In the

United States Court of Appeals

For the Seventh Circuit

No. 09-1315

ROADWAY EXPRESS, INC.,

Petitioner,

v.

UNITED STATES DEPARTMENT OF LABOR,

Respondent,

and

PETER P. CEFALU,

Intervenor.

On Petition for Review of a Final Order 

of the Administrative Review Board.

ARB Case Nos. 04-103, 04-161, and 08-110

ARGUED DECEMBER 4, 2009—DECIDED JULY 22, 2010

Before POSNER, RIPPLE, and WOOD, Circuit Judges.

WOOD, Circuit Judge. It has been more than seven years

since Roadway Express (“Roadway”) fired Peter Cefalu.

The litigation over this action, however, lives on; this

petition for review represents the parties’ second trip

before this court. See Roadway Exp., Inc. v. United States
2 No. 09-1315

Dep’t of Labor, 495 F.3d 477 (7th Cir. 2007) (Roadway I). The

case originated in August 2002, when Cefalu filed a

complaint with the Occupational Safety and Health

Administration alleging that he had been sacked in violation of the Surface Transportation Assistance Act of

1982, 49 U.S.C. § 31105. Roadway dismissed Cefalu on

February 21, 2002, just after he submitted a notarized

statement at a co-worker’s grievance hearing asserting

that Roadway had instructed him to falsify his driving log.

At a hearing before an administrative law judge (“ALJ”)

at the Department of Labor, Roadway asserted that it

fired Cefalu because it recently had learned that he had

lied in 1999 on his job application. Though Cefalu’s application stated that he had voluntarily left two previous jobs, in fact he had lost both positions on grounds

of reckless driving. During discovery, Cefalu sought to

uncover the source of Roadway’s information, but Roadway steadfastly refused to comply with the ALJ’s discovery

order requiring it to divulge this piece of evidence. In

response, the ALJ imposed an evidentiary sanction that

prohibited Roadway from introducing any information

that the company had learned from its source. Unable

to cite Cefalu’s dishonesty or accident history, Roadway

failed to rebut Cefalu’s argument that he had been fired

for engaging in protected conduct under the Act. The

ALJ entered judgment for Cefalu and ordered his reinstatement; the Administrative Review Board (“ARB”)

affirmed.

When Roadway filed its first petition for review with

this court, we upheld the imposition of the evidentiary

sanction against Roadway at the merits stage. See Road-
No. 09-1315 3

way I, 495 F.3d at 484-85. We found, however, that

the sanction should not have gone so far as to prevent

Roadway from arguing that public-safety concerns made

Cefalu’s reinstatement impossible or impractical. See id.

at 485-86. We remanded the case for further proceedings

to determine whether Roadway would have fired Cefalu

in the absence of his protected conduct. See id. On

remand, first the ALJ and then the ARB concluded that

Roadway failed to meet this burden. (Because the petition for review addresses the ARB’s decision, we will not

mention the ALJ separately unless there is some particular reason to do so.)

Roadway argues in its new petition that the ARB misinterpreted the scope of the remand order when it prevented Roadway from presenting arguments related

to Cefalu’s dishonesty. In addition, Roadway points to

Cefalu’s five previous trucking accidents as evidence

that public-safety considerations weigh decisively

against Cefalu’s reinstatement. The ARB rejected these

arguments, and we find that its ruling is supported by

substantial evidence.

I

Because the parties fiercely contest the reach of Roadway I, we should begin by rehearsing the relevant aspects

of that decision. Our opinion was careful to distinguish

between the use of the evidentiary sanction at the

merits stage from its use at the remedial stage of the

proceedings. At the merits phase, precluding Roadway

from relying on information derived from its undisclosed
4 No. 09-1315

source was an appropriate sanction, we reasoned, because

otherwise Cefalu would be unable to show that Roadway’s proffered explanation was pretextual. Id. at 484-85.

For instance, the source could have revealed that Roadway had known about Cefalu’s driving record long

before it fired him. Id. at 485. That the sanction effectively

doomed Roadway’s merits case was unfortunate, but

the alternative would have forced Cefalu to litigate

with one hand tied behind his back. Id.

