Express, Inc. (hereinafter "Roadway"), alleging he was discriminatorily terminated by Roadway for calling off sick from February 13, 1995 through February 19, 1995. The complaint was investigated by the Department of Labor and found not to have merit. On August 31, 1998, the Secretary issued her Findings dismissing the complaint. (JX 1). By letter dated October 20, 1998, Johnson, through counsel, requested a hearing. (JX 2). Notices of hearing were issued on November 25, 1998 and January 20, 1999. After rescheduling the hearing, the matter was tried on May 11, 1999 through May 12, 1999, in Chicago, Illinois. In their pre-hearing submissions, both the complainant and respondent joined the issue of whether Mr. Johnson was discharged in violation of the STAA. On June 23, 1999, Roadway filed a motion to supplement the record in which it sought to have documents from the Medical Licensing Board of Indiana admitted into the record. On June 30, 1999, I issued an Order Denying Respondent's Motion to Supplement the Record in which I found that the evidence sought to be admitted was immaterial. Post- hearing briefs were filed by both the complainant and the respondent on July 7, 1999.

    A. Stipulations

   The parties agreed to, and I accepted, the following stipulations of fact (TR 1-15):

1. The respondent is a motor carrier engaged in commercial motor vehicle operations which maintains a place of business in Chicago Heights, Illinois.

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 is and 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 April of 1978 and that he was discharged.

5. 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.

6. On or about February 21, 1995, the respondent issued the complainant a termination letter.

7. On or about March 30, 1995, the complainant filed a complaint with the Department of Labor, under the provisions of the STAA.

8. On or about August 31, 1998, the Area Director of the Occupational Safety and Health Administration (OSHA) issued "Secretary's Findings" dismissing Mr. Johnson's complaint.

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

   B. The Parties' Contentions:

   1. Complainant:

   The complainant argues that from February 13, 1995 through February 19, 1995 his ability and alertness were so impaired due to illness as to make it unsafe for him to operate a commercial motor vehicle. He states that as a result of this illness he provided Roadway with a doctor's note excusing him from work until February 20, 1995. (JX 9). It is the complainant's contention that his absence from work constituted protected activity covered by the STAA. As a result of his protected activity and of giving notice Roadway terminated him on February 21, 1995. (JX 4).

   Johnson contends that a driver engages in protected activity under the STAA when he refuses to drive a commercial vehicle when he is absent because he is too sick to do so safely. This is because the motor carrier regulations provide in pertinent part:

No driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial motor vehicle, while the driver's ability or alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other cause, as to make it unsafe for him/her to begin or continue to operate the motor vehicle.

49 C.F.R. § 392.3 (1997)(Emphasis added). Johnson adds that Roadway wrongfully used a facially neutral absenteeism policy to terminate employees who engaged in protected activity under the Surface Transportation Assistance Act.

   2. Respondent:

   Roadway argues that the letter of termination given Johnson was based on Johnson's significant performance and attendance issues and his failure to provide sufficient documentation to establish his alleged illness from February 13, 1995 to February 19, 1995. Roadway argues that Johnson feigned having pneumonia in order to avoid discipline for his absence from February 13, 1995 to February 19, 1995. Roadway argues that it disciplined and or discharged Johnson for legitimate, non-discriminatory reasons, namely, violations of its absenteeism policy and his overall abysmal work record.

A. Whether, under 49 U.S.C. § 31105(a)(1)(B)(i), the respondent discharged, disciplined or discriminated against an employee, to wit the complainant, regarding pay, terms or privileges of employment, because,

He refused to operate a vehicle because its operation from February 13, 1995 to February 19, 1995, would have violated a regulation, standard, or order of the United States related to commercial motor vehicle safety or health, specifically 49 C.F.R. § 393.3, regarding "ill or fatigued operators."

B. If the respondent so violated 49 U.S.C. § 31105:

1. What action, if any, should be taken to abate the violation?

2. If and when the complainant is reinstated what will be the pay, terms and privileges of his employment?

3. What compensatory damages, including back pay, the complainant may be entitled to?

a. Whether the complainant exercised reasonable diligence in mitigating his damages?

b. Whether back pay damages cease if a former employee is terminated from subsequent employment for misconduct?

c. Whether back pay damages cease if a former employee voluntarily resigns from subsequent employment? and,

4. What reasonable costs and expenses is the complainant entitled to in bringing and litigating the case, including attorney's fees?

