Roberts insisted on recording the meeting and, at its outset, told the managers that he had contacted the Department of Transportation (DOT). CX 15 at 327. Jamison stated that M-D's consultants (Federal Motor Carrier Consultants, Inc.) had told him that if a post-trip was missing or inaccurate, a pre-trip would take care of any problem because that's what the pre-trip was for. CX 15 at 338-40; TR at 179-80. Roberts responded: "That's not what is in the regulations." He explained that the driver has to review the post-trip and also be satisfied that the truck is safe to drive. CX 15 at 339; TR at 76-82. After a protracted exchange on whether Roberts would comply with M-D's policy regarding post-trip inspection reports, Hildegardner fired Roberts. TR at 55; CX 15 at 346-60.

    Roberts sought an ALJ hearing after the Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) dismissed his complaint for lack of merit. ALJX 1-2. In his R. D. & O., the ALJ summarized the testimony of Roberts, Jeffcoat, Morrison, Jamison, and Jimmy Ramia, M-D's office manager. R. D. & O. at 3-21.

Credibility of the Witnesses

Refusal to Drive Truck No. 1

Adverse Action and Pretextual Company Explanation

    The ALJ found that being sent home and being discharged were adverse actions motivated, at least in part, by Roberts's protected activities. The ALJ dismissed M-D's argument that it fired Roberts only because he repeatedly refused to conform to company policy at the September 18, 2001, meeting. R. D. & O. at 33. The ALJ found that the meeting was merely a formality which M-D used to justify its termination of Roberts's employment. Id. at 36. Further, he determined that M-D's reason for discharging Roberts was neither legitimate nor non-discriminatory because its policy permitted adverse action against an employee for adhering to the DOT regulations. Id. at 37.

    The ALJ concluded that Roberts's operation of either truck would have violated the regulations covering post-trip inspections reports and safe equipment, that his safety complaints related to the defective wipers and post-trip reports motivated M-D's decision to terminate his employment, and that the temporal proximity between his protected activities and his termination established a causal connection that he was fired because of those activities. R. D. & O. at 38.

Relief

   The ALJ ordered immediate reinstatement and back pay from June 3, 2002, onward, finding that Roberts did not seek to mitigate damages until then, although he had incidental earnings of $1,175.00 in sporadic contract work for several individuals. R. D. & O. at 39-40; CX 16, TR at 57. M-D failed to prove that Roberts did not mitigate his damages thereafter because it did not establish that comparable jobs were available and that Roberts did not seek them. Id. The ALJ calculated the amount due as $23,289.95, which included an offset for the incidental contract earnings. R. D. & O. at 41.

    The ALJ also determined that M-D should provide accrued vacation pay and a safety bonus, totaling $2,080.00, expunge any negative references on his work record, and post a notice to all employees about the decision. Id. The ALJ awarded $10,000.00 in compensatory damages, based on Roberts's testimony about his embarrassment, humiliation, and emotional stress. Id. at 42. The ALJ found that Roberts had never been terminated before and that the firing strained his marriage and affected his ability to provide for his wife as he had customarily done. Id.; see TR at 58-61.

    Under the STAA, the ARB is bound by the factual findings of the ALJ if supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); Lyninger v. Casazza Trucking Co., ARB No. 02-113, ALJ No. 01-STA-38, slip op. at 2 (ARB Feb. 19, 2004). Substantial evidence is that which is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 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. 03-STA-12, slip op. at 3 (ARB Feb. 27, 2004).

    Substantial evidence does not, however, require a degree of proof "that would foreclose the possibility of an alternate conclusion." BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 45 (1st Cir. 1998). Also, whether substantial evidence supports an ALJ's decision "is not simply a quantitative exercise, for evidence is not substantial if it is overwhelmed by other evidence or if it really constitutes mere conclusion." Dalton v. United States Dep't of Labor, No. 01-9535, (10th Cir. Feb. 19, 2003), mem., 2003 WL 356780 at 445.

    In reviewing the ALJ's conclusions of law, the ARB, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b) (West 1996). Therefore, we review the ALJ's conclusions of law de novo. Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991); Monde v. Roadway Express, Inc., ARB No. 02-071, ALJ Nos. 01-STA-22, 01-STA-29, slip op. at 2 (ARB Oct. 31, 2003).

   Whether Roberts timely raised the issue of protected activity pursuant to 49 U.S.C.A. § 31105(a)(1)(A).

   Whether substantial evidence supports the ALJ's determination that M-D fired Roberts in retaliation for protected activities.

   Whether substantial evidence supports the ALJ's award of compensatory damages.

