United States Court of Appeals

For the First Circuit

No. 09-2148

R & B TRANSPORTATION, LLC; PAUL BEAUDRY,

Petitioners,

v.

UNITED STATES DEPARTMENT OF LABOR,

ADMINISTRATIVE REVIEW BOARD,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE ADMINISTRATIVE

REVIEW BOARD OF THE UNITED STATES DEPARTMENT OF LABOR

Before

Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

James F. Laboe, with whom Orr & Reno, P.A., was on brief for

petitioners.

Ronald J. Gottlieb, Attorney, Office of Solicitor, with whom

Deborah Greenfield, Acting Deputy Solicitor of Labor, Joseph M.

Woodward, Associate Solicitor for Occupational Safety and Health,

and Charles F. James, Counsel for Appellate Litigation, were on

brief for respondent.

August 26, 2010
 The STAA prohibits employers from taking adverse employment 1

actions against employees, including drivers of commercial motor

vehicles, who engage in certain protected activities. 49 U.S.C.

§ 31105(j). Specifically, the STAA provides, in relevant part:

(a) Prohibitions.

(1) A person may not discharge an employee, or

discipline or discriminate against an employee regarding

pay, terms, or privileges of employment, because--

(A)(i) the employee, or another person at the

employee's request, has filed a complaint or begun a

proceeding related to a violation of a commercial motor

vehicle safety or security regulation, standard, or

order, or has testified or will testify in such a

proceeding . . .

(B) the employee refuses to operate a vehicle

because--

(i) 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)(A)(i)-(B)(i).

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TORRUELLA, Circuit Judge. Peter Mailloux ("Mailloux")

filed an administrative complaint against R&B Transportation, LLC

("R&B"), and its owner, Paul Beaudry ("Beaudry") (collectively

"Petitioners"), alleging that Mailloux was unlawfully discharged

from his job as a commercial trucker for his adherence to federal

safety standards. Mailloux sought relief under the employee

protection provisions of Section 405 of the Surface Transportation

Assistance Act of 1982 ("the STAA"), 49 U.S.C. § 31105. A final 1

decision and order of the U.S. Department of Labor's Administrative

Review Board ("ARB") determined that Mailloux's termination

violated the STAA, and awarded backpay and other expenses. After

careful review, we deny the petition.
 These facts are drawn from the factual findings of the 2

Administrative Law Judge ("ALJ"), which the ARB affirmed.

 Mailloux's exact start date is disputed and germane to the back 3

pay issue, which Petitioners raise in this petition. See infra

Part III.D.

 The ALJ found that Mailloux was fired on December 17, 2004, a 4

finding the ARB affirmed and is uncontested on appeal.

Notwithstanding the ALJ's finding that Mailloux was "discharged" on

December 21, 2004, and OSHA's order to Petitioners to pay Mailloux

back wages from December 26, 2004, we thus adopt December 17, 2004,

as Mailloux's undisputed termination date.

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I. Facts2

A. Mailloux's Employment

Beaudry owns two trucking companies, R&B and Beaudry

Enterprises. He also co-owns BAT Express, a third trucking

company. These three entities share office space and drivers.

Neither Beaudry Enterprises nor BAT Express is a party to this

case.

In late-August 2004, Petitioners hired Mailloux as a

driver of a commercial motor carrier, an over-the-road truck, to

deliver loads on routes between New England and Florida. During 3

the scope of his employment through December 17, 2004, Mailloux 4

reported to Heather Bagley ("Bagley"), who was Beaudry's

administrative assistant, that it was not possible to make various

deliveries on time without violating the Federal Motor Carrier

Safety Act, the Department of Transportation's ("DOT") hours of

service regulation (the "driving regulation"), which restricts the

number of hours drivers of commercial motor vehicles may work over
 49 C.F.R. § 395.3(b)(2) provides, in full: 5

(b) No motor carrier shall permit or require a driver of

a property-carrying commercial motor vehicle to drive,

nor shall any driver drive a property-carrying commercial

motor vehicle, regardless of the number of motor carriers

using the driver's services, for any period after . . .

