Respondent and Complainant stipulated to and I find the following facts:

1. Respondent is a commercial motor carrier subject to the Act.

2. Respondent is a person, as defined by the Act.

3. Complainant is an employee of Respondent and is currently on an unpaid medical leave of absence.

4. Respondent removed Complainant from active driving service on May 28, 1996.

5. Respondent continued Complainant's pay from May 28, 1996, through October 5, 1996.

1. Whether Complainant engaged in protected activity.

2. Whether Complainant was subject to adverse action due to the following:

a. Complainant's removal from service on May 28, 1996.

b.Termination of Complainant's pay on October 6, 1996.

c. Respondent's disclosure to a prospective employer, on November 4, 1996, that Complainant was on medical leave because he was temporarily unfit for service.

3. Whether Respondent was aware of the protected activity when it took each of the above adverse actions.

4. Whether Complainant presents sufficient evidence to raise an inference that the protected activity was the likely reason for the adverse actions.

5. Whether Respondent had a legitimate, non-discriminatory reason for the actions above.

    A. Testimony of Dr. Harley Stock

employee sign a consent form waiving the normal psychologist/patient privilege, and discharging his firm of liability (Tr. 49; RX-13). Because the employees, who he is interviewing, have been identified as possible threats, Dr. Stock always has security present at these interviews (Tr. 49). Dr. Stock begins the interview by taking a detailed history of the employee's school, family, friends, and work experiences (Tr. 53).

   Upon review of the psychological tests, interview, and collateral sources of information, Dr. Stock will make one of four recommendations: 1) fit for duty; 2) fit for duty, but in need of mandatory counseling; 3) temporarily unfit for duty even with mandatory counseling, but a possibility of rehabilitation through treatment; and 4) unfit for duty because counseling is unlikely to change the situation (Tr. 46-7).

   Dr. Stock testified that he followed this general pattern of analysis in his dealings with Mr. Griffin and CF. Prior to performing the evaluation of Complainant, Dr. Stock had not worked for Respondent (Tr. 54). When Respondent contacted Dr. Stock with regard to Complainant, it provided Dr. Stock with several collateral sources of information including the May 12, 1996, letter from Mr. Griffin to Judge Mollie Neal (RX-1), statements made by Mr. Griffin in his May 20-21, 1996, deposition (RX-4, 141, 340), and an informal assessment of Mr. Griffin by Dr. Richard Wyatt (RX-2; Tr. 56). Based on an evaluation of these documents, Dr. Stock recommended that Respondent remove Complainant from service, but continue to pay him to avoid making a difficult situation worse by creating financial problems for Complainant (Tr. 57). He made this recommendation prior to meeting Complainant in person based solely on the documentary evidence (Tr. 83).

   Dr. Stock scheduled psychological tests with Dr. David Pritchard, a board certified psychologist specializing in neuropsychology, on May 29, 1996 (Tr. 59). Dr. Stock also conducted a thorough forensic threat assessment and interview with Complainant, which lasted approximately seven to seven and a half hours on May 31, 1996 (Tr. 60). Prior to the interview, Dr. Stock required Complainant to sign a "consent for fitness for duty evaluation" form, which Complainant did, "under protest" (RX-13).

    Dr. Stock submitted an interim report to Respondent on June 10, 1996 (RX-15, 2). After stating his diagnosis, Dr. Stock pointed to several incidents that Complainant relayed to him which lead him to his diagnosis.

In Dr. Stock's final report, dated October 1, 1995, he detailed the reasons for his diagnosis. Dr. Stock stated:

He has absolutely no insight into his own behavior and blames other people for any difficulties that he experiences in life. His delusions include those of being followed, spied upon and having his life influenced. . . . Although Mr. Griffin denies any threatening behavior, individuals with delusion disorder, paranoid type, are often reactive to their environment. His delusional disorder is currently interfering with his occupational and interpersonal interactions. He is overtly suspicious of co-workers and even other drivers on the street. He lacks insight into his disorder and is likely to be noncompliant with treatment plans. He denies having access to weapons and also denies any suicidal/homicidal ideation. . . . Mr. Griffin's delusional disorder, paranoid type, could cause him, in the immediate future, to engage in inappropriate behavior toward others that he believes are out to harm him or hurt him. Since his delusional disorder is so widespread, it is not possible to identify a particular target of the population. Thus, he could act out against co-workers, the EEOC spies that work in the various stores that he frequents, or cars that he sees on the road that he believes are following him. (RX-25, 10-11).

