INTRODUCTION

   A. Procedural History

   Thad Rodgers* is the Fleet Manager for Respondent's Western Division (Tr- 250).

   Gerry Waters* is employed by Respondent (RX-14).

   Rick Caudle* is employed by Ramsey Winch Company (RX-26).

   Randall Koonce* is the USDOL Investigator assigned to Complainant's case (RX-17).

   4 (a). 49 U.S.C. §31105 (b) provides protection to a driver who refuses to operate a commercial motor vehicle because such operation violated a Motor Carrier Safety regulation, standard or order; or if the driver has a reasonable apprehension of death or serious injury to the driver or the public because of conditions associated with the operation of an unsafe vehicle.

   5. When Complainant initially reported to Cupp on the morning of March 4, 1999 Cupp offered him the opportunity to work in the salvage yard, which Complainant declined. Complainant was not terminated because he choose not to work in the yard that morning. (Tr 9-10).

   6. The truck Complainant drove has three cables; all three cables were replaced on March 5, 1999 (Tr 82).

   7. The cables were not scheduled to be repaired on the morning of March 4th. The truck was put in the shop for repairs after Complainant was terminated (Tr 157).

    8. Complainant's wages while employed by Respondent were $531 per week (Tr 169). From the date of termination until the date of the hearing, Complainant lost 62 weeks of compensation (Tr 172). 62 weeks times $531 per week equals $32,922 in lost wages.

1. Whether Complainant engaged in protected activity.

2. Whether Complainant's termination on March 4, 1999 constituted adverse action.

3. Whether Respondent was aware of the protected activity when it took the adverse action.

4. Whether Complainant presents sufficient evidence to raise an inference that the protected activity was the likely reason for the adverse action.

5. Whether Respondent had a legitimate, non-discriminatory reason for the action.

   A. Testimony of Complainant

   Complainant worked for Respondent from January 11, 1999 until March 4, 1999 as a salvage hauler (Tr 92-3). Complainant testified that he was CDL licensed in 1990, and owned his own wrecker service for about three years (Tr 93). He described himself as "very familiar with the hookup and operation of cable, fasteners, eye hooks, latches, bottles, [etc.]" (Tr 93).

   After this exchange, Complainant went to the truck stop, where he saw Larry Glass (Tr 97). He told Glass that he was going to call Mr. Gille, the General Manager of the Tulsa corporate office, at home (Tr 97-9). Complainant then called Gille (Tr 99). He told Gille that Frontier was repairing the brakes, but that the winches, leaking rams and other problems would not be repaired before he was dispatched (Tr 99). Gille replied that he "would talk to [Cupp] about it," and get back to Complainant (Tr 99). Around 10:15 AM, Complainant went back to Frontier to check on the truck (Tr 99). Complainant testified that after about thirty minutes, he "couldn't pin anybody down as to when [Frontier] thought that [the truck] would be ready . . . because they were having problems," so he went home (Tr 99-100).

   At around 12:30 PM, Gille called Complainant at home and told him that the truck was ready (Tr 101, 112). Complainant immediately asked Gille, "what about the winches and the winch lines, has anything been done with them, the cables? Has anything been done with the seals, the leaks?" (Tr 113). Gille responded that Cupp told him that the other repairs "[were] not major concerns," and were not "a real issue as far as dangerous to [Complainant] or anybody else" (Tr 101, 113). Complainant replied that "it is extremely dangerous" (Tr 101). He further explained that the cables were repaired on January 20th, and that he told Cupp on that date that "two cables needed to be replaced" (Tr 101). Cupp responded that he couldn't replace "two cables because corporate w[ould] jump all over [his] back" (Tr 101).

   Complainant testified that the truck was taken into Frontier around 3 PM on March 3rd because he "almost slammed into somebody" that afternoon due to faulty brakes (Tr 97). Complainant also stated that he discussed other safety issues with his supervisors at several different times beginning on the date corporate performed the inspection in February (Tr 97). Complainant observed that the time to make the repairs "never seemed to come" (Tr 97). On March 3rd, the repairs were listed on a sheet of paper to be given to Frontier so that all the necessary repairs would be completed (Tr 98). Despite the written list of repairs, Complainant's concerns were still not addressed (Tr 98).

   Complainant responded affirmatively when questioned whether the winches and cables were his primary safety concern (Tr 117). He explained that "when you have a leak on a [high pressure] hydraulic hose . . . the pressure itself will keep bearing on that spot . . . and [the] hoses just bust" (Tr 118). He also explained that the hydraulics could fail, and that the hydraulic lift could fall on or hurt anyone nearby (Tr 119). Complainant pointed out that hydraulic fluid was leaking from the gear lube that lubricates the Ramsey Winch bearings (Tr 119). He explained that a gear box leak is dangerous to both the public and the driver because it can cause a cable to snap (Tr 120). Complainant explained that a cable's life and safety depends on how it is used:

when you're hauling salvage vehicles, you're messing with mangled metal. And it just depends . . . . Under I would say ideal conditions, if a driver can get three months out of a cable, he's doing wonderful on a regular tow type of job. With a job like this, when you're hauling wrecked vehicles, [the cable] could [snap] in three weeks, because . . . wheels are crunched and frames are bent under . . . . They're just pulling against one another, metal against the rope cable (Tr 103).

   To illustrate his fears about unsafe cables, Complainant testified about an incident that occurred in January of 1999. He explained that, in January, he took the truck to Industrial Splicing at Respondent's request (Tr 102). He told Industrial Splicing which cable Respondent directed Complainant to replace (Tr 102). While Complainant waited, the workers filling the work order told their salesman that more cables needed to be replaced (Tr 103). The salesman then called Respondent and told them that more than one cable needed repair (Tr 103). Despite this warning, only one cable was replaced by Industrial Splicing that day (Tr 103). Later that same afternoon, Complainant was dispatched to Missouri (Tr 104). While he was picking up the first vehicle on his run, one of the remaining cables snapped:

I was pulling [a car] to the top, [when the cable was] under pretty intense pressure. [The cable] snapped. As soon as it let go, it came whipping straight back towards me. I hit the ground. Now, once I [got] through that, I [had] to worry about this vehicle that's at this degree, that had been pulled up here to keep it from hitting other vehicles and from it sliding down . . . because you've got oil, [and] grease . . . that are leaking out of busted transmission[s] and other things. It's a frightening situation. Thank goodness I didn't get hurt. I could have. It could have taken off a limb . . . I've seen it where people have lost limbs. I've seen it where people have been decapitated with a snapped cable. [But] people act like it's no big deal (Tr 104-5).

   Complainant testified that he repeatedly voiced his concerns to Gille, both in the morning and in the afternoon of March 4th (Tr 121). He stated that Gille's response was that "you need to come in and drive the truck. And if you don't come in and drive the truck, you've lost your job" (Tr 121). Complainant then repeated what Gille told him, and reiterated his concerns to Gille once more (Tr 128). Gille gave him the same response (Tr 128). Complainant explained that "at that point, I didn't feel like I had a job, because I wasn't going to endanger myself any further" (Tr 128). Complainant testified that he was terminated around 12:30 PM on March 4th (Tr 130). He insisted that he would have driven the truck if the repairs were completed when he went to pick it up from Frontier that morning. He stated, "absolutely. If the things needed to be repaired were repaired, would I drive it? You bet" (Tr 195).

