Guay has provided no evidence to demonstrate that Burford was not being truthful.
Thus, substantial evidence supports the ALJ's findings that Burford has provided a legitimate non-discriminatory rational for terminating Guay's employment. Therefore, we agree with the ALJ that Guay did not prove pretext.
Conclusion
We have reviewed the record and determine that the ALJ's finding that Guay's complaints to Progress Energy did not constitute protected activity is not supported by substantial evidence, nor is it in accordance with law because the ALJ erroneously concluded that Guay's motivation was relevant to the issue whether his complaint of drug use was reasonable and in good faith. However, substantial evidence does support the ALJ's conclusion that Guay did not establish that BTS's proffered rationale for firing him was pretextual. Therefore, we DENY Guay's complaint.
SO ORDERED.
DAVID G. DYE
Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 See R. D. & O. at 5-9 ("Pine Tree Incident"), 9-11 ("Bucket Tree Incident").
2 See 29 C.F.R. § 1978.109(c)(1).
3 See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002). See also 29 C.F.R. § 1978.109(c).
4 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 2001-STA-038, slip op. at 2 (ARB Feb. 19, 2004).
5 Clean Harbors Envtl. Servs. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998), quoting Richardson v. Perales, 402 U.S. 389, 401 (1971); McDede v. Old Dominion Freight Line, Inc., ARB No. 03-107, ALJ No. 2003-STA-012, slip op. at 3 (ARB Feb. 27, 2004).
6 5 U.S.C.A. § 557(b) (West 2007).
7 Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 2001-STA-022, 2001-STA-029, slip op. at 2 (ARB Oct. 31, 2003).
8 49 U.S.C.A. § 31105(a)(1)(A).
9 BSP Trans, Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 45 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Densieski v. La Corte Farm Equip., ARB No. 03-145, ALJ No. 2003-STA-030, slip op. at 4 (ARB Oct. 20, 2004).
10 Eash v. Roadway Express, ARB No. 04-063, ALJ No. 1998-STA-028, slip op. at 5 (ARB Sept. 30, 2005).
11 49 U.S.C.A. § 31105(a)(1)(A).
12 Leach v. Basin Western, Inc., ARB No. 02-089, ALJ No. 2002-STA-005, slip op. at 3 (ARB July 31, 2003).
13 Harrison v. Roadway Express, Inc., ARB No. 00-048, ALJ No. 1999-STA-037, slip op. at 5 (ARB Dec. 31, 2002).
14 See Luckie v. United Parcel Serv., ARB No. 05-026, 2003-STA-039, slip op. at 13 (ARB June 29, 2007).
15 See Bethea v. Wallace Trucking Co., ARB No. 07-057, 2006-STA-023, slip op. at 8 (ARB Dec. 31, 2007); Calhoun v. United Parcel Serv., ARB No. 04-108, ALJ No. 2002-STA-031, slip op. at 11 (ARB Sept. 14, 2007); Luckie, ARB No. 05-026, slip op. at 13; Leach, ARB No. 02-089, slip op. at 3.
16 Diaz-Robainas v. Florida Light & Power Co., 1992-ERA-010, slip op. at 15 (Sec'y Jan. 19, 1996).
17 49 C.F.R. § 382.213(a) (West 2008).
18 49 U.S.C.A. § 31105(a)(1)(A).
19 See, e.g., Clement v. Milwaukee Transport Serv., ARB No. 02-025, 2001-STA-006, (ARB Aug. 29, 2003); Logan v. United Parcel Serv., 1996-STA-002 (ARB Dec. 19, 1996); Schulman v. Clean Harbors Envtl. Servs., Inc., ARB No. 99-015, ALJ No. 1998-STA-024 (ARB Oct. 18, 1999).
20 See Calhoun, ARB No. 00-026, slip op. at 5.
21 See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
22 See Tr. at 259. The attorney seems to have misspoken when asking Burford this question, but taken in context we read the sentence as "If Mr. Guay had provided the information to Mr. Owens as he had promised to do and also went to [Progress] would you have terminated him?"