He further indicated that Complainant's mental illness had begun recently (Tr. 74).

   Dr. Stock recommended that CF not tell Complainant of his specific diagnosis, but to place him on paid leave and provide the names of two possible psychiatrists for further treatment (Tr. 76). He opined that hearing of the diagnosis without accompanying counseling would be psychologically harmful to Complainant (Tr. 76). Dr. Stock contacted the two psychiatrists to determine if they had dealt with an individual with delusional disorder previously and if they were willing to treat one with that diagnosis (Tr. 76).

   Following his analysis, Complainant contacted Dr. Stock requesting his test results. Dr. Stock sent a letter dated October 11, 1996, to Complainant, indicating the results of the psychological tests and the conclusions reached from those tests and the interview conducted on May 31, 1996, but the certified letter was returned (RX-28; Tr. 78).

    B. Testimony of Ernest Anthony Smith

    Mr. Smith is a dispatch operations manager for Respondent and has worked for Respondent for more than twenty-three years (Tr. 102, 110). His duties in this position include interaction with the transport operators, drivers, and staff and overseeing daily operations (Tr. 102). Smith testified that Complainant is currently employed by CF but is on a leave of absence (Tr. 102). Smith was not involved in the decision to removed Complainant from service or to terminate his pay (Tr. 103).

   Super Service, a prospective employer of Complainant, contacted Smith regarding Complainant's status at CF and he provided Complainant's employment dates only (Tr. 103). After this contact, Jerry Ard, CF's group operations manager at the Ellenwood, Georgia facility, received a call from Super Service. Ard, also, gave no substantive information to Super Service (Tr. 105). Smith testified that he did not give the representatives of Super Service any information beyond what was contained in the form sent to Super Service (RX-34, exh.1; Tr. 106). Specifically, Smith indicated that he did not tell Super Service of Complainant's pending claim against Respondent (Tr. 106).

   Smith testified to an incident with Complainant which he perceived as a threat which occurred on May 16, 1996 (Tr. 107; RX-3). Smith overheard a conversation between Complainant and another individual wherein Complainant stated that he had some grievances that he was "going to wipe Smith's ass with" (Tr. 108). Smith was not sure whether this was a physical threat or not, but interpreted it as a threat to himself (Tr. 109).

   C. Testimony of Steve Nail

   Complainant continued working for Super Service until January 7, 1997, when he was terminated for insubordination and willful disregard (Tr. 127). Nail met with Complainant to discuss the fact that his dispatcher had written him up several times (RX-31). In response, Complainant was loud, disrespectful, demanding and admitted no wrong-doing. Nail alleged that Complainant had refused a dispatch, violated the 70-hour rule, and drove out of his route by 260 miles. As Complainant left this meeting he continued to yell and had not returned his keys and fuel card to Super Service (RX-31) Nail specifically testified that Complainant was not terminated due to the letter from Respondent, dated November 4, 1996 (Tr. 127).

   D. Testimony of Bradley E. Eagelston

   Eagelston has been the director of human resources for Leland James Service Corporation, a fully-owned subsidiary of Respondent, since December 1996. Prior to that, he worked for twenty years for Respondent and was the manager of human resources since November 1992 (Tr. 133-4).

   Eagelston first met Mr. Griffin on July 5, 1995, when they met to discuss his OSHA claim (Tr. 135). Complainant indicated that there was a conspiracy among the supervisors at CF to improperly load his trailers and to force him to drive unsafe equipment (Tr. 135-6). Eagelston investigated Complainant's claim, but found no support for it (Tr. 136).

