a. Background

   Complainant, David Lee Murray, is 47 years old and lives in Landover, Maryland (TR 21). He has been a truck driver for approximately 15 years, during which time he has driven many different kinds of trucks (TR 21-22). Complainant's years of experience have familiarized him with the characteristics of trucks and what is to be expected of them (TR 22). When Complainant was hired by Respondent in October 1997 as a tractor-trailer driver, the parties entered into an employment contract (TR 22-24; CX A). In the employment contract, Complainant agreed to a number of provisions, including the following: that he would not drive a truck unless it was in a safe operating condition; that he had knowledge of, and would operate his vehicle in a manner consistent with, all Department of Transportation ("DOT") regulations; that he would be familiar with and obey local and state traffic regulations; that he would use safety, common sense and courtesy as his basic guidelines for the legal operation of his vehicle; that he would inspect his vehicle and report any defects to a supervisor; and that he would maintain daily vehicle condition reports and driver logs and turn in such reports to a supervisor weekly (TR 24-25; CX A, at 4-6). The employment contract also listed reasons for dismissal without prior warning, one of which was "Refusals of dispatch." (CX A, at 4).

was leased to Respondent by Rollins Leasing Corporation (TR 33, CX B). Every 90 days, the truck was required to undergo preventative maintenance during which time Complainant would drive a substitute (TR 29). Complainant drove approximately 50,000 miles on this particular truck and was very familiar with its normal operation (id.).

   Complainant described the actual route he drove as follows:

    Well, I would leave Landover, Maryland. I would take Route 50 and do a U turn at 295 right at the district line, go out to 495, take 95 North to 695, the beltway around Baltimore, take 83 North, go up and hit 81, then take 78 East over to Allentown.
... .

    [O]n Route 50 inside the [B]eltway [the speed limit is] 55 miles an hour ["M.P.H."]. 495, it's 55. 95 North, it's 65 all the way up to Baltimore. 695 is 55. 83 is 65 outside of the [B]eltway past Hunt Valley all the way up to York, Pennsylvania and then it turns into 55 and the other side of Harrisburg it turns into 65 again all the way up to 78, and it's 65 on 78 until you get to Exit 9, 1 believe, and then it's 55 from there to Allentown.
... .

    I'd say 75 percent [of the route] is at 65 [M.P.H.], 25 is at 55.

(TR 33-34). Complainant testified that the normal flow of traffic ranged between 55 and 65 M.P.H. hour on stretches of highway with a 55 M.P.H. speed limit and ranged between 65 and 75 M.P.H. on stretches with a 65 M.P.H. speed limit (TR 34).

   One of Complainant's job duties was to fill out a daily log that indicated his driving times and a daily vehicle inspection report that would indicate whether he had detected any problems with his truck, and turn in these reports to Respondent on a weekly basis (TR 35; CX B). If Complainant discovered a problem with his truck, he would have to fill out a Rollins vehicle inspection report, which would be turned in at Allentown to allow a Rollins Leasing mechanic to examine and fix small problems immediately (TR 37; CX D). In Allentown, Complainant would notify his supervisor, Greg Carrel (Respondent's employee), of any problems and give him the Rollins vehicle inspection reports (TR 38-39).

   At some point during the week preceding January 16, 1999, Complainant requested the weekend off; Respondent denied the request (TR 89-90). According to Complainant, he always asked for weekends off (TR 90). Glen Beecher, a vice president for Respondent, testified that Complainant was denied that weekend off because it was too late to find a replacement driver (TR 191).

   On January 11-12, 1999, as Complainant made his trip from Landover to Allentown in his usual truck, the truck began to accelerate beyond the maximum speed set by its governor, 68 M.P.H., and then decelerate to below its usual speed, in a sporadic manner (TR 40, 42). The deceleration would occur on level ground, where the truck should have

been able to accelerate to its maximum speed, even when Complainant would "give it gas" (TR 42). When he arrived in Allentown, Complainant reported the problem to Greg Carrel, who responded that the truck was due for preventative maintenance on the 13th, and the problem could be addressed then (TR 44). At that time, Complainant filled out a Rollins vehicle inspection report describing the problem which he submitted to Carrel the next night (TR 44-45; CX D, at 55). He described the problem as follows, "Governor on truck is messing up. Truck[']s speed is not constant. Truck slows down at will, truck is a safety hazard" (CX D, at 55). Complainant also described the problem on his daily inspection report submitted with his daily log to Respondent at the end of that week (TR 45-46; CX B, at 35).

