In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-2679

WILLIAM J. BETTNER,

Petitioner,

v.

ADMINISTRATIVE REVIEW BOARD,

United States Department of Labor,

Respondent,

and

CRETE CARRIER CORPORATION,

Intervening Respondent.

____________

Petition for Review of

an Order of the Department of Labor.

No. 06-013

____________

SUBMITTED APRIL 9, 2008—DECIDED AUGUST 21, 2008

____________

Before POSNER, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge. On December 6, 2003, William

Bettner filed a complaint with the Occupational Safety and

Health Administration (“OSHA”), an agency within the
2 No. 07-2679

Department of Labor, alleging that his employer, Crete

Carrier Corp. (“Crete”), had discriminated against him

in violation of the Surface Transportation Assistance Act,

49 U.S.C. § 31105 (“STAA”). OSHA entered a preliminary

finding against Mr. Bettner, and he requested de novo

review before an Administrative Law Judge (“ALJ”) under

49 U.S.C. § 31105(b)(2)(C).

Before the ALJ, Crete filed a motion for summary decision under 29 C.F.R. § 18.40. On October 28, 2005, the ALJ

issued a recommendation to grant Crete’s motion for

summary decision. On May 24, 2007, the Department of

Labor’s Administrative Review Board (the “Board”) issued

a final decision granting Crete’s motion. Mr. Bettner

filed a timely petition for review. For the reasons set

forth in this opinion, we deny Mr. Bettner’s petition.

I

BACKGROUND

A.

The Department of Transportation (“DOT”) regulates,

inter alia, the number of hours a commercial truck driver

may drive in a given period. In 49 C.F.R. § 395.3, the

DOT establishes the maximum number of hours that a

driver may drive during any given day, as well as the

maximum number of hours that a driver may drive

during any given week; it also mandates the minimum

number of consecutive hours off-duty that must be observed between shifts of driving. At the time relevant to
No. 07-2679 3

In April 2003, the Department of Transportation amended the 1

regulation to increase the applicable hours limit, prohibiting

employers from requiring drivers to drive more than “11

cumulative hours following 10 consecutive hours off duty.” 49

C.F.R. § 395.3 (2003). Although the incidents in this case took

place between October 3 and October 8, 2003, the amended

regulation is not applicable because it did not go into effect

until January 4, 2004. 68 Fed. Reg. 22,456, 22,514 (Apr. 28, 2003).

this appeal,

1

 section 395.3 prohibited a motor carrier from

requiring any driver to drive “[m]ore than 10 hours

following 8 consecutive hours off duty,” or “for any period

after . . . [h]aving been on duty 60 hours in any 7 consecutive days . . . or . . . 70 hours in any period of 8 consecutive

days.” 49 C.F.R. § 395.3 (2002). In addition to these

driving limitations, 49 C.F.R. § 395.8 establishes minimum

reporting requirements. During each 24-hour period, the

driver must record in a driving log his status, the date, the

24-hour starting time, the carrier, the truck number, the

number of miles driven that day, and the total hours

spent driving and on duty. Id. § 395.8(d), (f).

Despite the DOT’s numerous regulations, however, in

the early 1980s, the United States experienced an increasing

number of deaths, injuries and property damage due to

commercial motor vehicle accidents. See 128 Cong. Rec.

32,509, 32,510 (1982) (remarks of Sen. Danforth and summary of proposed statute) (quoted in Brock v. Roadway

Express, Inc., 481 U.S. 252, 258 (1987)). Random inspections

by law enforcement officials in various parts of the

country uncovered significant and widespread violations

of safety regulations. Id. (quoted in Brock, 481 U.S. at 262).
4 No. 07-2679

Congress hypothesized that, although employees in the

transportation industry often are in the best position to

detect safety violations, fears or threats of discharge for

cooperating with enforcement agencies were preventing

these employees from reporting these violations. See

Brock, 481 U.S. at 258.

Accordingly, in 1982, Congress enacted the STAA, an

Act intended to provide employees with express protection against retaliation for reporting noncompliance with

safety regulations. Id. The STAA makes it unlawful for

an employer to “discharge an employee, or discipline or

discriminate against an employee regarding pay, terms, or

privileges of employment,” for refusing to operate a

commercial vehicle because “the operation violates a

regulation, standard, or order of the United States

related to commercial motor vehicle safety, health, or

security.” 49 U.S.C. § 31105(a)(1)(B)(i).

