conclusions of law unless the same are arbitrary,
capricious, an abuse of discretion, or otherwise contrary to law. 5 U.S.C.
§ 706(2)(A). We must also accept the agency’s factual findings if they are supported
by substantial evidence. 5 U.S.C. § 706(2)(E). “Substantial evidence is relevant
evidence that a reasonable mind would accept as adequate to support the [agency’s]
conclusion.” Steed v. Astrue, 524 F.3d 872, 874 (8th Cir. 2008) (citing Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). As long as the ARB correctly applied
the law and the ALJ’s “factual findings are supported by substantial evidence on the
record considered as a whole” we will affirm the ARB’s decision “even though we
might have reached a different decision had the matter been before us de novo.”
Wilson Trophy Co. v. N.L.R.B., 989 F.2d 1502, 1507 (8th Cir. 1993) (citations
omitted).

                                          III

       Maverick first contends the ARB’s conclusion Canter’s claim was timely was
contrary to law. Maverick argues the STAA limitations period began to run when it
placed the abandonment notation in Canter’s DAC report in 2004, and Canter did not
file his claim until December 16, 2008. Under the STAA, a driver has 180 days to
file a STAA claim from the date an alleged violation occurred. 49 U.S.C.
§ 31105(b)(1). The ARB, however, has interpreted the STAA to incorporate an
exception to the general background rule of accrual that a claim accrues at the time
of injury. See Osborn v. United States, 918 F.2d 724, 731 (8th Cir. 1990) (describing
the general rule). This exception is a version of the discovery accrual rule of federal
common law, such that the limitations period begins to run when the employee
receives notice of the adverse action taken by the employer. See Eubanks v. A.M.

                                         -6-
Express, Inc., ARB No. 08-138, 4 (ARB Sept. 24, 2009) (holding the employee had
180 days to file a claim from the date the employee received final, definitive, and
unequivocal notice of an adverse employment action). Maverick asserts the ARB’s
interpretation is invalid.

       In reviewing the Department of Labor’s interpretation of a statute it
administers, we ask two questions. First, we ask “whether Congress has directly
spoken to the precise question at issue.” Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842 (1984). “If . . . Congress has not directly addressed
the precise question at issue, the court does not simply impose its own construction
on the statute, as would be necessary in the absence of an administrative
interpretation.” Id. at 842-43. Instead, we ask “whether the agency’s [interpretation]
is based on a permissible construction of the statute.” Id. at 843.

       Maverick directs our attention to nothing which indicates Congress intended
to exclude a version of the general discovery accrual rule from the STAA. As we find
no indication Congress intended to exclude a version of the general discovery accrual
rule from the STAA, we find nothing impermissible in the agency interpreting the
STAA to incorporate it’s version of the rule. See Comcast of Ill. X v. Multi-Vision
Elec., Inc., 491 F.3d 938, 944 (8th Cir. 2007) (“In federal question cases, the
discovery rule applies in the absence of a contrary directive from Congress.”)
(internal quotation marks and citation omitted).

       The dissent argues Chevron deference is inappropriate here. The dissent first
asserts the Supreme Court in TRW Inc. v. Andrews, 534 U.S. 19, 27 (2001), expressly
refused to approve the precedent of Comcast. The dissent, however, misreads TRW.
In TRW, the Supreme Court considered a Ninth Circuit precedent which was,
admittedly, very similar to the one set forth in Comcast. Both precedents held that,
absent some contrary directive from Congress, we incorporate the general discovery
accrual rule into federal statutes. See TRW, 534 U.S. at 27; see also Comcast, 491

                                         -7-
F.3d at 944. Regarding this common holding, the Court merely noted it had not
adopted the position as its own. TRW, 534 U.S. at 27. The Ninth Circuit’s
precedent, however, exceeded the common holding by requiring Congress to make
the contrary directive an express one. See id. It was this requirement of an express
indication of intent to exclude the discovery accrual rule which the Court expressly
refused to endorse. See id. (“And, beyond doubt, we have never endorsed the Ninth
Circuit's view that Congress can convey its refusal to adopt a discovery rule only by
explicit command[.]”). The Supreme Court did not in TRW invalidate the
presumption of reading the discovery accrual rule into federal statutes. See id.
(noting TRW did not require the court to decide the extent of the presumption).
Because it did not, Comcast remains good law.