    To prevail on a claim under the STAA, the complainant must prove by a preponderance of the evidence that he engaged in protected activity, that his employer was aware of the protected activity, that the employer discharged, disciplined, or discriminated against him, and that there is a causal connection between the protected activity and the adverse action. BSP Trans, Inc., 160 F.3d at 47; Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 01-STA-33, slip op. at 8-9 (ARB Oct. 31, 2003).

   After reviewing the record, we conclude that substantial evidence supports the ALJ's ultimate conclusion that M-D discriminated against Roberts by firing him because of his protected activity. However, we affirm the ALJ's recommended decision on a narrower basis.

The ALJ's Credibility Findings Are Supported by Substantial Evidence

    Initially, M-D attacks the ALJ's credibility determinations, stating that he offered "little more than perfunctory descriptions of the basis" for his findings. Respondent's Memorandum of Law at 11. Based on the witnesses' demeanor and the plausibility of their testimony, the ALJ credited Roberts's veracity over that of Jamison, Jeffcoat, and Ramia. R. D. & O. at 21-22.

    While we do not think part of Jamison's testimony was necessarily "incredulous (sic)," we conclude that substantial evidence supports the ALJ's assessment of the witnesses' credibility. First, the ARB accords special weight to an ALJ's credibility determination based on witness demeanor. KP&L Elec. Contractors, Inc., ARB No. 99-39, ALJ No. 96-DBA-34, slip op. at 4 n.2 (ARB May 31, 2000). Unlike the ALJ, the ARB looks only at the documentary record and has no opportunity to observe the testifying witness and thus no way to gauge his or her truthfulness. Stauffer v. Wal-Mart Stores, Inc., ARB No. 00-062, ALJ No. 1999-STA-21, slip op. at 8 (ARB July 31, 2001).

   In this case, the ALJ based his credibility findings on his direct observation of the five witnesses at the hearing who provided contrary versions of the events of September 17 and 18, 2001. The transcript of Roberts's testimony supports the ALJ's conclusion that Roberts was a sincere, believable witness who did not equivocate. TR at 20-60. Particularly forthright are his answers to the questions posed by M-D's counsel concerning Roberts's failure to seek work, his knowledge of what the regulations require, and his understanding of M-D's policy regarding post-trip inspection reports. Id. at 62-69, 75-90.

   By contrast, the cross examinations of Ramia and Jamison, plus some direct questioning by the ALJ, are marked by failures to recall and some equivocation as to the events of September 17 and 18, 2001. For example, Ramia failed to recall if Roberts called him on Tuesday, September 17, could only "guess" if Jamison was upset over Roberts's refusal to drive the second truck, and didn't recall whether he had any conversation with Roberts about his complaints to OSHA and other agencies or the telephone number for Motor Carrier Consultants. Id. at 153-59. Although Jeffcoat testified that she remembered Roberts describing Morrison's behavior in checking out Truck No. 1, she couldn't remember whether Roberts had told her that Jamison told him to drive the truck or "go the hell home." Id. at 113-17.

   Jamison's responses to the ALJ's questions about the September 10, 2001, post-trip inspection report reflect a surprising lack of knowledge. He admitted he signed the September 10, 2001, report "for whatever reason," but didn't recall "ever filling one out." Id. at 192-95. On cross-examination, Jamison's responses to questions about the transcript of the September 18, 2001, hearing and about the regulations themselves were equivocal. CX 15, TR at 180-88.

   Contrary to M-D's arguments, we conclude that the ALJ's assessment of the four witnesses' credibility is sufficiently specific to withstand scrutiny and is supported by substantial evidence. We therefore affirm his credibility findings. Poll v. R. J. Vyhnalek Trucking, ARB No. 99-110, ALJ No. 1996-STA-35, slip op. at 8 n.3 (ARB June 28, 2002). Cf. Ertel v. Giroux Brothers Transportation, Inc., ALJ No. 88-STA-24, slip op. at 21 (Sec'y Feb. 16, 1989) (Secretary rejects ALJ's credibility findings because he failed to discuss Complainant's account of the conversation and chose to accept the account of Respondent who was not even present during the conversation.)

Was the Issue of External Complaints Timely Raised

    The ALJ found that Roberts's protected activities were both internal and external because, while the complaint itself alleged only internal activities, Roberts lodged external complaints with state and federal agencies and advanced these at the hearing. R. D. & O. at 26. M-D argues on appeal that Roberts failed to allege any complaints under 49 U.S.C.A. § 31105(a)(1)(A) and that the ALJ's findings for Roberts hereunder denied M-D due process. Respondent's Memorandum of Law at 18-19; see R. D. & O. at 33.