   Johnson had a lengthy list of disciplinary actions taken against him by Roadway. (RX 3). These actions consisted of approximately 43 warning letters, five suspensions, and four discharges beginning in 1983. (RX 3). The most serious disciplinary actions began with a three-day suspension in September 1993 for accepting a dispatch and then falling asleep. (TR 126; RX 2, 3). Johnson was discharged in February 1994 after accepting a dispatch and failing to show. (TR 127; RX 4). He was subsequently reinstated pending successful completion of a drug or alcohol treatment program. (TR 127; RX 4). Johnson had one meeting with a drug and alcohol counselor and he was released to resume working. (TR 220-221; RX 4). Johnson was also discharged in July 1994, once again after accepting a dispatch and failing to show for work. (TR 128; RX 5). After a grievance hearing Johnson was reinstated without back pay and given a warning. (RX 5). Finally, Johnson was discharged in November 1994 after accepting a work call and then calling back in and asking to be taken out of service. (TR 130; RX 6). Johnson appealed this discharge in a grievance hearing and he was once again reinstated and given a final warning. (TR 130; RX 6). Johnson's final discharge came on February 21, 1995. (JX 4). Johnson was once again discharged for his absenteeism, specifically he was unavailable for dispatch on February 19, 1995. (JX 4). This absence came about after Johnson claimed to be suffering from first the flu, then pneumonia from February 13, 1995 through February 19, 1995. (TR 30-43). Johnson grieved this latest discharge, but his appeal was unsuccessful and the discharge was upheld. (TR 356).

   On or about November 1995 Johnson found employment setting up concrete forms for Arrowhead Construction. (JX 13-8). He worked with Arrowhead until approximately September 1996. (JX 13-8). He then was employed by Celadon Trucking from October 17, 1996 to March 15, 1997. (JX 13-9). Johnson then went to work with EVI Services, Inc. as a truck driver where he worked for approximately one to two weeks. (JX 13-9). Beginning June 7, 1997, Johnson was employed as a truck driver for DOT Leasing. (JX 13-9). He quit this job after approximately three weeks. (JX 13-9). Thereafter, on July 1, 1997, Johnson went to work for Aaron's Limousine Service as a driver. (JX 13-9). He worked there for about two months until they went out of business. (JX 13-9). From September 12, 1997 to October 24, 1997, Johnson worked as a truck driver for Laura Stewart. (JX 13-10). He quit this job because he was not getting paid. (JX 13-10). From January 23, 1998 to March 7, 1998, Johnson worked for Landstar Poole as a truck driver. (JX 13-10). He was terminated from this position. (JX 13- 10). Sometime in 1998 Johnson worked for Trans-State Lines as a truck driver. (JX 13-10). He left this job to work for CRST from about May 12, 1998 to August 10, 1998. (JX 13-10). He quit his job with CRST. (JX 13-11). From August 27, 1998 to November 12, 1998, Johnson worked for DeKalb Transportation as a truck driver. (JX 13-11). He was then laid off and began working with Chieftain Contract Service, with whom he is still employed. (JX 13-11).

   There being adequate support in the record for the parties stipulations in Paragraph IIIA herein, those stipulations are hereby incorporated by reference into Paragraph VI as Findings of Fact and Conclusions of Law, as if fully set forth. I further find that jurisdiction over the matter and parties is established.

   A. STAA violations -- Overview

   A complainant may recover under the Act under three circumstances:

   First, by demonstrating that he was subject to an adverse employment action because he has filed a complaint alleging violations of safety regulations. 49 U.S.C. § 31105 (a)(1)(A). This provision of the Act provides specifically and in pertinent part:

(a) Prohibitions. -- (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 . . . has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, . . .

   The above provision is not applicable to the case sub judice.

   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).

   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 also not applicable to this case.

   Johnson alleged violations of the refusal to drive provisions at § 31105(a)(1)(B). The remainder of my decision will deal with that allegation.

