DATE:  March 21, 1994
CASE NO. 93-STA-41


IN THE MATTER OF

CHARLES V. AKE,

          COMPLAINANT,

     v.

ULRICH CHEMICAL, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     On November 29, 1993, the Administrative Law Judge (ALJ)
issued a [Recommended] Decision and Order (R.D. and O.) in this
case arising under the employee protection provision (Section
405) of the Surface Transportation Assistance Act of 1982 (STAA),
49 U.S.C. app. § 2305 (1988).  Pursuant to the regulations
implementing the STAA, the ALJ's decision is now before me for
review and issuance of the final decision and order.  29 C.F.R. 
§ 1978.109(c) (1992); see Asst. Sec. and Moravec
v. HC & M Transp., Inc., Case No. 90-STA-44, Sec. Dec., Jan.
6, 1992, slip op. at 1-2 n.1.
     Complainant, who proceeds pro se, alleges that
on  January 12, 1993, Respondent unlawfully issued a letter of
discipline to him, and then on February 12, terminated his
employment as a truck driver in retaliation for numerous safety
related complaints that he made from 1990 until November 1992. 
Respondent contends that the actions were taken because on
December 9, 1992, January 22, 1993, and again on February 8,
1993, Complainant either picked up or delivered the wrong
material to customers.  Transcript (T.) at 69.  The ALJ accepted
Respondent's explanation and denied the complaint.  R.D. and O. 
[PAGE 2]
at 9-10. [1] 
     Neither party filed a brief in response to the ALJ's
decision, as permitted by the regulations.  29 C.F.R. 
§ 1978.109(c)(2).  Both parties, however, filed post-hearing
briefs before the ALJ, which have been carefully considered.
     As a preliminary matter I note that, in conjunction with his
brief, Complainant submitted a number of documents that were not
proffered at the hearing.  While the ALJ mentioned the parties'
post-hearing briefs in his R.D. and O. at 2, he did not discuss
or refer to this additional evidence submitted by Complainant and
failed to make a specific ruling on its admissibility.  As in
McDaniel v. Boyd Brothers Transp., Case No. 86-STA-6, Sec.
Dec., Mar. 16, 1987, slip op. at 4, I consider the ALJ's silence
to constitute an implicit denial of that request, with which I
agree.  See also 29 C.F.R. § 18.55 (1993). [2]
     During the hearing Complainant did not request leave or
permission to submit additional evidence, and upon adjournment,
the record was closed except for the submission of legal briefs
and arguments.  29 C.F.R. §§ 18.54(a), 18.53; T. at 77. 
The regulation at 29 C.F.R. § 18.54(c) provides that "[o]nce
the record is closed, no additional evidence shall be accepted
into the record except upon a showing that new and material
evidence has become available which was not readily available
prior to the closing of the record."  Complainant has not shown
that any of the additional evidence was "not readily available"
at the time of the hearing.  Complainant claims only, ". . . some
of it I could not get since I asked the company for my run sheets
and they refused to give them to me so I could not look up my
notes on my logs."  Complainant's Post-Trial Brief at 1.  This
explanation, however, is inadequate to show that even the one
document to which it refers, a driver's vehicle inspection report
containing Complainant's handwritten notes, was "not readily
available."  At the hearing Complainant admitted that this type
of evidence was in his sole possession; he proffered similar
evidence, which was admitted into the record; and I am wholly
unconvinced that any action by Respondent made this particular
additional document "not readily available."  See T. at
49, 7; Complainant's Exhibits 1, 2.  Moreover, all of the
additional evidence, including the vehicle inspection report, is
either illegible, or, in view of my analysis of the issues, 
immaterial.
     The ALJ thoroughly recounted the testimony adduced at the
hearing and described the documentary evidence of record, R.D.
and O. at 2-8, and I accept his findings of fact as supported by
substantial evidence.  See 29 C.F.R. §
1978.109(c)(3).  In addition, the ALJ correctly recognized that
the applicable 
[PAGE 3]
burdens of proof and persuasion under the STAA derive from
decisions under Title VII of the Civil Rights Act of 1964.  R.D.
and O. at 8-9; see Roadway Express, Inc. v. Brock,
830 F.2d 179, 181 n.6 (11th Cir. 1987); McGavock v. Elbar,
Inc., Case No. 86-STA-5, Sec. Dec., Jul. 9, 1986, slip op. at 10-11, 
citing Dartey v. Zack Co. of Chicago, Case No. 82-ERA-2, Sec.
Dec., Apr. 25, 1983, slip op. at 7-9.  Although he also made several
harmless errors in identifying the applicable law, I agree with
his conclusion that Complainant failed to prove any violation of
the STAA.
     Under the STAA, a complainant initially must establish a
prima facie case.  To establish a prima facie case, a complainant
must prove not only the elements listed by the ALJ, i.e.,
protected activity, adverse employment action, and the employer's
knowledge of the protected activity, but also, a complainant must
present evidence sufficient to raise an inference that the
protected activity was the likely reason for the adverse action. 
McGavock, slip op. at 10.  The ALJ did not explicitly
analyze Complainant's claim in terms of the elements of a prima
facie case, but he conducted his analysis as if a prima facie
case had been established.  I find, however, that it is a close
question whether Complainant met his initial burden because, even
though Complainant engaged in protected activities followed by
adverse employment actions, the evidence relevant to the causal
element is tenuous.
     Complainant alleges retaliation under Section 405(a) of the
STAA. [3]   Section 405(a) prohibits an employer from discharging
or disciplining an employee because that employee "has filed any
complaint or instituted or caused to be instituted any proceeding
relating to a violation of a commercial motor vehicle safety
rule, regulation, standard, or order."  49 U.S.C. app. §
2305(a).  In 1990 and 1991, Complainant contacted the Indiana
Occupational Safety and Health Administration (IOSHA) pertaining
to a malfunctioning pallet jack.  T. at 26, 29, 51.  From June
1992, until his termination, Complainant served on Respondent's