(2) Having been on duty 70 hours in any period of 8

consecutive days if the employing motor carrier operates

commercial motor vehicles every day of the week.

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a certain period of time. See 49 C.F.R. § 395.3(b)(2). Bagley 5

informed Mailloux that the deliveries had already been scheduled

and could not be changed.

On December 17, 2004, Mailloux called Beaudry's home to

inform Beaudry that he was unable to make a particular delivery

from Florida on time both because he had a flat tire and because he

had already driven the maximum allowable number of hours under the

driving regulation. During this conversation, Beaudry told

Mailloux to return the truck to R&B's facility in New Hampshire and

Beaudry would inquire about arranging for Mailloux to be

transported back to Florida. Mailloux responded, "I guess that

means I'm fired." Beaudry said only "get the truck back up here"

before the conversation ended. When Mailloux later spoke with a

fellow R&B driver, the driver told Mailloux "yeah, you're fired."
 The recommended decision and order of the ALJ indicates that 6

Mailloux initially called the Occupational Safety and Health

Administration ("OSHA") investigator on "December 20, 2005," and

that the investigator conducted the interview with Mailloux on

"December 27, 2005." However, it is clear from the record that

these events occurred on their respective dates in 2004.

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B. OSHA Investigation and Testimony Before the ALJ

On December 20, 2004, Mailloux contacted the U.S. 6

Department of Labor's Occupational Safety and Health Administration

("OSHA") to report that he would soon be discharged from R&B and

wanted to speak to someone. The following day, Mailloux was,

according to the ALJ, "discharged."

Later, on December 27, 2004, Mailloux met with Christine

Kidder ("Kidder"), an OSHA investigator, and told her that during

his employment with R&B he was continually required to drive in

excess of the driving regulation. During this interview, Mailloux

informed Kidder that he routinely falsified his driving logs for

R&B in order to provide the appearance that he was in compliance

with the driving regulation.

After this initial interview with Mailloux, OSHA

conducted an investigation of R&B, including an interview with

Beaudry. When Kidder contacted Beaudry, he informed her that he

had fired Mailloux due to his inability to properly plan his trips,

which were costing the company time and money. During this

interview, Kidder inquired whether R&B followed the driving

regulation. Beaudry represented that he had never violated the
 The record does not indicate what sort of "agent" conducted this 7

investigation.

 The fact that these three companies share office space and 8

drivers is, according to testimony the Division Administrator of

the DOT's FMCSA provided to the ALJ, the reason their compliance

with the driving regulation was jointly reviewed.

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driving regulation. Later, during the ALJ hearing, Beaudry

testified that R&B submits written notices to drivers whose driving

logs are false or violate the driving regulation. Beaudry further

testified that he submitted such notices to Mailloux and ultimately

fired him because he was driving in excess of the maximum hours

allowable by the driving regulation.

Following her interview with Beaudry, Kidder contacted

the DOT's Federal Motor Carrier Safety Administration ("FMCSA") and

obtained compliance reviews and enforcement reports relating to R&B

("the DOT reports"). These reviews and reports are the

investigative reports prepared by "an agent" who visits a company 7

to determine whether they are in compliance with the driving

regulation. Based on an audit the FMCSA conducted of R&B and on

Kidder's own review of the DOT reports, Kidder learned that Beaudry

and all three of the companies in which he had an interest had

previously been cited for violating the driving regulation. The 8

most recent DOT report, dated April 12, 2005, showed R&B's

violations of the driving regulation, as well as other DOT

regulations, for the period August 23, 2004, to February 22, 2005,

a time frame that included Mailloux's employment. Additionally,
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past DOT reports showed that R&B and the other two trucking

companies in which Beaudry had an interest had previously been

cited for violations on September 14, 2000; January 22, 2001; and

June 14, 2001. Petitioners paid civil penalties associated with

some of these violations.