   B. Refusal to Drive

   A refusal to drive is protected under two STAA provisions. The first provision, 49 U.S.C.A. § 31105(a)(1)(B)(i), requires that a complainant "show that the operation [of a motor vehicle] would have been a genuine violation of a federal safety regulation at the time he refused to drive -- a mere good faith belief in a violation does not suffice." Yellow Freight Systems v. Martin, 983 F.2d 1195, 1199 (2d Cir. 1993).

   The second refusal to drive provision, not applicable here, focuses on whether a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury if he drove. 49 U.S.C.A. § 31105(a)(1)(B)(ii); Cortes, slip op. at 4.

   Roadway contests the fact that Johnson, on the occasions when he was subsequently disciplined for violating the sick leave policy, was ill and incapable of driving for Roadway. In support of his contention, Johnson submitted a certificate to return to work. This certificate, dated February 14, 1995, stated that Johnson was under the care of Dr. Durany from February 14, 1995 to February 14, 1995. (JX 9). The certificate further provided that Johnson was suffering from pneumonia and he would be unable to return to work until February 20, 1995. (JX 9). Johnson further provided two prescription receipts dated February 14, 1995 from Osco Drug. (CX 1A, 1B). One prescription was for guaifenesin and the other one was for benzonatate. (CX 1A, 1B). The prescription receipts declare that these drugs are used to control and relieve a cough and nasal congestion. (CX 1A, 1B).

   Mr. Forrest, an Assistant Relay Manager at Roadway's Chicago Heights facility, testified that if an employee submits medical documentation that he believes to be valid, that employee will not be discharged or suspended for that absence. (TR 265). Mr. Forrest testified concerning Johnson's return to work certificate and he stated that it was "insufficient to cover his absence." (TR 346). The reasons he found this document to be insufficient were the following: (1) it was dated for only one day; (2) it instructs a person with pneumonia to return to work in six days without another review; and (3) the doctor's note was apparently signed by someone else. Mr. Forrest further testified that if Johnson would have provided a doctors' note that covered the whole time period of the illness, he would not have been discharged. (TR 350). Finally, Mr. Forrest testified that based on Mr. Crowe's observation of Johnson the day that Johnson came in to submit the return to work certificate, the appearance of the certificate itself, and Johnson's past record and past attendance, he did not believe that Johnson was ill. (TR 397).

   Mr. Jim Crowe, who was a Roadway driver supervisor at the time of Johnson's alleged sickness, testified concerning Johnson's appearance on Thursday, February 16, 1995. (TR 446- 454, 461-464). Specifically, Mr. Crowe testified that Johnson came into Roadway on February 16, 1995 "looking better than I've ever seen him look, better that what he looks today, and better than what I usually see him when I dispatched him." (TR 447). He found it odd that Johnson claimed to be suffering from pneumonia, yet he looked so refreshed when he came into Roadway. Mr. Crowe further testified that Johnson asked him for his paycheck and handed him the return to work certificate. (TR 447). Crowe also testified that Johnson did not appear to be sweating, coughing, or suffering from a fever. (TR 449). Crowe then noted the conversation with Johnson on a post-it note where he also stated that Johnson did not appear ill or hoarse. (TR 450). This note was then attached to Johnson's return to work certificate and placed in Johnson's file. (TR 450).

   I find that Mr. Johnson's absences for his illness of February 13, 1995 through February 19, 1995 constitute "protected" activity since his operation of a commercial motor vehicle would have amounted to actual violations of 49 C.F.R. § 392.3. While there is some doubt as to the effectiveness and authenticity of the return to work certificate, I find that Johnson's testimony is credible and that he established his ability or alertness was so likely to become impaired through illness as to

make it unsafe for him to begin to operate the motor vehicle. I find Mr. Crowe's very brief observations outweighed by Dr. Durany's medical excuse and Johnson's testimony. Finally, Johnson's testimony is corroborated in large part by the testimony of Ms. Florence Cody set forth in detail below.

   C. Disciplinary Actions/Discharge

   Mr. Forrest is Assistant Relay Manager, in Roadway's Chicago Heights facility, and has been with the company for twenty years. (TR 257). His position with Roadway entailed reviewing proposed disciplinary actions submitted by the various driver supervisors for violations of Roadway policy. (TR 268). Mr. Forrest explained both Roadway's leave policy and disciplinary process. (TR 263, 268).