Prevailing on the merits did not, however, mean that

Cefalu was automatically entitled to have his old job

back. Id. This may seem to be at odds with the Act,

which provides that any employee who has been fired

for engaging in protected activity must be reinstated to

her former position without any changes in pay or

other benefits. 49 U.S.C. § 31105(b)(3)(A). But reinstatement is not always a proper remedy, as “it could obligate

an employer to reinstate an incompetent or unqualified

employee.” Id. To address this concern, we invoked the

“mixed motive” framework that the Supreme Court set

forth in Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 285-86 (1977). (Although Roadway is now

trying to rely on McKennon v. Nashville Banner Pub. Co.,

513 U.S. 352 (1995), to justify its decision to fire Cefalu,

that case is a poor fit for the facts. As the Secretary’s brief

points out, Roadway knew of and asserted dishonesty

as grounds for terminating Cefalu in the first instance,

while McKennon addresses the use of evidence acquired

after the wrongful discharge.) Under the Mt. Healthy

approach, once the plaintiff demonstrates that her protected conduct played a substantial role in the defendant’s
No. 09-1315 5

decision to fire her, the burden shifts to the defendant

to prove that it would still have terminated the plaintiff

in the absence of her protected conduct. Id. at 287.

Applying this general principle to Cefalu’s case, we

concluded that Roadway should have been given an

opportunity to argue that it would have terminated

Cefalu because of his record of trucking accidents. We

explained that a remand was necessary because:

Roadway was entitled to show that Cefalu indeed

dissembled in his employment application to the

company. Cefalu wrote that he “resigned” from his

previous position. In fact, [he was fired for reckless

driving]. Cefalu, in turn, should have the opportunity to show that Roadway does not terminate

everyone with such a record, perhaps if the person

has had a clean record for a certain number of years

in the interim, or other extenuating circumstances

exist.

Id. at 486.

We went on to note that remanding the case for further

proceedings on remedy did not implicate the same concerns that motivated the imposition of the evidentiary

sanction at the merits phase:

Roadway’s withholding of the identity of its informant

in no way prevented Cefalu from contesting Roadway’s claim that reinstatement was an inappropriate

remedy because of public safety. Nothing about how,

why, or when Roadway learned about Cefalu’s misstatement is pertinent to Cefalu’s effort to keep his job
6 No. 09-1315

despite his conceded earlier problems. If the facts are

as Roadway contends, then public-safety concerns, or

even regulatory rules, may make it impossible for

Roadway to reinstate Cefalu. Roadway therefore

should have been permitted to refer to Cefalu’s

earlier driving record during the remedial stage.

Id.

On remand, Roadway took our opinion as an invitation to submit evidence that it would have fired Cefalu

for lying about his previous driving record. Roadway

offered evidence that it had fired a number of employees

who had made false statements. The ALJ, however,

declined to explore the issue of dishonesty, as he understood the remand to be limited solely to addressing publicsafety concerns raised by Cefalu’s driving record, and

the ARB endorsed this decision.

With respect to the risk Cefalu’s driving posed to the

public, Roadway submitted the following evidence

about Cefalu’s five earlier trucking accidents.

• 1992 - Employer: United Parcel Service. Cefalu

swerved his truck out of the way of a car, lost control,

and crashed into a drainage pipe ditch. It is not clear

how much damage the truck suffered, but Cefalu was

fired for reckless driving.

• 1998 - Employer: ANR Advance Transportation.

Cefalu fell asleep while driving and his truck struck a

guardrail. The truck suffered “major damage” and

Cefalu was fired for reckless driving.
No. 09-1315 7

• August 27, 2005 - Employer: Roadway. When

Cefalu was parking, he ran his truck into the edge of

a parked truck. The trucks suffered approximately

$600 in damage. Roadway issued a warning letter

to Cefalu.

• May 29, 2006 - Employer: Roadway. While backing

up his truck in an effort to couple his truck-tractor to

a trailer, Cefalu damaged the left-wing of the trucktractor. Roadway issued a warning letter to Cefalu.

• October 21, 2006 - Employer: Roadway. No details

of this accident are contained in the record.

Besides Cefalu’s driving record, Roadway also offered

employment records showing that it had fired four

other drivers involved in similar or less severe accidents. Cefalu countered by presenting evidence that

approximately 12 other drivers had not lost their jobs

after getting themselves into analogous or worse accidents. In weighing the evidence presented by both sides,

the ALJ ultimately sided with Cefalu and found

that Roadway failed to show that it would have fired

him even in the absence of his protected activity. The

ARB agreed with the ALJ’s assessment and noted

that Cefalu’s employment as a truck driver would not

seriously endanger the public.

