that Respondent had terminated him for reporting safety violations to management. The Occupational Safety and Health Administration ("OSHA") conducted an investigation; thereafter, the Secretary of Labor, through her agent, the Regional Administrator for OSHA, issued findings on August 14, 1998, finding that Complainant's claim lacked merit. On September 12, 1998, Complainant requested a hearing before an Administrative Law Judge. The parties waived the statutory and regulatory time limits on these proceedings as reflected in my Pre-Hearing Order of December 16, 1998. A formal hearing was held in Long Beach, California, on February 24, 1999. Both parties were present. Complainant appeared in pro se, and Respondent was represented by counsel. The following exhibits were admitted into evidence: Complainant's Exhibits ("CX") I:1-9, II:1-9, III:1-35, IV:1-52, V:1-29; Complainant's Hearing Exhibit ("CHX") 1; and Respondent's Exhibits ("RX") 1-4. The parties called witnesses, offered documentary evidence and submitted oral arguments. The parties did not submit post-trial briefs. This Court took the matter under submission.

   After reviewing all of the evidence, I find that Respondent did not terminate Complainant because he reported safety violations.

   The parties stipulate, and I accept that:

1.   a) Respondent is engaged in intrastate trucking operations and maintains its place of business in the City of Industry, California. In the regular course of this business, Respondent's employees operate commercial motor vehicles affecting intrastate commerce principally to transport household goods;

     b) Respondent is now, and at all times material herein, a person as defined in 49 U.S.C. § 31101(3)(a).

2.   a) On or about December 14, 1996, Respondent hired Complainant as a driver of a tractor-trailer rig with gross vehicle weight in excess of 10,000 pounds;

     b) At all times material herein, Complainant was an employee in that he was a driver of a commercial motor vehicle having a gross vehicle rating of 10,000 or more pounds used on the highways in intrastate commerce to transport household goods. He was employed by a commercial carrier, and, in the course of his employment, he indirectly affected commercial motor vehicle safety pursuant to 49 U.S.C. § 31105.

3.   a)On or about April 17, 1998, Complainant filed a complaint with the Secretary of Labor alleging that Respondent had discriminated against him in Violation of 49 U.S.C. § 31105(a)(1)(A). This complaint was timely filed.

     b) The Secretary, acting through her duly authorized agent thereafter investigated the above complaint in accordance with 49 U.S.C. § 31105, and determined that there is insufficient evidence to establish reasonable cause to believe the Respondent violated 49 U.S.C. § 31005.

4. The Secretary completed the investigation and issued her decision finding that the complaint had no merit on August 14, 1998.

5. On August 17, 1998, the Complainant received the Secretary's findings.

6. On September 12, 1998, Complainant timely filed an objection to the Secretary's findings and requested a hearing before an administrative law judge.

7. On September 16, 1998, the Department of Labor referred the case to the Office of Administrative Law Judges.

8. The Complainant was terminated by Respondent on March 20, 1998.

   The unresolved issue in this proceeding is:

1) Whether Respondent terminated Complainant on March 20, 1998, in retaliation for activity protected by Section 405 of the STAA.

TR p.14.

   Complainant was employed as a truck driver by PSC from December 14, 1996, to March 20, 1998. Complainant's duties consisted primarily of driving a tractor-trailer rig in Southern California as well as some work at the warehouse site in the City of Industry. Generally, Complainant would start his shift at the City of Industry warehouse site where large storage containers would be loaded onto the truck. Complainant would then deliver these containers to customers, and would also pick up containers from customers. Each shift would consist of multiple pick-ups and deliveries. CX IV:4, pp.1-2.

   Sarah Sperber, PSC's manager of employee relations, testified about a memorandum written by Linda Kuehl, PSC's area manager, describing an incident that occurred in December 1996 involving Complainant. Complainant had placed a storage container on the

roof of a mini-warehouse pursuant to the customer's instructions. Later, the container fell off the roof. Ms. Kuehl documented this as an "incident." And, if a second "incident" occurred, Complainant would be placed on probation. Ms. Kuehl had noted that when Complainant is given instructions that are contrary to PSC's policies, he needs to call PSC for further instructions. RX 1-M; TR pp. 163-164.