An employee who believes that he has been retaliated

against for engaging in an activity protected under the

STAA may file a complaint with the Department of Labor.

Id. § 31105(b). OSHA then investigates the claim and

orders relief if it finds reasonable cause to believe that

the STAA has been violated. Id. § 31105(b)(2)(A). Either

party, however, may object to OSHA’s findings and

request a de novo proceeding before an ALJ. Id.

§ 31105(b)(2)(B). The ALJ may hold a hearing; alternatively,

it may issue a summary decision for either party “if the

pleadings, affidavits, material obtained by discovery or

otherwise, or matters officially noticed show that there

is no genuine issue as to any material fact and that a

party is entitled to summary decision.” 29 C.F.R. § 18.40(d).
No. 07-2679 5

Once the investigating body has recommended a decision, the parties may submit briefs to the Board. 29 C.F.R.

§ 1978.109(c)(1). The Board then makes a final determination and, if warranted, orders relief. A party aggrieved

by the final decision of the Board may petition for

review in the appropriate court of appeals. 49 U.S.C.

§ 31105(c).

B.

At all times relevant to this case, Crete, an over-the-road

trucking company, operated at least two distinct fleets of

trucks: (1) a fleet dedicated solely to shipments of goods

for a single customer, General Mills/Pillsbury (the “Dedicated Fleet”), and (2) a non-designated fleet (the “National

Fleet”). For the Dedicated Fleet, Crete guaranteed that a

certain number of tractors, trailers and drivers would be

used exclusively to haul General Mills’ goods; it also

guaranteed that it would pick up and deliver freight at

specific times designated by General Mills. General Mills

tightly enforced the timing requirements for its pickups

and deliveries. Any pickup or delivery that occurred

outside the designated time window was considered a

“Service Failure,” which resulted in penalties to Crete. In

return for these timing guarantees, General Mills paid

Crete a premium rate and allocated to Crete a certain

percentage of its daily freight.

In contrast with the Dedicated Fleet, equipment and

drivers in Crete’s National Fleet were not assigned to

particular customers. Because premium payment was not

contingent upon compliance with scheduled pickup and

delivery times, proper scheduling was not as critical for
6 No. 07-2679

National Fleet drivers. Therefore, National Fleet drivers

were dispatched on a more ad-hoc basis than those assigned to the Dedicated Fleet.

In late August or early September 2003, Crete hired

Mr. Bettner as a truck driver and assigned him to the

Dedicated Fleet. In that position, he was tasked with

performing pickups and deliveries for General Mills, each

to be completed within certain windows of time. Crete’s

dispatchers compiled the pickup and delivery time windows into planned dispatches for its drivers; from

these dispatches, however, the individual driver was

responsible for planning his specific route, driving time,

breaks, maintenance checks and all of the other details

of his trip in order to comply with both General Mills’

schedule and the DOT hours of service regulations.

On October 3, 2003, a Crete dispatcher provided Mr.

Bettner with a dispatch consisting of three separate pickups and deliveries. Mr. Bettner was to pick up a load at

Geneva, Illinois that evening and deliver it in Atlanta,

Georgia on the morning of October 6. Later on October 6,

he was to pick up another load in Lavergne, Tennessee;

this load was to be delivered to a facility in Geneva, Illinois

on October 7, between noon and 11 p.m. Finally, he was

to pick up a third load in Kankakee, Illinois at 3:00 p.m.

on October 7, and deliver it in Joplin, Missouri by

11:00 p.m. the following day. The dispatch read as follows:

1. Pickup Location/Window 

Geneva, Illinois - 10/03/03 - 5:00p.m.-11:59pm

Delivery Location/Window

Atlanta, Georgia - 10/06/03 - 12:01a.m.-12:00pm
No. 07-2679 7

2. Pickup Location/Window

Lavergne, Tennessee - 10/06/03 - 8:30am-5:00pm

Delivery Location/Window

Geneva, Illinois - 10/07/03 - 12:01pm-11:00pm 

3. Pickup Location/Window

Kankakee, Illinois - 10/07/03 - 3:00pm

Delivery Location/Window

Joplin, Missouri - 10/08/03 - 11:00pm

R.37.