   Complainant's truck underwent preventative maintenance from January 13-16, 1999 (TR 39, 46). During the time truck 401551 was being serviced, Rollins provided a substitute truck for Complainant to drive (TR 46). Glen Beecher testified about the repairs performed on January 13-14, 1999, on truck 401551 following Complainant's complaint that the truck's governor was defective, causing it to sporadically decelerate (TR 192-196). According to Mr. Beecher, the truck was sent to Rollins maintenance where a scheduled preventative maintenance check was performed and certain repairs were made, including: two repairs to the lighting system, replacement of brakes, repair of loose fittings in the air conditioning heating and vent system, repair of the air hom cable, removal of foreign material from the fuel system, and replacement of a front water pump seal (TR 195; RX 5, at 1-2). The preventative maintenance report consists of an extensive checklist of truck parts and systems, all of which are checked off, and a certification that a road test has been performed and the vehicle is "road ready" (TR 196; RX 5, at 3-4).

   On the morning of January 16, 1999, soon after beginning his trip, Complainant began experiencing sporadic slowdowns (TR 49). For example, for no apparent reason, the truck would decelerate from 68 MPH down to 52 MPH (id.). Truck 401551's tendency to randomly decelerate was more severe than it had been a few days earlier, on January 11 and 12 (id.). When going uphill, the truck slowed to as low as 35 to 45 MPH (TR 55). The truck would decelerate and then accelerate unexpectedly (TR 50). Complainant testified that, although trucks such as his will sometimes go slower on uphill grades, the slowdowns he was experiencing were considerably more severe than normal (TR 127-28). Usually, when a truck slows down on the highway, its brake lights go on; however, in this situation, no lights would signal his truck's deceleration (TR 50). When the problem began, the speed limit was 65 MPH and the flow of traffic was approximately 70 MPH (TR 51). Complainant testified that often trucks would follow each other extremely closely on this route, and that other drivers were calling him to ask what was happening to his truck (TR 51). As he drove, the problem occurred more frequently (TR 52). During the drive, Complainant often saw, in his rear view mirror, other drivers "locking up on the brakes, running into the median, [and] doing all kinds of things to avoid hitting me" (TR 69). Complainant was concerned about the safety of operating the truck under such conditions and attempted, unsuccessfully, to contact Respondent via his cell phone to explain the situation (TR 50, 98). Complainant did not leave the highway to call Respondent because he felt pressured to make the delivery on time; he also risked losing a $50 bonus if he failed to complete his route within four hours and five minutes (TR 98-99, 108, 124). Complainant chose to continue to drive, turning his hazard lights on when his speed fell below 45 MPH and attempting to warn other truck drivers by C.B. radio (RX 9).

   Complainant noted that the trip from Allentown to Landover consists of more downhill grades and, correspondingly, the trip from Landover to Allentown consists of more uphill grades (TR 54). If the truck was going as slow as 35 or 45 MPH going uphill on the way to Landover, Complainant thought that the problem would be more severe returning to Allentown (TR 55). Adding to Complainant's concern was the weather forecast for the night of Saturday, January 16; there was snow on the ground from an earlier storm and the temperature was supposed to go from well above freezing during the day to well below freezing that night, increasing the risk of black ice according to Complainant (TR 52-54). He was concerned because black ice is difficult to detect or avoid and could easily cause a driver to lose control or a truck to jackknife, particularly if a driver is breaking or accelerating when he or she hits the black ice (TR 53-54). Specifically, Complainant thought that the risk of collision due to truck 401551 slowing down without warning was compounded by the dangers of black ice (TR 54).

