## Facts

- Yellow Freight System, Inc., an interstate trucking company, employed truck driver Thomas E. Moyer from 1978 until his discharge in 1988.
- On February 29, 1988, Moyer’s truck broke down during a dispatch; after being instructed to use a telephone to contact mechanics, he aggravated a preexisting medical condition and reported feeling ill and needing hospital care.
- Yellow Freight disciplined Moyer with a four-day suspension for leaving the truck unattended and not following breakdown procedures.
- From June to October 1988, Yellow Freight issued four warning letters to Moyer for being unavailable for dispatch; the last followed shortly after Moyer testified for another employee at a grievance hearing.
- On November 9, 1988, Yellow Freight terminated Moyer.
- Moyer filed a Department of Labor complaint alleging discharge for refusing to drive due to medical condition and safety concerns under STAA § 405(b); OSHA notified Yellow Freight only of a § 405(b) allegation.
- After OSHA found no § 405(b) violation, Moyer sought an ALJ hearing; during the hearing he also suggested retaliation based on his grievance-hearing testimony, implicating STAA § 405(a).
- The ALJ found no § 405(b) violation and insufficient evidence of a § 405(a) violation; on review, the Secretary agreed as to § 405(b) but found a § 405(a) retaliation violation on the existing record and ordered relief.
- Yellow Freight petitioned for judicial review, asserting lack of notice and opportunity to defend the uncharged § 405(a) theory.

## Issues

1. Whether procedural due process was violated when the Secretary found a STAA § 405(a) retaliation violation even though the employer was notified and tried the case as a § 405(b) refusal-to-drive claim.
2. Whether Yellow Freight impliedly consented to litigate § 405(a) at the ALJ hearing because evidence related to grievance-hearing testimony appeared in the record.
3. Whether, if reached, STAA § 405(a) protects testimony at an employee grievance hearing as a basis for retaliation liability.

## Decision

- The Sixth Circuit denied enforcement of the Secretary of Labor’s order finding a § 405(a) violation.
- The court held Yellow Freight did not receive adequate notice that § 405(a) would be adjudicated and did not impliedly consent to try that issue at the ALJ hearing.
- Because the case was litigated as a § 405(b) matter and the Secretary effectively reframed it post-hearing as a § 405(a) case without reopening the record, the order could not be enforced.
- The court resolved the petition on due process grounds and did not need to decide the merits of the Secretary’s § 405(a) interpretation to dispose of the case.

## Legal Principles

- Administrative adjudication must provide notice of the charge and a meaningful opportunity to be heard on the specific legal theory for which liability is imposed.
- Implied consent to try an unpleaded issue is not shown merely because evidence introduced is relevant to both pleaded and unpleaded theories.
- When different statutory provisions protect different conduct and require different defenses, an agency may not impose liability under an uncharged provision without clear notice and an opportunity to litigate that claim, including the chance to present targeted evidence and argument.
- Efficiency goals in statutory enforcement schemes do not justify dispensing with basic procedural fairness.

## Conclusion

The Sixth Circuit refused to enforce a STAA retaliation remedy because the Secretary imposed liability under § 405(a) after a hearing noticed and tried as a § 405(b) case, denying the employer adequate notice and an opportunity to defend the distinct § 405(a) claim.


Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992)