A. Material Facts Asserted by Yellow Freight

Q. All right. Okay.

A. Like I said, I used the Fords before that.

Q. Then you continued to drive this truck as I understand it through the fall until you were on and off until you were discharged, right?

A. Yes sir; and I didn't like them at all. And every time I got the opportunity to get out of it, to put another tractor under it, I'd do it.

Q. You don't dispute, would you, that the August 26, 1999, accident down at the Ski Rack was the event that was the immediate cause of your termination, right?

A. That's what triggered it, yes.

Q. And if you hadn't had that accident, for all you know you would still be working at Yellow?

A. Yes.

Deposition at 64-65. Bushway further testified at his deposition that there were a number of things that he did not like about the International tractor, but none of these conditions were violations of federal safety regulations:

Q. Sir, I believe it's your testimony that this International 8100 model truck is not unsafe in all conditions, correct?

A. Well, there's a lot of things that could be improved on it. Number one, it had a lot of miles. The shifting pattern on it was outrageous. It was a long handle, long geared; from first to second gear, you had to ago across the cab to find the gears. The suspension system, the tire size, the fifth wheel. I wouldn't recommend it. I wouldn't own it if I was to have it in my company.

Q. These were things which are not violations of federal safety regulations; they're just things that you didn't like about the truck.

A. That's right. And at least twice I took the truck out from underneath the trailer and there was a Ford setting there, I used the Ford for the day.

Id. at 63. Rather, it is his contention that the rented International tractors should only be used sparingly as they are not practical for Yellow Freight's business. Id. at 61- 62. Bushway similarly testified at his hearing before the Arbitration Committee that the tractor/trailer unit that he drove on August 26, 1999, including the clearance of the landing gear from the road, was not an unsafe condition. Motion for Summary Judgement, Exhibit 10.

   B. Yellow Freight's Motion for Summary Decision

   In its motion, Yellow Freight states that there are no issues of material fact, that it accepts Bushway's version of events as true for purposes of its motion and that even Bushway's version of events does not establish liability. Motion for Summary Judgement at 12.

Specifically, Yellow Freight contends that it is entitled to summary decision in its favor because Bushway has not established a prima facie case of discrimination prohibited by the STAA since his complaints about the International tractor are not protected by the STAA and in any event could not have been a motivating factor in the decision to terminate his employment as such complaints were not made until after the termination decision. Motion for Summary Decision at 14-18. Yellow Freight further contends that, even assuming that Bushway had established a prima facie case, his complaint nonetheless must be dismissed because he can not rebut Yellow Freight's legitimate, non-discriminatory reasons for terminating his employment. Id. at 18-19.

   Under the Rules for Practice and Procedure for Administrative Hearings, any party may "move with or without supporting affidavits for a summary decision on all or any part of the proceeding." 29 C.F.R. §18.40(a). A party opposing the motion may not rest on the mere allegations or denials of the motion but must "set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. §18.40(c). An administrative law judge "may enter summary judgment for either party if . . . there is no genuine issue as to any material fact and [the] party is entitled to summary decision." 29 C.F.R. §18.40(d). In evaluating a motion for summary decision, "the judge does not weigh the evidence or determine the truth of the matters asserted, but only determines whether there is a genuine issue for trial . . . If the slightest doubt remains as to the facts, the ALJ must deny the motion for summary decision." Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, (ARB November 30, 1999), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1985). Moreover, in determining whether a genuine issue of material fact exists, the evidence and factual inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

   The STAA prohibits the discharge of, or discipline or discrimination against, an employee in the commercial motor transportation industry because the employee either files a complaint or initiates or testifies in a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or because the employee refuses to operate a vehicle in certain circumstances:

(1) 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 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). The elements of a violation of the STAA's employee protection provisions are "that the employee engaged in protected activity, that the employee was

subjected to adverse employment action, and that there is a causal connection between the protected activity and the adverse action." Scott v. Roadway Express, ARB Case No. 99-013 (July 28, 1999), slip op. at 7, quoting Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998). A complainant initially may show that protected activity likely motivated the adverse action 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 v. Consolidated Freightways, OALJ Case No. 96-STA-15 (ARB April 15, 1998), slip op. at 5-6; Kahn v. United States Secretary of Labor, 64 F.3d 261, 277 (7th Cir. 1995). An employer may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate, non-discriminatory reason, and the complainant must then prove that the employer's proffered reason was not the true reason for the adverse action and that protected activity was the real reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).

   Viewing the evidence in a light most favorable to Bushway, I do have some doubt, albeit slight, as to whether Yellow Freight has shown that he did not engage in any protected activity. It is noted that a STAA complainant need not refer to particular safety standards in order to be protected. See Davis v. H.R. Hill, Inc., OALJ Case No. 86-STA- 18 (Sec'y March 1987), slip op. at 5-6; Nix v. Nehi-R.C. Bottling Co., OALJ Case No. 84-STA-1 (Sec'y July 31, 1984), slip op. at 8, aff'd sub nom Nehi-R.C. Bottling Co., Inc. v. Donovan, No. 89-1951 (4th Cir. 1985). A complainant need only show that he reasonably believed he was complaining about a safety hazard. Yellow Freight System v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) (employee protected where complaint based upon possible safety violation). See also Doyle v. Rich Transportation, Inc., OALJ Case No. 93-STA- 17 (Sec'y. April 1, 1994), slip op. at 4. While the Complainant did testify at his deposition that his complaints about the International tractor did not involve any violation of federal safety regulations and that the tractor was not an "unsafe condition", I am reluctant to conclude in view of his pro se status that his complaints about the International tractor are wholly unrelated to safety concerns. Accordingly, summary decision for lack of a showing of protected activity would not be appropriate. See Schuler v. M & P Contracting, Inc., OALJ Case No. 94-STA-14 (Sec'y December 15, 1994), slip op. at 2 (where it was not clear from the record here why complainant refused to plead guilty to an overload citation, case was remanded to ALJ with instructions to give complainant an opportunity to show that his refusal to plead guilty to the overload citation was based in part on safety concerns). However, even assuming for purposes of ruling on Yellow Freight's motion that Bushway did engage in activity protected by the STAA when he complained about the International tractor, I conclude that summary decision is warranted because it is undisputed that Bushway's complaints came after Yellow Freight's decision to terminate his employment. Thus, he can not establish the existence of a causal link or nexus between his protected activity and his termination, a necessary element of a prima facie case.

   The Complainant has not set forth specific facts showing that there is a genuine issue for trial, I conclude that the Respondent is entitled to summary decision. I further conclude, after viewing the evidence in a light most favorable to the Complainant, that he can not establish a causal connection between any activity protected by the STAA and the Respondent's decision to terminate his employment.

    The motion for summary decision filed by Yellow Freight is GRANTED, and the complaint filed in this matter is DISMISSED in its entirety.

      DANIEL F. SUTTON       Administrative Law Judge

Camden, New Jersey

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).