As part of Kidder's investigation, she also interviewed

Bagley, who informed her that R&B drivers routinely violated the

driving regulation because they often could not otherwise complete

their trips on time. Bagley stated that drivers would complain to

her about driving in excess of the regulation, and the company

consequently experienced high turnover. Bagley later testified to

the ALJ in a deposition that when she hired drivers and they

inquired about compliance with the driving regulation, she would

tell them that the company complied with the regulation, even

though she knew Beaudry would soon have them driving in excess of

it. Bagley also testified to the ALJ that Trish Patrick, Beaudry's

daughter and employee, instructed Bagley to separate toll receipts

from a truck driver's time log when they did not match in order to

conceal violations of the driving regulation.

Scott Hill ("Hill"), another R&B driver, testified about

his experience working for Petitioners. Like Mailloux, Hill worked

for R&B from August 2004 until December 2004. Hill testified that,

during his employment with Petitioners, he consistently made

deliveries in excess of the driving regulation. Hill stated that
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he falsified his driving logs to make it appear as if he were

driving within the legal limitations. Hill further testified that

Beaudry met with him about his violations, and used Mapquest to

illustrate how a driver could make his deliveries on time and still

comply with the driving regulation. Hill also testified that

Beaudry suggested that when Hill was driving in Florida he could

log his driving hours as a local delivery, even though it was an

interstate one. Hill additionally testified that he brought up the

driving regulation issue with Beaudry. Hill stated he told Beaudry

at one point that he needed "a break, I got to slow down, I want to

run legal," and that Beaudry responded that he had "other drivers

that will run." Hill testified that he stopped working for R&B on

December 30, 2004, because he was exhausted.

II. Procedural History

A. OSHA Findings and Petitioners' Appeal (2006)

On January 9, 2006, OSHA issued its findings. OSHA

determined that Petitioners violated the STAA by discharging

Mailloux after his complaint to Petitioners regarding his work

hours. OSHA ordered Petitioners to pay Mailloux back wages from

December 26, 2004, through February 27, 2005, the date on which he

commenced his new employment.

The same day OSHA issued its findings, Petitioners

appealed OSHA's order to the ALJ. Petitioners argued that Mailloux

was terminated for performing poorly, violating the driving
 49 U.S.C. § 31105(b)(3)(A), concerning "Filing complaints and 9

procedures," provides, in full:

(3) (A) If the Secretary of Labor decides, on the basis

of a complaint, a person violated subsection (a) of this

section, the Secretary of Labor shall order the person

to--

(i) take affirmative action to abate the violation;

(ii) reinstate the complainant to the former

position with the same pay and terms and privileges of

employment; and

(iii) pay compensatory damages, including backpay

with interest and compensation for any special damages

sustained as a result of the discrimination, including

litigation costs, expert witness fees, and reasonable

attorney fees.

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regulation, and failing to communicate with the company's

dispatcher in a timely manner.

B. ALJ's Recommended Decision and Order (2007)

Following a hearing, the ALJ issued a recommended

decision and order on June 8, 2007. The ALJ observed that the DOT

reports revealed that R&B's violations of the driving regulation

existed before, during, and after Mailloux's employment with the

company. The ALJ noted that the DOT reports suggested a pattern of

violations associated with R&B's day-to-day operations.

Additionally, the ALJ relied on these records and other evidence to

find that Mailloux was terminated in violation of the STAA. The

ALJ concluded that Mailloux was entitled to relief, which included

reinstatement and compensatory damages, such as back pay, pursuant

to 49 U.S.C. § 31105(b)(3)(A). Because Mailloux was not seeking 9

reinstatement, the ALJ granted him back pay from December 17, 2004,
 The ALJ calculated this wage rate loss using the following 10

figures. Mailloux worked for a total of 108 days between his start

date on August 25, 2004, and his end date on December 17, 2004.

During that time, he earned $14,919.66, which, when divided by 108,

yielded a daily wage rate of $138.15. Given that Mailloux was out

of work for 72 days between his end date with R&B and the start

date of his new employment on February 27, 2005, his daily wage of

$138.15 multiplied by 72 days out of work yielded the $9,946.80

wage rate loss.

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the date of his termination, to February 27, 2005, when he obtained

new employment, as well as travel expenses associated with the

litigation. The ALJ's order suggested that Petitioners compensate

Mailloux in the amount of $9,946.80 plus interest for back pay,10

and $314.58 for reimbursed travel expenses. Pursuant to 29 C.F.R.