   Complainant was questioned at length about Respondent's policy regarding reporting safety concerns in Daily Driver's Logs. He admitted that he did not consistently list his concerns as Respondent required (Tr 165). He explained that "when I first hired on [in January], prior to right around the corporate inspection, which was in February, [Cupp] said, 'look, don't write that stuff down. Just come to me, and . . . I'll address it immediately'" (Tr 166). Complainant explained that because he was "the new guy on the block," he followed Respondent's instructions and the practices of his surrounding co-workers (Tr 120). However, during "the early part of February, [Cupp] grabbed [Complainant] and Mr. Glass . . . and he said, 'okay, . . . we've got to make this look right for corporate because they're coming, we're getting the big inspection on the 4th [of February]'" (Tr 164). At this point, Complainant once again began to list his concerns in the daily logs (Tr 164). Complainant also explained that sometimes he failed to list safety concerns because he "wasn't [always] able to give [his truck] the post-trip inspection" (Tr 165). Complainant testified that Respondent sometimes told him to take a different vehicle and go out to get more vehicles immediately upon returning from a run (Tr 165). However, in late February and early March, Complainant once again began to list his concerns, against Respondent's instructions (Tr 189). He explained that "it became very apparent from the way things were being handled that - - the vehicles weren't being repaired timely. I had safety concerns from 2/4 on. I would go over and go over it [with Respondent]" (Tr 189). Complainant showed remorse for his actions (Tr 190). He admitted that he "should have, from the onset, written down everything from the go, and never - - I should have never, ever not written it down" (Tr 190).

   Complainant was also questioned about why the cables were not listed as a safety hazard on the Oklahoma highway inspection report for his truck. Complainant testified that during the inspection, the winches and cables were never inspected (Tr 193). He testified that he did not recall having any discussions with Mr. Powell about the safety survey after it was done (Tr 194). However, he remembered having a discussion with Mr. McMann about the truck because they "went on a drive together" (Tr 194).

   Complainant testified that his total damages were $74,215.72 (Tr 170). He cited $6,900 lost in a startup business, $2,102.10 for 401K contribution, $10,000 for a truck for his new business, $543 for commercial liability for the business, and $7,000 in family health insurance copayments (Tr 170, 174-8). He admitted that he did not seek other employment after his termination by Respondent (Tr 212-3). Instead, he began his own lawn service company (Tr 212-3). Complainant also failed to purchase medical insurance after his termination (Tr 213).

   B. Testimony of Larry Dean Glass

   Tipton also recalled working on Complainant's truck in January of 1999 (Tr 66). He specifically recalls this particular work order because Complainant returned to the shop on the day after the replacement and requested Tipton to make a written statement about his observation of the cable's condition (Tr 69). During this servicing, the cable exhibited "flattened strands . . . and had kinks real bad" (Tr 66). Tipton agreed that the cables were in a "dangerous condition," and recalled replacing only one of the cables in January (Tr 66). The other cables were in a similar condition, but were not replaced (Tr 66).

   D. Testimony of Bill Vincent

   Mr. Bill Vincent has been employed by Industrial Splicing for seven to eight years (Tr 78). He is required to "do an assortment of things," but his primary job is to "coil cable for Ramsey winches" (Tr 83). He generally repairs "quite a few" cables a day, but "it varies from day to day" (Tr 86).

   Vincent agreed that the standard requiring cable replacement is "three to five broken wires in a strand per foot or so of cable" (Tr 85, 89). He explained that the distance used to examine the safety of the wires is called "a leg, which is the distance it takes for the wire to coil around to the next section . . . if you're looking at it flat, from the point where it goes upward around to the next section to meet the same spot is one leg (Tr 85). He explained that on Complainant's truck, which used three-eighths rope, the distance "may be a foot, if that, roughly" (Tr 85). He elaborated that an unsafe cable may have "a hard kink in it, . . . [or] three to five broken wires in a strand" (Tr 84). He noted that "sometimes if the wires overlap one another on the drum, they can get smashed or flat" (Tr 85).

   Vincent recalled Complainant's truck coming into the shop on March 5, 1999 (Tr 78). Upon examining the truck, he found "several of the cables had been smashed or broken in some places, some of them had kinks, burs, broken wires, et cetera" (Tr 78). Upon seeing a cable in similar condition, Vincent would usually recommend that the owner replace the cables "because they could become dangerous" (Tr 79). He explained that "they could break, and . . . hurt the driver or anyone behind it" (Tr 79). He specifically stated that on March 5th, Complainant's cable was in such bad condition that it "could break today . . . [or] two days from now. You never know. It could be anytime" (Tr 79).

   After examining the cable, Vincent talked to his boss about its condition (Tr 79). He was authorized "to replace one or two cables. I can't remember exactly. And whatever was left, the excess, [Respondent] said that they'd replace it another time" (Tr 79). When questioned whether all of the cable "was in equally bad condition," Vincent responded that "they were all in bad shape," but could not recall exactly how many strands in the cable were broken (Tr 80, 82). He "believ[ed]" the truck had "five [cables]," and recommended "that they [all] be replaced;" however, only one or two of the cables were authorized for replacement (Tr 80-1).

concerns, he inspected the truck and ensured that the winch cables were safe (Tr 138). He admitted that "there were some frayed spots on the cable," but stated that these spots were "far from being unsafe" (Tr 138). He maintained that the hydraulic leaks were not a safety concern because "all the hydraulics do is operate the winches" (Tr 160). He explained that "from where the controls are for the winches, the driver is free and clear of the cables, free and clear of the cars that the cable is moving up and down, so there's no way that it could be a danger to the driver" (Tr 139, 160). Cupp asserted that even if there was a leak, it would not cause the hydraulics to automatically lose pressure and fall (Tr 139). According to Cupp, if the hydraulic ram fails because there is not enough fluid, a safety feature causes "everything to shut down and stop where it is . . . . the winches won't turn, nothing" (Tr 139, 141). Cupp insisted that he discussed this safety feature with Complainant (Tr 140-141). He admitted, however, that his understanding of the safety feature is based upon an explanation by Frontier's mechanics because he never personally worked with hydraulics (Tr 142, 160).

   Cupp testified that Respondent requires its drivers to keep Daily Driver's Logs and Daily Vehicle Inspection Reports (Tr 139). He insisted that he never told the drivers "not to list safety concerns" in the logs; they were "my way of knowing and keeping up with what is wrong with the trucks" (Tr 139). He testified that on March 2nd Complainant made no mention that cable repairs were needed (Tr 143). He also noted that Complainant checked the box on his inspection report stating that Complainant "detect[ed] no defect or deficiency in [his truck that] would be likely to affect the safety of its operations or result in a mechanical breakdown" (Tr 143). Upon reviewing the inspection reports for the week prior to March 2nd, Cupp stated that Complainant did not list the cables as a safety concern in his reports (Tr 143-144). He explained that he expected Complainant to list any safety concerns he had on his inspection report (Tr 144). Cupp denied any knowledge of an incident in which a cable snapped on Complainant's truck (Tr 144).

   Cupp admitted that the Oklahoma Highway Patrol inspected Complainant's truck and found that the brakes "were not adjusted to specifications" (Tr 145). As a result, the Highway Patrol prohibited use of the truck until Respondent repaired the brakes (Tr 145). Cupp testified that the truck passed inspection in all other regards, without mention of the cables or winches being unsafe (Tr 145-6). He also stated that a citation was not issued for failure to repair the brakes, and that the truck was not driven until the brakes were fixed (Tr 145-6).

   Cupp insisted that Complainant requested Frontier to adjust the speed governor on his truck to 75 miles per hour (Tr 146). He explained that every truck has a speed governor, which is generally set at 62 to 64 miles per hour and installed by the truck manufacturer at the factory (Tr 146). He testified that he was unaware of the change on Complainant's truck until he received a call from the Fleet Manager, Pat McMann, asking whether he authorized the change (Tr 146). Cupp stated that he immediately contacted Frontier to determine who authorized the work order and learned from Mitchell that Complainant requested the change (Tr 146).

   Cupp testified that Complainant was terminated on March 4th after he refused to drive the truck (Tr 149). Cupp insisted that there were no problems with the truck and that it was safe to drive (Tr 149). However, he admitted that he knew the cables were scheduled to be replaced

on March 6th (Tr 149). He also admitted that although the cables were listed as needing replacement during the February 4th corporate inspection, the cables were not actually replaced until March 4th (Tr 151-2). When questioned about the delay in fixing those repairs, Cupp stated that "the things that needed immediate attention was done immediately. The other items that were . . . marked generally good or needs some improvement, those [were] done at other scheduled times whenever the truck would be in the shop for its next service" (Tr 152).