1. Geneva to Atlanta dispatch

Mr. Bettner picked up his first dispatch in Geneva on the

evening of October 3, within the pickup window designated by General Mills. He then went off duty until

1:00 a.m. on October 5, when he began his drive to Atlanta.

He logged 10.75 hours of driving on October 5. 

On October 6, beginning at 7:00 a.m., Mr. Bettner drove

the remaining 3 hours to Atlanta, taking a lengthy break

around 8:00 a.m. He arrived in Atlanta around 11:00 a.m.,

which was within the specified 12:01 a.m. to 12:00 p.m.

delivery window. Because of delays at the Atlanta facility,

however, his trailer actually was not unloaded until

12:45 p.m., almost one hour after the delivery window

had closed. Accordingly, the load was considered late

by General Mills. Mr. Bettner testified in his deposition

that he knew that waits in the Atlanta depot were not

uncommon, and he acknowledged that his truck might

have been unloaded within the delivery window had he

arrived earlier. R.33, Ex. A at 161, 164-65.
8 No. 07-2679

2. Lavergne to Geneva dispatch

Mr. Bettner left Atlanta around 1 p.m. on October 6 and

drove approximately 1.5 hours toward Lavergne. He then

contacted the customer in Lavergne to see if his next

load was ready to be picked up, but he was told that the

load would not be ready until later that night. Because

that load was delayed, he went off duty for a few hours

and then completed the 4-hour drive to Lavergne. He

arrived in Lavergne at 7:45 p.m.; he picked up his second

load and then drove for approximately 1 hour toward

the delivery point in Geneva, before going off duty for

the night at 10:00 p.m. Mr. Bettner logged a total of 8.75

hours of driving on October 6.

After an 11.5-hour rest, Mr. Bettner went on duty at 9:30

a.m. on October 7. He inspected his truck, and then he

resumed the drive to Geneva. Sometime around 3:00 p.m.,

when he was scheduled to pick up his next load in

Kankakee, Mr. Bettner sent Crete a message stating that

his pickup time in Kankakee needed to be rescheduled

because he had not yet completed his Geneva delivery.

Crete later sent Mr. Bettner a message informing him

that the Kankakee load had been rescheduled and could

be picked up early the next morning.

Mr. Bettner dropped off his load in Geneva at 8:45 p.m.

on October 7, within the 12:01 p.m. to 11:00 p.m. delivery

window. Kankakee, Illinois, was 70 miles from Geneva

via state highways. He had driven 8.75 hours already that

day, and he did not believe that he could complete the

trip to Kankakee without exhausting his permitted number

of hours under the DOT regulations. Accordingly, he

drove for one hour to a truck stop in Morris, Illinois, where
No. 07-2679 9

he entered his sleeping berth at 11:15 p.m. and stayed

overnight. Mr. Bettner logged a total of 9.75 hours of

driving on October 7.

While stopped in Morris, Mr. Bettner sent a Qualcomm

message to Crete inquiring about the rescheduled pickup

time in Kankakee. Crete responded that he had a new

pickup appointment for 7:00 a.m. Mr. Bettner sent a

message to Crete stating: “WILL NOT BE ABLE TO BE @

SHIPPER @ 7:00, OUT OF HOURS.” Supp. App. at 69.

At 7:30 a.m. on October 8, approximately 8 hours after

he had ended his shift the night before, Mr. Bettner inspected his truck and resumed driving. He arrived in

Kankakee, Illinois at 9:00 a.m., 18 hours after his original

pickup time and 2 hours after his rescheduled pickup time.

3. Kankakee to Joplin dispatch

At 11:15 a.m. on October 8, after his trailer was loaded,

Mr. Bettner left Kankakee, Illinois and began his drive to

Joplin, Missouri. He stopped for a 45 minute lunch break

and, later, an unexplained 3.75 hour break from 2:45 p.m.

to 6:30 p.m. During that break, Mr. Bettner sent another

Qualcomm message to Crete: “WILL NOT BE ABLE TO

GET TO RECEIVER BY END OF DAY, WILL BE OUT OF

HOURS FOR ONE THING, WILL BE THERE FIRST

THING IN MORNING . . . .” Id. at 72. Mr. Bettner drove

until 11:30 p.m., stopping in Doolittle, Missouri to sleep.