   The fundamental elements of procedural due process are notice and an opportunity to be heard. Yellow Freight Sys., Inc., v. Martin, 954 F.2d 353, 356 (6th Cir. 1992) citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). The Administrative Procedure Act mandates that the parties shall be timely informed of (1) the time, place, and nature of the hearing; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. 5 U.S.C.A. § 554(b).

    Respondents in STAA cases have the right to know the theory on which the agency or a complainant will proceed. The Sixth Circuit held in Yellow Freight that the company had been deprived of due process because the Secretary decided the case under a section of the STAA that was neither charged in any notice given Yellow Freight nor tried by the express or implied consent of the parties. 954 F.2d at 357-359. However, due process is not offended if the parties have fairly and fully litigated an issue梩he test is fairness under the circumstances of the case. When issues not raised by the pleadings are reasonably within the scope of the original complaint and are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. 29 C.F.R. § 18.5(e).

   In this case, Roberts's September 26, 2001, complaint to OSHA focused only on his refusals to drive pursuant to 49 U.S.C.A. § 31105(a)(1)(B). ALJX 1. In response to the ALJ's Notice of Hearing and Pre-Hearing Order, which required "a detailed Complaint alleging the nature of his protected activities, each and every violation against Respondent claimed, as well as the relief sought," ALJX 2, Roberts filed another complaint again alleging only protected activities under subsection (B). ALJX 3.

   In addition, Roberts testified that he told Jamison on September 17 that he intended to investigate Jamison's opinion about pre-trip reports overriding post-trips, and was told to go home. Id. at 41. Jamison later denied that Roberts said anything about an investigation of Jamison's actions. Id. at 170, 179-84. Further, Jeffcoat testified that she did not hear Roberts tell Jamison that his actions would be investigated. Id. at 117. Moreover, Jamison was questioned about Roberts's statements at the meeting that he intended to follow the DOT regulations. Id. at 176-88. Again, the testimony elicited by M-D's counsel was directed at countering Roberts's allegations of external and internal complaints and M-D's knowledge of those complaints.

   We conclude that although Roberts's complaint did not specifically address the safety complaints he made to federal officials, M-D knew from the opening statement made by Roberts's counsel that Roberts intended to try the case on the theory of retaliation for making such protected complaints. M-D made no objection and instead affirmatively defended against that theory by calling a witness (Ramia) whose sole testimony on direct addressed whether M-D had knowledge of those complaints prior to the meeting at which Roberts was fired. M-D also questioned other witnesses (Jamison and Jeffcoat) about conversations related to that theory of the case. We therefore conclude that M-D consented to try the issue, and may not now object that it was not timely raised.

Requirements of the STAA

    Section 405 of the STAA provides in pertinent part:

    (a) Prohibitions. - (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because�

(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or

(B) the employee refused to operate a vehicle because�

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or

(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

(2) Under paragraph (1)(B)(ii) of this subsection, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.

49 U.S.C.A. § 31105(a).

Roberts Engaged in Conduct Protected by the STAA

Violation of Safety Requirements: The defective windshield wipers

   In this case, neither truck was on the road and enforcement personnel were not involved in Roberts's decision to take Truck No. 2 out of service. Therefore, the out-of-service criteria do not apply. Because it is undisputed that the windshield wipers were not in good working order, and operating the truck would have violated section 392.7, we find that Roberts's refusal to drive Truck No. 2 was protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(i) and that M-D had knowledge of that activity through Roberts's interactions with Jamison, Jeffcoat and Ramia.

Violation of Safety Requirement:The defective brakes

   Substantial evidence supports the ALJ's finding that the brakes on Truck No. 1 were defective (the testimony of Roberts and Jeffcoat). TR 30-34, 109-113. It clearly would have been a violation of DOT regulations to drive with defective brakes. 49 C.F.R. § 392.7. Roberts therefore engaged in protected conduct when, by taking Truck No. 1 out of service, he refused to drive.

The Inaccurate Post-Trip Reports

   The ALJ also found that Roberts engaged in protected activity under subsection (B)(i) by refusing to drive Truck No. 1 because the post-trip report was inaccurate and by refusing to drive Truck No. 2 because the September 5 post-trip report was inaccurate and the September 10 report was "falsified." R. D. & O. at 31-32. He found that the post-trip reports "failed to conform [to] and thus violated" 49 C.F.R. §§ 396.11 and 396.13. R. D. & O. at 32. Our reading of sections 396.11 and 396.13, covering post and pre-trip inspections and reports, does not convince us that an incomplete or inaccurate post-trip report alone necessarily justifies a refusal to drive under 49 U.S.C.A. § 31105(a)(1)(B)(i).