   Cupp stated that after receiving the February 4th survey from corporate, he discussed "which items needed immediate attention" with Powell, the National Fleet and Safety Manager (Tr 158). Cupp insisted that "anything that pertains to the safety of the truck, the drivers, or anybody else involved" would have repair priority and be fixed immediately (Tr 158). However, Cupp admitted that several items requiring immediate repair were not replaced before the end of the month (Tr 153-4). For example, the tow bar hook and the T-pin were not repaired until February 23rd (Tr 153-4). The driver's seat, hydro leaks, and safety chain were not repaired until February 24th (Tr 153-4). The body of the truck was not repaired until March 5th (Tr 153-4).

   F. Testimony of Craig Gille

   Mr. Craig Gille is the General Manager for Respondent (Tr 244). He has been employed by Respondent since September of 1994 and knew Complainant as a driver for Respondent (Tr 244).

   Gille described Complainant as a "difficult employee . . . [that] liked to do things his own way, and [that] had problems with the Yard Manager, run-ins with myself . . . and run-ins with the dispatcher" (Tr 244). Gille admits that on March 4th Complainant's truck was in the shop for brake and winch repairs (Tr 245). Gille testified that, to his knowledge, the repairs were made (Tr 245). However, he testified that when Complainant initially went to pick up the vehicle, it was not ready (Tr 245-6). Gille admitted that at that point, Complainant was "willing to pick up the truck and drive it" (Tr 246). He testified that Complainant called him that morning to tell him the truck was not ready, but did not mention anything about hydraulic leaks or the cable during the conversation (Tr 246). Gille told Complainant to "report to the yard . . . and wait for the truck to get fixed" (Tr 246). He testified that Complainant was given the option to work in the yard, but did not do so (Tr 246-7).

   Gille later called Complainant to tell him to pick up the truck and go to work (Tr 247). Gille testified that Complainant told him "it would be a waste of [Complainant's] time to work half a day," and that Complainant did not voice any safety concerns (Tr 247). Gille claims that Complainant merely refused to come in (Tr 247). Gille responded by telling Complainant that "if he didn't [come to work], his employment would be terminated" (Tr 247). Gille then terminated Complainant for "insubordination or refusing to come to work" (Tr 248).

   Gille testified that he first became aware of Complainant's safety concerns when he was contacted by Sharon Fair, Respondent's Human Resources Manager for the Western Division (Tr 248-9). Gille stated that Complainant called Fair "shortly after I terminated him by phone" (Tr 249). Gille also noted that Complainant called Thad Rogers, the Fleet Manager for the Western Division, about safety concerns (Tr 250, 259). Gille claims that he immediately spoke with Cupp and called Keith Mitchell from Frontier (Tr 250, 252). Gille testified that he personally spoke to Mitchell about the cables, and that "if [the cables] looked bad, [Mitchell] would have told us, which is always the situation with Frontier. If they find something dangerous, they're going to call" (Tr 252). According to Gille's testimony, Cupp also assured him that the cables were "fine" (Tr 252).

   However, Gille's testimony is contradictory. After stating that he personally ensured the vehicle was safe, he stated that "the cables were never a concern to me at that point . . . because no one told me about a problem with the cables" (Tr 251). He also testified that he merely "assumed" Frontier examined the cables when the winches were serviced (Tr 150). Gille also contradicted himself about when he first became aware of Complainant's safety complaints. For example, he stated that Complainant did not raise the issue of safety concerns until after Complainant was terminated (Tr 257-8). However, his own notes reflect that Complainant brought up safety concerns prior to Complainant's termination (Tr 257-8). Fair's notes also reflect that Complainant did not refuse to come in until after he discussed his safety concerns with Gille (Tr 259). Gille responded that Fair must have "two or three phone conversations mixed up" (Tr 262). Gille then admitted that he did not "remember exactly how it all went . . . I do believe that both conversations, the one in the morning and the one when I terminated him, there was not safety issues mentioned" (Tr 262). Gille further contradicted his earlier statement concerning the cables' safety (Tr 251). After taking a moment to think, he admitted that the cables needed repair; "when the inspection was done, [the cables] were given a 2, which . . . means generally good but fix on the next service in" (Tr 251). Gille also confirmed that all of the cables were replaced shortly after the March 4th incident because the Fleet Department ordered their replacement (Tr 252-253).

   Gille testified that at some time in February or March of 1999 he became aware that Complainant's speed governor was changed because the work appeared on an invoice (Tr 253). He testified that neither he nor Cupp authorized the change, but stated that "drivers will give instructions to Frontier about what needs to be done with the truck" (Tr 253-4). He explained that Frontier would not understand that a particular repair ordered by a driver should be refused (Tr 254). Gille then stated that drivers can not "initiate something like that, like a governor," which contradicted his earlier testimony that Complainant authorized the governor adjustment (Tr 254).

   Gille denied any knowledge of the January 21st incident during which a winch cable snapped on Complainant's truck (Tr 266). Gille testified that Complainant verbally threatened him by saying that he "would have to watch [his] back for as long as [Complainant] was alive" (Tr 250).

   G. Testimony of Jim Powell

   Mr. Jim Powell is the National Fleet and Safety Manager for Respondent (Tr 267-8). He has been employed with Respondent for approximately fifteen months (Tr 267). His duties require that he oversee the fleet operation of approximately 400 trucks and 200 loaders, as well as the safety of about 1,600 employees (Tr 269). Powell stated that Respondent told Complainant to list all safety violations on his Driver Vehicle Inspection Report (Tr 276). Powell testified that it is Complainant's responsibility as a CDL licensed driver to ensure that he marked all safety violations on the report (Tr 276).

facility, if the winch cable [were] to break, . . . there is a special area where, if a cable were to break or something was to happen, there's nobody behind the vehicle for anything to happen," referring to the winch control panel located "on the side [of the truck] . . . just behind the rear wheels (Tr 279-280). Powell asserted that he "has yet to see a snapped cable . . . come straight up and right toward the winch" (Tr 280). He explained that this scenario is unlikely because "the car is actually held together on a bridle. It's a V-shaped bridle . . . with two hooks in it. So if the cable was to break, it's going to go straight back" (Tr 280). When questioned whether drivers occasionally have to "move a piece of sheet metal in order to [make] the car accessible, [or] move a bumper away from a wheel," Powell admitted that drivers have to remove pieces of metal in addition to hauling cars onto truck beds (Tr 281).

   Finally, Powell testified that the hydraulic leaks are not a safety issue because of their design. He explained that "if you do lose hydraulic pressure on [the ram], it will lock in place. The cylinders themselves also lock in place" (Tr 282). He insisted that if the Ramsey winch fails, "it will freeze, it will lock up the unit," so that it is not a danger to the driver or others nearby (Tr 284).

   H. Testimony of Scott Butts

   Respondent has employed Mr. Scott Butts as a driver since May 3, 1999 (Tr 215). His Yard Manager was Dan Cupp for approximately four to five months, and his general manager is Craig Gille (Tr 217). The truck Butts drives was purchased and brought to the yard the week before he was employed (Tr 218). He reported no major problems with the truck, and explained that only minor repairs have been made, such as changing a light bulb (Tr 218).