§ 1978.109(a), the ALJ's recommendation was automatically forwarded

for review to the ARB.

C. ARB's Final Decision and Order (2009)

On June 26, 2009, the ARB issued its final decision and

order. The ARB affirmed the recommendation by the ALJ and ruled

that Mailloux had proven by a preponderance of the evidence that he

had engaged in a protected activity (when Mailloux informed Beaudry

during the December 17, 2004, telephone conversation that Mailloux

could not complete the delivery then assigned to him without

violating the driving regulation), that R&B was aware of the

protected activity, and that R&B took an adverse employment action

(the December 17, 2004, termination) against Mailloux because of

it.
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The ARB held that substantial evidence on the record

supported the ALJ's factual findings, and that those findings were

conclusive. The ARB also held that the ALJ did not abuse its

discretion in admitting the DOT reports to which Kidder and a DOT

representative testified, and that these reports were reliable

indicators of R&B's actual violations of the driving regulation.

Additionally, the ARB found that there was substantial evidence to

support the ALJ's finding that R&B required its drivers to drive in

excess of the driving regulation and that its drivers were not

disciplined for hours of service violations. Furthermore, the ARB

found substantial evidence in the record, including the fact that

Beaudry did not have Mailloux's driver's log record indicating a

violation of the driving regulation at the time he terminated him,

to support the ALJ's finding of a causal connection between

Mailloux's protected activity and his termination.

Petitioners had also argued that the ALJ erred in

calculating Mailloux's daily average wage rate with R&B, asserting

that Mailloux's actual start date was August 7, 2004, which, if

used instead of August 25, 2004, would reduce his award for the 72-

day period during which he was unemployed because it would increase

the total number of days he worked and thus decrease his daily

average wage rate. Nevertheless, because the ARB found that R&B

did not properly raise this issue before the ALJ, the ARB declined

to consider the issue on appeal and affirmed the recommended award.
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D. Petition for Judicial Review (2009)

In August 2009, R&B and Beaudry timely petitioned this

court to review the ARB's final decision and order. Petitioners'

petition raises three issues. They argue that (1) evidence that

R&B and other trucking companies owned by Beaudry had violated DOT

regulations was improperly admitted by the ALJ into evidence; (2)

the ARB erroneously upheld the ALJ's decision that a causal

connection existed between Mailloux's protected activity and the

adverse employment action against him; and (3) the ARB erred in

finding that substantial evidence existed in the record to justify

the ALJ's decision regarding back pay.

III. Discussion

A. Standard / Scope of Review

"We review the ARB's final decision in accordance with

the dictates of the Administrative Procedure Act, 5 U.S.C. § 701 et

seq." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 19

(1st Cir. 1998). "The ARB's decision must be affirmed unless its

legal conclusions are arbitrary, capricious, or otherwise not in

accordance with law, or its factual conclusions are unsupported by

substantial evidence." Id.; see also 5 U.S.C. § 706(2)("The

reviewing court shall . . . hold unlawful and set aside agency

action, findings, and conclusions found to be (A) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance

with law; . . . [or] (E) unsupported by substantial evidence . . .
-13-

."). "Substantial evidence is more than a scintilla, and must do

more than create a suspicion of the existence of the fact to be

established. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." BSP Trans, Inc.

v. United States Dep't of Labor, 160 F.3d 38, 47 (1st Cir.

1998)(quoting NLRB v. Columbian Enameling & Stamping Co., 306 U.S.

292, 300 (1939)(citation and internal quotation marks omitted)).

B. The DOT Reports

i. Standard / Scope of Review

Since whether the ARB properly affirmed the ALJ's

decision to admit the DOT reports is an evidentiary ruling, we

review it for abuse of discretion. See, e.g., United States v.

Richardson, 515 F.3d 74, 84 (1st Cir. 2008); Curtin v. Office of

Pers. Mgmt., 846 F.2d 1373, 1378-79 (1st Cir. 1988); see also

Barker v. Admin. Review Bd., 302 Fed. Appx. 248, 249 (5th Cir.