   Under section 396.11, every motor carrier shall require its drivers to prepare a written report at the completion of each day's work covering vehicle parts and accessories, including windshield wipers, and identify any defect or deficiency that would affect the safety of operation of the vehicle or result in mechanical breakdown. 49 C.F.R. § 396.11(a)-(b). Prior to requiring or permitting a driver to operate the vehicle, the carrier shall repair any defect or deficiency listed on the report "likely to affect the safety of operation of the vehicle" and certify on the report that the repairs have been made or are unnecessary. 49 C.F.R. § 396.11(c)(1).

   Section 396.13 provides that, before driving a motor vehicle, the inspecting driver shall be satisfied that it is in safe operating condition, review the last driver vehicle inspection report, and sign the report if defects and deficiencies noted by the previous driver were certified to have been repaired. 49 C.F.R. § 396.13(a)-(c).

   Neither regulation addresses inaccurate or incomplete post-trip reports. At the hearing, Jamison indicated that a short drive and a pre-trip inspection could "override" an incomplete or inaccurate post-inspection report and "would suffice." TR at 179. Jeffcoat explained that she routinely did "in-house" inspections for M-D's drivers when post-trip reports were missing. Id. at 136-39. And Roberts admitted that he had previously operated a truck with an inaccurate mileage recorded on the post-trip report after doing a short drive and pre-trip inspection, and that he would have driven Truck No. 2 if it had not needed the wipers repaired. Id. at 75-77, 85-87.

    DOT has issued an interpretation of the regulations which specifically permits a substitute post-trip report to be created when, in unusual circumstances, the post-trip report is missing. U.S. DOT Interpretations, Part 396, Question 14 at 462 (May 4, 1997); RX 4 at 3. Thus, it is questionable whether Roberts engaged in protected activity by refusing to drive because the post-trip reports he reviewed were inaccurate. However, as noted above, because the refusals to drive were justified based on the defective wipers and brakes, we uphold the ALJ's determination that Roberts engaged in protected refusals to drive the trucks.

Reasonable Apprehension of Serious Injury

   We also disagree with the ALJ's finding that Roberts engaged in protected activity pursuant to 49 U.S.C.A. § 31105(a)(1)(B)(ii). The ALJ found that Roberts had a reasonable apprehension of serious injury to himself or the public "because of the unsafe condition of Truck No. 2" and was unable to obtain correction of the unsafe condition. R. D. & O. at 32.

   An employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. 49 U.S.C.A. §31105(a)(2). Not only must a complainant prove that he had an apprehension of serious injury due to his truck's unsafe condition, but also he must show that a reasonable person in his position would have concluded that the condition of the truck was a real danger to himself or the public. Thus, the reasonable apprehension provision requires that the complainant's apprehension be objectively reasonable. Dalton v. Copart, Inc., ARB No. 01-020, ALJ No. 1999-STA-46, slip op. at 6 (ARB July 19, 2001). Further, to be protected under the STAA, an employee's refusal to drive because of a reasonable apprehension of serious injury must be based on the information available to the employee at the time of the refusal. Helgren v. Minnesota Corn Processors, Inc., ARB No. 01-042, ALJ No. 00-STA-44, slip op. at 3 (ARB July 31, 2003).

   The ALJ did not explain the basis for Roberts's apprehension, and we can find no evidence in the record to substantiate a reasonable apprehension. In this case, aside from the post-trip reports, the only information available to Roberts when he refused to drive Truck No. 2 to Penske was that the windshield wiper was rotted out. CX 15 at 344-45. Because he was sent home and did not finish his pre-trip inspection of Truck No. 2, he was unaware of other deficiencies found later梚noperable tail and brake lights and lack of grease on the fifth wheel. CX 8, TR at 43. Roberts maintained that the defective wipers involved safety, but the record contains no evidence that under the circumstances the defective wipers alone presented any threat of serious injury to Roberts or the public. CX 15 at 345-46. In fact, it is undisputed there was no threat of rain on September 17, 2001. Further, Roberts produced no evidence (testimonial or otherwise) that driving the truck to Penske (only nine miles away) with defective wipers on a sunny day when there was no threat of rain would present any threat of serious injury to himself or the public. Because substantial evidence does not support the ALJ's finding under subsection (B)(ii), we reverse it. 49 U.S.C.A. § 31105(a)(1)(B)(ii).