   On February 20, 1996, Complainant complained to Eagelston of harassment by his dispatcher (Tr. 137). Eagelston offered to join Complainant in his pre-trip inspection to determine if there were any safety violations, insure that the equipment was hooked up properly and met all safety regulations (Tr. 139). They discovered no problems with Complainant's vehicle at this time. Complainant indicated that he thought Eagelston had arranged for the equipment to meet regulations to debase Mr. Griffin's complaints. Eagelston informed him that he, in fact, had not done so (Tr. 139).

   On May 15, 1996, Eagelston received a copy of a letter written by Complainant to Judge Mollie Neal (Tr. 140; RX-1). Eagelston contacted Dr. Richard Bloom, seeking a referral to someone who could review this letter to determine if Complainant posed a potential danger (Tr. 141). Dr. Bloom referred the letter to Dr. Richard Wyatt, who opined that the letter may show the existence of a mental disorder (Tr. 142; RX-2). Dr. Wyatt opined that, because of the number and character of the claims of harassment, the letter raised a question as to whether Complainant had developed a delusional disorder. Dr. Wyatt indicated that this raised a concern for "potentially dangerous behavior during employment activities" (RX-2).

   Eagelston became more concerned about Complainant based on comments Complainant made at his May 20-21, 1996, deposition (Tr. 143). Complainant alluded to the crash of the ValuJet plane in Florida, which Eagelston felt indicated that Complainant may try to cause an accident to get the company's attention (Tr. 143). Complainant also made several comments off the record to counsel for Respondent, Deborah Craytor. Complainant indicated that Craytor had arranged to have his house broken into and documents stolen, had been behind the theft of Complainant's car, and worked for the National Labor Relations Board (NLRB) (Tr. 143-4).

Following these statements, Eagelston contacted Respondent's deputy general counsel for suggestions on what further investigation of Complainant's behavior could be taken (Tr. 144). Slate recommended the Incident Management Group (IMG) to further evaluate Complainant (Tr. 144).

Complainant refused to have another medical evaluation until Respondent gave an explanation for the initial evaluation by Dr. Stock, and he received a copy of the results of that evaluation (RX-35, 110).

   Eagelston sent a letter to Super Service, Complainant's prospective employer, in October 1996 (Tr. 157). Eagelston felt an obligation to inform Super Service of possible liability and to avoid any liability on the part of Respondent (Tr. 158). This letter stated that Complainant was "currently on an unpaid medical leave of absence, as a result of medical information indicating that he is temporarily unfit for service" (RX-32). Aside from this letter and the verification form, Respondent had no other contact with Super Service regarding Complainant (Tr. 158).

   E. Deposition Testimony of William E. Griffin, Complainant.

   Complainant was deposed on May 20-21, 1996 and March 25, 1997, but did not testify at the hearing (RX-4; RX-34).

Second, the June 13 letter from Eagelston appeared to contradict what Dr. Stock had told Complainant by telephone. Third, Complainant wanted to pick his own doctor for a second opinion as required by his union contract (RX-34, 154).

   Respondent continued to pay Griffin until the week ending October 5, 1996 (RX-34, 48). Complainant was notified of this action by letter from Eagelston, dated October 7, 1996 (CX-3; RX-26). At this time, Complainant was under the impression that he had been terminated from employment with Respondent (RX-34, 50).

   Complainant testified that he began working for Super Service in November 1996 (RX-34, 18). Super Service received the November 4, 1996, letter stating Complainant's current position with Respondent about two weeks after Complainant began to work there (RX-34, 18). In addition, Complainant testified that Nail informed him that Jerry Ard from CF had come to Super Service and "cursed him [Nail] out" for hiring Complainant (RX-34, 30). He felt that his treatment changed at Super Service after it received this letter (RX-34, 17). Complainant testified that Super Service began to send him on "wild goose trips" and to violate their rule of assuring that the driver would be home at least every twelve days (RX-34, 18). Complainant was terminated on January 7, 1997, for being off route and refusing a dispatch. Complainant challenges both of these reasons for termination and contends that CF is responsible for his termination (RX-34, 22-3).