2008)("An ALJ is granted broad discretion to make evidentiary

determinations."). "An abuse of discretion occurs when a relevant

factor deserving significant weight is overlooked, or when an

improper factor is accorded significant weight, or when the court

considers the appropriate mix of factors, but commits a palpable

error of judgment in calibrating the decisional scales." United

States v. DeCicco, 370 F.3d 206, 210 (1st Cir. 2004)(citation and

quotation marks omitted).
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ii. Legal Framework

The Federal Rules of Evidence do not apply in APA

proceedings. Instead, the rules of evidence in administrative

hearings before an ALJ provide, in part, that

[e]vidence of other crimes, wrongs, or acts is

not admissible to prove the character of a

person in order to show action in conformity

therewith. It may, however, be admissible for

other purposes, such as proof of motive,

opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or

accident.

29 C.F.R. § 18.404(b) (emphasis added). These rules of evidence

also provide the following hearsay exception, concerning "[p]ublic

records and reports": "Records, reports, statements, or data

compilations, in any form, of public offices or agencies, setting

forth . . . [f]actual findings resulting from an investigation made

pursuant to authority granted by law, unless the sources of

information or other circumstances indicate lack of

trustworthiness." 29 C.F.R. § 18.803(a)(8).

iii. Analysis

The ARB held that the ALJ did not abuse its discretion in

admitting the DOT reports, considering them within the "[p]ublic

records and reports" hearsay exception and "only to the extent that

they reflect R&B's knowledge of its obligations pursuant to the

hours of service regulations." Petitioners argue that the ALJ

improperly relied on the DOT reports as highly prejudicial

character evidence that showed, besides R&B's knowledge of its
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legal obligations, which Petitioners claim was undisputed, that R&B

was acting in conformity with its past violations of the driving

regulation. Respondent counters that the DOT reports were properly

admitted as "[p]ublic records and reports" and to show Beaudry's

motive and knowledge in terminating Mailloux's employment.

First, Petitioners do not dispute that the DOT reports

are "[f]actual findings resulting from an investigation made

pursuant to authority granted by law." Petitioners do contend,

however, that the DOT reports "indicate lack of trustworthiness."

In making this claim, Petitioners cite to a New Jersey Superior

Court case from 1988 that quotes a 1985 opinion from the Fifth

Circuit stating that "OSHA citations are the opinions of

investigators and ordinarily do not 'carry with [them] the indicia

of reliability that is inherent in government adopted safety

standards.'" Millison v. E.I. du Pont de Nemours & Co., 545 A.2d

213, 224 (N.J. Super. Ct. App. Div. 1988)(alteration in original)

(quoting Dixon v. Int'l Harvester Co., 754 F.2d 573, 581 n.5 (5th

Cir. 1985)). In any event, as the ARB observed, R&B paid the

penalties imposed by the DOT as a result of the admitted reports,

the terms of which explicitly stated that such payments "constitute

admission of the violation(s)." These admissions bolstered the
 Petitioners argue that their payment of the DOT penalties should 11

not be taken as an admission of the underlying violations because,

Petitioners claim, they paid the penalties merely "in an effort to

avoid litigation and to resolve the outstanding disputes." This

argument is unavailing because Petitioners' reason for paying the

penalties is irrelevant to their constructive admission.

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trustworthiness of the DOT reports, supporting the ALJ's

consideration of the reports as being within its discretion.11

Second, Beaudry's knowledge in discharging Mailloux is,

as discussed in Part III.C., relevant to the instant case. The DOT

reports suggested that Beaudry knew or should have known of the

driving regulation and R&B's failure to comply with it in the past.

The DOT reports indicated that Beaudry knew or should have known he

was not telling the truth when he told Kidder that he had never

violated the driving regulation, which undermined his credibility

when testifying. The Ninth Circuit has observed that, "[w]hen

offered to prove knowledge, . . . the prior act need not be similar

to the charged act as long as the prior act was one which would

tend to make the existence of the defendant's knowledge more

probable than it would be without the evidence." United States v.