Infraction                                    Date                  Exh. #  
1.  Fail to properly perform (brought         3/13/95               RX 2-1
    wrong shipping papers).
2.  Unavailable for dispatch on 2/19/95.      2/21/95               RX 2-1; RX 7-1;
    (Discharge Letter).*                                            JX 4
3.  Delay of freight and/or equipment.        1/18/95               RX 2-1
4.  Fail to properly perform (placarded       1/18/95               RX 2-1
    a load that didn't need it).
5.  Fail to properly perform (did not         12/4/94               RX 2-1
    drop off bills at 303).
6.  Accepted a work call and called           11/18/94              RX 2-1; RX 6-1
    later asking to be taken out of 
    service on 11/14/94. (Discharge 
    Letter).*
7.  Failed to report for a run that he had     7/8/94               RX2-1; RX 5-1
    accepted on 7/3/94. (Discharge 
    Letter).*
8.  Preventable accident on 6/4/94.            6/4/94               RX 2-1
9.  Failed to report for a run that he had     2/4/94               RX 2-1; RX 4-1
    accepted on 1/31/94.*
10. Delay of freight and/or equipment.         12/16/93             RX 2-1
11. Absent.                                    10/17/93             RX 2-1
12. Failure to properly perform.               9/27/93              RX 2-1
13. Not reported for dispatch and failed       9/7/93               RX 2-1; RX 3-1
    to call to report his intended 
    absence. (Three day suspension),*
14. Absent.                                    7/7/93               RX 2-1
15. Failure to properly perform (blew          1/8/93               RX 2-1
    stop). (Verbal warning).
16. Absent. (One day suspension).              12/10/92             RX 2-1
17. Absent.                                    10/31/92             RX 2-1
18. Absent.                                    9/11/92              RX 2-1
19. Failure to properly perform.               7/12/92              RX 2-1
20. Absent.                                    3/12/92              RX 2-1
21. Delay of freight and/or equipment.         12/31/91             RX 2-1
    (Verbal warning).
22. Failure to properly perform.               7/11/91              RX 2-1
23. Absent.                                    2/28/90              RX 2-1
24. Absent. (Verbal warning).                  1/29/90              RX 2-1

* denotes this action was followed by Johnson's protests or grievances. The matters denoted with bold lettering pertain to violations of the sick call policy.

   Both Mr. Forrest and Mr. Johnson testified about the circumstances behind the discipline letters, focusing on the letters resulting in suspension and discharge. At the hearing, Johnson initially testified that he could not recall his three-day suspension in September of 1993. (TR 126). After further questioning Johnson did recall being spoken to by Bill Eaton, a relay manager at Roadway, about his poor attendance leading to the suspension. (TR 126-127).

   Mr. Forrest described the various documentation concerning Johnson's September 7, 1993, three-day suspension. He described how the rough draft of the suspension letter was prepared by Brandon Jordan, a Roadway driver supervisor. (TR 286). Mr. Jordan wrote this discipline letter as a suspension letter because Johnson had had two prior warnings for absenteeism. (TR 286). The letter stated that Johnson was called at 2122 hours for a dispatch to St. Louis, Missouri from Lincoln, Nebraska and at

2350 hours Johnson had not yet reported for duty or called to report his absence. (TR 287-288; RX 3-2). Mr. Forrest reviewed this letter and he, along with his boss Mr. Bill Eaton, approved the letter. (TR 286- 287; RX 3-2). Mr. Forrest went on to discuss the remainder of Roadway Exhibit #3. (TR 289-303; RX 3). He explained that according to Johnson's hours of service card and the post-it note attached, Johnson had earned 32 hours off. (TR 291; RX 3-3). He further explained that Mr. Eaton had extended Johnson's leave to 36 hours "plus" due to the sickness of Johnson's mother. (TR 291; RX 3-3). Mr. Forrest testified that Johnson took more days off than expected by Mr. Eaton and the exhibit shows that Mr. Eaton had two discussions with Johnson about time off. (TR 290-293). Finally, Mr. Forrest discussed Johnson's absentee report which showed that Johnson had a total of 122 days off, both earned and unearned, since January 1993. (TR 299; RX 3-5 through 3-8). He testified that Johnson's suspension was based on the two prior absences, but the 122 days off were taken into consideration by Mr. Forrest in approving the suspension. (TR 300).