   Complainant has filed charges not only against Respondent, but against several prospective employers for refusing to hire him unless he dropped the charges against CF (RX-34, 11). Specifically, Heartland Express and M.S. Carriers had informed Complainant that he should submit his resignation so they could get things "settled" (RX-34, 28). Another prospective employer, FEPCO, told Complainant that they would not "touch him" unless he withdrew his charges against Respondent (RX-34, 80). Complainant alleges that Respondent gave these employers false information.

   Representatives of CFI, FEPCO, Heartland Express, J.B. Hunt and M.S. Carriers, all employers to whom Complainant applied, indicated that the only information they received from Respondent was identical to the letter sent to Super Service, indicating that Complainant was on a medical leave of absence (RX-38; RX-40; RX-42; RX-45; RX-48). The representative of Heartland Express indicated that Complainant was denied employment because he indicated that he was laid-off from CF, when in fact he was on a medical leave of absence, but if this discrepancy was cleared up he would be eligible for employment (RX-42). The representatives of CFI, FEPCO, J.B. Hunt and M.S. Carriers were unaware that Complainant had charges pending against Respondent when he applied for employment (RX-38; RX-40; RX-45; RX-48).

   Complainant indicated that employees of Respondent had told him that guards were informing them that Complainant had been fired, had lost his lawsuit, and had threatened to kill his supervisors (RX-20, 28; RX-34, 181).

   Complainant has the burden of making a prima facie case under the Act. To do so, he must prove four elements: 1) He engaged in protected activity; 2) Respondent subjected him to adverse action; 3) Respondent was aware of the protected activity when it took the adverse action; and 4) Evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action (causation). Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 4, 1992); Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992). At the hearing Complainant presented no testimony, but rested his case on his documentary evidence. Respondent concedes that Complainant engaged in protected activity and that it had knowledge of the protected activity when it removed Complainant from service, terminated his pay and sent a referral letter to Super Service (Respondent's Brief, p. 4).

   A. Adverse Action

   Complainant contends that Respondent took adverse action to retaliate against him for filing a complaint on June 23, 1995, alleging that Respondent had forced him to drive unsafe equipment (CX-4). Three actions are at issue here. First, Respondent removed Complainant from service on May 28, 1996, on the recommendation of Dr. Harley Stock (CX-2; RX-12). Complainant remained out of service following an evaluation by Dr. Stock because he found that Complainant was temporarily unfit for duty (RX-17). Respondent does not contest Complainant's assertion that his removal from service was an adverse action (Respondent's brief, p.4). Second, Respondent terminated Complainant's pay on October 7, 1996, because Complainant had not complied with the conditions of his continued pay status (CX-3; RX-26). Third, Respondent wrote a letter to a prospective employer, Super Service, Incorporated, indicating that Complainant was "on an unpaid medical leave of absence, as a result of medical information indicating that he is temporarily unfit for service under the Federal Motor Carrier Safety Regulations" (RX-32).

   An adverse action is one that shows discrimination regarding pay, terms, or privileges of employment. When considering whether Complainant established the elements of a prima facie case, it is improper to consider Respondent's reasons for its actions. Auman, 91-STA-32 (Sec'y July 24, 1992); Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992); Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). Thus, terminating Complainant's pay is clearly an adverse action. In addition, the reason that Complainant was not working and his pay status cut was the original adverse action of removing him from service.

   I find that the termination of Complainant's wages was an adverse action under the Act. However, I do not find that the sending of the letter stating Complainant's present position with Respondent was an adverse action as it did not affect Complainant's pay, terms, or privileges of employment.

   B. Causation

   Direct evidence of causation is not necessary. Complainant need only raise the inference of that the protected activity was the likely reason for the adverse action by presenting sufficient evidence to prevail if not contradicted. Ass't Sec'y and Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995); Ertl v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989) .