Ramirez-Jiminez, 967 F.2d 1321, 1326 (9th Cir. 1992). Here, the

prior acts of Petitioners were their violations of the driving

regulation. These acts would certainly be relevant as tending to

show that Petitioners were aware of their obligations under the

driving regulation, that their employees were supposed to comply
-17-

with it, and that Petitioners had repeatedly violated that

regulation in the past.

We thus hold that it was not an abuse of the ALJ's broad

discretion to admit the DOT reports not as character evidence but

both pursuant to the "[p]ublic records and reports" hearsay

exception and as proof of Petitioners' knowledge concerning their

history of complying with the driving regulation. However, even if

the ALJ abused its discretion here, any purported error was

harmless in light of the other evidence against Petitioners, which

was substantial, as discussed in the next Part. See Mekhoukh v.

Ashcroft, 358 F.3d 118, 130 (1st Cir. 2004) (reviewing an

evidentiary ruling in the administrative law context for

harmlessness).

C. The STAA Claim

i. Legal Framework

"A prima facie case of unlawful termination under the

STAA requires a showing that the employee engaged in protected

activity, that the employee was subjected to adverse employment

action, and that there was a causal connection between the

protected activity and the adverse action." Clean Harbors Envtl.

Servs., Inc., 146 F.3d at 21. "If a complainant makes out a prima

facie case, the employer may rebut that showing with evidence of a

legitimate, non-retaliatory reason for the adverse employment

action. The burden then shifts back to the complainant to prove
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that the proffered reason is actually a pretext for unlawful

retaliation." BSP Trans, Inc., 160 F.3d at 46; see also Day v.

Staples, Inc., 555 F.3d 42, 53 (1st Cir. 2009).

ii. Analysis

Mailloux engaged in protected activity when he informed

Beaudry on December 17, 2004, that he refused to exceed the driving

regulation to make a particular delivery on time. Because Mailloux

was speaking to Beaudry, Petitioners knew of Mailloux's protected

activity. Mailloux was then subjected to an adverse employment

action when Beaudry terminated him during the same conversation.

These three ALJ findings are undisputed. We thus consider whether

substantial evidence supports the ARB's affirmance of the ALJ's

conclusions that there was a causal connection between Mailloux's

protected activity and the adverse action against him, and that

Petitioners' proffered reason for the adverse action was actually

a pretext for unlawful retaliation. We find that such substantial

evidence exists.

Petitioners argue that Mailloux failed to prove a causal

connection between his protected activity and termination. In so

doing, they assert that substantial evidence in the record,

including Beaudry's testimony, supports a determination that there

was a legitimate, non-retaliatory reason for discharging Mailloux,

and that the ARB erred in upholding the ALJ's contrary decision.
Although Kidder clarified on cross examination that Beaudry had 12

actually said that he never violated the regulations –- not that he

received no citations –- the ALJ's logic and conclusion here are

still valid: because Beaudry's payment of the fines constituted an

admission of the underlying violations, the testimony by Kidder on

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Petitioners submit that R&B diligently processes its

drivers' paperwork and relies heavily upon them to provide accurate

and timely information regarding their hours of duty. Petitioners

also contend that Mailloux, of his own accord and without informing

R&B, falsified his data logs due to his bleak financial situation,

because if he had followed the driving regulation, Mailloux would

have earned less money. Petitioners claim that R&B later uncovered

these violations and informed Mailloux of them in order to compel

him to conform to R&B's policy of requiring its drivers to comply

with the driving regulation. Thus, Petitioners claim that, rather

than as a result of his protected activity, Mailloux was terminated

for a legitimate business purpose: because he refused to conform

his conduct to the company's standards of properly logging driving

time and keeping within the requirements of the driving regulation.

However, the ALJ specifically disbelieved Beaudry's

testimony. First, the ALJ found that Beaudry's testimony that R&B

required its drivers to comply with the driving regulation was

undermined by the DOT reports. Second, the ALJ concluded that

Beaudry was "lying" when he told Kidder that he had never received

any previous citations from the DOT for hours of service

violations. As the finder of fact and a witness to Beaudry's 12
which the ALJ based the finding that Beaudry was lying did in fact

support this finding.