   Johnson testified that he did not recall being discharged in February of 1994 for accepting a dispatch but failing to report for work. (TR 127). Although, he did recall this discharge after it was brought to his attention that he was reinstated upon successful completion of a drug or alcohol program. (TR 127). Mr. Forrest testified that Johnson was discharged in February of 1994 for absenteeism. (TR 305). Specifically, the draft of Johnson's discharge letter stated that Johnson was called for dispatch on January 31, 1994 to St. Paul, Minnesota at 9:45 p.m. and at 12:40 a.m. he had not shown up nor had he called to notify Roadway of his absence. (RX 4-2). There is a post-it note in Johnson's file that states Johnson fell asleep after receiving this dispatch call. (RX 4-3). According to Johnson's call card he had ten hours available to work on February 1, 1994. (RX 4-4). Mr. Forrest also testified that he relied on a printout of Johnson's absentee report for the prior nine months when deciding whether to sign off on the discharge letter. (TR 310; RX 3-6 through 3-8). Johnson filed a grievance with the union claiming that he was excessively fatigued from his previous run and that he must have fallen back to sleep after receiving the work call in question. (RX 4-10). At the grievance hearing a settlement was reached whereby Roadway would reinstate Johnson as long as Johnson successfully completed a drug or alcohol dependency program. (TR 318-320; RX 4-20). Mr. Forrest testified that the dependency program idea was proposed by Mr. Bob Falco, a union official representing Johnson. (TR 319-321. Johnson was reinstated after meeting with a staff psychologist at the Southlake Center for Mental Health. (TR 322; RX 4-22).

   Regarding the July 1994 discharge, Johnson testified that he recalled being discharged in July of 1994, but he stated "I don't remember what the specifics of it was." (TR 129). He further testified that he filed a grievance and was reinstated without back pay as well as given a final warning. (TR 129-130). Mr. Forrest testified that Johnson was discharged in July of 1994 for absenteeism. (TR 305). Specifically, Johnson's discharge letter stated that Johnson was called for dispatch to Lincoln, Nebraska on July 3, 1994 at 2152 hours which he had accepted. (RX 5-1). The discharge letter further states that at 0004 hours Johnson still had not shown up for dispatch nor had he called to notify Roadway of his intended absence. (RX 5-1). It was noted on the rough draft of this discharge letter that Johnson had fallen back asleep after being called. (TR 325; RX 5-1). Johnson's call card showed that he had 12.5 hours available to work on July 3. (RX 5-3). As a result of this discharge, Johnson was off work from July 27, 1994 until August 30, 1994. (TR 209). Johnson once again took this matter up with the grievance committee. (TR 130, 326; RX 5-4 through 5-10). In support of his grievance, Johnson stated that he called

into the driver foreman and explained that he was fatigued. (RX 5-9). In his grievance Johnson claims that he did make a run to Lincoln on July 3, 1994. (RX 5-9). The grievance committee reinstated Johnson issuing a final warning and awarding no back pay. (RX 5-4).

   Johnson testified that he did not recall accepting a work call in November of 1994 and then calling back and taking himself out of service. (TR 132). He further testified that he did not recall being discharged for this incident. (TR 132). Mr. Forrest testified that Johnson was once again discharged for absenteeism. (TR 329). Specifically, Johnson's discharge letter dated November 18, 1994, provided that Johnson accepted a work call on November 14, 1994 at 1192 hours and at 1304 hours Johnson called Roadway and asked to be taken out of service. (RX 6-1). Mr. Forrest further testified that he found Johnson's use of paid sick days to extend earned time off to be troubling. (TR 332; RX 5-5). Johnson appealed this discharge to the grievance committee. (RX 6-14 through 6-16). In support of this appeal, Johnson stated that he suffered a knee injury on the job on September 25, 1994 and he decided not to come back to work on November 14 so as to not exacerbate his injury. (RX 5-16; TR 209). The grievance committee allowed this appeal and the discharge was reduced to a warning. (TR 333-334; RX 6-11). No back pay was awarded because Johnson was working for Roadway during the appeal process. (TR 333).

