Upon review, we agree that
the complaint must be dismissed. See 29 C.F.R. §1978.109(c) (1996).
Complainant, Paul H. Andreae, was employed as a truck driver from
November 29, 1994, until December 9, 1994, at the Milwaukee, Wisconsin location of Dry
Ice, Incorporated. Andreae alleges that the manager, Stan Jackson, fired him on December
8 because he complained about having to drive a truck with defective wiper blades and side
mirrors. Jackson testified that he fired Andreae because of poor and aggressive driving habits,
lack of trustworthiness, and customer complaints about Andreae's behavior in making
deliveries. Transcript (T.) at 49-50, 53-56. The ALJ found that Andreae failed to establish
a prima facie case under the STAA and alternatively, that Jackson's reasons for
the discharge were not a pretext for retaliation. R. D. and O. at 8-10. We agree that Andreae
failed to meet his burden of proof.
The relevant facts are thoroughly summarized by the ALJ, R. D. and
O. at 3-6, and because her factual findings are supported by substantial evidence on the record
as a whole, they are conclusive. 29 C.F.R. §1978.109(c)(3). In addition, the ALJ
accurately described the burdens of proof and persuasion applicable under the STAA, except
that she failed to incorporate the principle set forth in United States Postal Serv. v.
Aikens , 460 U.S. 709 (1983), which has been repeatedly emphasized and applied in
recent decisions by the Board and the Secretary of Labor. See, e.g., Jones v.
Consolidated Personnel Corp. , ALJ Case No. 96-STA-1, ARB Case No. 97-009, Jan.
13, 1997; Etchason v. Carry Cos. , Case No. 92-STA-12, Sec. Dec., Mar. 20,
1995, citing Carroll v. Bechtel Power Corp. , Case No. 91-ERA-0046, Sec. Dec.,
Feb. 15, 1995, slip op. at 11, aff'd , 78 F.3d 352 (8th Cir. 1996). As the Supreme
Court stated in Aikens :
Because this case was fully tried on the merits, it is surprising to find the parties
and the [court] still addressing the question whether [the plaintiff] made out a
prima facie case. . . .
Where the defendant has done everything that would be required of him
if the plaintiff had properly made out a prima facie case, whether
the plaintiff really did so is no longer relevant. The [court] has before
it all the evidence it needs to decide the [ultimate question of
discrimination].
460 U.S. at 713-14, 715 (emphasis added). Thus, because Dry Ice presented rebuttal
evidence, the answer to the question whether Andreae made a prima facie showing
in this case is not useful, and we decline to discuss the ALJ's finding on that particular point.
It is undisputed that Jackson was aware of Andreae's internal safety
complaints and that Andreae was fired shortly after raising the complaints. The critical factual
inquiry is whether retaliatory animus motivated the adverse employment action. In short, the
ALJ was required to decide which party's explanation of Jackson's motivation she believed.
Aikens , 460 U.S. at 716.
In making her findings relevant to causation and motivation, the ALJ
evaluated the entire record and decided to credit Jackson's explanation. We find no reason
to disturb the ALJ's credibility assessment, as Jackson's testimony is candid, consistent with
the record, and inherently probable. The record shows that within Andreae's brief
employment with Dry Ice, he was involved in an altercation with another driver; was observed
taking another employee's lunch without permission; and was reasonably suspected of
misappropriating the company credit card.2 In addition, as the ALJ discussed, Jackson routinely encouraged Andreae and
the other drivers to make written reports of safety defects affecting the vehicles. R. D. and
O. at 8, 9. Although the ALJ erred in stating that the Secretary had held such evidence to be
singularly dispositive, it is highly relevant evidence that militates against a finding of
retaliatory motivation. See Ake v. Ulrich Chemical, Inc. , Case No. 93-STA-41,
Sec. Dec., Mar. 21, 1994, slip op. at 6-8, citing Moon v. Transportation Drivers,
Inc. , 836 F.2d 226, 229 (6th Cir. 1987). Considering all the evidence, Jackson's
explanation that he decided to promptly discharge an unreliable and untrustworthy employee
is entirely believable, and Andreae failed to prove that retaliation for reports about safety
defects was a factor in Jackson's decision. See Etchason , slip op. at 3-5.3
Accordingly, the complaint IS DISMISSED .
SO ORDERED .
DAVID A. O'BRIEN
KARL J. SANDSTROM
JOYCE D. MILLER
[ENDNOTES]
1
2
3 See St. Mary's
Honor Center v. Hicks , 113 S. Ct. 2742, 2756 (1993).