II

Our review of the ARB’s decision is guided by the

standard set forth in the Administrative Procedure Act, 5

U.S.C. § 706. See 49 U.S.C. § 31105(d). We may overturn
8 No. 09-1315

the ARB’s legal conclusions only if they are “arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.” 5 U.S.C. § 706(2)(A). The ARB’s

findings of fact must be upheld if supported by substantial evidence. 5 U.S.C. § 706(2)(E); Roadway I, 495

F.3d at 483. To satisfy the substantial evidence standard,

the ARB must rely on “such relevant evidence as a reasonable mind might accept as adequate to support

the conclusion.” Roadway I, 495 F.3d at 483. Under this

deferential standard of review, we may not “set aside

an inference merely because [we] find[] the opposite

conclusion more reasonable.” Addis v. Dep’t of Labor, 575

F.3d 688, 690 (7th Cir. 2009) (citation omitted).

A

Our first task is to clear up the lingering uncertainty

about the scope of our remand order. Cefalu and the

Department of Labor assert that the repeated references

to public-safety in Roadway I “clearly” indicate that the

remand was limited to this topic. Roadway counters

that the underlying logic of the Mt. Healthy approach

entitles it to present any reason it would have fired

Cefalu. With regard to Cefalu’s dishonesty, Roadway

points out that we specifically mentioned that “Roadway

was entitled to show that Cefalu indeed dissembled in

his employment application to the company.” Roadway I,

495 F.3d at 486.

We find little support for Roadway’s reading of our

first opinion in this case. Cefalu’s false employment

application was mentioned only to signal that, for pur-
No. 09-1315 9

poses of the remedy, Roadway was entitled to introduce

evidence that Cefalu had in fact been in two serious

accidents before joining Roadway. His history would

thus be one piece of evidence tending to show that he

was an unsafe driver. This reading is consistent with our

explanation a few sentences later that Cefalu might be

able to refute Roadway’s case by presenting evidence

that Roadway did not fire employees with comparable

driving records. If dishonesty were also at issue, our

explanation of Cefalu’s defense tactics would have been

jarringly incomplete. While Roadway believes that our

reliance on the Mt. Healthy framework opened the door

to its dishonesty arguments, our emphasis on public

safety belies the idea that we intended to open the door

for Roadway to offer other reasons for firing Cefalu.

We drew this distinction between public safety and other

lawful motives for terminating Cefalu’s employment in

order to respect the Act’s remedial structure. Anything

that we do must give effect to the automatic reinstatement remedy set forth in the statute. We thus carved

out only an exception for cases where reinstatement is

impossible or impractical because of public-safety concerns. See Roadway I, 495 F.3d at 485 (explaining that the

Act’s mandatory reinstatement provision must be tempered by the practicality of returning the employee to

her prior position). Failure to recognize such an exception would be absurd, as it could result in the reinstatement of unsafe drivers in contravention of applicable

regulatory rules. To avoid similarly illogical results,

analogous limitations on reinstatement are recognized
10 No. 09-1315

in the Title VII context. See, e.g., Williams v. Pharmacia,

Inc., 137 F.3d 944, 952 (7th Cir. 1998) (noting that reinstatement is not available under Title VII if it is not possible

for employee to return to work). As impracticality is the

guiding principle for limitations on reinstatement, there

is little reason to allow Roadway to argue about Cefalu’s

dishonesty. While Roadway may not like to employ

truck drivers who have been dishonest, it is difficult to

say that requiring Roadway to retain these drivers is not

feasible.

Despite Roadway’s assertions to the contrary, our

decision to employ the Mt. Healthy framework is

consistent with a particular focus on public-safety concerns. Instead of limiting the proceedings on remand to

an examination of the applicable driving safety laws, we

instructed the agency to determine whether Roadway

would have fired Cefalu because of his driving record.

Though this approach takes Roadway’s perspective

into consideration, it did not contemplate opening the

door to an examination of other possible motives behind

Roadway’s decision to dismiss Cefalu. Rather, we are

interested only in what Roadway would have done with

a person with Cefalu’s driving record who had not engaged in protected activity. That inquiry serves as a

useful proxy for determining whether Cefalu’s reinstatement would present a public-safety hazard. Given that

Roadway has experience in this field and presumably

bears the costs for unsafe drivers, it should be a reasonable judge of an employee’s suitability for driving.
No. 09-1315 11

B

Under the Mt. Healthy framework, Roadway must

prove that it would have fired Cefalu because of his

accident history regardless of whether he engaged in

protected conduct. See Roadway I, 495 F.3d at 486. Roadway need not, however, show that Cefalu’s employment

would violate any regulatory rules. If Roadway employs

more stringent safety standards than those required by

law, then it is entitled to hold Cefalu to them. Nonetheless, in order to satisfy its burden, Roadway cannot

simply cite “standards established in its employee manual.” Sheehan v. Donlen Corp., 173 F.3d 1039, 1048 (7th Cir.

