CalMat Co. v. United States Dep’t of Labor, 364 F.3d 1117 (9th Cir. 2004)

Robert Germann had worked at CalMat for nearly 20 years when he was elected to be the local union’s shop steward. After a fellow employee told Germann that three of the company’s drivers had worked more than 15 hours the previous day in violation of state and federal safety regulations, Germann advised the drivers not to drive more than 15 hours in one day even if they were encouraged to do so by their supervisors. Germann also notified the California Highway Patrol about the alleged safety violations. One of the drivers told the transportation manager that Germann had harassed him about the over-hours violation and had used profanity and an ethnic slur during their discussion. The manager suspended Germann without pay for using an ethnic slur and obscene language and for encouraging a work slowdown. Germann filed a complaint with OSHA, alleging that he had been suspended in retaliation for making safety complaints in violation of the whistleblower protection provisions of the Surface Transportation Assistance Act (STAA). The Administrative Law Judge determined that CalMat’s reasons for suspending Germann were pretext for retaliation or that retaliation was at least part of a mixed motive for the suspension. The Administrative Review Board and the Ninth Circuit upheld the ALJ’s decision.