   Ms. Sperber testified about a June 1997 incident involving Complainant. On June 25, 1997, David E. Montgomery, PSC's area manager, issued a first and final warning to Complainant because of Complainant's use of inappropriate and rude language towards another employee, Mr. Kiki Reyes. RX 1-L. TR pp.164-165.

   Ms. Sperber testified about a memorandum written by Eddie Chavera, a PSC driver, concerning an incident that occurred on June 28, 1997. Mr. Chavera described an incident where Complainant yelled at Mr. Reyes. RX 1-J; TR pp.165-166.

   On February 25, 1998, Mr. Donovan issued a written warning to Complainant for insubordination. On February 14, 1998, Complainant worked 15 and 1/2 hours in violation of PSC's overtime policy as well as Department of Transportation standards. In addition, Complainant did not follow his route, and he failed to use his hand held "telezone" computer to input arrival and departure times. RX 1-H. Ms. Sperber testified that PSC has an overtime policy that requires employees to contact their supervisors when they know they are going to be working overtime. TR p.170. Mr. Pruitt confirmed the incident and issuance of the warning letter. TR pp. 204-206.

   On March 18, 1998, Steve Megliorino told Mr. Pruitt that Complainant had worked nine and one-half hours on March 16. Mr. Reyes informed Mr. Pruitt that Complainant had gone to see a dentist using the company truck on March 16. Mr. Pruitt reviewed Complainant's assigned route and Complainant's trip log and time sheet. Complainant had written "Dentist" on the back of his trip log. Complainant's time sheet noted heavy traffic. Mr. Pruitt contacted the California Highway Patrol to inquire whether there were any unusual traffic patterns on the freeways during the afternoon of March 16. According to Mr. Pruitt, Officer Robbins told him that there were no unusual traffic patterns. TR pp.206-208. Ms. Sperber asked Mr. Pruitt to drive to Complainant's last stop in Montebello and proceed back to the PSC facility. TR p.172. He did. It took Mr. Pruitt 34 minutes to drive this 19 mile route. Mr. Pruitt noted that the traffic was heavy. Mr. Pruitt determined that one hour and ten minutes of Complainant's time was unaccounted for. TR p.208.

   Ms. Sperber testified that PSC has a specific policy regarding doctors and dentists appointments: Employees must notify their supervisor about such appointments. TR p.172. Mr. Pruitt testified that Complainant did not notify him about the dentist appointment. TR p.209. Mr. Pruitt also testified that company policy prohibited employees from using company vehicles for personal reasons. TR p.210.

reviewed the decision. She met with Mr. Biesz, and they concluded that the termination decision was appropriate. TR p.174. On April 2, 1998, Ms. Sperber sent Complainant a letter indicating that his termination was appropriate. RX 1-B; TR p.175.

   The employee protection provisions of the STAA provide that:

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 a such a proceeding; or

(B) the employee refuses 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.

49 U.S.C. § 31105(a)(1).

actually motivated by the proffered reasons." Id. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. Id. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255. In spite of this shifting burden, the complainant at all times retains the ultimate burden of persuading the trier of fact that he was discriminated or retaliated against. Id. at 253.

   Once the employer rebuts the presumption of discrimination, it "drops from the case." Id. at 255 n.10. The burden then shifts back to the Complainant to prove by a preponderance of the evidence that the proffered reason is a pretext and that the real reason for the adverse action was retaliation for his protected activity. See St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Nolan v. AC Express, 92- STA-37 (Sec'y Jan. 17, 1995).

   Where evidence of a mixed motive exists where there are legitimate reasons for an adverse action in addition to unlawful reasons the employer bears the burden of establishing by a preponderance of the evidence that it would have taken the same adverse action in the absence of the employee's protected activity. See Clean Harbors Environmental Services, 146 F.3d at 21-22; Cf. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (mixed motive case under Title VII).