       The dissent next takes issue because the ARB’s version of the discovery rule
differs from the common law discovery accrual rule we would be required to apply
were we to interpret the STAA in the absence of the ARB’s decision. The ARB’s
version of the discovery accrual rule holds a violation of the STAA accrues when the
victim receives definitive notice of the injury, whereas the general discovery accrual
rule would hold accrual to occur upon discovery of the injury or when the victim with
due diligence should have discovered the injury. See TRW, 534 U.S. at 30; Comcast,
491 F.3d at 944. The question then, is whether the ARB, having decided to interpret
the STAA to include an exception to the general background rule of accrual that an
injury accrues at the time it occurs, can adopt an exception different from that widely
accepted under the common law. We conclude it can. In doing so, we are mindful
that where, as here, Congress is silent on the precise issue in question and the agency
has spoken, it is not for the court to impose its own construction of a statute.
Chevron, 467 U.S. at 842-43. Rather we are to ask whether the agency’s
interpretation is a permissible one. Id. at 843. Unlike the dissent, we do not believe
the ARB incorporating its version of the discovery rule into the STAA would
effectively read out the STAA’s statute of limitations. Accordingly, we do not find
the ARB’s interpretation to be an impermissible one, even though it differs from the

                                         -8-
rule we would be required to read into the statute if we were to interpret it in the first
instance.

      Thus, under Chevron we defer to the agency’s interpretation that the limitations
period in the STAA begins to run when the employee receives notice of the
employer’s adverse action. We also agree with the ARB that the ALJ’s finding
Canter received such notice within 180 days of filing his claim was supported by
substantial evidence. Accordingly, the ARB’s determination Canter timely filed his
claim was not contrary to law.

                                           IV

       Maverick next challenges the ARB’s determination Canter prevailed on his
retaliation claim. Maverick’s challenge is two-pronged. It argues the ALJ’s findings
are unsupported by substantial evidence.4 Maverick also argues two of the ARB’s
legal conclusions supporting the determination are contrary to law.

      A retaliation claim based on a refusal to drive under the STAA is considered
under a burden-shifting analysis. See 49 U.S.C. § 31105(a)(2)(b) (requiring STAA
complaints to be determined under the standard set forth in 49 U.S.C.
§ 42121(b)(2)(B)). A complainant must first prove a prima facie case of retaliation
by showing (1) the refusal to drive was protected under the STAA; (2) the employer
knew of the protected conduct; (3) the employer took an adverse employment action
against the complainant; and (4) the refusal to drive was a contributing factor in the
employer’s decision to take the adverse action. 49 U.S.C. §§ 31105(a)(1)(B),
42121(b)(2)(B)(i). Once a complainant sufficiently alleges a prima facie case, the


      4
       Maverick also argues the ALJ held Canter only to a burden of production and
not a burden of persuasion with regard to the facts. We find this contention to be
without merit.

                                           -9-
employer may rebut the employee’s evidence by showing by clear and convincing
evidence it would have taken the same action in the absence of the refusal. 49 U.S.C.
§ 31105(a)(1)(B)(ii).

                          A. Necessary Findings of Fact

      Maverick’s arguments about the findings of fact amount to assertions the ALJ
should have found the evidence supporting Maverick’s case as more compelling.
Maverick mistakes the nature of our review, which is to determine whether the
agency’s findings were supported by substantial evidence, not whether substantial
evidence supports a contrary finding. See Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999) (“We may not reverse the [agency’s] decision merely because
substantial evidence supports a contrary outcome.”).

