On July 21, Koble met with Shannon and a Teamsters local union representative to discuss the incident involving Dowler. Koble announced that he intended to initiate discharge proceedings against Shannon because of the confrontation. T. 403-405. A hearing regarding the incident, scheduled initially for August 2, eventually was convened on August 30 following several postponements. By letter of August 31, CF advised Shannon that "[b]ased on [her] overall work record and the facts presented [at the hearing], the Company has no alternative but to take the position of discharge." RX Z. Shannon was allowed to remain on the job until the discharge decision was sustained under the NMFA by the Ohio Joint State Grievance Commission.

       2. "Overall work record" and "the Sidney incident"

activity." R.D. at 11. According to the ALJ, since Shannon "failed to establish that her discharge was motivated by any protected reason, her claim must be dismissed." Id. The ALJ employed elements of a "pretext" analysis, see discussion infra, namely that CF articulated a legitimate nondiscriminatory reason for discharging Shannon -- the Dowler confrontation. The ALJ reasoned: "Therefore, [Shannon] must prove, by a preponderance of the evidence, that the legitimate reason proffered by [CF] is a pretext for discrimination." Id. at 10. In holding that Shannon failed to meet this burden, the ALJ rejected evidence of disparate treatment, i.e., similarly situated employees allegedly treated differently than Shannon, and relied heavily on the testimony of linehaul manager Koble that he intended to discharge Shannon "based on the episode of July 20, 1994." Id. The ALJ also cited Koble's testimony as the basis for a finding arguably relevant to a "dual motive" analysis (discussed infra): "I further find that [Shannon] would have been discharged had this formal [August 30] hearing taken place as scheduled [on August 2], which was well prior to [Shannon's] run to Peru, Illinois" on August 24-25. Id. at 11. In other words, the ALJ found that Shannon would have been discharged in the absence of any protected activity.

direct evidence may establish, that protected activity provided part of the motive for the adverse action. In this event, the burden of persuasion shifts to the respondent to demonstrate that the complainant would have been disciplined even if she had not engaged in the protected activity. Pogue v. U.S. Dep't of Labor, 940 F.2d 1287, 1289-1290 (9th Cir. 1991) (dual motive test set forth in Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274 (1977), applies where it was "undisputed" that complainant engaged in protected activity and "that this was a motive for disciplinary action"); Passaic Valley Sewerage v. United States Dep't of Labor, 992 F.2d at 481; Mackowiak v. Univ. Nuclear Sys., Inc., 735 F.2d 1159, 1163-1164 (9th Cir. 1984). The burden of persuasion shifts under the "dual motive" model because the complainant has proved retaliation, i.e., that the respondent took adverse action "because" the complainant engaged in protected activity. 49 U.S.C. §31105(a)(1)(A) and (B). A violator then must establish a form of affirmative defense in order to avoid liability. "The employer's burden in ... a dual motive' case resembles an affirmative defense: the plaintiff must persuade the fact finder on one point, and then the employer, if it wishes to prevail, must persuade it on another.'" Ass't Sec'y on behalf of Lansdale v. Intermodal Cartage Co., Ltd., No. 94-STA-22, 1995 WL 848152, at *3 n.1 (DOL Off. Adm. App. Jul. 26, 1995), quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 246 (1989).

   The ALJ identified the protected activity in the case exclusively in terms of Shannon's allegations:

The Complainant asserts that her protected activity consisted of her complaints to Jody White that she could not be relieved of duty at the terminal in Sidney, Ohio, as well as her notation of this safety regulation violation in her logs. Additionally, the Complainant alleges that her refusal to log her time in Sidney as off-duty constituted a refusal to operate a motor vehicle in a manner contrary to federal law pursuant to [49 U.S.C. §31105(a)(1)(B)].

R.D. at 9. Without making associated findings, the ALJ proceeded to consider CF's proffered reason for discharge and to discuss the ultimate burden of persuasion under the pretext model. Absent from the analysis is discussion of the possible reference to protected activity (failure to comply with 49 C.F.R. §395) as one of the "five major infractions" fueling the discharge decision. RX Z (CF position of discharge). Moreover, Koble, the manager who initiated discharge proceedings, testified that while "[his] decision to discharge Ms. Shannon took place on July 21," the events in late August also "w[ere] part of her discharge." T. 116. See T. 194-195 (Shannon discharged on basis of "overall work record"). If protected activity is shown to have entered into the adverse employment decision, then analysis under the "dual motive" (rather than "pretext") model is appropriate.

   We find that Shannon at minimum engaged in protected activity under STAA section 31105(a)(1)(A) (protected safety complaint) when she disagreed with, and expressed concerns to, the CF dispatchers about logging improprieties and continuing to drive when her

permissible hours were exhausted. Cf. Transfleet Enterprises, Inc. v. Boone, 987 F.2d 1000, 1004 (4th Cir. 1992) (court found it "eminently reasonable" that the STAA "was intended to protect drivers from having to begin trips when their employer has exerted pressure to violate the federal rules at some point during the trip"). Shannon annotated her logs to reflect that the Columbus dispatcher improperly had relieved her of duty at the Sidney terminal. RX S. Additionally, Shannon appealed to union representatives who interceded on her behalf in raising the concerns with CF dispatchers and management, including Koble. These communications about a regulatory safety violation strike us as sufficiently definitive, specific and sustained to satisfy the "complaint" criterion. American Nuclear Resources, Inc. v. United States Dep't of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998); Bechtel Const. Co. v. Sec'y of Labor, 50 F.3d at 931 ("particular, repeated concerns about safety procedures" were "tantamount to a complaint").

