• Federal Court Rules Employees Must Behave Civilly While Engaging in Protected Activity
  • January 7, 2011 | Authors: Peter R. Bulmer; Jane M. McFetridge
  • Law Firm: Jackson Lewis LLP - Chicago Office
  • An employee who engages in protected whistleblowing must “demonstrate civility and respect for his superiors in voicing [his] concerns,” the federal appeals court in Chicago has held in a case brought by a truck driver alleging retaliation in violation of the federal Surface Transportation Assistance Act (“STAA”).  Formella v. U.S. Dep’t of Labor and Schnidt Cartage, Inc., No. 09-2296 (Dec. 10, 2010).  In addition to STAA cases, the Court’s decision also may reach cases involving employees who claim to have suffered retaliation for engaging in activities protected by the National Labor Relations Act or federal anti-discrimination law.  The Seventh Circuit has jurisdiction over Illinois, Indiana, and Wisconsin.

    The Facts

    Donald Formella, an experienced truck driver, was working for Schnidt Cartage, Inc.  On February 23, 2006, after inspecting the truck assigned to him, he complained to his supervisor about problems with the lights and mismatched tire treads on his truck.  His supervisor asked the head of maintenance to address the problems as she talked to Formella.  She said that Formella then became both “louder” and more “vehement” during the discussion, complaining about the truck and the maintenance department.  Indeed, the employer noted that he was so loud and vehement that other employees ran to the supervisor’s office to find out if someone needed help.

    The supervisor advised Formella that if he was so unhappy, he might consider working elsewhere.  Formella “kept pushing and getting more and more volatile and agitated,” repeatedly asking, “[A]re you telling me I’m fired?” Ultimately, the supervisor did fire Formella based on Formella’s “volatile condition, his anger, [and] his unstableness.”

    Formella subsequently filed a complaint with the Occupational Safety and Health Administration (OSHA), alleging he was fired in retaliation for raising safety-related complaints in violation of STAA.  The STAA prohibits retaliation against commercial truck drivers who express safety or health-related concerns.

    Formella alleged that he was fired after he complained to his employer that the truck assigned to him was unsafe and refused to drive it.  The employer, however, contended he was boisterous and lost his temper while raising his concerns.

    Protected Activity, But...

    The Administrative Law Judge (ALJ) found that while Formella had engaged in protected activity under STAA, the employer did not terminate his employment for engaging in protected activity but, rather, for the “provocative, intemperate, volatile, and antagonistic conduct” he used in expressing his safety concerns.  The ALJ found that even though the employer admitted the plaintiff made no threatening remarks, did not threaten violence, did not disobey any orders, and did not prevent others from doing their jobs, the manner in which he expressed concern over his truck’s safety was so out-of-line as to deprive him of STAA’s protections.
    The OSHA Administrative Review Board affirmed the ALJ’s decision, and Formella petitioned the Seventh Circuit for review of the Board’s order. 

    Some Indulgence Allowed

    The federal appeals court, however, denied the plaintiff’s petition for review, relying heavily on cases involving protected activity under the National Labor Relations Act.  The Court recognized that a worker must be given “some leeway to stray beyond the boundaries of workplace proprietary” while engaging in protected activity, but “the employee’s entitlement to some indulgence for the manner in which he engages in protected activity must be balanced against the employer’s right to maintain order and respect.”


    In so holding, the Court affirms every employer’s basic right to maintain order in the workplace by discharging employees who engage in insubordinate and disruptive behavior.  Employers, in any event, should consult with counsel prior to terminating any employee who has engaged in protected activity or whistleblowing.  Although an employee must be “civil” while engaging in protected activity, courts will provide the employee with “some leeway” in how the employee voices his or her concerns.