   Butts explained that "the worst thing" that has gone wrong with his new truck is that two cables needed replacement (Tr 219). On the first occasion, Cupp was still Butts' supervisor (Tr 219). Butts testified that Cupp told him to take the truck to Industrial Splicing and have it fixed (Tr 219). Butts stated that he worked "roughly four months" before the first cable needed repair (Tr 221). He reported that one of the cables on his truck had been in use for a year and still had "no major wear on it" (Tr 221). He asserted that he never experienced hydraulic failure on a ram on this truck, but has seen hydraulic lines break while employed by a different employer (Tr 222). He testified that when a hydraulic ram breaks "the winch just stops. . . it stops, and it's stuck" (Tr 222-223). Therefore, he does not consider a hydraulic failure a dangerous situation (Tr 222-223).

   Butts testified that he has never driven a vehicle for Respondent that he thought was unsafe (Tr 215). He has never been instructed "not to have a repair made" (Tr 215). He has never been told that "things are done one way while corporate people are in town and another way when they are not in town," nor has he ever been told "to deviate from corporate policy" (Tr 215). He testified that he would not feel his job was in jeopardy if he failed to bring a safety concern to the attention of his yard manager or general manager (Tr 215). He also reported that his safety concerns have never been ignored (Tr 216).

   I. Testimony of Keith Mitchell

   Mr. Keith Mitchell is the Service Manager for Frontier (Tr 226). Mitchell has been employed by Frontier for twenty-two years (Tr 226). Throughout his employment with Frontier, Mitchell has either repaired trucks or been in charge of truck repair (Tr 226). His current job as Service Manager requires that he oversee shop personnel (Tr 226).

   On March 3rd and 4th of 1999, Complainant's vehicle was brought to Frontier for repairs (Tr 227). Various work was completed on the truck, including brake, driver's seat, backup light and winch repairs (Tr 227). All three winches were removed and resealed (Tr 227). Mitchell testified that his workers had the opportunity to inspect the winch cable while repairing the winches (Tr 227). He stated that if the cable was not in safe working order, his workers would have notified either Mitchell or Respondent (Tr 227). Mitchell stated that Frontier's policy requires that customers are notified of unsafe conditions (Tr 227). He testified that he received no reports of problems regarding the winches, and that he considered the truck safe to drive when it left the premises on March 4th (Tr 227-8). Furthermore, Mitchell insisted that he would not have allowed the truck to leave the premises if he felt it was unsafe because Frontier has a responsibility to ensure the safety of both its customers and the general public (Tr 228).

   Despite this responsibility, Mitchell admitted that Frontier does not complete a "top to bottom" inspection before the vehicles are released (Tr 228). He admitted that while Frontier notifies customers of any parts Frontier finds unsafe, each customer must "make the determination what they want to do." The customer chooses whether to request Frontier to repair the unsafe parts (Tr 229). Mitchell also admitted that Frontier does not "do the cable part ourselves" because Frontier's workers are not "cable specialists," (Tr 231). Instead, Frontier leaves the cable inspections and repairs "up to the cable specialists" (Tr 231).

   Mitchell testified that he wrote a letter indicating that Complainant requested the speed governor on his truck to be set to 75 miles an hour (Tr 232). Mitchell explained that he knew Complainant made the request because Mitchell's service writer "put [the request] on the ticket at the time the truck was repaired" (Tr 232). Mitchell verified this information by asking his service advisor if Complainant had instructed him to change the governor (Tr 232). Upon questioning, Mitchell admitted that he did not "overhear [Complainant] speak to anyone about setting the speed at 75 miles an hour" and that he did not have personal knowledge of the request (Tr 233). However, Mitchell persisted that Complainant ordered the governor change because repair instructions are generally taken from the truck drivers (Tr 239). Mitchell insisted that Complainant personally ordered the governor modification, despite the fact that the work order in question listed "about five or six pages, single spaced" of necessary repairs (Tr 239).

   J. Exhibits

   CX-1: a four page document signed twice by Gille and three times by Complainant, noting Respondent's OSHA Injury & Safety Program Policy Statement. The relevant parts note that:

No employee is required to work at a job he/she knows is unsafe or unhealthy. It is important, therefore, for all employees to understand the requirement that unsafe/unhealthy conditions be reported to management.

Workplace hazards will be corrected as soon as possible after they are identified. If this is not possible, a target date for correction will be set. This target date will take into consideration the probability and severity of an injury or illness resulting from the hazard, and until the hazard is eliminated. Employees exposed will be provided interim protection when appropriate.

While employees are required to share their safety and health concerns with management they may do so without fear of reprisal of any kind (CX-1, RX-4).

   The attached Employee Safety Orientation checklist shows checkmarks next to the training Complainant received, including the following phrase:

   "The immediate reporting of hazardous conditions and/or unsafe work practices to supervisory personnel without fear of reprisal" (CX-1, RX-3).

   CX-2: Three page document including Complainant's commissions, a Truck Survey (indicating the need for various repairs and their dates of completion) (also RX-5) and a fax from Cupp to the Oklahoma Highway Patrol noting brake adjustment completion (also RX- 6).

   CX-3: Eight page document including five pages of notes written by Fair regarding Complainant's termination (also RX-7, RX-8), a statement written by Gille to Gerry Waters, a memorandum written by Jo Ann Deloy, Employee Relations Manager, to Paul Styer, and a Statement of Facts written by Rodgers (also RX-9).

   CX-4: Two page document, including an Employee Status Notification indicating Complainant's termination (also RX-2), and two time cards dated February 19-25 and February 26-March 4.

   CX-5: One page document titled Driver Vehicle Inspection Report from the Oklahoma Highway Patrol noting a brake adjustment violation. The document, signed by Cupp, indicates the violation was corrected.

   CX-6: Two page document consisting of two letters from Mitchell to Respondent. The first letter states that Frontier repaired Complainant's vehicle on March 4, 1999 (also RX-12). The second letter states that on February 24, 1999, Complainant requested the governor on his truck be set at 75 miles per hour (also RX-13).

   CX-7: Thirteen page document, front and back, titled Driver's Daily Log. Each page consists of two logs, with corresponding Driver's Vehicle Inspection Reports on the back of each log (also RX-17). The reports are dated daily from February 1, 1999 to March 3, 1999. The documents list Complainant's work for the day and note several concerns with his truck. There is a gap of time where no concerns are listed, after which the concerns reappear in greater number. One of two boxes is checked on each report, either that the concerns affect the safety of the vehicle or do not affect the truck's safety.

   CX-8: Eleven page 1999 Tax Return and W-2 form for Complainant. The tax return shows a business loss of approximately $5,500.

   CX-9: Two page document including receipts from Industrial Splicing and Frontier International. The Industrial Splicing receipt shows replacement of three cables (also RX-18B). Frontier International's receipt shows that the top winch cable was cut off and the torque set was reinstalled, along with various other maintenance on the truck (also RX-18A).

   CX-10: Four page document consisting of an affidavit by Glass, an affidavit and statement by Tipton and a statement by Vincent. Glass discussed the inspection procedures of Respondent, and a conversation he overheard between Complainant and Cupp. Tipton discussed the necessity to replace all the cables on Complainant's vehicle, and that the condition of the vehicle prior to the repair placed those persons around the truck in danger. Vincent stated that the condition of the cables would have caused an accident.

   CX-11: Five page document consisting of 3 letters to Fair from Complainant and one letter to Mr. Randall Koonce from Complainant.

   CX-12: Three page document including a two page letter to Mr. Coffey from Ms. Goodman, and a one page letter from Mr. Coffey to Judge Sarno discussing discovery and interrogatory requests.

   RX-1: One page document titled Employee Status Notification indicating Complainant was hired as a driver for Respondent on January 12, 1999.

   RX-2: One page document titled Employee Status Notification indicating Complainant was terminated by Respondent on March 4, 1999. Identical to Employee Status Notification in CX-4, above.

   RX-3: One page document titled Employee Safety Orientation with checks by various training Complainant received. Identical to CX-1, above.

   RX-4: Three page document indicating Respondent's OSHA Injury & Safety Program Policy Statement. Same as CX-1, above.

   RX-5: One page document titled Truck Survey and dated February 4, 1999. Identical to the Truck Survey in CX-2, above.

