FINAL DECISION AND ORDER
This case arises under section 405 (employee protection provision) of the Surface
Transportation
Assistance Act of 1982 (STAA), 49 U.S.C.A. § 31105 (West 1994). Before us for review
is
the Recommended Decision and Order (R. D. and 0.) issued on April 22, 1996, by the
Administrative
Law Judge (ALJ). The ALJ found that Complainant failed to prove unlawful discrimination and
recommended that the complaint be dismissed. We agree.
Complainant Richard Cach was employed by Respondent Distribution Trucking Company
as
a truck driver from November 1986 until his discharge in July 1994. Complainant was assigned
to
the Clackamas Distribution Center in Portland, Oregon. On April 8, 1993, Respondent adopted a
policy regarding the timing and documentation of lunch and rest breaks for hourly drivers,
including
Complainant. The policy required drivers to take their first 15-minute rest break between the
second
and third hours of the shift. The one half-hour lunch break was scheduled between the fourth and
sixth hours of the shift, and the second 15-minute rest break was scheduled before the eighth
hour of
the shift. The policy precluded drivers from combining any of the breaks and required drivers to
document the location of the breaks on their trip sheets.
On April 21, 1993, Complainant received a two-day suspension for, among other things,
failing to specify the precise location of lunch and rest breaks on his trip sheet for April 19, 1993.
Complainant contends that Respondent suspended him in retaliation for an unscheduled layover
that
he took earlier that month due to fatigue. Hearing Transcript (T.) 202-204.
On January 3, 1994, Complainant received another two-day suspension. On January 12, he
filed
a STAA complaint alleging that the suspension was imposed "in retaliation for his failure
to
operate a commercial motor vehicle during the week ending January 1, 1994, because he was too
ill
to drive." Complainant's Exhibit (PX) 1. Respondent received notification of the complaint
on
January 26. On February 28, 1994, Complainant received a warning letter for violating the lunch
and
rest break policy on February 11, 1994. In particular, he combined the one half-hour lunch break
and
a 15-minute rest break during overtime, i.e., beyond the eighth hour of the shift. On April 1,
1994,
Respondent received notification that the Regional Administrator for Occupational Safety and
Health
had found Complainant's January 12 STAA complaint to be meritorious. Respondent was
ordered
to compensate Complainant for wages lost during the suspension. By letter dated May 12, 1994.
Complainant requested that Respondent comply with the back pay order. PX 3.
On May 25, 1994, Respondent issued Complainant a letter of suspension for violating the
lunch and rest break policy. Respondent alleged that Complainant had combined a lunch and rest
break on May 20 and had taken a break during overtime on May 19. On May 31, 1994,
Complainant
filed a second STAA complaint regarding Respondent's compensation practices for drivers who
were
ill. PX 5. Respondent received notification of that complaint on June 6. On July 16, 1994,
Complainant filed a third STAA complaint alleging "selective and discriminatory"
enforcement (on February 28 and May 25) of the lunch and rest break policy because he had filed
the
initial (January 12) STAA complaint. PX 6. Respondent was notified of the third STAA
complaint
on July 23. On July 28, Respondent discharged Complainant because he had violated the break
policy
on July 25. On August 4, 1994, Complainant filed a fourth STAA complaint alleging that the
discharge was retaliatory. The third and fourth STAA complaints are at issue in this case.
The ALJ found that the temporal proximity between the protected STAA complaints and
the
disciplinary actions raised an inference of causation sufficient to establish a prima
facie
case of unlawful discrimination. R. D. and O. at 9-10. See Yellow Freight System,
Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992) (regulatory complaints constitute
protected activity); Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (adverse action
followed
protected activity so closely in time as to justify inference of retaliatory motive). He also found
that
Respondent had rebutted the presumption raised by the prima facie case by articulating a
legitimate, nondiscriminatory reason for imposing discipline, i.e., violation of the lunch and rest
break
policy. Id. at 10-12.
Finally, the ALJ found that Complainant had failed to meet the ultimate burden of proving
that
the proffered reason was not the true reason for the adverse action and that the protected activity
was.
Id . at 12-15. See St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742, 2747 (1993);
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255 (1981). In so doing,
the ALJ
credited the testimony of Respondent's general manager that "complainant's blatant and
reckless
disregard of [the] lunch and break policy" motivated him in imposing discipline. R. D. and
0.
at 12. The ALJ also pointed to Respondent's treatment of other drivers in finding that
Complainant
was not subject to "selective and discriminatory" enforcement of the policy.2 Id. at 13-15. These findings are
supported by substantial evidence in the record considered as a whole and thus are conclusive. 29
C.F.R. § 1978.109(c)(3)(1995). Accordingly, we adopt the recommended decision of the
ALJ,
copy appended. The complaint IS DISMISSED.
SO ORDERED.
DAVID A. O'BRIEN
Chair
KARL J. SANDSTROM
Member
JOYCE D. MILLER
Alternate Member
[ENDNOTES] 1 inter alia, the Surface
Transportation Assistance Act, and the implementing regulations, to the newly created
Administrative
Review Board. Secretary's Order 2-96 (Apr. 17, 1996), 61 Fed. Reg. 19978 (May 3, 1996).
Secretary's Order 2-96 contains a comprehensive list of the statutes, executive order and
regulations
under which the Administrative Review Board now issues final agency decisions. See
61
Fed. Reg. 19982 for the final procedural revisions to the regulations implementing this
reorganization.
2 See Price Waterhouse V. Hopkins, 490 U.S. 228 (1989);
Mt.
Healthy City Sch. Dist. Bd. Of Ed. v. Doyle, 429 U.S. 274 (1977) (dual motive analysis).