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testimony, the ALJ's "credibility determinations are entitled to

great deference." See P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d

100, 108 (1st Cir. 1997). We have previously observed in another

case involving alleged retaliation when an employee engaged in

protected activity that a fact finder can find pretext for unlawful

termination where "the employer's proffered explanation is unworthy

of credence." See McDonough v. City of Quincy, 452 F.3d 8, 18 (1st

Cir. 2006) (quoting Reeves v. Sanderson Plumbing Prods. Inc., 530

U.S. 133, 143 (2000))(internal quotation marks omitted). The ALJ

could thus find that Beaudry's testimony about Mailloux's on-thejob conduct was pretext for Mailloux's unlawful termination because

the ALJ had found Beaudry's proferred explanation to be unworthy of

credence.

Other evidence in the record further supports the ALJ's

finding that Mailloux's termination was on account of his protected

activity and not his non-compliance with the driving regulation.

Bagley testified that Petitioners were aware that their drivers

exceeded the hours allotted by the driving regulation, and,

further, that they expected their drivers to do so. Hill testified

that Petitioners regularly pressured their drivers to violate the

driving regulation. Thus, based on the testimonies of Mailloux,

Beaudry, Bagley, and Hill, and the DOT reports, we find that
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substantial evidence supports the findings that a causal connection

existed between Mailloux's protected activity and the adverse

employment action against him, and that Petitioners' proffered

reason for terminating Mailloux was actually a pretext for unlawful

retaliation.

D. The Back Pay Award

The ALJ noted in its recommended decision and order that

Petitioners "have not challenged August 25, 2004 as [Mailloux's]

initial start date." Moreover, the ALJ found that Mailloux began

work on August 25, 2004, based in part on an absence of any

objection from Petitioners.

The ARB found that, as the ALJ noted, R&B did not raise

before the ALJ any issue regarding or dispute concerning the

calculation of Mailloux's back pay award. Consequently, based on

its precedent declining "to consider issues or arguments raised for

the first time on appeal," the ARB declined to consider the matter,

finding both that R&B had waived this argument on appeal and that

substantial evidence supported the ALJ's recommended back pay

award. As a result, the ARB affirmed the ALJ's recommended back

pay award.

Petitioners argue on appeal that the ALJ erred in

determining that the start date of Mailloux's employment was

August 25, 2004. Petitioners contend that their post-hearing

brief, which the ALJ ordered on July 28, 2006, and which
 In its July 28, 2006 briefing order, the ALJ stated that each 13

brief shall include an argument "addressing each issue in a

separately numbered section." Furthermore, the ALJ noted that

"issues or arguments not specifically addressed in the brief will

be deemed to have been waived."

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Petitioners filed on October 30, 2006, specifically addressed the

issue of damages, and established Mailloux's start date as

August 7, 2004.

Petitioners did explicitly raise this matter in its posthearing brief. Under the "Statement of All Issues" in that brief,

Petitioners claimed that Mailloux's employment with R&B spanned 133

days, which Petitioners reiterated in the "Statement of Facts"

section of that brief and noted was based on an initial start date

of August 7, 2004. However, despite the ALJ's instructions in its

briefing order and warning about waiver, this statement was 13

unaccompanied by any argumentation in this brief and is also not

addressed in any way in Petitioners' December 8, 2006, response to

the post-hearing reply brief. Only on appeal do Petitioners

proffer an argument for their proposed alternate start date:

Mailloux signed a receipt for his copy of the Federal Motor Carrier

Safety Regulations Pocket Book on that date, indicating he

commenced employment then. As Petitioners, despite the ALJ's

instructions and warning, did not specifically address in their

post-hearing brief arguments concerning the back pay award, the

ARB's legal ruling that they waived the matter was not "arbitrary,
-23-

capricious, an abuse of discretion, or otherwise not in accordance

with law," 5 U.S.C. § 706(2).

IV. Conclusion

For the reasons stated above, we deny review.