   Respondent submitted records of the weather forecasts for the relevant geographical areas for January 14 to 16, 1999 (TR 239-42; RX 13). For the Harrisburg- Lancaster-York, Pennsylvania areas, a winter storm warning was in effect as of the morning of Friday, January 15; freezing rain and sleet were predicted to change over to light snow, leaving damaging accumulations of ice covered by one to three inches of snow; Friday night's low temperature was predicted to be 20 to 25 degrees; Saturday was predicted to be cloudy with a high in the lower 40's; and Saturday night was predicted to be cloudy with a low temperature in the 20's (RX 13, at 10). On Saturday, the forecasted high temperature was lowered to the upper 30's (RX 13, at 29). For the Allentown-Reading, Pennsylvania areas, as of Friday night, the forecast was for partly cloudy skies with a low temperature of 15 degrees; Saturday was predicted to be variably cloudy with a high of 35 to 40; and Saturday night was predicted to have a low of 25 to 30 (RX 13, at 37).

   When Complainant arrived in Landover at approximately 7:30 A.M. on January 16, he called Respondent, spoke with a dispatcher, described the problem he had experienced, and requested a replacement truck (TR 55-56; CX B, at 41). The dispatcher told Complainant to call back later (TR 58). At some point later in the day, he called Respondent from home and spoke to a supervising dispatcher, Sharon Poitinger (TR 58-59). According to Complainant, Ms. Poitinger told him to drive truck 401551 to Allentown "or else." (TR 59). Complainant described the problem and expressed his opinion that truck 401551 was unsafe, but offered to drive it back if Respondent would agree to assume responsibility in the event of an accident (TR 59, 64). Ms. Poitinger did not agree to Complainant's proposal and told him that Respondent would send another driver to complete his route (TR 60). She also told Complainant that she had described his complaint to Mr. Beecher, the company's vice president, and Mr. Mackey, the company's CEO, and that the three of them had decided that truck 401551 was safe for him to drive (TR 64). Finally, she instructed Complainant to call back the following Monday, January 18 (TR 64).

   On Monday, January 18, 1999, Complainant spoke via the telephone to Ms. Poitinger, who informed him that he was fired (TR 66). When Complainant requested to speak to Mr. Beecher, Ms. Poitinger responded that she was relaying Mr. Beecher's and Mr. Mackey's instructions (id.). Complainant called Respondent again on Wednesday, January 20 and spoke to Mr. Beecher, who reiterated that he was fired and described his refusal to drive truck 401551 on the 16th as "the straw that broke the camel's back" (TR 67). Complainant described in detail the problems he had experienced and his fear that his truck was unsafe, and Mr. Beecher responded that he had been given a chance to keep his job by driving the truck back to Allentown, but, in refusing to do so, had chosen to lose his job (TR 70). Neither Mr. Beecher nor Mr. Mackey physically inspected truck 401551; they made the decision from corporate headquarters in Ohio (TR 68).

   Approximately a week and a half after Complainant's refusal to drive, another driver, Darryl Perry, drove the truck back to Allentown (TR 71-72). In an e-mail from Ron Putteet, Vice President of Maintenance for Respondent (TR 209), to Mr. Beecher, Mr. Putteet stated that Mr. Perry reported that "the tractor was doing fine down the road but he thought it would pull a little better, but there was no surging on the throttle" (RX 10). After Mr. Perry drove the truck back to Allentown, Respondent did not conduct an inspection of the truck (TR 267). Mr. Perry continued to drive the truck for approximately three to four weeks (TR 72). Like Complainant, Mr. Perry should have been filling out daily logs and vehicle inspection reports while he drove the truck (id.). No such reports were produced by Respondent as evidence in this case (id). Furthermore, during discovery Respondent did not produce any maintenance reports concerning the truck after the date of Complainant's termination (TR 40, 74). According to Mr. Beecher, Complainant's truck was taken out of service in April or May 1999 because Respondent was replacing its fleet with new vehicles (TR 264, 291).

   Mr. Beecher stated that Complainant was terminated because of his "refusal to operate [the truck] on the 16th in addition to his past history of disciplinary problems and insubordination" (TR 197). Mr. Beecher explained that refusal of dispatch is a dismissible offense under the terms of the employment contract signed by Complainant (TR 230). On an email in Complainant's personnel file, Mr. Beecher wrote that he was terminated for: continual display of insubordination, check calls, arguing with the customer (Airborne Express) and refusal to operate (TR 198-200; RX 3, at 1). Mr. Beecher further stated that Complainant would not have suffered any reprisals if, en route from Allentown to Landover on January 16, he had stopped his truck to report the problems he was experiencing (TR 211).