       After a review of the record as a whole, we conclude all of the facts found by
the ALJ, including those pertaining to the retaliation claim, were supported by
substantial evidence. The pertinent findings include: (1) the truck had uncorrected
defects, (2) Maverick knew about the defects and that the defects violated federal
safety regulations, (3) Canter asked Maverick to fix the defects, (4) Canter refused
to drive the truck because the defects remained uncorrected, (5) Canter’s refusal
motivated Maverick to place the abandonment notation in Canter’s DAC report,
despite being aware the defects remained uncorrected,5 and (6) it is likely K&B would
have hired Canter had Maverick not placed the abandonment notation in his DAC
report.




      5
       Like the ARB, we consider the ALJ’s finding under the pre-2007 standard that
Canter’s refusal motivated Maverick to place the abandonment notation in Canter’s
DAC report, sufficient to prove under the post-2007 standard that the refusal had
been a contributing factor to Maverick’s decision to do so.

                                        -10-
                          B. Necessary Legal Conclusions

      Maverick challenges as contrary to law the ARB’s legal conclusions that
Canter’s refusal was protected activity, and the abandonment notation was an adverse
employment action.

       Protected Activity. The ARB concluded Canter’s refusal to drive the truck was
protected by the STAA because the truck’s uncorrected defects violated federal safety
regulations. In pertinent part, the STAA prohibits an employer from taking an
adverse employment action against an employee who refuses to operate a vehicle
because operation “violates a regulation . . . of the United States related to
commercial motor vehicle safety[.]” 49 U.S.C. § 31105(a)(1)(B)(i). At the time
Canter refused to drive the truck, the fluid leak in the power steering box and the
chaffing brake hose remained uncorrected. Driving the truck with either defect would
violate federal safety regulations. See 49 C.F.R. § 393.1(c) (prohibiting the operation
of vehicles not equipped in accordance with the requirements of part 393); id.
§ 393.45(b)(2) (requiring brake hoses to be secured against chaffing); id. § 393.209(e)
(requiring all components of a power steering system be in operating condition and
a power steering system not to leak).

       Relying on 49 C.F.R. § 396.9(c), Maverick argues the defects were not
violating safety regulations because they were not severe enough to place the truck
out of service. We find this argument unpersuasive. Nothing in the text of section
396.9(c), which sets forth the standard for placing a vehicle out of service, limits
violations to only those severe enough to place a vehicle out of service. Accordingly,
we find nothing contrary to law about the ARB concluding Canter’s refusal was
protected activity.

      The ARB also concluded in the alternative that Canter’s refusal to drive was
protected under the STAA because Canter had a reasonable fear of danger to himself

                                         -11-
or the public due to the truck’s unsafe condition. See 49 U.S.C. §§ 31105
(a)(1)(B)(ii). However, because we must accept the ARB’s conclusion that Canter’s
refusal to drive was protected because the uncorrected defects violated safety
regulations, we need not review the ARB’s alternate basis for finding the refusal
protected by the STAA.

        Adverse Employment Action. Maverick next challenges as contrary to law the
ARB’s conclusion that the placement of the abandonment notation in Canter’s DAC
report was adverse to Canter. Maverick argues it was not adverse because Canter was
initially able to obtain employment. Had Canter been aware of the abandonment
notation when Maverick first placed it in his DAC report, such that the limitations
period would have elapsed while Canter was still able to obtain work, that might be
the case. We have, after all, held the mere existence of a negative employment report
not to be adverse in the absence of proof the report negatively affected future
employment opportunities. See Turner v. Gonzales, 421 F.3d 688, 696 (8th Cir.
2005) (holding negative employee review not adverse until it is used to deny a job
opportunity).

         Under the unusual circumstances of this case, however, we cannot conclude the
ARB’s decision was contrary to law. The ARB had before it a finding supported by
substantial evidence that Maverick’s placement of the abandonment notation actually
led to Canter being denied employment. Because the ARB had that finding before
it, its conclusion that the placement of the abandonment notation was adverse was not
contrary to law.