   Ms. Florence Cody, Johnson's ex-fianc, testified concerning Johnson's sickness in February of 1995. (TR 184). She testified that Johnson came home from work on a Friday or Saturday morning in early February 1995 and he appeared to be suffering from the flu. (TR 186-187). She further testified that she drove Johnson to the Complete Medical Care Center on a Monday, but she then claimed that this was February 14, 1995. (TR 187-188, 190). The reason that she drove is because she did not trust Johnson to drive due to his sickness. (TR 193). With regard to the return to work certificate, Ms. Cody testified that she saw the receptionist at the medical clinic hand the note to Johnson. (TR 192). Upon stopping at the pharmacy and returning home, she testified that Johnson stayed in bed for four to five days straight. (TR 194). Ms. Cody testified that approximately two to three days after returning from the doctor's office she drove Johnson to Roadway in order for him to turn his return to work certificate in. (TR 196).

   In this case, Johnson's protected activity consisted of him refusing to work due to

sickness from February 12, 1995 through February 19, 1995. Roadway was made aware of this activity by Johnson when Johnson called in sick and delivered a return to work certificate to Roadway. Johnson was then subjected to adverse action when he was terminated on February 21, 1995. Johnson's discharge letter specifically stated that he was being terminated due to his unavailability for dispatch on February 19, 1995. The causal link requirement was met because Johnson was terminated a mere two days after he engaged in the protected activity and one day after he returned to work.

   For the foregoing reasons, I find that the complainant has demonstrated, by a preponderance of the evidence, a prima facie case of discrimination under Section 31105 of the Surface Transportation Assistance Act.

   E. Roadway's Reason for Termination

   Roadway asserts that its reasons for terminating Johnson from employment are not discriminatory. Specifically, Roadway asserts that it terminated Johnson based on his overall record of absenteeism.

   An employer attempting to rebut a prima facie case of discrimination must produce evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The evidence, however, must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. Id. at 255.

   Roadway has met its limited burden of rebuttal by proffering legitimate non- discriminatory reasons for Johnson's termination; namely, that Johnson was terminated due to his record of excessive absenteeism, reflected in the many disciplinary actions set forth above.

   F. Discriminatory Reasons for Termination

   The complainant may prevail on his complaint of discriminatory termination upon a showing that the reasons for termination proffered by the respondent were a mere pretext for discriminatory animus. A pretext is defined as an "ostensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretense." Black's Law Dictionary 1187 (6th Ed. 1991).

   Johnson argues that the stated basis for his termination is pretextual because Roadway ultimately fired him for his absence on February 19, 1995. Alternatively, Roadway argues that Johnson was fired based upon his entire work history.

   I find that Johnson was ultimately fired for his absence on February 19, 1995. However, I do believe that Johnson's overall work record, i.e. record of absenteeism, was a legitimate reason for the discharge. Therefore, I find that a dual motive existed in this case.

   When there are both legitimate and discriminatory reasons for an adverse action, the dual motive analysis applies. Spearman v. Roadway Express, Inc., Case No. 92-STA-1, Sec. Final Dec. and Ord., Jun 30, 1993, slip op. at 4, aff'd sub nom. Roadway Express, Inc. v. Reich, No. 93-3787 (6th Cir. Aug. 22, 1994), 1994 U.S. App. LEXIS 22924 and Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1140 (6th Cir. 1994). Under the dual motive analysis, the burden shifts to the respondent to show that it would have taken the same action against the complainant even in the absence of protected activities. Asst. Sec. and Chapman v. T. O. Haas Tire Co., Case No. 94-STA-2, Sec. Final Dec. and Ord., Aug. 3, 1994, slip op. at 4, appeal dismissed, No. 94-3334 (8th Cir. Nov. 1, 1994).

   I find that Roadway has failed to establish, by a preponderance of the evidence, that it would have fired Johnson in the absence of the protected activity. Even though Roadway had tried to fire Johnson several times before, Roadway presented no evidence to show that Johnson would have been fired absent his unavailability due to sickness on February 19, 1995. Accordingly, I find Roadway's discharge of Johnson on February 21, 1995 constituted a violation of the Act. In other words, Roadway took disciplinary action, i.e. letter of discharge, against Johnson because he refused to drive because doing so would violate 49 C.F.R. § 392.3. I do not accept Roadway's argument that Johnson was terminated merely because of excessive absenteeism.