   RX-6: Two page document titled Driver Vehicle Inspection Report with fax from Cupp to the Oklahoma Highway Patrol attached. Identical to fax in CX-2, above.

   RX-7: One page document of Fair's notes concerning Complainant. Identical to notes in CX-3, above.

   RX-8: Two page document of Fair's notes indicating conversations she had with Complainant and Gille. Identical to CX-3, above.

   RX-9: One page document titled Statement of Facts, prepared and signed by Rodgers. Identical to CX-3, above.

   RX-10: Five page document prepared and signed by Fair. The letter, dated April 1, 1999, is addressed to the USDOL-OSHA investigator in Complainant's case, and reviews Fair's impression of the evidence.

   RX-11: One page memorandum addressed to Fair and signed by Gille, stating that Complainant did not have permission to adjust the speed governor on his truck.

   RX-12: One page memorandum addressed to Respondent and signed by Mitchell, dated March 30,1999. Identical to CX-6, above.

   RX-13: One page memorandum addressed to Respondent and signed by Mitchell, dated March 30, 1999. Identical to CX-6, above.

   RX-14: One page e-mail dated March 4, 1999, from Gerry Waters to Gille and Fair, discussing Complainant's safety concerns and requesting further information.

   RX-15: One page e-mail dated March 5, 1999 from Gille to Waters discussing Complainant's termination.

   RX-16: One page document dated July 16, 1999 and signed by Fair. The document is a file copy of notes regarding Fair's conversation with the USDOL investigator.

   RX-17: Thirteen page copy of Driver's Daily Logs and Driver's Vehicle Inspection Reports, dated February 1 to March 3, 1999. Identical to CX-7, above.

   RX-18A: Five page invoice from Frontier dated February 27, 1999 and signed by Gille. Identical to CX-9, above.

   RX-18B: Two page invoice from Frontier dated March 1, 1999. Identical to CX-9, above.

   RX-19: Four page invoice from Industrial Splicing dated March 5, 1999, including a check signed by Gille. This is the most recent version of CX-9, above.

   RX-20: Three page excerpt from Department of Transportation regulations indicating the regulations for equipment, inspection and use, Driver Vehicle Inspection Reports, and driver inspections.

   RX-21: Two page Oklahoma Trucking Safety Guide demonstrating driver qualifications and various regulations.

   RX-22: Two page Arkansas Trucking Safety Guide, similar to RX- 21, above.

   RX-23: Two page Kansas Trucking Safety Guide, similar to RX-21 and RX-22, above.

   RX-24: Two page Missouri Trucking Safety Guide, similar to RX-21 to 23, above.

   RX-25: Six page document indicating the Department of Labor Secretary's Findings in Complainant's case. Page one is a letter, dated July 21, 1999, addressed to Fair and signed by Gerald Foster, indicating the outcome of the investigation. The remaining pages are the Secretary's Findings.

   RX-26: One page e-mail dated May 9, 2000 addressed to Powell from Rick Caudle at Ramsey Winch Company. Mr. Caudle indicated that "the winch [would] not free-spool from a loss of hydraulic pressure if the clutch is fully engaged by the operator before winching, the winch is in good condition and [it] has not been subjected to overloads causing failure of any part(s)."

   Complainant has the burden of establishing, by a preponderance of the evidence, that his safety complaints led to his discharge, as protected under the Act. Pike v. Public Storage Companies, 1998-STA-35 (ARB Aug. 10, 1999). To do so, Complainant must prove four elements: 1) he engaged in protected activity; 2) Respondent subjected him to adverse action; 3) Respondent was aware of the protected activity when it took the adverse action; and 4) there is sufficient evidence to raise an inference that the protected activity was the likely reason for the adverse action, i.e. causation. Auman v. Inter Coastal Trucking, 91- STA-32 (Sec'y July 4, 1992); Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992). Respondent may rebut Complainant's prima facie case by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason (the bursting bubble theory). St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Complainant must then prove that the proffered reason was not the true reason for the adverse action, but that the protected activity was the reason for the action.

   A. Protected Activity

   The employee protection section of the Act prohibits an employer from discharging or otherwise taking adverse action against an employee "because the employee refuses to operate a vehicle which violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or 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 (1994). Thus, the Act protects employees who refuse to operate a vehicle because the operation either violates a federal rule (the "when" clause) or causes the employee to reasonably apprehend serious injury to himself or others (the "because" clause).

   In the case at hand, Complainant clearly engaged in protected activity as defined in the "because" clause of the Act. Both Complainant's and Glass' testimony demonstrate that Complainant refused to drive Respondent's truck because he feared for the safety of himself and others around him. For example, Complainant testified that on March 4, 1999 he told Cupp that the truck was unsafe, and that the repairs were "pushed to the limit," referring to corporate's determination on February 4, 1999 that the cables needed replacement (Tr 95-6 ). Complainant then called Gille and expressed his concerns that the ram and winches would not be repaired (Tr 99). Complainant testified that when Gille called him back to tell him that the brakes were repaired, he immediately asked Gille about the winch and cable repairs (Tr 113). When Gille told Complainant that the leaks were not a danger, Complainant protested that the leaks were extremely dangerous, and reminded Gille that on January 20, 1999, a winch cable snapped because of lack of maintenance and repair (Tr 101-105). Complainant further testified that Respondent promised repairs that were never made (Tr 97).

   Complainant explained that his concerns were based on hydraulic leaks and unsafe cables. He explained that improperly maintained hydraulics are dangerous because the hydraulic lines may break and cause the lift to fall, potentially harming anyone standing nearby (Tr 119). To illustrate his concerns, Complainant described in depth an incident in which a cable snapped and "came whipping straight back towards" him (Tr 104). He explained that he was frightened, and that the cable "could have taken off a limb" (Tr 104). He testified that he witnessed persons decapitated by a snapped cable (Tr 105). Complainant also testified that if the repairs he requested were completed when he went to pick up the truck, he would have driven it without reservation (Tr 195).

   Glass' testimony corroborated Complainant's testimony. Glass testified that he overheard the conversation between Complainant and Cupp, during which Complainant told Cupp that "the hydraulic ram was still leaking, and the [winch] cables on the truck were frayed and worn and kinked, and . . unsafe" (Tr 30-31). Glass testified that Complainant told him that he did not "feel comfortable driving or operating the vehicle with[out] the cables and the ram repaired," and that the truck was unsafe (Tr 40). Glass also testified that he overheard Complainant tell Gille that he felt unsafe driving the vehicle (Tr 43).

   Complainant has clearly provided evidence that he feared for his safety. However, the "because clause" of the Act also requires that Complainant prove that the conditions causing his fears are "of such nature that a reasonable person, under the same circumstances . . . would conclude that there is a bona fide danger of accident, injury, or serious impairment of health." Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993). The Act provides that the determination of reasonableness "must focus on the information available to the complainant at the time of the work refusal." Caimano v. Brink's, Incorporated, 95-STA-4 (Sec'y Jan. 26, 1996). Under Dutile v. Tighe Trucking, Inc., 93-STA-31 (Sec'y Nov. 29, 1993), the Secretary has indicated that "it is proper to look to evidence that repair work was performed later in judging the reasonableness of Complainant's refusal to drive."

   The evidence shows that, at the time Complainant refused to drive Respondent's truck, he knew that there were multiple hydraulic leaks, and that the cables needed replacement, as determined in a February 4, 1999 corporate inspection (Tr 95). Complainant knew that each of these conditions was potentially hazardous (Tr 104-5, 118-20). Complainant personally experienced a recent incident in which a cable snapped while he was loading a car, which he described as "frightening" (Tr 104-5). During his testimony of the incident, he appeared close to tears (Tr 113).