      Accordingly, Maverick’s challenge to the ARB’s conclusion that Canter
prevailed on his retaliation claim fails.




                                        -12-
                                          V

      Maverick also challenges the back pay and compensatory damage awards as
contrary to law. It is undisputed that an employer who violates the STAA may be
ordered to pay awards for back pay and compensatory damages. 49 U.S.C.
§ 31105(3)(A)(iii).

       Maverick argues the calculation of the back pay award was contrary to law
because the ALJ did not reduce or eliminate the award to account for Canter’s failure
to mitigate damages by voluntarily leaving his position with DSCO. Typically, a
complainant’s voluntary decision to leave an interim position constitutes a failure to
mitigate damages that will toll the back pay period. E.E.O.C. v. Delight Wholesale
Co., 973 F.2d 664, 670 (8th Cir. 1992) (citing Brady v. Thurston Motor Lines, Inc.,
753 F.2d 1269, 1277 (4th Cir. 1985)). However, when the choice to voluntarily leave
the interim position is “motivated by unreasonable working conditions,” the decision
does not toll the back pay period. Id.; see also NLRB. v. Ryder Sys., Inc., 983 F.2d
705, 714 (6th Cir. 1993) (“A claimant who leaves his job for a justifiable reason does
not forfeit his right to additional back pay.”). Canter left DSCO because DSCO
wanted him to violate hour-of-service regulations, an unreasonable working
condition. Accordingly, the ALJ’s decision not to reduce the back pay award on that
basis was not contrary to law.

       At the last, Maverick contends the $75,000 the ALJ awarded Canter as
compensatory damages for his emotional distress is contrary to law because it is
excessive. Generally, “[a]wards for pain and suffering are highly subjective and the
assessment of damages is within the sound discretion of the” factfinder. Christensen
v. Titan Distribution, Inc., 481 F.3d 1085, 1097 (8th Cir. 2007) (quoting Webner v.
Titan Distribution, Inc., 267 F.3d 828, 836 (8th Cir. 2001)). “We have intervened
only in those rare situations where we are pressed to conclude that there is plain



                                        -13-
injustice or a monstrous or shocking result.” Hall v. Gus Const. Co., Inc., 842 F.2d
1010, 1017 (8th Cir. 1988) (internal quotation marks and citations omitted).

       Maverick argues the only evidence Canter offered of his depression was his
own testimony, and most STAA cases without medical evidence result in modest
awards. “A plaintiff’s own testimony can be sufficient for a finding of emotional
distress, and medical evidence is not necessary.” Christensen, 481 F.3d at 1097
(citing Webner, 267 F.3d at 836). We also note the ARB makes its compensatory
damage awards guided by the awards made in cases involving similar injuries. See
Leveille v. NY Air Nat’l Guard, ARB Case No. 98-079, 3 (ARB Oct. 25, 1999)
(discussing criteria for making compensatory damage awards). Our review of the
ARB’s case law indicates its awards for compensatory damages have varied
significantly. Although $75,000 is near the high end of the range, the ARB has made
similar awards in other cases. See, e.g., Michaud v. BSP Transp., Inc., ARB Case No.
97-113, 9 (ARB Oct. 9, 1997) (affirming award of $75,000 on evidence of major
depression and loss of home and savings). Accordingly, we find no abuse of
discretion in the ALJ’s award of $75,000 as compensatory damages for Canter’s
emotional distress.

                                         VI

      For the foregoing reasons, we deny the petition for review.

LOKEN, Circuit Judge, dissenting.

      I respectfully dissent. In my view, there are two distinct reasons why the
decision of the Administrative Review Board should not be affirmed.