   G. Roadway's Attendance or Absence Policy

   Roadway argues that the National Master Freight Agreement and the Central States Area Over the Road Motor Freight Supplemental Agreement (hereinafter "Supplemental Agreement") govern the disciplinary process for Roadway's over-the-road drivers. (TR 259-260). According to Mr. Forrest, the union is also governed by the Agreements. (TR 259-260). The NMFA, Article 38, Section 1, addresses the general award of five days of sick leave per annum, but not any procedure for violations of Roadway's sick leave policy. Section 3 permits employees to take up to twelve weeks of unpaid leave for "serious health condition(s) of the employee," under the Family and Medical Leave Act. However, that Act is not implicated in the present case.

   Roadway's Chicago Heights policy is that a driver has five contractual sick paid days, earned vacation under the contract, two floating holidays, and any absences beyond that are considered unexcused absences. (TR 266). Drivers employed for eight to twenty years, as Johnson was, receive four weeks of vacation per year. (TR 262). If a driver uses more leave time than they have accrued they receive a warning letter for absenteeism. (TR 263). Roadway has no policy regarding medical documentation, but based upon its assessment of the validity of the documentation a driver may or may not be disciplined. (TR 264). Furthermore, if an employee submits medical documentation that Roadway believes to be valid there would be no discipline administered. (TR 265)

   In Curless v. Sysco Food Svc, the company's absentee policy permitted employees a certain number of days of excused absence in a rolling 12-month period; however, once an employee used these days, any subsequent unexcused absence, regardless of the reason, constituted an "incident." Asst. Sectr'y & Curless v. Thomas Sysco Food Svc., Case No. 91-STA- 12 at 2, Sec. Final Dec. and Ord, Sept. 3, 1991, remanded for vacatur on grounds of mootness, 983 F.2d 60 (6th Cir. 1993). Beginning with the fourth "incident," progressively

greater discipline was imposed for subsequent incidents; for example, the fourth elicited a verbal warning, the sixth a written warning and a one day suspension, and the eighth required discharge. Id. at 2, fn. 3. Medicated with Valium and other substances, and under doctor's orders not to drive, Curless informed his employer of the doctor's instructions and that he would not be available to drive the following day. Id. at 1-2. Curless received a verbal warning for this absence, as it constituted his fourth "incident." Id. at 2. The company argued that it took adverse action against Curless, not for protected activity, but because he "ran afoul" of the absentee policy. The Secretary, however, held that the company's articulation of the cause for the punishment would not suffice. "Complainant 'ran afoul' of [the company's] policy because he engaged in protected activity." Id. at 6 [emphasis added]. Thus the Secretary held that a violation of STAA had occurred because the company took adverse action against an employee who refused to violate DOT regulations. Id. at 6-7.

   As the Secretary's rulings in Curless and in Self v. Carolina Freight Carriers Corp., Case No. 91-STA-25, Sec. Dec., Aug. 6, 1992, indicate, a policy which permits a company to take adverse action against employees for obeying the law is not "legitimate."

To permit an employer to rely on a facially-neutral policy to discipline an employee for engaging in statutorily-protected activity would permit the employer to accomplish what the law prohibits.

Id. at 5.

   Roadway misses the point. Application of Roadway's absenteeism policy to Johnson under the circumstances of this case presented Johnson with an untenable choice. He could drive in violation of federal regulations prohibiting the operation of a commercial motor vehicle "while the driver's ability or alertness is so impaired . . . through . . . illness . . . as to make it unsafe for him/her to drive." 49 C.F.R. § 392.3 (1997). Alternatively, he could refuse to drive and be given a letter of warning. This is precisely the kind of situation that STAA's anti-retaliation provision is designed to protect against. 128 Cong. Rec. 29192 (1988).

   Moreover, independent statutory rights "cannot be abridged by contract or otherwise waived," and they take precedence over conflicting provisions in a bargained employment arrangement. Barrantine v. Arkansas-Best Freight Systems, Inc., 450 U.S. 728, 740-741 (1981) and see Brame v. Consolidated Freightways, 90-STA-20 (Sec'y, June 17, 1990). See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1064 (5th Cir. 1991) ("if the collective bargaining agreement conflicts with [the] STAA, then the statute supersedes the agreement because labor contracts cannot operate to deprive employees of rights specifically protected by federal statutes").

