FILED

NOT FOR PUBLICATION

OCT 25 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BERNADINE POULTER, No. 20-72978

Petitioner, LABR-1: ARB No. 2018-0056

v.

MEMORANDUM*

U.S. DEPARTMENT OF LABOR;

ADMINISTRATIVE REVIEW BOARD,

Respondents,

CENTRAL CAL TRANSPORTATION,

LLC; RYAN ROTAN,

Intervenors.

On Petition for Review of an Order of the Department of Labor

Argued and Submitted October 8, 2021 Portland, Oregon

Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges. Dissent by Judge W. FLETCHER

Bernadine Poulter petitions for review of a final decision and order issued by

the U.S. Department of Labor Administrative Review Board (ARB) which

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. reversed a ruling by the Administrative Law Judge (ALJ) finding in favor of

Poulter. We have jurisdiction under 49 U.S.C. § 31105(d), and we deny the

petition.

Poulter argues that the ARB erred in holding that the ALJ’s finding that

Poulter had engaged in an activity protected under 49 U.S.C. § 31105(a)(1)(B)(i)

was not supported by substantial evidence.1 We disagree, and conclude that the

ARB’s ruling was not arbitrary and capricious.

The record shows that Poulter’s supervisor ordered Poulter to undertake a

lawful “slam” maneuver to redistribute the vehicle’s overweight load, and

expressed an erroneous understanding regarding the vehicle’s weight restrictions,

but did not instruct Poulter to drive an overweight load in violation of regulations.

Because Poulter refused “to attempt to adjust the weight in spite of repeated

requests,” the ARB could reasonably conclude that the ALJ’s determination that

the supervisor “would have attempted to compel her to drive” an overweight load

was based on “mere speculation.” Nor was the ARB arbitrary and capricious in

concluding that (1) the ALJ based his ruling that the supervisor implicitly ordered

1 Under § 31105(a)(1)(B)(i), an employer may not discharge an employee because “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.” 2 Poulter to drive an overweight load primarily on the supervisor’s “misstatement of

the applicable weight limit,” and that (2) the ALJ failed to consider “the

countervailing evidence that [Poulter] was never directed to drive an overweight

load and that, for that reason alone, she could never have refused to do so.”

Therefore, the ARB was not arbitrary and capricious in concluding that the ALJ’s

ruling was not based on substantial evidence.

In light of the ARB’s ruling, Poulter did not refuse to operate a vehicle in a

manner that violated a regulation, and therefore did not engage in protected activity

under 49 U.S.C. § 31105(a)(1)(B)(i).2

The petition for review is DENIED.

2 Because we deny the petition on this ground, we do not reach the questions of whether such activity was a contributing factor to Poulter’s termination and whether there is clear and convincing evidence that Poulter was fired on independent, unprotected grounds. 3

FILED

Bernadine Poulter v. U.S. Department of Labor, No. 20-72978

OCT 25 2021

W. Fletcher, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent. In my view, the ARB erred in reversing the ALJ’s

ruling in favor of Poulter.

Under our decision in Calmat Co. v. U.S. Dep’t of Lab., 364 F.3d 1117,

1121–22 (9th Cir. 2004), the ARB is required to leave undisturbed findings of fact

by the ALJ if they are supported by substantial evidence. At oral argument, the

Department of Labor conceded that the ARB is “bound” by and “required to defer

to” the ALJ’s factual determinations as long as they are supported by substantial

evidence.

At the hearing before the ALJ, Poulter and her supervisor offered conflicting

testimony about whether the supervisor ordered Poulter to drive an illegal load. It

is undisputed that the actual weight on the tandem axle was 34,600 pounds, and

that the maximum legal weight on that axle was 34,000 pounds. It is also

undisputed that the supervisor sent Poulter text messages instructing her to “slam”

the load to lessen the weight on the axle, and instructing her (incorrectly) that the

legal weight on that axle was 34,500 pounds. Poulter testified that she understood

her supervisor to direct her to slam the load to 34,500 pounds on that axle and then

to drive the truck when that had been accomplished. The supervisor testified that

1 he instructed Poulter to slam the load at 100-pound increments until the legal load

of 34,000 pounds was reached. The ALJ resolved the conflict in the evidence by

finding that the supervisor instructed Poulter to drive an illegal load. The ALJ

based his finding, inter alia, on his conclusion that the supervisor was not credible

in testifying that he had instructed Poulter to slam the load in increments until it

reached a legal weight on the tandem axle.

Contrary to the ALJ’s finding, the ARB found that Poulter was never

instructed to drive an illegal load. Because the ALJ’s factual finding is supported

by substantial evidence (in particular the text-message exchange between Poulter

and her supervisor), and because the ARB’s factual finding conflicts with the

ALJ’s, the ARB abused its discretion in reversing the ALJ’s decision.

I would grant the petition for review.

2