This proceeding arises under the "whistleblower" employee protection provisions of Section 405 of the Surface Transportation Assistance Act of 1982 [hereinafter "the Act" or "STAA"], 49 U.S.C. § 31105 (formerly 49 U.S.C. app. § 2305), and the applicable regulations at 29 C.F.R. Part 1978. The Act protects employees who report violations of commercial motor vehicle safety rules or who refuse to operate vehicles in violation of those rules.

   Complainant, Mr. Dwight Toland (hereinafter "Toland"), filed a complaint of discrimination with the Department of Labor, under Section 405 of the Act, against Keystone Freight, Inc. (hereinafter "Keystone"), alleging he was discharged by respondent because he had voiced safety concerns over driving hours in excess of those permitted by law. The complaint was investigated by the Department of Labor and found not to have merit. On February 26, 2003, the Secretary issued her Findings dismissing the complaint. By letter dated March 16, 2003, Mr. Toland, representing himself, requested a hearing. A Notice of hearing was issued on April 4, 2003.

   A hearing was conducted by the Honorable Richard A. Morgan, Administrative Law Judge, U.S. Department of Labor, in the above-captioned matter, on Tuesday, June 17, 2003 through Friday, June 20, 2003, in Columbus, Ohio. I found Mr. Toland, who has one year of community college, articulate, knowledgeable, and capable of self-representation. In their pre-hearing submissions, both the complainant and respondent joined the issue of whether Mr. Toland was discharged in violation of the STAA. A post-hearing brief was filed, August 15, 2003, by the respondent's counsel, Catherine S. Ryan, Esq., with Eugene K. Connors, Esq., on the brief. Mr. Toland did not submit a brief.

    A. Stipulations

   The parties agreed to, and I accepted, the following stipulations of fact (TR 15-21):

   1. The respondent is a motor carrier engaged in commercial motor vehicle operations which maintains a place of business in Columbus, Ohio.

   2. The respondent's employees operate commercial motor vehicles, in the regular course of business, over interstate highways and connecting routes, principally to transport cargo.

   3. The respondent isand was a "person," as defined in the STAA, 49 U.S.C. § 31101(3).

   4. The complainant was hired as an employee of the Respondent, on or about December 12, 2002.

   5. During this period he was a "probationary" employee.

   6. The complainant worked as a driver of a commercial motor vehicle with a gross weight in excess of 10,000 pounds used on the highways to transport cargo.

   7. Mr. Toland, as a driver, operated over an air radius beyond 100 miles from the normal work reporting location.

   8. On or about December 30, 2002, Mr. Toland filed a complaint with the Department of Labor, OSHA, under the provisions of the STAA.

   9. The complaint was timely filed.

   10. on or about February 26, 2003, the Area Director, OSHA, Deborah Zubaty, issued "Secretary's Findings" finding Mr. Toland's complaint to be without merit.

   11. The Office of Administrative Law Judges, U.S. Department of Labor properly exercises in personam and subject matter jurisdiction to hear this matter.

   The seven-member Accident Board, chaired by Mr. William Cluver, Keystone's Director of Corporate Safety and Loss Control, meets weekly to review all accidents during the previous week and determines the appropriate disciplinary action. (TR 75). In this case, the Board met December 23, 2002. (TR 42, 44). Based upon a review of the accident information, the Board decided Keystone would terminate Mr. Toland's employment based upon the incident, which it found preventable or "chargeable". (TR 88, 112). The Board did not have Mr. Toland's driver's logs and had no information about the amount of time he had driven related to the accident. (TR 91-92). The Board did not know the dollar amount of the claimed damages. (TR 29). Nor did the Board know of any safety concerns or complaints by Mr. Toland. (TR 92). The termination decision was made solely by the Board without involvement of Keystone's Columbus, Ohio, employees. (TR 70, 91, 182, 243-44). According to dispatcher Mr. David Barnes, the "termination" fax to Columbus was received on December 23, 2002. (RX P; TR 244-45). The evidence was conflicting regarding the actual date Mr. Toland was informed of his termination. (TR 68). Mr. Toland and Mr. Dietz both testified he was informed on December 26, 2002. (TR 66, 187-88). Mr. Barnes, who initially informed Mr. Toland, seemed to agree. (TR 236). Mr. Toland subsequently filed complaints with DOT and OSHA. Mr. Dietz testified he had no role in the termination decision other than to enforce it. (TR 65, 70).

   Following his discharge, Keystone discovered additional matters which it believes may have resulted in Mr. Toland's termination, including, that he falsified his log books, drove in excess of permissible hours, and may have lied on his employment application. (TR 94-100, 110, 285-90; RX H, K). Mr. Toland conceded he had provided incomplete and inaccurate information on his employment application by not reporting previous employers and the terms of his separation from them. (TR 284-92, 321; RX Q-T). He provided some justification pertaining to why he did not list certain information. Although I admitted evidence concerning Mr. Toland's post-termination behavior and the company's response, as well as his other STAA complaints and Keystone's DOT complaint, it played no role in this decision. (RX N; CX 17).

   The U.S. Department of Labor (DOL) interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints has been found "eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman, ___ F.3d___, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998)(case below 95-STA-34). The Circuit Court of Appeals has stated internal communications, particularly if oral, must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. There is a point at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. Id. This is the only provision applicable in the present matter.

   Second, by demonstrating that he was subject to an adverse employment action for refusing to operate a vehicle "because the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health." 49 U.S.C. § 31105(a)(1)(B)(i). This provision is admittedly not applicable to the case sub judice.