   Dr. Garber testified that one of the main conclusions of his research examining traffic flows on highways is that the probability of accidents occurring, particularly rear-end accidents, rises with the increase of speed variance (TR 138, 140; CX V, at 117). He explained that speed variance is a way of measuring the dispersion of speeds on a highway, both above and below the average speed (TR 139).

[F]or instance, if everyone is driving at 50 miles per hour there is hardly any dispersion but if you have some traffic driving at much lower speeds or at higher [speeds than] the ... average speed, you tend to have a wider dispersion and when that occurs the probability of a crash taking place involving those vehicles which are driving far away from the [average] is high.

(Id.) According to his research, a vehicle that travels significantly below the flow of the traffic creates a higher risk for rear-end accidents (TR 140). In a study report entitled "Speed Variance and its Influence on Accidents," Dr. Garber noted that "accident rates do not necessarily increase with increase in average speed but do increase with increase in speed variance." (CX V, at 117). Dr. Garber stated that, in addition to rear- end accidents, side-swipe accidents increase with greater speed variance due to faster vehicles overtaking slower vehicles (TR 141). Dr. Garber testified about and cited to numerous studies that all came to the similar conclusions. "The highest crash involvement rates [occurl at speeds well above and well below average traffic speeds." (CX W (Transportation Research Board, National Research Council, "Special Report 254: Managing Speed, Review of Current Practice for Setting and Enforcing Speed Limits"), at 180; see also TR 143, 145; CX X (Garber & Ehrhart, "The Effect of Flow and Speed Characteristics on Crash Rates on Rural Interstate Highways"), at 206; ). Dr. Garber also cited to other research that finds that there is no statistical relationship between average speed and fatality rates (TR 155; see, e.g., CX Z (Lave, "Speeding, Coordination, and the 55 MPH Limit," 75 Am. Econ. Rev. 1159-1164 (Dec. 1985)), at 216, 220). Dr. Garber also noted that a number of States have enacted minimum speed limit laws in an attempt to minimize speed variances (TR 165-66).

   Complainant's counsel asked Dr. Garber whether a vehicle traveling on an interstate highway with a speed limit of 65 MPH, which began to unexpectedly decelerate from 68 MPH to 50 or 55 MPH, should be considered to be in a safe operating condition (TR 168). Dr. Garber did not think it was safe (id.). Dr. Garber stated: (1) that the vehicle's driver would be reasonable to consider the vehicle unsafe; (2) that the vehicle in such condition would be likely to cause an accident; (3) that the driver would have a reasonable apprehension of serious injury to himself or the public; and (4) that his answers would be the same, that it was a dangerous situation, if in order to avoid sudden deceleration, the driver slowed to a constant speed of 50 or 55 MPH (id.). Dr. Garber also stated that a vehicle that would unexpectedly accelerate back to its 68 MPH governor speed or that would that would slow down to 35 to 40 MPH on an incline would be dangerous and cause reasonable apprehension of serious bodily injury (TR 169-70).

b. Discussion

   In passing the Surface Transportation Assistance Act, Congress intended to "combat the increasing number of deaths, injuries, and property damage' resulting from vehicle accidents in the interstate trucking industry." Yellow Freight Systems, Inc. v. Reich, 38 F.2d 76, 81 (2d Cir. 1984) (hereafter "Thom") (quoting 128 Cong. Rec. 32509, 32510 (1982)). Moreover, Congress sought "'to assure that employees are not forced to drive unsafe vehicles or commit unsafe acts,' and to 'provide protection for those employees who are discharged or discriminated against for exercising their rights and responsibilities."' Id. (quoting 128 Cong. Rec. 29192 (1982)).

