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Driver fired for misreporting truck problem cause can sue for retaliation

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By Judy Greenwald, Crain News Service

CHICAGO (Jan. 8, 2014) — A truck driver who reported a steering problem with a truck, but was allegedly terminated because he misreported what was wrong with the truck, can sue his former employer on grounds of retaliation, a federal appeals court ruled Jan. 6.

Diego Gaines, who had been a seasonal dump truck driver for about five years with Lemont, Ill.-based K-Five Construction Corp., was .reassigned to drive the same truck a day after he reported he was nearly involved in an accident with it, according to the ruling by the 7th U.S. Circuit Court of Appeals in Chicago in Diego Gains v. K-Five Construction Corp.

Mr. Gaines said in a report that the mechanic told him the steering drag-link—which is used to connect the steering gear to the steering arm—was off center, while the mechanic reported to a supervisor whom he had said it was the steering wheel that was off-center. The malfunction caused the truck to pull hard to the left, according to the ruling.

Mr. Gaines argued that he “honestly believed he was accurately relaying the information obtained from the mechanic, but that he botched the details.” according to the three-judge panel, which overturned a lower court’s ruling dismissing the case.

Mr. Gaines eventually agreed to drive the unrepaired truck because he feared termination if he refused, according to the ruling.

However, K-Five Construction terminated him anyway in 2010 for the inaccurate report, as well as three instances of alleged insubordination.

He sued K-Five on charges including violation of the Surface Transportation Assistance Act. Mr. Gaines’ report was a protected activity under the law, the appeals court panel said.

“Even if the truck could drive straight with an off-center steering wheel, it is not unreasonable to conclude that asking Gaines to work a 13-hour shift with a misaligned steering wheel posed a safety concern,” the appeals court said. “The text of the (Surface Transportation Assistance Act) protects employees complaining of safety violations—Gaines was complaining about a steering problem he considered unsafe.

“There is no evidence that Gaines intentionally misidentified the problem,” the ruling stated.

In addition, the court said, Congress passed the law “to encourage truck drivers and other industry employees who see safety problems to report them.”

This report appeared in Crain’s Business Insurance magazine, a Chicago-based sister publication of Tire Business.

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