Internal and External Complaints

    Substantial evidence supports the ALJ's findings that Roberts made internal and external complaints related to violation of safety requirements and that M-D had knowledge of that protected activity. Roberts testified that he contacted state and federal agencies and advised them that, contrary to federal requirements, M-D was failing to require its drivers to complete post-trip reports, and that, further, he had been directed to drive a vehicle with defective wipers. TR at 46-48. Roberts also made Jeffcoat and Jamison aware of his complaints. Id. at 35-42. In addition, he told Ramia of his complaints to federal authorities. Id. at 49-51. Further, at the outset of the September 18, 2001, meeting with M-D managers, Roberts specifically talked about his complaints to DOT. CX 15 at 326-27.

Adverse Action and Respondent's Alleged Legitimate Reason for Termination

   A wrongfully terminated employee is entitled to back pay for the period after the termination of employment. 49 U.S.C.A. § 31105(b)(3) (2004). The employee has a duty to exercise reasonable diligence to attempt to mitigate damages. Griffith v. Atl. Inland Carrier, ARB No. 04-010, ALJ No. 02-STA-034, slip op. at 70 (ARB Feb. 20, 2004). However, the employer bears the burden of proving that the employee failed to mitigate. Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1101 (3d Cir. 1995). The employer can satisfy its burden by establishing that "substantially equivalent positions were available [to the complainant] and he failed to use reasonable diligence in attempting to secure such a position." Hobby v. Ga. Power Co., ARB Nos. 98-166, 98-169, ALJ No. 90-ERA-30, slip op. at 50 (ARB Feb. 9, 2001). A "substantially equivalent position" provides the same promotional opportunities, compensation, job duties, working conditions, and status. Id.

    In this case, substantial evidence supports the ALJ's conclusion that Roberts made no effort to seek employment until June 2002. Roberts admitted as much, explaining that he was working on his OSHA complaint rather than looking for work. TR at 67-70. We therefore reject Roberts's contention that he is entitled to back pay for the period preceding June 3. Moreover, therefore, M-D did not need to prove the availability of substantially equivalent positions between September 19, 2001 and June 3, 2002. After that, Roberts applied to four companies but was able to obtain only a part-time, on-call position as a driver. Id. at 92-95. At that point, M-D had the burden of showing that Roberts was not diligently seeking full-time work by demonstrating the availability of jobs substantially equivalent to the one Roberts had and showing that he made no effort to obtain them. Johnson v. Roadway Express, Inc., ARB No. 01-13, ALJ No. 99-STA-5, slip op. at 4 (ARB Dec. 30, 2002); see Weaver V. Casa Gallardo, Inc., 922 F.2d 1515, 1527 (11th Cir. 1991).

   M-D argued that Roberts made no effort to find substantially equivalent employment despite the fact the experienced drivers such as he were "in great demand." Respondent's Memorandum of Law at 25. M-D contends that Roberts's decision to "avoid regular work" relieves it of its burden to prove that substantially equivalent work was available. Id. at 26. Also, the ALJ failed to consider Roberts's earnings subsequent to the hearing on August 20, 2002. Id.

   We disagree that M-D was relieved of its burden to show the availability of substantially equivalent work. Roberts's alleged lack of diligence in seeking full-time work after he obtained a part-time job in June 2002 did not shift the burden away from M-D. Rather, the burden remained with the employer for the entire time. The ALJ determined that M-D met its burden until June 3, 2002, because Roberts admitted that he was not exercising due diligence in seeking jobs.

Attorney's Fees

    On April 30, 2003, the ALJ issued a Supplemental Decision and Order recommending an award of attorney's fees in the amount of $35,412.50, plus litigation expenses of $825.39, for a total of $36,237.89. M-D's counsel, The Kullman Firm, has paid this amount to Roberts's counsel. Roberts informed the ARB by letter dated May 19, 2003, that he had no objection to the payment of fees to his attorney. M-D has not filed any objection to the amount of attorney's fees awarded. Therefore, we affirm the ALJ's recommended award of attorney's fees.

   For the above stated reasons, we affirm the ALJ's conclusion that M-D violated the employee protection provision of the STAA by firing Roberts in retaliation for his protected activity pursuant to 49 U.S.C.A. § 31105(a)(1) (A) and (B)(i). We reverse his finding pursuant to subsection (B)(ii), because it is not supported by substantial evidence. In all other respects, we approve the ALJ's recommended decision and order, with the clarification that any earnings Roberts received following the hearing date are also to be deducted in calculating the amount of back pay due until reinstatement or bona fide offer of reinstatement.

   SO ORDERED.

      JUDITH S. BOGGS
      Administrative Appeals Judge

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge