Also, the uncontroverted testimony of both D. E. and Lawanda Price that the firm fired another employee, who had not engaged in protected activity, for the same offense that Carney committed is substantial evidence that the firm did not subject Carney to disparate treatment. R. D. & O. at 42. Finally, the ALJ found no evidence that Price exhibited discriminatory animus toward Carney in response to his protected activity. R. D. & O. at 42. Price never disciplined Carney for any of his complaints about hours of service, and, according to Carney's own testimony, Price directed him to return to work in January 2003, after Price knew that Carney had contacted DOT. R. D. & O. at 41.
Accordingly, we concur with the ALJ that Price terminated Carney for legitimate, non-discriminatory reasons unrelated to his protected activity.
[Page 8]
Conclusion
Substantial evidence in the record as a whole supports the ALJ's findings of fact, and the ALJ properly applied the relevant law. Carney failed to prove that Price fired him in retaliation for his making a protected safety complaint under the STAA. Therefore, for the reasons stated in the R. D. & O., summarized here, we DISMISS Carney's complaint.
SO ORDERED.
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
DAVID G. DYE
Administrative Appeals Judge
[ENDNOTES]
1 It was not necessary for Carney to file a petition to invoke the Administrative Review Board's review of the R. D. & O because the Board automatically reviews all ALJs' recommended STAA decisions. 29 C.F.R. § 1978.109(c)(1).
2 Carney has also filed with the Board a Motion to Allow Newly Discovered Evidence and to Exclude Testimony of Willie Fantroy. When deciding whether to consider new evidence, the Board ordinarily relies upon the same standard found in the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 29 C.F.R. Part 18 (2006), which provides that "[o]nce the record is closed, no additional evidence shall be accepted into the record except upon a showing that new and material evidence has become available which was not readily available prior to the closing of the record." Carney has not established that the evidence concerning Fantroy was not available at the time of the ALJ's hearing. In fact, he admits that his attorney had the evidence and failed to introduce it. Motion at p. 4. Even if we were to consider this additional evidence, Carney is raising arguments with regard to Fantroy's testimony for the first time on appeal. Under our well-established precedent, we decline to consider arguments that a party raises for the first time on appeal. Carter v. Champion Bus, Inc., ARB No. 05-076, ALJ No. 2005-SOX-23, slip op. at 7 (ARB Sept. 29, 2006). We therefore decline to consider this additional evidence.
3 We further note that while Carney testified that he had not tampered with the equipment, he made no attempt to show that D. E. Price did not believe that Carney had tied off the turbo hose. To establish pretext, it is not sufficient for a complainant to show that the action taken was not "just, or fair, or sensible . . . rather he must show that the explanation is a phony reason." Gale v. Ocean Imaging & Ocean Res., Inc., ARB No. 98-143, ALJ No. 97-ERA-38, slip op. at 10 (ARB July 31, 2002) (citing Kahn v. U.S. Sec'y of Labor, 14 F.3d 342, 349 (7th Cir. 1994)). Accord Ransom v. CSC Consulting, Inc., 217 F.3d 467, 471 (7th Cir. 2000) ("[t]his court does not sit as a super-personnel department and will not second-guess an employer's decisions"); Skouby v. The Prudential Ins. Co., 130 F.3d 794, 795 (7th Cir. 1997) (same); Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1507-1508 (5th Cir. 1988) (discrimination statute "was not intended to be a vehicle for judicial second-guessing of employment decisions, nor was it intended to transform the courts into personnel managers;" statute cannot protect employees "from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated"). Thus, even if Carney did not tie off the hose, since he did not establish that D. E. Price did not believe that he tied off the hose, Carney has failed to carry his burden of establishing that the non-discriminatory reason Price proffered was a pretext for discrimination.