   Complainant also knew that both Cupp and Gille told him the truck was safe, and that hydraulic leaks were not a danger (Tr 101, 113). However, Complainant also knew that he had asked for various repairs numerous times, and marked needed repairs on his Driver Inspection Reports, with no response from Respondent (Tr 189). He was well aware that both Cupp and Gille determined that no other repairs, other than the brakes, would be completed before he drove the truck on March 4th (Tr 96, 121). Given these circumstances and personal experiences, a reasonable person could apprehend his/her safety, or that of the public, despite the reassurances of Respondent, who repeatedly refused to make reasonable, necessary repairs.

   The testimony of both Tipton and Vincent further supports Complainant's position. Vincent and Tipton completely replaced the cables on Complainant's truck on the same afternoon Complainant was terminated. Additionally, a large five to six page single-spaced typed work order of repairs was completed on the truck jointly by Frontier and Industrial Splicing (Tr RX- 18). Both Tipton and Vincent agreed that the cables repaired on March 4 and 5, 1999 were in an unsafe condition (Tr 63, 79). Tipton pointed out that the cable had "bent wires, broken strands and kinked cables" (Tr 63). Vincent stated that "several of the cables had been smashed or broken in some places, some of them had kinks, burs, broken wires, et cetera" (Tr 78). Tipton further testified, and Vincent agreed, that if a cable breaks it could hurt, and possibly kill, a person standing nearby (Tr 63-5, 79).

   Based on the above evidence, Complainant clearly established his apprehension was reasonable. However, the "because" clause of the Act further requires that Complainant prove that he communicated his apprehension to his Employer, and that he sought "but was unable to obtain correction of the unsafe condition by the Employer." Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991). In this case, it is clear that Complainant repeatedly communicated his fears

to Respondent. Complainant testified, and Glass corroborated, that Complainant complained to both Cupp and Gille, but received no satisfaction from either (Tr 31, 38, 95-8, 121). Cupp told Complainant that there was too much work to be done, and that all the repairs could not be made during that particular service (Tr 96). Gille promised to call Cupp and get back to Complainant about the repairs (Tr 99). But when Gille later called Complainant, he told him the brakes were fixed and to get back to work, without addressing Complainant's remaining concerns (Tr 99). When Complainant asked about the other repairs, Gille responded that they were not safety concerns or dangerous (Tr 101, 113). Complainant protested that "it is extremely dangerous" and reminded Gille that the last time a cable repair was delayed, the cable snapped (Tr 101-105). Gille then gave Complainant an ultimatum; either drive the truck or voluntarily resign (Tr 121). Respondent's answer to Complainant's pleas clearly provided Complainant no satisfaction.

   Respondent disputes that Complainant was engaged in protected activity, but merely asserts that Complainant was not fired for making safety complaints as a defense. Therefore, I find that Complainant engaged in protected activity under the Act.

   B. Adverse Action

   An adverse action is one that shows discrimination regarding pay, terms, or privileges of employment. Complainant contends that Respondent took adverse action against him for refusing to drive an unsafe truck. The action at issue is Complainant's verbal termination on March 4, 1999, after making safety complaints to Cupp, Gille and Fair. Terminating Complainant's employment is clearly an adverse action.

   Respondent does not contest Complainant's assertion that his termination was an adverse action. Furthermore, when considering whether Complainant established the elements of a prima facie case, it is improper to consider Respondent's reasons for its actions. Auman, 91-STA-32 (Sec'y July 24, 1992); Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992); Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan.6, 1992).

   Thus, I find that Complainant's termination was an adverse action under the Act.

   C. Respondent's Awareness of Protected Activity

   Complainant has presented sufficient evidence to demonstrate that Respondent was aware of his protected activity at the time of Complainant's termination. Both Complainant and Glass testified that Complainant made complaints about the safety of the truck to both Cupp and Gille to explain why he refused to report to work. Complainant specifically told Cupp that the winch leaks needed repair and that the cables needed to be replaced (Tr 95). Complainant followed up his safety concerns by calling Gille to discuss the hydraulic leaks and the condition of the cables (Tr 99).

Gille told Complainant that he would talk to Cupp and get back to Complainant (Tr 99). When he called Complainant to tell him the brakes were fixed, Complainant pointedly asked him about the hydraulic leaks and winches (Tr 113). Gille responded that they were not major concerns (Tr 101, 113). Complainant then told Gille that they were safety concerns, and reminded him that the cables were past due for servicing (Tr 101). Gille told Complainant to report to work to drive the truck, or that his refusal would be considered a voluntary termination (Tr 121). Complainant refused based on safety grounds, and repeated his concerns along with his reasons for the refusal to Gille (Tr 121). Gille then verbally discharged Complainant (Tr 121). Gille's own notes reflect that Complainant told him about the safety concerns prior to Complainant's termination (Tr 257-8). Additionally, Fair's notes reflect that Gille discussed safety issues with Complainant prior to his termination (Tr 259).

   Respondent, through Gille and Cupp, clearly knew that Complainant was in reasonable apprehension of injury to himself or others because Complainant specifically discussed his safety concerns and reasons for refusing to drive the truck with both Gille and Cupp. Respondent disputes Complainant's evidence. However, Complainant has presented sufficient evidence for the court to infer that Respondent was aware of Complainant's protected activity, as provided by the Act, at the time Respondent terminated Complainant.

   D. Causation

   Direct evidence of causation is not necessary. Complainant need only raise the inference that the protected activity was the likely reason for the adverse action by presenting sufficient evidence to prevail if not contradicted. Ass't Sec'y and Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995); Ertl v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989). Close proximity between the protected activity and the adverse action may raise the inference that the protected activity was the likely reason for the adverse action. Kovas v. Morin Trasport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993) (citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). In this case, Respondent verbally fired Complainant during a conversation about Complainant's safety concerns regarding the truck (Tr 121). The complaints and the adverse action were contemporaneous (Tr 121). See Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993). Complainant began making complaints with his immediate supervisor, and then moved up the corporate chain to speak with Gille, Fair and Rodgers about his safety concerns (Tr 95-100, 121, 248-9, 250, 259). He repeatedly brought attention to his fears. When Complainant insisted on an answer, Gille gave Complainant an ultimatum; either drive the truck despite his concerns or be terminated (Tr 121). Complainant again reiterated his safety concerns and stated that he would not drive the truck because of its condition (Tr 121). Gille then terminated Complainant (Tr 121).

   Based on the evidence, I find that Complainant's report of safety concerns and his subsequent refusal to drive the truck provoked Respondent's adverse action. Therefore, I find that Complainant provides sufficient evidence to raise the inference that Complainant's protected activity was the likely reason for his termination, and has thus made a prima facie showing of discrimination for his termination from service on March 4, 1999.

   E. Legitimate, Nondiscriminatory Reason

   Once Complainant proves the four elements of a prima facie case, Respondent may rebut Complainant's case by articulating a legitimate, non-discriminatory reason for the adverse action, also called "bursting the bubble." St. Mary's Honor Center v. Hicks, __ U.S. __ (1993). It is not Respondent's burden to prove a legitimate, non- discriminatory reason for its action, but merely to articulate a non-discriminatory reason. Id. However, the legitimate reason must be sufficient to raise a genuine issue of fact as to whether the Respondent discriminated against the Complainant. Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990). The burden then shifts to Complainant to show that the protected activity was the more likely cause of the adverse action or that the reason offered by Respondent is not credible. Caroll v. J.B. Hunt Transport, 91-STA-17 (Sec'y July 23, 1992).

   In this case, Respondent rebuts Complainant's case by arguing that Complainant was discharged for refusing to report to work, and for insubordination, but not for refusing to drive the truck for safety concerns (Tr 248). Therefore, Respondent has successfully articulated a legitimate, nondiscriminatory reason to rebut Complainant's prima facie case of discrimination.