49 U.S.C. § 31105(a) (1997).

   Complainant's burden under the Act, as under other similar statutes protecting whistleblowers, is to prove by a preponderance of the evidence that: (1) he engaged in conduct protected by the Act; (2) Respondent took adverse employment action against him; and (3) the adverse employment action was caused all or in part by the protected activity. BSP Trans, Inc. v. U.S. Dept. of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). This case proceeded to a full hearing on the merits. Accordingly, examining whether or not Complainant has established a prima facie case is no longer particularly useful. Boytin v. Pennsylvania Power & Light Co., 94-ERA-32 (Sec'y Oct. 20, 1995). The relevant inquiry is whether, viewing of the

evidence as a whole, Complainant has shown that he was terminated for engaging in a protected activity. See Boudrie v. Commonwealth Edison Co., 95-ERA-15 (ARB Apr. 22, 1997); Boytin, 1994-ERA-32; Marien v. Northeast Nuclear Energy Co., 1993-ERA-49, 50 (Sec'y Sept. 18, 1995). To meet this burden, Complainant must prove that Respondents' stated reasons for terminating him are pretextual, that they were not the true reasons for the adverse action. Scott v. Roadway Express, 98-STA-8 (ARB July 28, 1999); Leveille v. New York Air Nat'l Guard, 1994-TSC-3, 4 at 4 (Sec'y Dec. 11, 1995).

   1. Protected Activity

   Complainant argues that his refusal to drive the truck was a protected activity under the Act under both § 31105(a)(1)(B)(i) and (ii). Under § 31105(a)(1)(B)(i) of the Act, Complainant argues that operation of his truck would have violated DOT regulations. DOT regulations provide that "a motor vehicle shall not be operated in such a condition as to likely cause an accident...," 49 C.F.R. § 396.7(a), and that "[b]efore driving a motor vehicle, the driver shall: (a) [b]e satisfied that the motor vehicle is in safe operating condition,"49 C.F.R. § 396.13. Under § 31105(a)(1)(B)(ii) of the Act, Complainant argues that his refusal to drive was protected because he had a reasonable apprehension of serious injury to himself or the public because of his truck's unsafe condition. Under this section, "Congress mandated that the objective reasonableness of the employee's perception that an unsafe condition existed be evaluated in light of the situation that confronted the employee at that time." Thom, 38 F.2d at 82. Complainant has presented such strong evidence that Complainant engaged in a protected activity under (B)(ii), the reasonable apprehension provision, that I find it unnecessary to discuss (B)(i), the actual violation provision.

   Complainant has 15 years of experience as a truck driver, during which time he has driven many different types of trucks; at the time of his termination, he had been driving the truck six days per week for approximately ten months and was very familiar with its operation (TR 21-22, 26-27). Complainant's testimony, that the truck was slowing down and speeding up sporadically during the route from Allentown to Landover on January 16, is uncontroverted. Complainant stated that, based on his experience, slowing down without warning and without brake lights and going slower than the rest of traffic was likely to cause an accident (TR 50-51). He testified that on his trip from Allentown to Landover, he saw in his rear view mirror, other drivers "locking up on the brakes, running into the median, [and] doing all kinds of things to .avoid hitting me" (TR 69). Complainant further testified that his concerns about the safety of driving were compounded by a weather forecast indicating likely formation of black ice on the highways (TR 5254). The weather forecasts submitted by Respondent do not contradict Complainant's concerns about black ice on the highways. Consistent with Complainant's testimony, the forecast was for snow and ice on the ground, freezing temperatures at night and a slight rise in temperatures during the day to the upper 30's or lower 40's with an overcast sky (RX 13, at 10). Respondent's vice president testified that neither he nor the company disbelieved Complainant's description of the truck's problem (TR 274-75). Finally, although it may have been overkill to call an eminent expert witness to establish that a

truck which accelerates and decelerates without warning is a safety hazard, Dr. Garber's testimony clearly establishes this point. Dr. Garber testified at length to the actual dangers caused by the truck's tendency to slow down unexpectedly (TR 135-88). Dr. Garber discussed a number of books and studies authored by him or known to him that supported his opinions (TR 138-61). Dr. Garber stated that accident rates increase with increases in speed variances and that, therefore, Complainant's truck's slow downs caused a greater risk of accident (TR 168-69). Finally, Dr. Garber stated that Complainant's apprehension of injury was reasonable (TR 170).