   The Government interest under the STAA lies in "promoting highway safety and protecting employees from retaliatory discharge." Brock v. Roadway Express, Inc., 481 U.S. 252, 262 (1987)." 'Random inspection by Federal and State law enforcement officials in various parts of the country [had] uniformly found widespread violation of safety regulations,' and [Section] 405 was designed to assist in combating the 'increasing number of deaths, injuries, and property

damage due to commercial motor vehicle accidents."' Id., quoting 128 Cong. Rec. 32509, 32510 (1982) (remarks of Sen. Danforth and summary of proposed statute). Specifically, STAA Section 405 was enacted:

to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles. Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations.

Id. at 258.

make whole remedial scheme embodied in § 706 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988). See Loeffler v. Frank, 489 U.S. 549 (1988).

   While Johnson received his discharge letter from Roadway on February 21, 1995, the effective date of his discharge was on March 29, 1995 when the grievance committee upheld his termination. During the period between Roadway's termination of Johnson and the hearing on this matter, Johnson worked as a truck driver for various trucking companies as well as a laborer for a construction company and a limousine driver. (JX 13-8 through 13-11). At the time of the hearing, Johnson was working as a truck driver for Chieftain Contract Services. (TR 180).

   Following his discharge on March 29, 1995, Johnson testified that he applied for a truck driving job with Yellow Freight in April or May of 1995. (TR 144). Johnson was not offered a job with Yellow Freight. (TR 145). In May of 1995 Johnson interviewed with Burlington Truck Lines and was offered a job as a truck driver. (TR 145). Johnson attended a driver orientation for Burlington drivers. (Dep. 58). After the orientation was complete Johnson refused to accept the position apparently because he did not want to drive all over the United States. (Dep. 58).

   The respondent bears the burden of proving that the complainant failed to mitigate his damages. See Lansdale v. Intermodal Cartage Co., Ltd., 94-STA-22, 26 (Sec'y July 26, 1995). To meet this burden, a respondent must establish that comparable jobs were available during the interim period and that a complainant failed to make reasonable effort to find new employment that was substantially equivalent to his former position and suitable to a person of his background and experience. Id. A complainant will be found to have breached his duty to mitigate damages only upon a determination that he showed a willful disregard for his own financial interest. Id. at 27. Furthermore, in Polwesky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991), the Secretary set forth that the claimant does not breach the obligation to mitigate damages by declining a job that is not substantially equivalent to his or her former position.

   I find that the truck driving job offered to Johnson by Burlington Truck Lines was substantially equivalent to his former truck driving position with Roadway. I further find that Roadway has carried its burden to show that Johnson failed to make reasonable efforts to mitigate his damages by refusing the truck driving position offered to him by Burlington Truck Lines. Johnson's refusal to accept the truck driving job with Burlington showed a willful disregard for his own financial interest and has resulted in a breach of his obligation to mitigate damages. Thus, Johnson's entitlement to back pay ended in May of 1995.

evidence of record, but need not be rendered with "unrealistic exactitude." Slip op. at 11-12 n.12. The Secretary noted that back pay awards are, at best, approximate and any "uncertainties in determining what an employee would have earned bur for the discriminations should be resolved against the discriminating employer." Pettway v. American Cast Iron Pipe Co., Inc., 494 F.2d 211, 260-261 (5th Cir. 1974).

   The Complainant and Respondent are Ordered:

   1. Counsel for the Complainant shall submit a detailed attorney fee petition not later than 30 days from the date of this Order. The Respondent has fourteen days in which to submit any objections to such a petition.

   Respondent is further Ordered to:

   1. Expunge from its personnel files and records system the discharge letter of February 21, 1995, and any reference to said letter;

   2. Pay to Johnson back wages for the period March 29, 1995 through May 31, 1995 of $11,930.40;

   3. Pay to Johnson interest on the back pay award calculated in accordance with 26 U.S.C. § 6621 (1998); and

   4. Compensate Johnson for the costs and expenses he reasonably incurred in bringing this complaint.

       RICHARD A. MORGAN
       Administrative Law Judge

RAM:SMG:dmr

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).