   F. Rebuttal of Pretext

   Complainant now bears the burden of proof. To prevail, Complainant must show by a preponderance of the evidence either that the protected activity was the more likely cause of the adverse action or that the reason offered by Respondent is not credible. Caroll v. J.B. Hunt Transport, 91-STA-17 (Sec'y July 23, 1992). Complainant clearly meets his burden. He not only shows that Respondent's proffered reason is not credible, but he also demonstrates that his protected activity is the more likely cause of Respondent's adverse action against him.

   On the whole, Complainant's witnesses are more credible than Respondent's witnesses. Most importantly, three independent witnesses, Glass, Tipton and Vincent, corroborated Complainant's testimony (Tr 28-57, 62-74, 78-90). Additionally, each witness was credible for specific reasons. For example, Glass was forthcoming about his reasons for leaving Respondent's employ, and was careful to limit his testimony to events and conversations about which he had personal knowledge (TR 42-4, 45-57). Tipton and Vincent were both disinterested witnesses, who candidly shared their observations of Complainant's truck with the court. Tipton clearly explained why he recalled Complainant's truck in detail (Tr 72, 69). Vincent admitted when he could not remember facts, and also when he was mistaken about the number of cables on Complainant's truck (Tr 79, 82, 87). Vincent was also careful to explain why he was able to clearly recall certain portions of his testimony (Tr 87, 90).

   Complainant is also a believable witness. Complainant candidly admitted to the court that he did not always follow Respondent's policies (Tr 165). He also honestly admitted that he had several altercations with Cupp, and was rude and argumentative with both Fair and Waters (Tr 165, 201-5). Additionally, he was forthcoming in admitting that he told Cupp that he had a personal appointment that conflicted with his work schedule on March 4th (Tr 209-10).

   Respondent's witnesses, on the other hand, are less credible than Complainant's witnesses. Four of Respondent's five witnesses were interested parties. See Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y, Jan. 19, 1993). Of the four interested witnesses, three of them were key. The two least credible witnesses are Cupp and Gille, Complainant's immediate supervisors. Both of these witnesses exhibited disturbing credibility problems. For example, Cupp was unable to recall key topics, such as whether Complainant expressed safety concerns to him on the morning of March 4th, and whether Frontier was asked to repair leaky hydraulics while completing the brake repairs (Tr 135-6). Additionally, Cupp's testimony was contradictory in several key areas, including whether the cables were a safety hazard on March 4th, in light of the fact that they were scheduled to be completely replaced on March 6th, and why items that he testified were high priority and immediately fixed were not repaired until almost a month later (Tr 149, 153-4, 158). Gille's testimony was also contradictory. For example, he claimed that he personally ensured the cables were safe, but later admitted that the cables were not even an issue at that point in time because he was unaware of possible problems with them (Tr 250-1). Gille also contradicted himself about whether he first learned of Complainant's safety concerns before or after Complainant's termination (Tr 257-9). He finally grudgingly admitted that he could not "remember exactly" (Tr 262).

   The most credible witnesses that Respondent produced include Mitchell, whose testimony is clearly not credible in some areas; Powell, whose testimony is credible but damaging to Respondent; and Butts, whose testimony is irrelevant. Mitchell testified that he had personal knowledge about the speed governor, but later admitted that he obtained his knowledge second-hand from another person, and that he did not see or overhear the conversation (Tr 232-3). Mitchell's credible testimony demonstrates that Respondent made the final decision as to what repairs Frontier would make to the truck, and that a complete inspection was not performed before the vehicle left the Frontier facility (Tr 228-9). Mitchell also admitted that his facility does not specialize in cable repair or replacement, and that they specifically leave cable inspections "up to the cable specialists" (Tr 231). Powell's testimony, as compared to Respondent's other key witnesses, is fairly credible. However, his testimony was not favorable to Respondent. Powell's testimony centered on the quality of Respondent's vehicles and their upkeep. However, he admitted that the safety inspection performed by corporate, the key diagnostic tool used by Respondent to maintain vehicle safety, was not as thorough as portrayed; for instance, he did not inspect the brakes on February 4, 1999 (Tr 273). In fact, Powell admits that he did not even bring the necessary tools with him to inspect the brakes (Tr 273). Finally, Butts' testimony, although completely credible, is completely irrelevant. Because Butts was provided a brand new truck while in Respondent's employ, he simply did not have the opportunity to experience safety concerns similar to that of Complainant (Tr 218). Additionally, he was hired after Complainant's termination, so he was unable to speak to Respondent's practices while Complainant was employed with Respondent (Tr 215).

   It is against this background that Complainant seeks to persuade the court that Respondent terminated him for refusing to work due to safety concerns, and not for insubordination or refusal to report for work. Based on the record, Complainant provides voluminous evidence to suggest that he was terminated improperly, which Respondent simply fails to sufficiently rebut. Respondent insists that Complainant was not fired for refusing to drive a truck while fearing for his safety. Instead, Respondent asserts that Complainant was discharged for: 1) insubordination and 2) voluntary failure to report to work.

   To support Respondent's position that Complainant was insubordinate, Respondent presented evidence that Complainant was a difficult employee, and argumentative with other employees. For example, Complainant testified that he and Cupp had some altercations (Tr 201-4). He also admitted that he became rude and argumentative with Gerry Waters in conversations that occurred after his termination (Tr 205). Cupp testified that Complainant had "a problem with me as his superior" and that they exchanged heated words on occasion (Tr 134). Gille testified that Complainant was a difficult employee and that Complainant threatened him on March 4, 1999, telling him to "watch his back" (Tr 244, 250). Finally, Fair's notes reflect that Complainant was rude and argumentative with her on the phone after his termination (RX-7-8). Respondent presented no other evidence to establish that Complainant was insubordinate.

   Respondent's insubordination claim is simply not convincing. Although an employer may discharge an employee at will for insubordinate behavior, there is little evidence that Complainant was insubordinate during his employ with Respondent. It is very disconcerting that no evidence was presented to demonstrate that Respondent kept track of Complainant's inappropriate behavior in any manner whatsoever. Additionally, it is clear from the record that Complainant was notified that his behavior was inappropriate on only one occasion, when Gille approached Complainant about an altercation with Cupp (Tr 204). See Park v. McLean Transportation Services, Inc., 91-STA-47 (Sec'y June 15, 1992). The record provided no evidence that Cupp, Gille, or any other supervisor made notations that Complainant's behavior was insubordinate, other than his refusal to drive the truck on March 4, 1999. In fact, about half of the evidence Respondent submitted to support its insubordination claim clearly demonstrated that the alleged insubordination occurred after Complainant was terminated (Tr 205, RX-7-8). Based on the evidence, Respondent's claim of insubordination is simply not credible.

    Respondent also asserts that Complainant was discharged for voluntarily failing to report to work. This allegation presumes that Complainant's refusal to drive the truck was not for safety concerns, despite a voluminous amount of evidence to the contrary. Both Cupp and Gille denied that the truck was not safe, despite the fact that numerous repairs were made on the truck on the afternoon of March 4th, immediately after Complainant was terminated. Cupp and Gille insisted that hydraulic leaks were not a safety issue, despite an email from Rick Caudle at Ramsey Winch Company stating that "the winch [would] not free-spool from a loss of hydraulic pressure if the clutch is fully engaged by the operator before winching, the winch is in good condition, and has not been subjected to overloads causing failure of any part(s)" (Tr 101, 113, 139, 160, RX-26, emphasis added). Although this evidence tends to support Respondent's position that the hydraulic winch is not a danger, Respondent failed to present evidence that the winch was in good condition on March 4th. Complainant, however, presented convincing evidence of repeated hydraulic leaks, including leaks from the gear box (Tr 30-1, 40, 113, 117, 135- 6). This clearly demonstrates that the winch was not, in fact, in good condition and rebuts Respondent's position.