He logged a total of 8.5 hours of driving on October 8. He

did not reach Joplin, Missouri in time for his 11:00 p.m.

delivery window.
10 No. 07-2679

While in Doolittle, Mr. Bettner received another preplanned dispatch from Crete. It indicated that his next

shipment would be from Joplin, MO to Kalamazoo, MI,

and it would be loaded in Joplin at 9:00 a.m. on October 9.

Crete then sent a message to Mr. Bettner requesting his

estimated time of arrival in Joplin as well as an update

on his service hours from the previous day. Mr. Bettner

responded that his 8-hour break would not be complete

for another half hour, and he was still 3 or 4 hours away

from his delivery destination in Joplin. 

Crete and Mr. Bettner then exchanged several Qualcomm

messages regarding Mr. Bettner’s late loads. As part of this

conversation, Crete stated: 

PPLAN INFO WAS SENT TO U LAST FRIDAY

SHOWING U IT LIVE LOADED TUESDAY AFTERNOON WHICH WLD HAVE ALLOWED U TO BE ON

TIME LAST NIGHT TO JOPLIN, PLSE KEEP CLOSE

ATTN TO PPLAN TIMES.

Id. at 42. Mr. Bettner sent the following response: 

I SEND IN MY HOURS EVERY DAY SO YOU

SHOULD BE AWARE OF MY HOURS. . . . IT IS NICE

TO HAVE PRE-PLANNED LOADS, BUT I AM ONE

PERSON AND NOT A TEAM.

Id. at 45. A Crete dispatcher sent a reply, stating:

its up to you to keep track of your hrs, I am planning

loads based on approx 500mi a day and when a load is

picked up late . . . it throws the rest of the week off.

Id. at 46. Mr. Bettner answered: 
No. 07-2679 11

I DO KEEP TRAK OF MY HOURS AND I KNOW

WHEN YOU LOAD AND UNLOAD 6 TIMES A

WEEK, FUEL UP, VI’S AND OTHER THINGS THAT

TAKE ON DUTY TIME I WILL RUN UP AGAINST

THE CLOCK. SHORT RUNS RUN A DRIVER RIGHT

INTO THE GROUND, THERE IS NO GETTING

AROUND THAT.

Id. at 49. Crete’s dispatcher then stated: 

LAST FRI U PICK UP IL TO GA, SHOWED U 2

PPLANS, MON TN TO IL, THEN TUES LIVE LD IN IL

TO DLV JOPLIN YESTERDAY. U PICKED UP LOAD

U HAVE NOW LATE . . . IT HAD TO BE RESET, NOW

U ARE DELIVERING IT LATE, NOW WE WILL BE

LATE PICKING UP YOUR PPLAN OUT OF JOPLIN

TODAY . . . .

LOAD THAT DLV TO GA THIS PAST MONDAY

SHLD HAVE BEEN DROPPED EARLY MON MORNING RATHER THAN AROUND 1200, THIS PUT THE

WHOLE WEEK BEHIND & DIDN’T ALLOW U TO

PICK UP TN LD TILL MONDAY NIGHT THEN

DIDN’T ALLOW U TO DLV TO IL TO TUES NIGHT

WHICH MISSED THE PICK UP TIME FOR LD U ARE

ON NOW.

Id. at 50-51.

Mr. Bettner responded that he had picked up his loads

in Atlanta and Lavergne within the specified window of

time; he also noted that the load in Lavergne had just

been loaded when he got there, so an earlier arrival “would

have made no difference” in his ability to meet the dead-
12 No. 07-2679

line for his later shipments. Id. at 53. Crete, in turn,

replied that Mr. Bettner needed to plan properly for

contingencies. Id. at 58.

Accordingly, after conducting a vehicle inspection,

Mr. Bettner resumed his driving at 9 a.m. on October 9. He

took a brief lunch break, and he arrived in Joplin to deliver

his shipment at 1:00 p.m., 14 hours after the original

delivery window had closed. He asserts that the drive from

Morris, Illinois to Kankakee, Illinois, to Joplin, MO took

11.5 hours; therefore, he submits, he could not have

completed it within a single day under the then-existing

DOT regulations. See 49 C.F.R. § 395.3 (2002). 

4. Subsequent Events

Because Mr. Bettner was late dropping off his load in

Joplin, he also was unable to pick up his next load at the

previously scheduled 9:00 a.m. pickup time. Instead, he

picked up his new load at 2:30 p.m. in Joplin; he then

began driving to Kalamazoo.