safety committee and raised safety concerns about loading,
leaking drums, chocks, and loose cylinders.  T. at 30-38.  In
November 1992, Complainant also complained that the height of the
fuel tank on his truck was in violation of Department of
Transportation regulations, and that this violation had
contributed to an injury he sustained in August 1991.  T. at 49. 
These safety related complaints communicated to management and
IOSHA are protected, and protection is not dependent on proving
an actual violation.  Yellow Freight Sys. Inc. v. Martin,
954 F.2d 353, 356-57 (6th Cir. 1992); Stiles, slip op. at
4; Clay v. Castle Coal and Oil Co., Inc., Case No. 90-STA-
37, Sec. Dec., Nov. 12, 1991, slip op. at 7; Newkirk, slip
op. at 5. [4] 
[PAGE 4]
     Respondent's operations manager, Kim Davis, issued the
January 12 disciplinary letter and then terminated Complainant on
February 15.  While Davis denies knowing that Complainant
complained to IOSHA, T. at 57, 60, it is undisputed that the
pallet jacks were "fixed" because IOSHA investigated a charge, 
T. at 26, and it is likely that Respondent suspected that
Complainant instigated the investigation.  Nevertheless, a long
time period, two to three years, elapsed between Complainant's
protected complaints to IOSHA and his adverse actions.  This
significant time interval tends to establish the absence of a
causal connection between the IOSHA complaints and Complainant's
discipline.  See Shusterman v. Ebasco Serv., Inc.,
Case No. 87-ERA-27, Sec. Dec., Jan. 6, 1992, slip op. at 8-9.
     In contrast, a short time period passed between
Complainant's internal complainants and his discipline.  Temporal
proximity between protected activity and adverse action often may
give rise to an inference of a causal connection.  Moon v.
Transportation Drivers, Inc., 836 F.2d 226, 229 (6th Cir.
1987).  This record, however, like the record in Moon,
contains compelling evidence that Respondent encouraged
Complainant's internal complaints.  Complainant raised most, if
not all, of his internal safety complaints in his capacity as the
driver representative on Respondent's safety committee. 
Respondent established the safety committee specifically to
pinpoint and eliminate safety problems.  T. at 55.  During
Complainant's nine months on the committee, the committee met
regularly once a month, and Complainant found the company willing
to discuss safety issues, to make repairs, and to implement some
suggested changes.  T. at 49-50.  For example, Respondent changed
the height of the fuel tank.  T. at 49.  Respondent would replace
faulty drums or bongs when advised of problems, and Respondent
held a meeting to counsel the drivers on chocking their trucks. 
T. at 52.  There is no evidence that Respondent resented or was
unreceptive to the concerns of the committee or individual
critics.
     Although Complainant alleges that a warehouse representative
on the safety committee also was disciplined, the record is
incomplete on this issue, and the scant evidence that exists
suggests repeated problems in work performance, not protected
activity, as the basis for that discipline.  T. at 60; Document
listing Respondent's employees, attached to Complainant's letter
of objection, dated August 6, 1993. [5]   On the other hand,
there is evidence that other drivers raised the same or similar
safety complaints as Complainant, without any reprisals.  T. at
52, 59-60.
     Furthermore, Complainant testified that "[o]n December 9,
1992, I delivered the wrong drum to Plainfield Water.  This is 
[PAGE 5]
where all the problems really started."  T. at 41.  Complainant
also admits that on January 22, 1993, shortly before his
termination, he engaged in unprotected behavior violative of
company rules.  T. at 43.  Complainant's frank admissions
regarding the timing of his discipline vis-a-vis his questionable
work performance, which occurred subsequent to his internal
complaints, together with the other evidence discussed above,
militate against an inference of causation and a prima facie
case.  See Moon, 836 F.2d at 229-31; Monteer v.
Milky Way Transp. Co., Inc., Case No. 90-STA-9, Sec. Dec.,
Jul. 31, 1990, slip op. at 4.
     Even if the evidence is sufficient to establish a prima
facie case, I fully agree with the ALJ that Complainant does not
prevail.  Respondent rebutted any prima facie showing by
producing evidence that the adverse actions were motivated by
legitimate, nondiscriminatory reasons, and Complainant failed to
meet his ultimate burden of proof.  See Moyer v. Yellow
Freight Sys., Inc., Case No. 89-STA-7, Sec. Dec., Oct. 21,
1993, slip op. at 9.  Davis testified that Complainant was first
disciplined for a misdelivery that occurred on December 9, 1992;
that Complainant was disciplined again for a misdelivery made on
January 22; and that Complainant was then fired when he made an
incorrect pick-up on February 8, 1993.  T. at 65-69.  The ALJ
credited Davis' explanation, and I too find it supported by the
record and inherently probable.  See Respondent's Exhibits 3-6;
T. at 69-70.  Complainant essentially concedes that on December
9, he delivered a drum to the wrong customer, and that another
driver had to correct his error.  T. at 42, 70.  Although
Complainant blames the customer, this excuse is not substantiated
and is insufficient to show that Respondent fabricated or seized
upon the misdelivery as a pretext for retaliation.  Nor is there
any substantiation for Complainant's confusing accusation that
Respondent ignored his request for internal review of this first
incident.  Compare T. at 70-71 with T. at 72.  Complainant
freely admits that he committed the second impropriety, T. at 43,
and, in reference to the third incident, confesses, "I don't know
that they were wrong or not."  T. at 44.  In sum, there is no
proof that the proffered reasons were not the true reasons for
the adverse actions.  See St. Mary's Honor Center v.
Hicks, 113 S.Ct. 2742, 2756 (1993); Moyer, slip op. at
9.
     Accordingly, the complaint IS DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1] 
  Although the ALJ focused on Complainant's allegation of
unlawful discharge, he also considered and rejected Complainant's
allegation relative to the disciplinary letter.  R.D. and O. 
at 6, 9.