      A. First, the Board committed errors of law in ruling that Canter’s retaliation
claim is not time-barred by the STAA’s express 180-day statute of limitations:

                                        -14-
      An employee alleging discharge, discipline, or discrimination in
      violation of subsection (a) of this section . . . may file a complaint with
      the Secretary of Labor not less than 180 days afer the alleged violation
      occurred.

49 U.S.C. § 31105(b). An agency may not ignore an express statute of limitations.
It reflects a legislative “value judgment concerning the point at which the interests in
favor of protecting valid claims are outweighed by the interests in prohibiting the
prosecution of stale claims.” Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 463-64 (1975), quoted in Ashley v. Boyle's Famous Corned Beef Co., 66 F.3d
164, 169 (8th Cir. 1995) (en banc).

       Canter’s complaint was filed more than five years after Maverick’s alleged
post-employment retaliatory action.6 Instead of dismissing the claim as time-barred,
the Board supposedly applied the “discovery rule of federal common law,” op. at 6,
which the court approves as consistent with Eighth Circuit precedent absent “a
contrary directive from Congress,” id. at 7. But the Supreme Court expressly refused
to approve that precedent in TRW, Inc. v. Andrews; instead, the Court concluded that
the “structure and text” of the federal statute at issue in that case “evince Congress’s
intent to preclude judicial implication of a discovery rule.” 534 U.S. 19, 27-28
(2001). In the federal labor laws, Congress has consistently adopted short statutes of
limitations in the interests of promptly resolving employment disputes and promoting


      6
        Canter’s claim was truly stale. He was hired seven times by four different
trucking companies after quitting Maverick in December 2003. He first experienced
“difficulty” in April 2008, when the country’s “Great Recession” had greatly reduced
the demand for truck drivers. Even then, he was hired by DSCO in July 2008 and
quit in early September 2008. When he obtained the DAC report later in September,
he objected to five different negative employer notations. Canter’s damage claim is
based on K&B’s subsequent failure to hire a prospective employee with a terrible
work record at a time when the economy was depressed and many experienced truck
drivers were also seeking work. This claim should be time-barred.

                                         -15-
labor peace. For example, § 10(b) of the National Labor Relations Act, 29 U.S.C.
§ 10(b), provides that “no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge.” In reversing a
decision of the National Labor Relations Board that failed to enforce this limitation,
the Court ended with a pointed reminder that governs decisions of the Secretary of
Labor’s Administrative Review Board as well:

      As expositor of the national interest, Congress, in the judgment that a
      six-month limitations period did “not seem unreasonable,” barred the
      [NLRB] from dealing with past conduct after that period had run, even
      at the expense of the vindication of statutory rights.

Local Lodge No. 1424, Int’l Ass’n of Machinist v. NLRB, 362 U.S. 411, 429 (1960).
The Board ignored that governing principle in adopting the discovery rule here.
Under Chevron, its contrary decision should not be affirmed.

       Moreover, the court brushes aside a second legal error by euphemistically
stating that the Board adopted a “version” of the discovery rule of federal common
law, namely, that Canter had 180 days after receiving “final, definitive, and
unequivocal notice of an adverse employment action.” That is not a “version” of the
common law rule. The Board’s rule is flatly contrary to the common law rule, which,
as the Supreme Court has expressly noted, includes an “inquiry notice” principle that
“trigger[s] the limitations period” when “a reasonable person in her position would
have learned of the injury in the exercise of due diligence.” TRW, 534 U.S. at 30; see
Comcast of Ill. X v. Multi-Vision Elec. Inc., 491 F.3d 938, 944 (8th Cir. 2007)
(“Under this rule, a cause of action accrues and the statute of limitations begins to run
when the plaintiff discovers, or with due diligence should have discovered, the injury
which is the basis of the litigation.”) (emphasis added). The Board’s adoption of a
rule contrary to the universally accepted discovery rule was nothing less than
unlawfully legislating an express statute of limitations out of the statute. And this


                                          -16-
error was far from harmless. Maverick presented evidence that Canter was not hired
by one trucking company in 2007 under circumstances that would have caused a
diligent, experienced truck driver to obtain his DAC, as Canter finally did in 2008.
By adopting a legally unjustifiable “version” of the discovery rule, the ALJ and the
Board were able to improperly avoid resolving this issue.

       B. Second, the Board, the court, and the parties agree that the ALJ erred in
failing to apply a 2007 amendment to the STAA: “All complaints initiated under this
section shall be governed by the legal burdens of proof set forth in [49 U.S.C.] section
42121(b).” 49 U.S.C.A. § 31105(b)(1) (2013 Pocket Part). The Board concluded the
error was harmless, a conclusion Maverick squarely challenged on appeal. The court
ignores the issue. I conclude the Board committed legal error.

       As Maverick argued, the ALJ sustained Canter’s claim because (i) his alleged
refusal to drive the truck for safety reasons was STAA protected activity; (ii)
Maverick knew of the protected activity, creating an inference of discrimination; and
(iii) Canter established that Maverick’s purported reason for the adverse DAC
notation was pretextual. But in the 2007 amendment, Congress expressly provided
that “the Secretary of Labor shall dismiss a complaint . . . unless the complainant
makes a prima facie showing that [the protected activity] was a contributing factor in
the unfavorable personnel action alleged in the complaint.”               49 U.S.C.
§ 42121(b)(2)(B). Here, the ALJ did not require Canter to prove the “contributing
factor” element of his claim, nor did the ALJ make that finding. The court brushes
this aside by inventing a finding the ALJ never made -- that “Canter’s refusal
motivated Maverick to place the abandonment notation in Canter’s DAC report,” op.
at 9. All the ALJ in fact found was that Maverick’s proffered explanation – which
the ALJ misstated -- was pretextual. By this faulty analysis, the ALJ and the Board
were able to avoid the critical issue presented by the evidence in this case.




                                         -17-
       Following the tragic accident on November 21, 2003, the Pennsylvania State
Police inspected Canter’s truck and concluded it had defects that violated federal
safety regulations but had not contributed to the accident -- two brake adjustment
defects that rendered the truck “out of service” (not operable) and a slight power
steering fluid leak and brake hose chafing that required repair to be brought into
compliance but were not “out of service” defects. Following adjustment of the brakes
near the scene of the accident, and with the approval of the State Police and
Maverick, Canter drove the truck 70-80 miles to a truck stop near his home where the
loaded trailer was left to be picked up by another driver, then nine more miles to
Canter’s home, where it sat for five weeks while Canter took a medical leave of
absence on account of depression from the fatal accident.

       On December 30, having been released to return to work, Canter told his Fleet
Manager that he was quitting because Maverick did not grant him workers’
compensation benefits for his non-physical emotional injuries. The next day, instead
of returning the truck to Maverick’s yard in Ohio, as the Fleet Manager had
requested, Canter called and said he would only take it to the truck stop nine miles
from his home because it had “too many deadline problems.” Without question,
Maverick made the DAC notation because Canter quit and refused to drive his truck
back to Maverick’s facilities in Ohio. But was the notation made because Canter had
refused to drive the truck because it was unsafe, or because he had refused his former
employer’s reasonable request that he drive a truck that had safety defects requiring
repair but was not out of service, a truck he had already driven some 100 miles in the
same condition, to a yard 250 miles away where it could be efficiently and properly
repaired? If the latter, then the DAC notation was a truthful explanation of why
Maverick would not consider rehiring Canter, not a pretext for retaliating against this
former employee because he had engaged in protected activity. An agency decision
that uses an erroneous legal standard to avoid addressing the key fact question in the
case is, without question in my view, “arbitrary, capricious, an abuse of discretion,
or otherwise contrary to law” within the meaning of 5 U.S.C. § 706(2)(A).

                                         -18-
For either or both these reasons, I would reverse.
                 ______________________________




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