   A significant difficulty in determining the mechanical condition of truck 401551 when Complainant refused to drive, is that, apparently, no vehicle maintenance or daily inspection reports exist covering the period after January 16, 1999 (TR 251, 264; CX B, at 41; CX C, at 4849). The one piece of evidence regarding the truck's operation after Complainant's refusal to drive on January 16 is an ambiguous e-mail from Ron Putteet to Glen Beecher dated January 27 in which Mr. Putteet writes that Mr. Perry had reported to him that "the tractor was doing fine down the road but he thought it would pull a little better, but there was no surging on the throttle" (RX 10). The e-mail has virtually no probative value with respect to determining the validity of Complainant's complaint. Given DOT regulations regarding motor vehicle record keeping, Respondent's early knowledge of Complainant's claims against it, and the potential usefulness of such records to Respondent if they demonstrated a lack of defect, Respondent's failure to produce any records of the vehicle after January 16 should be viewed with suspicion. Where relevant evidence is particularly within the control of one party and that party fails to produce it and fails to adequately explain why it was not produced, an adverse inference applies that the evidence would have been unfavorable to that party. NLRB v. Advance Transportation Co., 979 F.2d 569 (7th Cir. 1992); UAW v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972). The negative inference is that the truck's daily vehicle inspection, repair and maintenance records would show that it was in fact in an unsafe condition. This negative inference coupled with Complainant's uncontradicted testiimony that the truck was sporadically slowing down to well below the speed of surrounding traffic provides a basis to find that the truck was in fact unsafe and that Complainant's apprehension of danger was reasonable.

   Under § 31105(a)(1)(B)(ii), the existence of an actual safety defect need not be proven. Thom, 38 F.3d at 82. Complainant's belief that an unsafe condition existed that could have caused serious injury was reasonable in light of his experience on the way to Landover, the weather forecast, the expert testimony of Dr. Garber, and just plain common sense. For the foregoing reasons, I find that Complainant has met the first element of his case, that he engaged in protected activity by refusing to drive a vehicle that he reasonably believed to be unsafe.

   Under 49 U.S.C. § 31105(a)(2), "[t]o qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition." 49 U.S.C. § 31105(a)(2). Complainant clearly sought correction of the unsafe condition, both on January 12, upon his arrival in Allentown, and on January 16, when he called Ms. Poitinger, explained the problem, and asked for a substitute truck (TR 58-59). Respondent's response was to fire Complainant and send another employee to drive his truck (id.). Mr. Beecher testified that Respondent simply did not agree with Complainant that it was unsafe (TR 274-275).

   2. Adverse Action

   It is uncontested that Complainant was terminated by Respondent and therefore the second element of his case has been met.

   3. Causal connection

   I also find evidence of a causal connection between the adverse action taken against Complainant and his engagement in protected activity, establishing the third element of his case. First, Complainant testified that during the day of January 16, Ms. Poitinger had told him to make his scheduled drive "or else" (TR 59). On Wednesday, January 20, Complainant spoke to Mr. Beecher, who informed him that his refusal to drive had been the "straw that broke the camel's back" (TR 67). Complainant's personnel file contained an e-mail with a handwritten note by Mr. Beecher listing the reasons for his termination, one of which was refusal to operate (RX 3, at 1). Finally, at the hearing, Mr. Beecher stated that Complainant was terminated because of his "refusal to operate [the truck] on the 16th in addition to his past history of disciplinary problems and insubordination" (TR 197).

   In addition to the stated reasons for Complainant's termination, the proximity in time between the protected activity and discharge creates a presumption that the protected activity was the reason for discharge. The Eighth Circuit has held temporal proximity sufficient as a matter of law to establish the final requirement of a complainant's case. Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989) (employee discharged roughly thirty days after engaging in protected activity). See also Keys v. Lutheran Family and Children's Services, 668 F.2d 356 (8th Cir. 1980).

   With regard to Respondent's reasons for terminating Complainant in this case, Mr. Beecher testified that Complainant was terminated because of his "refusal to operate [the truck] on the 16th in addition to his past history of disciplinary problems and insubordination" (TR 197). And yet, Mr. Beecher later admitted that, if Complainant had driven the truck back to Allentown on January 16, 1999, he would not have been fired (TR 275- 76). Mr. Beecher also noted that refusal of dispatch is a dismissible offense according to the terms of Complainant's employment contract (TR 230; see CX A, at 4). In a note in Complainant's personnel file, Mr. Beecher wrote that he was terminated for: continual display of subordination, check calls, arguing with the customer (Airborne Express) and refusal to operate (TR 198-200; RX 3, at 1). However, Respondent's Termination Record (CX G) states that Complainant was discharged because he "refused load." There is no mention of other reasons. In addition, Complainant had not received any written disciplinary notices since June 1998 (TR 275-76). Furthermore, Complainant received a letter of achievement for one year of safe driving in October 1998 from Respondent and was qualifying to receive merit bonuses approximately 80% of the time (TR 77-79; CX Q; CX PP, at 290-357). Complainant would not have received the $50 bonuses if he was not performing his job satisfactorily (see TR 280-81). Mr. Beecher also testified that if Complainant had pulled off the road to call Respondent during the trip to Landover when he was experiencing the problems, he would have suffered no reprisals (TR 211).

   Based on the significant distance in time between Complainant's past disciplinary incidents and the termination, the testimony of Mr. Beecher, and Respondent's focus on Complainant's refusal of dispatch, I conclude that Complainant's refusal to drive was the reason Complainant was terminated. Thus, Respondent has failed to articulate a legitimate, nondiscriminatory reason for its employment decision to terminate Complainant. Therefore, complainant was terminated in violation of §405(a) of the Act.

C. Damages

   Once it is determined that there has been a violation of the Act, appropriate damages and remedies are to be determined according to § 31105(b)(3)(A), which reads in pertinent part:

    [T]he Secretary of Labor shall order [the person who violated subsection (a) of this section] to --
    (i) take affirmative action to abate the violation;
    (ii) reinstate the complainant to the former position with the same pay and terms and privileges of employment; and
    (iii) pay compensatory damages, including back pay.

Since complainant desires to be reinstated, he shall be reinstated immediately (see 29 C.F.R. § 1975.109(b)).

   Further, although Complainant testified that he had suffered from stress, weight gain, and loss of self-esteem, he presented no further evidence of any emotional damages. Moreover, there is no evidence that he was seeking treatment for his problems. Complainant has requested $500,000 for emotional pain and suffering and mental anguish. I do believe that Complainant has suffered emotional pain and stress as a result of his wrongful termination; however, $500,000 is ridiculously high, and Complainant has failed to put forth a reasonable monetary estimate of such damages. Based on the totality of the record and decisions in similar cases, I award Complainant $20,000 for emotional distress. See, e.g., Assistant Sec 'y of Labor for Occupational Safety & Health v. Guaranteed Overnight Delivery [Bigham], 95-STA-37 (ARB Sept. 5, 1996).

   Complainant also seeks punitive damages, but they are not authorized under the Act. 49 U.S.C. § 31105(b)(3)(A) and (B); Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).

   Finally, Complainant is entitled to pre judgment interest on the amount of back wages he receives pursuant to a final order in this case. Decisions by the Secretary awarding back pay under the Act calculate interest in accordance with 26 U.S.C. §6621 (1988), which specifies the rate for use in computing interest charged on underpayment of federal taxes. Phillips v. MJB Contractors, 92-STA-22 (Sec'y Oct. 6, 1992)(Final Decision & Order).

   Complainant has requested and will be entitled to attorney's fees in this case pursuant to §31105(c)(2)(B) of the Act. No fee petition has yet been filed in this case. Complainant's counsel shall file his fee petition within 30 days of receipt of this decision. When the fee petition is filed, Respondent shall file any objections within 15 days of receipt.

    1. Respondent shall immediately reinstate the complainant.

    2. It is recommended that Respondent pay Complainant back wages in the amount of $36,650, for the period between January 16, 1999 and October 29, 1999. Respondent shall pay back wages in the amount of $560 per week for the period between October 30, 1999 and the date when Complainant is reinstated to his former job. Respondent shall assign Complainant retroactive fringe benefits status to the extent that it would affect his current or future entitlement to benefits. Prejudgment interest calculated pursuant to 26 U.S.C. §6621 (1988) shall be paid.

   3. It is further recommended that Respondent pay Complainant damages in the amount of $20,000 as compensation for emotional distress.

    4. Complainant's counsel shall file a fee petition within 30 days of receipt of this decision. Respondent shall file any objections to the fee petition within 15 days.

       JEFFREY TURECK
       Administrative Law Judge