Supreme Court preview? Breaking down Justice Gorsuch’s opinion in the ‘frozen trucker’ case

by Peter Lowe

In April,  Justice Neil Gorsuch joined the U.S. Supreme Court late in the term. Because Gorsuch is known for adhering to the letter of the law, his confirmation was seen as good news for employers. As his first term comes to an end and the Court starts to release the bigger, headline-making opinions, now is a good time to learn a little more about the newest member of the Court. 

The “frozen trucker” case has emerged as the most hotly debated opinion issued by  Gorsuch. The story of Alphonse Maddin, who lost his job after driving his truck to safety, may offer insight into the heart and mind of Gorsuch. It also provides employers a valuable lesson on the intersection of the notions of legality and fairness when deciding an employee’s fate.

Left out in the cold
Maddin was hauling a cargo of meat on a bone-chilling winter night on Interstate 88 in Illinois. He missed a stop for gas and pulled over to get his bearings and call the company dispatcher. When he tried to drive off, he discovered that the trailer’s brake lines had frozen. The dispatcher instructed him to stay put and explained that a service vehicle had been called.

Maddin fell asleep for about two hours. When he awoke, he could not feel the lower part of his body. The cab heater had failed, and the temperature inside the truck had fallen to below zero. Fearing for his safety, he again called the dispatcher and said he planned to detach the trailer and drive the truck by itself. Maddin was told to “hang in there.”

After waiting another 30 minutes, Maddin spoke with his supervisor, who told him that he could either drag the trailer (with locked brakes) or remain on the roadside. Maddin decided to ignore the directive because he couldn’t feel his feet and was having difficulty breathing. With considerable difficulty, he locked and detached the trailer. In a news conference, he described his fear of falling down and dying in this weakened state because he was afraid he would not be able to get back to his feet. He drove the cab away and later returned to meet the service vehicle and retrieve the trailer.

Initially, Maddin was told he was being written up for either delivering a load late or missing his fuel stop. Later, he was fired for abandoning his load.

Wrongful discharge claim
Maddin filed a complaint with the Occupational Safety and Health Administration (OSHA) alleging the trucking company violated whistleblower laws by firing him. He argued that he engaged in protected activity by reporting the frozen brakes and refusing to drive the truck while dragging the crippled trailer. He claimed his termination was retaliation for the protected activity. An administrative law judge agreed, reinstated Maddin, and awarded him back pay. An administrative review board affirmed the decision.

Gorsuch’s take
The trucking company appealed to the U.S. 10th Circuit Court of Appeals, where then-Judge Gorsuch sat on a three-judge panel. Gorsuch disagreed with his two colleagues, stating in a dissenting opinion that Maddin’s termination was lawful. His judicial philosophy was captured in the following sentences:

It might be fair to ask whether TransAm’s decision was a wise or kind one. But that’s not our job to answer questions like that. Our only task is to decide whether the decision was an illegal one.

Gorsuch noted that the law prohibits an employer from firing an employee who refuses to operate a vehicle because of safety concerns. He found that “nothing like that happened.” He reasoned that the employer gave Maddin an alternative to driving—namely, “sit and remain where he was and wait for help.” While characterizing that as “a legal if unpleasant option,” Gorsuch rested on the option’s availability in finding that the company acted legally in firing Maddin.

Takeaways
In terms of judicial philosophy, Gorsuch has been described as a strict constructionist. His view is that a judge must apply the letter of the law and that such a limited role may reduce the importance of the notions of wisdom and—sometimes—fairness. I found it revealing that in his opinion (unlike the majority’s decision), he never used Maddin’s name. Instead, he referred to Maddin as a “trucker.”

In my opinion, this case is the poster child for the saying “Just because you can doesn’t mean you should.” Setting aside whether Gorsuch got it right (the other five judges who reviewed the case disagreed with him), I believe the trucking company should have first addressed the most fundamental question when assessing the prudence of terminating Maddin—namely, is this decision fair? Was it fair and reasonable to expect Maddin to stay in his frozen truck and risk serious injury or even death? Was that truly an “unpleasant option,” or was it not an option at all?

I believe HR plays a critical role in making termination decisions. It is HR’s responsibility to ensure the employer follows policies and bases decisions on well-researched facts. As an HR professional, ask critical questions about fairness, and try to put yourself in the shoes of an outsider who is judging whether an employee was treated fairly and justly. If you do not play your role, unfair or unwise terminations can resurface as troubling and tricky claims, even if they are not necessarily illegal.

Peter Lowe is a partner with Brann & Isaacson in Lewiston, Maine, advising clients on personnel practices and employee relations matters.  He can be contacted at plowe@brannlaw.com