1999). It must instead demonstrate that it had an “actual

employment practice[]” of firing drivers with records

analogous to Cefalu’s. Id.; Price Waterhouse v. Hopkins, 490

U.S. 228, 252 (1989) (“Proving that the same decision would

have been justified is not the same as proving that the

same decision would have been made.”). On remand, the

parties both submitted evidence about the way that

Roadway treated other drivers with accident records.

Given the conflicting evidence on Roadway’s termination practices, the ARB found that Roadway had failed

to carry its burden.

Although we acknowledge that reasonable people

might differ about the outcome here, we have no trouble

finding that substantial evidence supported the ARB’s

decision. Cf. Spiegla v. Hull, 371 F.3d 928, 943 (7th Cir. 2004)

(concluding that defendant failed to carry its burden of

proof under Mt. Healthy). Cefalu’s three most recent

accidents were all relatively minor incidents resulting
12 No. 09-1315

in little property damage. His only two serious accidents

occurred between 12 and 17 years ago. Cefalu presented

evidence that Roadway had retained drivers who had

been involved in much more egregious accidents. For

instance, Roadway did not fire Eric Jorgensen after he

drove his truck into a power line—a mishap that caused

the truck to roll over and spill hazardous materials.

Nor did Roadway terminate Kevin Embry’s employment

after he propelled his truck into a low bridge that was

clearly marked. Roadway has also continued to employ

drivers who had been responsible for multiple accidents. The most extreme example is Donna Sexton, who

was still employed after getting herself into at least

10 chargeable accidents while working for Roadway.

Roadway’s evidence that it fired four drivers because

they were involved in accidents does little to undercut

the view that the ARB took of Cefalu’s case. At most,

it shows that there was evidence on the other side that

might have swayed the decision. Three of the drivers that

Roadway sacked were involved in what Roadway described as “serious” accidents caused by their recklessness. The other driver was involved in three preventable

accidents in a single month. In contrast, Cefalu’s recent

accidents took place over a year-long period and Roadway

described the accidents as “preventable” but not serious.

Shifting its line of attack, Roadway urges that we

should accord little weight to Cefalu’s evidence that the

company in the past has retained other drivers with

serious accident records. Their retention, Roadway says,

came as the result of a settlement with the union; those
No. 09-1315 13

settlements provided that Roadway could suspend the

offending drivers rather than fire them. Roadway implies that it would have taken the more drastic step but

for the union’s intervention. There is some evidence

that Roadway had a practice of issuing discharge notices

that would then be reduced to suspensions after negotiations with the union or by order of a grievance panel.

Roadway therefore claims that its agreement with the

union to settle these termination disputes provides

little indication of whether it would have fired Cefalu,

since the union did not side with Cefalu when he contested his discharge.

Yet Roadway fails to recognize that the union may

have declined to take up Cefalu’s grievance because

it believed that he had been dishonest, which was

Roadway’s proffered reason for firing Cefalu. There is

nothing to indicate that the union had a problem with

Cefalu’s driving record. As the Department of Labor

points out, it is unlikely that the union would take such

a position given that it had defended drivers involved

in much worse accidents. Furthermore, Roadway has

done little to support a finding that it would have fired

every driver involved in a serious accident if the union

had not stepped in. Simply because its practice is to

issue discharge orders and then negotiate with the

union does not mean that it would never settle a termination proceeding with an employee who lacked union

support.

Lastly, assuming that Cefalu’s driving record would not

have constituted grounds for termination, Roadway con-
14 No. 09-1315

tends that it would violate the public policy underlying

the Surface Transportation Assistance Act to reinstate

Cefalu, an allegedly dangerous driver. But, as the ARB

noted and Roadway does not deny, Roadway routinely

retains drivers even though they have some safety problems in their record. The ARB was entitled to conclude

that Roadway failed to demonstrate that Cefalu’s reinstatement puts the public in harm’s way. It demonstrated

neither that Cefalu’s continued employment would violate any regulatory rules nor that it would violate any

internal practices Roadway actually uses. As our discussion shows, there is more than enough evidentiary

support for the ARB’s conclusion that Cefalu’s driving

history does not indicate that he is unfit to drive a truck.

We therefore conclude that the ARB was entitled to

find that reinstatement was an appropriate remedy in

this case. In reaching this conclusion, we emphasize that

Cefalu has no right to any preferential treatment as a

result of his protected activity. Roadway was (and will

be) free to terminate Cefalu’s employment for any

reason unrelated to his protected activity. Thus, if Cefalu

proves to be a danger on the road in the future or otherwise engages in impermissible conduct, Roadway is in

no way inhibited from firing him. 

* * *

We DENY Roadway’s petition for review.

7-22-10