On October 10, after he also missed the delivery window

in Kalamazoo by a significant amount of time, Crete sent

Mr. Bettner a message indicating that it was transferring

him from a truck-driving position with the Dedicated Fleet

to a truck-driving position with the National Fleet. The

next day, Mr. Bettner spoke with a manager, who told him

that he was being transferred because he routinely failed to

pick up and deliver his loads on time.

Mr. Bettner returned to Crete’s terminal on October 12,

2003, to have his assigned truck serviced; he was informed
No. 07-2679 13

that his truck would not be ready until the next day. The

next morning, when he arrived to pick up his truck, Mr.

Bettner was informed that the remainder of his preplanned dispatch on the Dedicated Fleet had been reassigned to another driver. Based on this information, Mr.

Bettner assumed that he had been fired. He removed his

belongings from his truck and sent Crete a Qualcomm

message indicating that he believed that he had been fired

when he was switched from the Dedicated Fleet to the

National Fleet. Mr. Bettner did not report to work again.

C.

Mr. Bettner filed a complaint with OSHA on December

6, 2003. He claimed that Crete transferred him to the

National Fleet in retaliation for his refusal to violate DOT

hour restrictions, in violation of the STAA. In his view, the

position with the National Fleet was inferior to the position

with the Dedicated Fleet because (1) National Fleet drivers

are away from home for greater periods of time than

drivers for the Dedicated Fleet, (2) Dedicated Fleet drivers

carry a greater number of “drop-and-hook” loads than the

National Fleet drivers, and therefore they spend less time

in the terminals loading and unloading trailers and more

time driving, and (3) a number of the National Fleet

deliveries require the driver to help load and unload, a

physically difficult task. Mr. Bettner requested reinstatement to his former position on Crete’s Dedicated Fleet.

OSHA investigated the claim and, on February 23, 2004,

found that it lacked merit. Mr. Bettner then requested that

the matter be assigned to an ALJ. On October 28, 2005, after
14 No. 07-2679

Accordingly, we also do not address whether Mr. Bettner 2

engaged in protected activity or whether he suffered an adverse employment action. See Moab v. Gonzales, 500 F.3d 656, 659-

60 (7th Cir. 2007) (discussing SEC v. Chenery Corp., 318 U.S.

80 (1943), and SEC v. Chenery Corp., 332 U.S. 194 (1947), and

noting that “the opinion of the Board is free-standing and,

therefore, must be the exclusive focus of our review”).

reviewing the pleadings and the evidence, the ALJ also

recommended that Mr. Bettner’s complaint be dismissed,

finding that Mr. Bettner had failed to establish a genuine

issue of material fact relevant to his STAA claim. Specifically, it found that Mr. Bettner had failed to establish that:

(1) he engaged in protected activity; (2) he suffered an

adverse employment action; and (3) Crete’s legitimate,

non-discriminatory justification for transferring him

was mere pretext for retaliation.

The parties filed supplemental briefs with the Board. On

May 24, 2007, the Board accepted the ALJ’s recommendation and dismissed Mr. Bettner’s complaint. The Board

noted that Crete had presented unrebutted evidence that

it had transferred Mr. Bettner to the National Fleet, where

proper timing of deliveries was not as critical, because of

its belief that Mr. Bettner had difficulty in planning his

timing and routes in order to complete his dispatches

on time. Because Mr. Bettner failed to adduce any evidence that Crete’s proffered reason for transferring him

to the National Fleet was pretextual, the Board concluded

that there was no question of fact as to Crete’s legitimate,

non-discriminatory justification. It did not address the

other issues addressed by the ALJ. Mr. Bettner then timely 2

filed a petition for review. 
No. 07-2679 15

II

DISCUSSION

Under 29 C.F.R. § 18.40(d), an ALJ “may enter summary

judgment for either party if the pleadings, affidavits,

material obtained by discovery or otherwise, or matters

officially noticed show that there is no genuine issue as to

any material fact and that a party is entitled to summary

decision.” Although we generally review a final decision

and order of the Board with some level of deference, the

parties here each assert that, because the ALJ’s decision

was made without a hearing on “summary judgment,” we

should review the Board’s decision de novo. We need not

resolve this issue here, however, because the result in

this case is the same under either standard of review.