   Respondent is bound by the Federal Motor Carrier Safety Act (FMCSA) and its implementing regulations. This statute states, inter alia, that, "An employer may not knowingly allow an employee to operate a commercial motor vehicle . . . during a period in which the employee . . . (1) . . . has been disqualified from operating a commercial motor vehicle." 49 U.S.C. §31304. The implementing regulation indicates what would disqualify an individual from operating a commercial motor vehicle. It states, "A person is physically qualified to drive a commercial motor vehicle if that person . . . (9) Has no mental, nervous, organic, or functional disease or psychiatric disorder likely to interfere with his ability to drive a commercial motor vehicle safely." 49 C.F.R. 391.41(b).

   Respondent had good reason to believe that Complainant had a mental disease or psychiatric disorder which could interfere with his ability to drive a commercial motor vehicle. This would disqualify Complainant from his position as an over-the-road driver for Respondent. Respondent could not, under the statute, permit Complainant to drive. Complainant's letter to Judge Mollie Neal, dated May 12, 1996, raises a question about Complainant's state of mind (RX-1). He lists fifty-one witnesses who may have knowledge about possible discrimination by Respondent. Twenty-two of these witnesses are employees of Respondent. However, it is the other witnesses listed which would create genuine concern about Complainant's ability to drive safely. Complainant honestly believes that individuals from OSHA, FHA, EEOC, NLRB, the office of Representative Cynthia McKinney and Senator Sam Nunn are somehow involved in a conspiracy to protect Respondent. Particularly Complainant indicates that he saw Mr. John Fitzgerald from the EEOC at Representative McKinney's office, at the post office in Atlanta, and again at the Consumer Credit Counseling Service. Complainant believes Fitzgerald has been "influenced by my employer and is harassing my family in behalf of my employer" (RX-1, 5). Complainant also believes that Respondent is influencing Brenda Webb from EEOC to stall any investigation and give Complainant false information (RX-1, 5). Complainant indicated his belief that employees in stores near his home are actually employees of the federal government. This belief stems from Complainant's understanding that these individuals know Brenda Webb and have stated that they understand that Complainant works for the Postal Service (RX-1, 8). Such a conspiracy theory is of concern, even to one without psychological training.

   Shortly after receipt of this letter, Respondent's attorney, Deborah Craytor, deposed Complainant in the presence of Eagelston. During that deposition, Complainant made three statements which could be interpreted as threatening possible dangerous actions by Complainant while driving his truck (RX-4, 142, 199, 340). In addition, Complainant made statements off the record at the deposition, indicating that he though Ms. Craytor had arranged to have his house broken into, documents stolen, and his personal automobile stolen (Tr. 144). These threatening statements in conjunction with the statements regarding Ms. Craytor's involvement in the conspiracy against him offer further evidence of Complainant's tenuous mental state. However, Respondent did not release Complainant from duty at this time.

   Eagelston contacted Dr. Wyatt to do an informal assessment of Complainant after receipt of the letter of May 12 (Tr. 141). Dr. Wyatt indicated that this letter raised

concerns about Complainant's mental condition and indicated that Complainant may suffer from a delusional disorder (RX-2). Dr. Wyatt did not have access to Complainant's deposition transcript at the time of his diagnosis. Again, Respondent did not release Complainant from duty based on this informal evaluation.

actions is rebutted by Respondent's showing of a legitimate, non-discriminatory reason for its actions. Complainant failed to make a prima facie case as to the third alleged adverse action, and any such showing would be rebutted by Respondent's showing of a legitimate, non-discriminatory reason.

   It is hereby RECOMMENDED that the claims filed by William E. Griffin under the Act be DENIED.

       DANIEL A. SARNO, JR.
       Administrative Law Judge

DAS/pak
Newport News, Virginia

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Secretary of Labor to the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, DC 20210. The Administrative Review Board has the responsibility to advise and assist the Secretary in preparation and issuance of final decisions in employee protection cases adjudicated under the regulations at 29 C.F.R. Parts 24 and 1978. See Fed. Reg. 13250 (1990).