   While a pro se complainant may be held to a lesser standard than legal counsel in procedural matters, the burden of proving the elements necessary to sustain a claim of discrimination is no less. See Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).

   In addition to his claim of retaliation for engaging in protected activities, Complainant testified that Respondent terminated his employment for the following reasons: 1) Complainant's prior request for a promotion; 2) Complainant's request for a raise; 3) Complainant's request for a religious accommodation; 4) Complainant's age; 5) Complainant's slowness as a driver;

6) Complainant's disability; and 7) Complainant's request for equal pay. TR pp.221-222. This Court does not have jurisdiction over Complainant's non-STAA allegations, and makes no findings regarding their validity. However, the Court finds that Complainant failed to establish that Respondent terminated his employment in violation of the employee protection provisions of the STAA.

PRIMA FACIE CASE

Protected Activity

   Both complaints to government agencies and internal safety complaints to

managers constitute protected activity under the STAA. See Nolan v. AC Express, 92- STA-37 (Sec'y Jan. 17, 1995). A complaint need not explicitly mention a commercial motor vehicle safety standard to be protected under the STAA's whistleblower provision. The STAA requires only that the complaint "relate" to a violation of a commercial motor vehicle safety standard. See Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1 (Sec'y July 13, 1984). Protection under the whistleblower provision of the STAA is not dependent on actually proving a violation (See Yellow Freight System, Inc. v. Martin, 954. F.2d 353, 356-57 (6th Cir. 1992); Lajoie v. Environmental Management Systems, Inc., 90-STA-31 (Sec'y Oct. 27, 1992); but see, Nolan v. AC Express, 92-STA-37 (Sec'y Jan.17, 1995)(complainant must show an actual violation for a refusal to drive under Section 31105(a)(1)(B)(i))); rather, a complainant need only show that he reasonably believed he was complaining about a safety hazard. See Schuler v. M & P Contracting, Inc., 94- STA- 14 (Sec'y Dec. 15, 1994).

   Here, there is limited evidence of any protected activity. There are no instances where Complainant refused to operate a motor vehicle. Complainant did submit numerous memoranda describing various incidents during his work. CX IV:11, 23, 35-36, 43- 44. The great bulk of this material concerns problems he encountered during his shifts or disputes he had with co-workers or management and is mostly unsubstantiated. For example, Complainant described his interactions with Mr. Megliorino and Mr. Pruitt in a memorandum dated February 19, 1998. According to Complainant, Mr. Megliorino was upset with Complainant's work that day. CX IV:11. There is no evidence in the record that Complainant ever sent the memorandum to anyone. Likewise, there is no other evidence corroborating Complainant's account of events. In addition, these disputes and concerns are not related to transportation safety. While Complainant's numerous memoranda do establish that he had difficulties with his co-workers and management, they do not establish that he engaged in protected activity.

employer's mental process." U.S. Postal Service v. Aikens, 469 U.S. 711, 716 (1983). However, as part of a prima facie case in a STAA whistleblower proceeding, a complainant must establish that the respondent was aware of the protected activity when the adverse employment action was taken. See Melton v. Morgan Drive-Away, Inc., 90- STA-41 (Sec'y Apr. 26, 1991). Proximity in time between the protected activity and the adverse action may give rise to an inference of causal connection. See Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).    Complainant's documented protected activities occurred in November 1996, and June 1997. Mr. Pruitt had knowledge of the November 1996 complaint, and Ms. Sperber had knowledge of the June 1997 complaint. The adverse action did not occur until March 20, 1998, more than 8 months subsequent to Complainant's protected activity; therefore, the adverse action is too attenuated to conclude that it is connected to the protected activity. Thus, Complainant is unable to establish a prima facie case on this basis. I am unable to determine from the record whether Respondent had knowledge of Complainant's mechanical complaints to Ken Pike. Ken was a warehouse foreman, but was not a manager. Ken did not participate in the decision to terminate Complainant. Ken did not testify whether he told any of PSC's management team about the complaints. Considering that the mechanical complaints appeared to be routine and of minor significance, it is unlikely that Ken relayed the complaints to any of the managers. In addition, the record is unclear as to when Complainant made his complaints to Ken. Since Ken worked at the City of Industry warehouse site from April 1997 until January 1998 (TR pp.99, 112), the Complainant must have made the complaints sometime during that period. In sum, I find that the chain of events is insufficient to infer a causal connection between Complainant's protected activity and the adverse action. As such, Complainant has failed to establish a prima facie case.