In STAA retaliation cases, the Board has adopted the

familiar burden-of-proof framework that we developed

for pretext analysis under other federal discrimination

laws, such as Title VII. Feltner v. Century Trucking, Ltd.,

ARB No. 03-118 (Oct. 27, 2004). Under this framework,

a party attempting to prove a retaliation claim may proceed under either the direct or indirect method of proof.

See Roadway Express, Inc. v. Dep’t of Labor, 495 F.3d 477, 481

(7th Cir. 2007).

Before the ALJ and the Board, Mr. Bettner elected to

proceed only under the indirect, burden-shifting method

of proof. According to that method, the employee can

create an inference of discrimination or retaliation by

introducing the evidence necessary to establish a prima

facie case. Id. at 481-82. As we noted in Roadway Express, an

employee may establish a prima facie case of retaliation
16 No. 07-2679

under the STAA by showing: “1) that he engaged in

protected activity under the STAA; 2) that he was the

subject of adverse employment action; and 3) that there

was a causal link between his protected activity and the

adverse action of his employer.” Id. Once that inference

is established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse employment action. Id. at 482. If the employer

satisfies this burden, then the rebuttable presumption of

discrimination is dissolved, and the employee must

produce evidence to suggest that the employer’s

proffered reason for the termination is a mere pretext for

an unlawful discharge. Id.; Bellaver v. Quanex Corp., 200

F.3d 485, 493 (7th Cir. 2000). Summary judgment may be

granted in favor of the defendant if he “presents unrebutted evidence that he would have taken the adverse employment action against the plaintiff even if he had no

retaliatory motive.” Culver v. Gorman & Co., 416 F.3d 540,

546 (7th Cir. 2005).

Here, Mr. Bettner submits that he engaged in protected

activity when he refused to drive more hours than were

permitted under the DOT regulations. He contends that

Crete’s decision to transfer him to the National Fleet was

an adverse employment action, and he submits that the

action was taken in retaliation for his engaging in protected conduct. As evidence of causation, Mr. Bettner

relies solely upon the “suspicious timing” of the transfer—a few days after his refusal—as circumstantial evidence suggesting retaliation.

Assuming, as the Board did, without deciding, that Mr.

Bettner has succeeded in establishing a prima facie case of
No. 07-2679 17

discrimination, we look to whether Crete articulated a

legitimate, non-discriminatory reason for Mr. Bettner’s

transfer. Crete submits that Mr. Bettner was transferred

because the company believed that he had poor planning

skills and a history of late deliveries. Because planning

and timing were essential for drivers on the Dedicated

Fleet, but not nearly as critical for drivers in the National

Fleet, Crete simply transferred Mr. Bettner to an assignment where it could best utilize his driving skills.

Crete’s explanation finds ample support in the record. It

is undisputed that timely pickups and deliveries on the

Dedicated Fleet were critical both to General Mills, in an

effort to control its inventory, and to Crete, in an effort

to avoid penalties. During the brief time that Mr. Bettner

drove for the Dedicated Fleet, Crete’s dispatcher, Chris

Lingbloom, complained often to Mr. Bettner about his

late deliveries and his failure to plan a proper route. See

Supp. App. at 42, 46, 50-51, 58-59, 67. Lingbloom testified

in an affidavit that he informed Crete’s management

about Mr. Bettner’s difficulties in planning and completing

routes on time, and soon thereafter Mr. Bettner was

transferred from the Dedicated Fleet to the National Fleet.

Id. at 89. Threne Greenfield, a manager, also submitted an

affidavit stating that Mr. Bettner was transferred to the

National Fleet because “he routinely failed to timely

deliver and/or pick up loads.” Id. at 86.

Before the ALJ, Mr. Bettner produced no evidence

challenging Crete’s proffered explanation. Indeed, he

failed even to address the issue in his response to Crete’s

motion for summary decision. He merely reasserted that
18 No. 07-2679

Of course, if the company had dispatched drivers on routes 3

that were objectively impossible to complete while complying

with the DOT regulations, and then threatened them with an

adverse employment action if they did not complete their

deliveries on time, this would be a different case.

the suspicious timing of his transfer alone could support

a finding that Crete transferred him because of his protected activities. As we consistently have held, however,

suspicious timing may be enough to fulfill the plaintiff’s

minimal burden of establishing a prima facie case, but

suspicious timing alone generally is insufficient to establish a genuine issue of material fact for trial. Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 506-07 (7th Cir. 2004);

Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 981 (7th

Cir. 2004); Foster v. Arthur Anderson, LLP, 168 F.3d 1029,

1034 (7th Cir. 1999).

