"The freezing trucker" and Gorsuch's heart of ice: A micro-fiction

It was a bleak and frigid night on I-88 somewhere in northern Illinois. The icy wind whipped across the flatlands, grazing the endless rows of white, brittle remains of lastScreen Shot 2017-03-23 at 6.09.47 PM year's corn crop. The only place to be that night was in your house, wrapped in your Snuggie, with a warm glass of brandy, watching videos of past vacations at Daytona Beach.

Alphonse Maddin knew he had to deliver his truckload of stuff, but he was low on gas. Somehow, he had not been able to find his assigned gas station in the vast, treeless midwestern expanse. So he drove and he watched, as the needle slowly but surely slid below the little red "E."

Some thirty years earlier, in the land of cherry blossoms and the Potomac River, Congress passed the Surface Transportation Assistance Act. The law said (among many other things) that an employer could not take adverse action against a driver because the driver refused to operate a truck for safety-related reasons. (The law was later amended to add security-related reasons.)

Back on I-88, Alphonse Maddin was afraid he was going to run out of gas, so he pulled his rig over to the side of the road. He waited for an inexplicable 15 minutes, and then decided to venture back out in search of a truck stop.

No go. His trailer brakes were frozen.

Alphonse Maddin called his boss. "The trailer brakes are frozen, and I'm out of gas," he said. "Don't worry," the boss said, "sit tight, and we'll send help."

"Well, hurry up," Alphonse Maddin replied. "It's colder than Neil Gorsuch's heart out here." He hung up.

The sky was black, sprinkled with stars that looked like the static electricity you get when you walk across a carpet in fuzzy socks after petting a cat. The road was so flat that you could see the lights of the next village, even though it was 20 miles away. Alphonse Maddin turned up the heat in his cab and rubbed his hands.

Sputter-sputter-sput. Then an ominous mechanical groan. Then silence. And no more warm air. His heater had died.

Highway Snowstorm.flickrCC.TonyWebster

Alphonse Maddin cursed softly. "Wouldn't you know it." He found some shipping blankets, wrapped himself up in them, and went to sleep.

The roar of a passing semi woke Alphonse Maddin. 1:30 a.m. He had been asleep for two hours, and still no roadside assistance. His torso and feet were numb. Fumbling for his phone, he called his brother. "It's me, Alphonse," he said.

"You sound funny. You been drinking?"

"No, man - I've been asleep in my cab. But it's really cold."

"Turn your heat on, you idiot!"

"It doesn't work."

"Have you called the company?"

"Yeah, they're supposed to be sending somebody out, but that was two hours ago. Nobody is here."

Chuck Norris.flickrCC.StevanSheets
'Nuff said.

"Listen. You need to call them again. Tell them you don't have any heat. You're gonna freeze to death."

"OK." Alphonse Maddin called his boss. "Man, I'm freezing here," he said. "I don't have any heat in my cab. I need to do something. My body is going numb."

"Well, drive to a service station."

"I can't. The brakes on the trailer are frozen. I could unhitch the trailer and drive the cab to a gas station."

"No, you can't abandon the trailer. We'll get somebody to you. Hang in there."

Alphonse Maddin waited another 30 minutes. Still no assistance. Alphonse Maddin left his cab. The brittle air felt as if it would shatter from the cold like a crystal wine goblet in the vicinity of a Memorex tape of Ella Fitzgerald. Alphonse Maddin unhitched his trailer. Then he got in his cab and drove to the nearest service station. Fifteen minutes later, the assistance arrived. Alphonse Maddin met with the assistance crew and returned to safety and warmth.

Then he was fired for driving away while leaving his trailer by the roadside.

Gorsuch Protesters.flickrCC.MasterSteveRapport
"How DARE Judge Gorsuch apply the law!"

In a courthouse in Denver, three judges were hearing Alphonse Maddin's lawsuit. The Occupational Safety and Health Administration and the Administrative Review Board had both found that Alphonse Maddin's employer had violated the STAA. What they'd found was that Alphonse Maddin had "refused to operate" his truck for safety reasons.

Two of the three judges in Denver agreed with OSHA and the ARB that operating a truck (driving the cab to the service station) was, in fact, a refusal to operate a truck. Therefore, Alphonse Maddin's employer had taken adverse action against him for engaging in legally protected activity.

Since two out of three judges sided with Alphonse Maddin, Alphonse Maddin won his case. But the third judge, Neil Gorsuch, said that "operating a truck" could not mean the same thing as its opposite, "refusing to operate a truck." He said that if Congress wanted to protect "operating a truck," it could have said so. But it didn't. So Neil Gorsuch said that Alphonse Maddin should not have won his case.

Back in the land of cherry trees and the Potomac River, people thought that Judge Gorsuch was a mean man for saying that a law should be applied as it was written. But some people were saying that Congress maybe should write better laws.

EDITORIAL POSTSCRIPT: If an employer had called me beforehand, asking whether it should fire someone in Mr. Maddin's position, I would have said not to do it, regardless of what the STAA literally says. That's my role as an advisor to employers. But the judge's role is to apply the laws as they are written. In my opinion, Judge Gorsuch was exactly right, based on the plain language of the STAA. 

Image Credits: Map of I-88 a screenshot from Google Maps. Other photos from flickr, Creative Commons license. Midwestern (Iowa) highway in winter by Tony Webster; Chuck Norris by Stevan Sheets; Gorsuch protesters by Master Steve Rapport. 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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