   In such a case, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94 STA 55 (Sec'y Aug. 4, 1995). However, protection is not dependent upon actually proving a violation. Yellow Freight System, Inc., v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992).

   Third, by showing that he was subject to an adverse employment action for refusing to operate a motor vehicle "because [he] has a reasonable apprehension of serious injury to [himself] or the public because of the vehicle's unsafe condition." 49 U.S.C.§ 31105(a)(1)(B)(ii). To qualify for protection under this provision, a complainant must also "have sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C. § 31105(a)(2). This provision is admittedly not applicable to the case sub judice.

    In Byrd v. Consolidated Motor Freight, 97-STA-9 at 4-5 (ARB May 5, 1998), the Administrative Review Board (ARB), summarized the burdens of proof and production in STAA whistleblower cases:

A complainant initially may show that a protected activity likely motivated the adverse action. Shannon v. Consolidated Freightways, Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op. at 5-6. A complainant meets this burden by proving (1) that he engaged in protected activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse employment action, and (4) the existence of a "causal link" or "nexus," e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon, slip op. at 6; Kahn v. United States Sec'y of Labor, 64 F.3d 261, 277 (7th Cir. 1995). A respondent may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action and that the protected activity was the reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).

   In a footnote to the above paragraph, the ARB provided further explanation on this last phase of the adjudication process:

Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant, throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by the prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary's Honor Center, 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor, 78 F.3d 352, 356 (8th Cir. 1996) (whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).

   Once the complainant satisfies these four elements, a rebuttable presumption of discrimination arises, and the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for the adverse action. The burden shifting to the employer at that point is only to articulate a legitimate, nondiscriminatory, reason for the adverse action. The employer's burden at this point is one of production, not of proof.

   The one exception to the claimant's burden of proof arises under the "dual motive" analysis: once the evidence shows that the proffered reason is not legitimate, and that the discharge was motivated at least in part by retaliation for protected activity, then the employer must establish by a preponderance of the evidence that it would have discharged the complainant independently of his protected activity. Faust v. Chemical Leaman Tank Lines, Inc., 93-STA-15 (Sec'y, April 2, 1996); Moravec v. HC & M Transportation, 90-STA-44 (Sec'y, January 6, 1992), slip op. at 12, n. 7.

   Here, Mr. Toland has failed to establish a prima facie case. There was no refusal to drive. He established he suffered adverse an employment action; termination. However, he did not prove: (1) that he engaged in protected activity; (2) that the respondent was aware of any protected activity on his part; or (3) the existence of a "causal link" or "nexus," between any protected activity and termination.

   With respect to his purported December 13, 2002, query about "fudging" DOT times; it was a query, if anything, not a complaint. Given his admissions against interest, I believe he did ask the dispatcher about proceeding contrary to the dispatcher's testimony. However, rather than adhere to DOT regulations, he drove on to the destination admittedly violating the time parameters and "fudged" his log. One can understand it was his second day on the job and given his perception of his experience at Arrow, he wished to both please his employer and avoid being fired. He must have felt he faced a Hobson's choice. When the dispatcher told him "sometimes you gotta do what you gotta do", Mr. Toland made the choice which left him without a remedy under the Act. The Act protects the law abiding. Moreover, it was not proven that the Accident Board, which decided to fire him, was aware of that matter.

   Secondly, there was no evidence of any "protected activity" in relation to the events surrounding the parking lot accident. Mr. Toland confirmed the dispatcher's testimony that he never mentioned going over hours or being fatigued nor was he tired. Further, it was not proven that the Accident Board had knowledge of any concern about fatigue or driving over authorized hours. Keystone unquestionably established that it legitimately terminated this probationary employee solely because of the accident. It had routinely discharged hundreds of such probationary employees under similar circumstances. Given Mr. Toland's admissions, under oath, at the hearing and to Keystone about his logs and DOT violations, Keystone would have been justified terminating him on those grounds.

   Finally, it is clear he was terminated before his OSHA or DOT complaints were submitted. The last letter from Mr. Culver, addressing the termination, merely memorialized what had already occurred on December 23, 2002, even if Mr. Toland was not informed, at the very latest, until the day after Christmas.

   Mr. Toland has not established a prima facie case of any STAA violation. Even if he had, such as with his December 12, 2002, query, Keystone firmly established a legitimate nondiscriminatory basis for his termination, i.e., the accident, which was not rebutted. Mr. Toland's testimony reveals that truck drivers, particularly the newly hired, are sometimes caught between Scylla and Charybdis when it comes to DOT regulated driving times. If they do not occasionally "fudge" their logs and hours, they may displease their employer and risk discipline or termination, a difficult situation even given the remedial protections of the STAA. If, as here, they choose to "fudge", they lose protection under the Act; for it only protects the law-abiding. One can only hope that, contrary to Mr. Toland's perceptions, most employers do not place such Hobson's choices on employees. The evidence does not prove Keystone did. However, every trucking company, covered by the Act, must ensure every employee at each level clearly understands the law. Not only is "fudging" unlawful, it is not to be suggested. I do not find Mr. Toland's complaint frivolous.

   It is Ordered that:

   1. Mr. Toland's complaint is DENIED;

   2. Keystone's prayer for costs is DENIED;

   3. The only reason Keystone or NRS may give to others concerning Mr. Toland's termination is that he had an accident with a parked car while operating a Keystone truck.

   4. If NRS or Keystone has provided other bases for the discharge it must make every effort to retract and correct that; and,

   5. When asked about the basis for his termination with Keystone, Mr. Toland need only relate that it was due to a preventable accident with an unoccupied, parked, car.

       RICHARD A. MORGAN
       Administrative Law Judge

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. § 1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).