[2] 
  The rules of practice at 29 C.F.R. Part 18 are generally
applicable to adjudicatory proceedings before the Office of
Administrative Law Judges.  29 C.F.R. § 18.1(a).  Regulatory
section 18.55 directs that documents submitted for the record
after the close of the hearing will not be received in evidence
except upon ruling of the ALJ.

[3] 
  The ALJ incorrectly identified Complainant's claim as one
arising under Section 405(b).  R.D. and O. at 8.  Section 405(b)
prohibits discrimination against employees for refusing to drive
under certain circumstances.  49 U.S.C. § 2305(b);
e.g. Stiles v. J.B. Hunt Transp. Inc., Case No. 92-
STA-34, Sec. Dec., Sept. 24, 1993, slip op. at 5-6; Newkirk v.
Cypress Trucking Lines, Inc., Case No. 88-STA-17, Sec. Dec.,
Feb. 13, 1989, slip op. at 5.  Here, Complainant does not allege
a protected refusal to drive his truck.

[4] 
  Although Complainant also testified concerning a safety
violation on July 8, 1991, T. at 39, there is no evidence that
this complaint was communicated to management or otherwise
"filed".  49 U.S.C. app. § 2305(a).

[5] 
  In his brief Complainant states, "[t]hey fired Mike Becker
over this mistake and he was on the safety committee." 
(Emphasis added).  If Complainant believes that an employee who
engages in protected activity cannot be terminated under any
circumstances, then he is mistaken.  See Lockert v.
United States Dep't of Labor, 867 F.2d 513, 519 (9th Cir.
1989).