Mr. Bettner’s contention on appeal—that it was, in fact,

impossible for him to complete the planned dispatches

without violating the DOT hours requirement—also is

insufficient to create a genuine issue of material fact. He

does not allege that it was impossible for any driver to

comply with both the planned dispatches and the DOT

hours-of-service regulations; he contends only that the

3

circumstances of his trip made it impossible for him to

complete his deliveries on time, and that his failure to

pick up and deliver his shipments timely therefore was

not his fault. Whether Mr. Bettner’s failure to complete

his assignments timely was due to his own inability to

plan his routes or to circumstances beyond his control,
No. 07-2679 19

however, is irrelevant to his retaliation claim. Our

inquiry in a retaliation claim is limited to the belief of the

decisionmakers, whether or not that belief is reasonable.

See Culver, 416 F.3d at 547 (noting that “the issue before

us is not whether an employer’s evaluation of the employee was correct but whether it was honestly believed”);

see also Wyninger, 361 F.3d at 981; Kahn v. Sec’y of Labor,

64 F.3d 271, 278 (7th Cir. 1995).

Moreover, Mr. Bettner likely waived this issue by failing

to assert it before the ALJ. As the Board noted in its

opinion:

In this case, Bettner failed to adduce any evidence,

either direct or indirect, that Crete’s proffered reason

for transferring him to the national fleet was untrue.

As indicated above, the ALJ found that not only did

Bettner fail to produce any evidence to suggest that

the transfer was a pretext for discrimination, he did not

even address the issue. Moreover, once alerted to this

deficiency by the ALJ, Bettner made no attempt to

rectify his omission or rebut the ALJ’s conclusion on

appeal. While Bettner expended a large part of his

appeal brief attempting to convince the Board that it

was not his fault that he failed to timely deliver and

pick up his loads, he made no attempt to show that

Crete did not believe that his failure to timely pick

up and deliver his loads was due to poor planning

on his part.

Bettner v. Crete Carrier Corp., ARB No. 06-013, at 15 (May 24,

2007).

Crete presented evidence that it honestly believed that

Mr. Bettner lacked the planning skills necessary to com-
20 No. 07-2679

plete timely the deliveries on the Dedicated Fleet and

that this had been the motivation for its decision to

transfer him to the National Fleet. Our task is not to

determine whether Crete was correct in its view, but

whether the record establishes that it had a reasonable,

non-retaliatory basis for its decision. Here, we believe

that Crete has made such a showing. The record establishes that, out of the three deliveries originating from

the pre-planned dispatch, Mr. Bettner was late delivering

his shipments to Atlanta and Joplin, and he failed to

arrive on time to pick up his loads in Lavergne and

Kankakee. Four service failures were issued to Crete due

to Mr. Bettner’s failure to deliver or pick up shipments

in a timely manner. Numerous Qualcomm messages

between the parties substantiate Crete’s belief that

Mr. Bettner’s failure to plan ahead was the reason for

his tardy deliveries.

Crete is entitled to summary judgment if it presents

“unrebutted evidence” that it would have taken the

same action in the absence of the employee’s protected

conduct. Culver, 416 F.3d at 546 (“The persuasiveness of

the defendant’s explanation is normally for the finder of

fact to assess, unless . . . the defendant presents unrebutted

evidence that he would have taken the adverse employment action against the plaintiff even if he had no retaliatory motive.” (internal citations and quotation marks

omitted)); Stone v. City of Indianapolis Pub. Utils. Div., 281

F.3d 640, 644 (7th Cir. 2002). The ALJ determined that

Crete had presented unrebutted evidence of a non-retaliatory motive for its action, and it found in favor of Crete.

The Board agreed. We conclude that the ALJ and the
No. 07-2679 21

Board correctly determined that Mr. Bettner failed to

carry his burden to produce evidence rebutting Crete’s

proffered non-retaliatory justification; accordingly, they

properly granted summary decision in favor of Crete.

Conclusion

For the reasons explained in this opinion, we deny

Mr. Bettner’s petition for review.

PETITION for review DENIED

8-21-08