   We agree with Shannon that the evidence does not support a finding that completely discounts protected activity as a motivation for discharge. We adopt the ALJ's recommendation, nonetheless, because CF demonstrated that it would have discharged Shannon absent any protected activity. Substantial evidence supports this ALJ finding, rendering it conclusive. 29 C.F.R. §1978.109(c)(3). The ALJ credited Koble's testimony that he decided to discharge Shannon upon learning about the July 20 confrontation and immediately initiated discharge proceedings, meeting with Shannon and her representative on July 21 to notify them of his intent and scheduling a discharge hearing for August 2. Koble testified as to his understanding of the threat:

Immediately after [the confrontation], Debbie [Dowler], my secretary, came into my office very abruptly, in tears, shaking, very upset, and explained to me what happened. [S]he was cornered when she came out of the ladies' room by Ms. Shannon between the vending machines and the door exiting the bathroom. That she physically threatened her, cussed and swore at her, and told her that sooner or later, she had to leave the terminal, and that she better watch her back side ....

T. 174. Dowler then ceased work for the day. According to Koble, Dowler "felt, obviously, very threatened by what had happened. And she also feared for the safety [of] her children. So, she went home." T. 175. Koble requested that Shannon "not talk to or communicate in any way with Debbie Dowler" as a condition of continued employment pending resolution of the discharge proceedings. RXX M, O. See R.D. at 11 (reference to "immediate discharge as opposed to a discharge that allowed [Shannon] to continue work pending [NMFA] review"). The evidence does not dispute the ALJ's finding that Shannon would have been discharged had the hearing convened on August 2 as scheduled.

   Koble's actions were consistent with treatment of two other CF employees who confronted co-workers. T. 137, 180-182; Complainant's Exhibit (CX) 42, RXX WW, CCC. On one occasion, Koble prohibited the offending employee from entering the CF terminal or premises pending discharge. That employee, J.H. Comstock, telephoned the linehaul department

threatening to come to the terminal with an AK-47 and "spray" everyone, including Koble. Comstock then telephoned Koble's residence threatening Koble's life and the lives of family members. RX WW. While perhaps not as egregious as this initial example, Shannon's circumstances certainly are comparable to those involving the second employee where the time frame involving warning letter, hearing and termination notice approached that at issue here. Upon being questioned about an incorrect pay sheet submitted following a November 7, 1994, work call, the employee, Robert Ruff, "became insubordinate, cussing and swearing to the supervisors on duty." CX 42. On November 10, CF issued Ruff a warning letter for failure to follow instructions, insubordination, delay of freight and dishonesty. A hearing was scheduled for November 18. Ruff was discharged. The last day worked is listed on the termination notice as November 28. RX CCC. Both of these examples show that Koble, who had assumed the linehaul manager position shortly before Shannon's confrontation with Dowler, instituted and implemented procedures for addressing disruptive behavior in the workplace. The ALJ addressed this evidence, albeit under the "pretext" model:

Two employees, who did threaten and/or have a confrontation with a co-worker, were terminated by [CF]. As [CF] has asserted that [Shannon] was discharged because of her confrontation with Mrs. Dowler, the only similarly-situated employees of [CF] were those that were involved in such a confrontation. As both such employees were also terminated, I find that [CF] has dealt consistently with the discipline of its employees, specifically with [Shannon]. Although not conclusive in and of itself, I note that [CF] followed the proper procedural steps in disciplining this employee. There are no irregularities in this regard which would indicate that [CF] was utilizing the confrontation with Mrs. Dowler as pretext for an unlawful motive.

R.D. at 10 (citations omitted). Finally, this analysis comports with case precedent. American Nuclear Resources, Inc. v. United States Dep't of Labor, 134 F.3d at 1293, 1296 (even if employee had engaged in protected activity, employer discharged him because of "interpersonal problems," including "rude and abrasive" behavior); Kahn v. United States Sec'y of Labor, 64 F.3d at 279-280 (employee's abusive and inappropriate behavior toward co-workers, rather than whistleblowing activity, was the legitimate nondiscriminatory reason for discharge); Lockert v. United States Dep't of Labor, 867 F.2d 513, 519 (9th Cir. 1989) (employee disobedience motivated discharge); Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986) (employee's legitimate discharge occasioned by cavalier attitude, abusive language and defiant conduct).

   The Complainant engaged in protected activity when she complained about a violation of Department of Transportation safety regulations as an aspect of the "Sidney incident." Respondent discharged Complainant on the basis of her "overall work record," which included both this protected activity and unprotected activity. Respondent

would have discharged Complainant regardless of the protected activity, however, based solely on a legitimate nondiscriminatory reason -- a confrontation with a co-worker. Accordingly, Respondent is not liable for violation of STAA section 31105. The complaint hereby IS DISMISSED.

   SO ORDERED.

       KARL J. SANDSTROM
       Member

       PAUL GREENBERG
       Member