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Trump Judge Casts Deciding Vote to Dismiss Truck Driver’s Retaliation Claim: Our Courts, Our Fight

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Trump Judge Casts Deciding Vote to Dismiss Truck Driver’s Retaliation Claim: Our Courts, Our Fight

“Our Courts, Our Fight” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties and the need for the Senate to confirm President Biden’s federal court nominees to help counteract these effects. Supreme and appellate court cases in the series can be found by issue and by judge at this link.


In a case with implications for workers around the country, Trump Judge Daniel Bress cast the deciding vote to deny review of a truck driver’s claim of illegal retaliation by her supervisor. The Ninth Circuit panel’s October 2021 decision in Poulter v. U.S. Department of Labor means that the truck driver, Bernadine Poulter, will lose her job after reporting what she viewed as serious safety violations.

At the time of the incident that prompted Poulter’s complaint, she was employed by Central Cal Transportation. In December 2015, she picked up a load of tires and drove to a nearby truck scale, following company procedure. Poulter discovered that during her drive, the tires had piled up in the back of the truck, exceeding the legal weight limit for the truck’s rear axle by 600 pounds.

Poulter texted her supervisor, Ryan Rotan, about the excess weight. Rotan texted Poulter back and incorrectly informed her that she had not exceeded the weight limit. He also told Poulter to “[t]ry to slam it,” instructing her to use a procedure that redistributes weight to the front of the truck. Poulter was uncomfortable with Rotan’s directions and refused to use the slam procedure or drive with an overweight load. As a result, Central Cal fired her.

Poulter filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging Central Cal illegally fired her for not following what she considered to be unsafe instructions. An OSHA Administrative Law Judge (ALJ) ruled in favor of Poulter, concluding that Central Cal illegally fired her for expressing safety concerns. However, a Department of Labor Administrative Review Board (ARB) later overturned this decision, finding that Rotan had never directed Poulter to illegally drive with an overweight load. Poulter appealed, claiming that the ARB had abused its authority in overturning the ALJ’s decision.

The Ninth Circuit panel denied review of Poulter’s case. The panel’s majority claimed in its unsigned opinion that the ALJ’s determination that Rotan had directed Poulter to violate the law was “based on ‘mere speculation’” and ignored evidence that Rotan hadn’t explicitly ordered Poulter to drive with an overweight load. The court ruled that the ARB’s ruling against Poulter should stand, dismissing her case.

Judge William Fletcher firmly dissented. Fletcher noted that the Department of Labor had admitted in its testimony that “the ARB is ‘bound’ by … the ALJ’s factual determinations as long as they are supported by substantial evidence.” Poulter had provided evidence of unsafe conditions in the form of text messages from Rotan containing incorrect information about the weight limit. She also testified that she understood his instructions to mean that she should illegally drive the overweight truck. Fletcher maintained that because Poulter provided substantial evidence supporting her case, the ARB “abused its discretion” in overruling the ALJ and that Poulter’s case should be allowed to proceed.

Poulter provided strong documentary evidence suggesting she was a victim of illegal workplace retaliation. Because of the majority’s decision, the court will never get the chance to determine the credibility of this evidence or Poulter’s claim. Instead, it deferred to Central Cal’s viewpoint, potentially allowing the company to cover up a workplace safety violation. This case reflects the importance of confiming Biden judges who will protect the rights of workers and take claims of workplace safety violations seriously, as part of our fight for our courts..

Note: Andrew Kliewer is a law student fellow at People For the American Way.




Daniel Bress, Ninth Circuit Court of Appeals, Our Courts Our Fight, Trump judges, workers' rights