Respondent's Rebuttal

   Assuming arguendo, that Complainant had established a prima facie case, the burden shifts to the Respondent to produce evidence of a legitimate non-discriminatory reason for the adverse action.

   Respondent argues that it had a legitimate non-retaliatory reason for terminating Complainant's employment because of Complainant's prior performance problems and the events of March 16, 1998. Complainant had a long and well-documented history of insubordination and performance problems. During his 16 months of employment with PSC, Complainant received three written warnings in addition to one documented "incident," not counting the events of March 16, 1998, which precipitated his termination. His performance review noted that his interaction with co-workers was problematic

burden to articulate a legitimate non-discriminatory reason for terminating Complainant, and has produced evidence sufficient to support its reason.

Preponderance of the Evidence

   Since the Respondent has articulated and supported with evidence a legitimate non-discriminatory reason for the adverse action, the burden shifts back to the Complainant to establish that the proffered reason is a pretext and that the real reason for the adverse action was retaliation for Complainant's protected activity. Complainant has the burden of proving his case by a preponderance of the evidence.

   Complainant has failed to establish that Respondent's reason for his termination was pretextual. Mr. Pruitt's and Ms. Sperber's testimony regarding the decision to terminate Complainant was convincing. There is a close temporal proximity between the decision to terminate Complainant and the events of March 16. Respondent's decision to terminate Complainant was consistent with its personnel policy in light of Complainant's past performance problems.

   Complainant has failed to establish that PSC terminated his employment in retaliation for Complainant's protected activities. PSC's responses to Complainant's safety complaints make it unlikely that PSC would have retaliated against him. For example, Ken Pike testified that when Complainant reported safety problems to him, such as the defroster problem, Ken would attempt to fix them. TR p.120. Second, Delbert Davis, a customer service manager for Ryder Transportation Services ("Ryder") in the City of Industry, testified that PSC had a contract with Ryder that included maintenance of the trucks. TR pp.129-130. Mr. Davis testified that PSC leased equipment from Ryder to transport goods that PSC picked up from customers. TR p.130. As part of the contract, Ryder would repair the trucks it leased to PSC. TR p.131. Mr. Davis testified that on a daily basis he would see PSC drivers return the trucks to the Ryder facility for refueling or repairs. Id. Ryder never refused to repair any trucks that Complainant brought to the facility. TR p.132. In general, there was no additional cost to PSC for truck maintenance because the maintenance was included in the contract. Since it is common for commercial trucks to have minor mechanical difficulties and since PSC did not have to pay for such repairs, it is unlikely that PSC would retaliate against Complainant for raising such complaints.

   Another minor safety complaint concerned the need for safety cones. Mr. Pruitt testified that after Complainant mentioned the need for safety cones, Mr. Pruitt obtained the cones within one to two days. TR pp.193-194. Complainant's complaint about the loading of his truck was another minor safety complaint. At the time, Complainant disagreed with his co-workers about the proper way to load. There is no evidence that PSC was unduly concerned, hostile to Complainant or treated him differently because of these complaints. In addition, Complainant did not present any evidence that PSC engaged in a pattern of retaliation against other employees for raising safety or any other complaints.

   Based upon the foregoing Findings of Fact, Conclusions of Law, and upon the entire record, I recommend the following Order:

1. Claimant shall take nothing.

      ANNE BEYTIN TORKINGTON
      Administrative Law Judge

San Francisco, California
ABT:ck

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, 200 Constitution Avenue, NW, Washington D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).