   Cupp and Gille also denied that the cables were unsafe. They were careful to deny any knowledge of a cable snapping on Complainant on January 20, 1999 (Tr 144, 266). Cupp and Gille claimed they personally checked the condition of the cables; however, Gille later admitted that he merely checked with Frontier's Service Manager to determine if he had knowledge of any cable problems (Tr 250). However, both Cupp and Gille admitted that the cables were scheduled to be completely replaced on March 6, 1999 only two days after Complainant was terminated for refusing to drive the truck, partially due to his fears about the cables' safety (Tr 149, 252-3). Based on this evidence, Respondent's assertion that Complainant was terminated for refusing to report to work is unconvincing. Therefore, Complainant has met his burden by proving that Respondent's proffered reasons are not credible.

   Because Complainant has met his burden, it is unnecessary for the court to determine whether Complainant clearly demonstrated that he was most likely terminated for his protected activity. However, the court finds that Complainant has met this burden as well, and will therefore briefly entertain Complainant's alternative burden. The record clearly demonstrates that Respondent, through Gille, terminated Complainant because he engaged in protected activity. Based on the facts, Gille clearly knew about Complainant's concerns because Complainant directly addressed them to Gille by telephone on March 4th (Tr 42-3, 99, 257-8). Based on this conversation and Gille's notes, Gille knew that Complainant's refusal to drive the truck was based on the safety concerns he brought to Gille's attention (Tr 138, RX-15). Gille also knew that Complainant previously asked Cupp to address the concerns and that Cupp refused (Tr 43, 99). Gille knew that Complainant then called him, told him about the safety issues, and asked for his help (Tr 43, 99, 257- 8). Gille then gave Complainant an ultimatum (Tr 247). After terminating Complainant, Gille claimed that Complainant was fired for refusing to report to work (Tr 248). However, based on the evidence, Complainant was not fired for merely refusing to report to work. If this were the case, Complainant would have been fired earlier in the day for refusing to clean out cars at the yard (Tr 9-10, 98, 137, 246-7). Additionally, during the conversation, Gille did not provide Complainant with the opportunity to report to work and perform a different task from driving the truck; he clearly told Complainant to "come in and drive the truck, [or] you've lost your job" (Tr 121, 247). Gille clearly discharged Complainant because he refused to drive a truck which he reasonably apprehended would cause physical harm to himself or others.

   Because there is direct evidence that Respondent's action was in part motivated by Complainant's protected activity, Respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of Complainant's protected activity. Caimano v. Brink's Incorporated, 95-STA-4, slip op. at 23-24 (Sec'y Jan. 26, 1996). Respondent alleged two reasons for which it would have terminated Complainant despite his protected activity. Based on the weight of the evidence, Complainant has shown by a preponderance of the evidence that Respondent's proffered reasons, insubordination and refusal to report to work, are not credible. Therefore, Respondent has failed to establish that it would have discharged Complainant in the absence of his protected activity.

   After evaluating all of the evidence, I find that Complainant was most likely terminated because Complainant refused to drive the truck, despite his safety concerns, and that Respondent's proffered reasons are not credible. Therefore, I find that Respondent violated the employee protections of the Surface Transportation Assistance Act and acted improperly in terminating Complainant for exercising protected activity.

   G. Damages

   Under the Act, Complainant is entitled to a mandatory award of back pay, and reinstatement to his previous position with Respondent. See Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). Interest is due on back pay awards from the date of discharge until the date when payment of back pay is made. Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 1000), slip op. at 17- 8. "Any uncertainties in calculating back pay are resolved against the discriminating party." See Kovas. In cases where Complainant is awarded both back pay and reinstatement, Respondent is liable to Complainant for back pay until Respondent reinstates the Complainant, or makes Complainant a "bona fide offer of reinstatement." Polewsky v. B & L Lines, Inc., 90-STA-21 (Sec'y May 29, 1991).

   Respondent has the burden of proving by a preponderance of the evidence that Complainant did not mitigate his damages by exercising reasonable diligence in finding other suitable employment. Johnson v. Roadway Express, Inc., ARB No. 99-111, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000). To meet its burden, Respondent must establish that comparable jobs were available, and that Complainant failed to make reasonable efforts to find substantially equivalent employment. Id. Complainant must then prove that he exercised due diligence in seeking suitable alternate employment. Id. at 16 n.14.

   The Act also entitles Complainant to the restoration of pension, health and welfare benefits that he enjoyed on his last days of employment. Dutile v. Tighe Trucking, Inc., 93-STA-31 (ALJ July 1, 1994). However, Respondent will not be ordered to pay directly to Complainant the amounts that Respondent would have spent for health, welfare and pension benefits where a Complainant fails to present evidence of such losses or the purchase of substitutes for benefits he would have received. Nevertheless, Respondent must restore past health, welfare and pension benefits, to the extent that they affect Complainant's current or future entitlement to such benefits. See Hufstetler v. Roadway Express, Inc., 85-STA-8 (Sec'y Aug. 21, 1986), slip op. at 49, rev'd on other grounds, Roadway Express, Inc. v. Brock, 830 F.2d 179 (11th Cir. 1987). Finally, Complainant may also be entitled to compensatory damages under the Act, including damages for pain and suffering, mental anguish, embarrassment, and humiliation. Michaud v. BSP Transport, Inc., 95-STA-29 (ARB Oct. 9, 1997).

   In the case at hand, Complainant requested $74,215.72 in damages. Respondent argues that Complainant should not receive damages because he failed to mitigate by seeking suitable alternate employment. It is true that Complainant did not seek other employment, but merely started his own lawn care service (Tr 212-3). However, Respondent has failed to meet its burden by presenting evidence that comparable jobs were available. Therefore, Complainant prevails.

   Under the Act, Complainant is entitled to be reinstated with Respondent to the same position in which he was employed immediately prior to his termination. Additionally, based on Complainant's average weekly wage, he is entitled to back pay in the amount of $531 per week from the date of his termination, March 4, 1999, until Respondent reinstates Complainant or makes him an offer of reinstatement (Tr 169). Interest on back pay owed is to be calculated on Complainant's back pay from the date of discharge until the date Complainant is paid, in accordance with 26 U.S.C. § 6621.

   In addition to back pay, Complainant seeks reimbursement for the following losses he incurred: $6,900: startup business; $2,102.10: 401(k) contribution, $7,000: family health insurance; $10,000 new truck purchase for lawn care business; $543: commercial liability; unspecified amount for compensatory damages (Tr 170, 174-8). Complainant is clearly not entitled to damages for the purchase of a new truck, the costs of a startup business, or the purchase of commercial liability insurance for his new business. Complainant was not entitled to any of these "benefits" during the last days of his employment with Respondent. Therefore, Respondent is not liable for any losses Complainant may have so incurred.

   However, the Act clearly allows damage awards pertaining to Complainant's loss of health insurance and 401 (k) contributions. Unfortunately, it is clear from the record that Complainant was not entitled to 401 (k) contributions from Respondent because Respondent did not maintain a 401(k) or stock option program (Tr 174). Additionally, Complainant failed to purchase replacement medical insurance after his termination by Respondent (Tr 213). Therefore, Complainant is not entitled to either damages for losses of 401(k) contributions or family health insurance copayments. However, upon reinstatement, Respondent shall restore all of Complainant's health, welfare and pension benefits to which he was entitled immediately prior to his termination.

   Complainant also requested compensatory damages for his pain and suffering and because he was effectively "blacklisted" by Respondent. Although the Act provides for compensatory damages, Complainant failed to present sufficient evidence on his pain and suffering, or that he was blacklisted, despite the court's encouragement to present all damages at trial (Tr 131). Additionally, the court allowed both parties to present briefs on the issue of damages (Tr 175-7). By way of his post-hearing brief, Complainant requested that the court allow him to present evidence on his pain and suffering. The court denied this request, as it clearly stated during the hearing that it would not entertain evidence post-hearing (Tr 181). Therefore, because Complainant failed to address the issue, recovery of compensatory damages is denied.

   It is hereby ORDERED that:

   1. Respondent shall reinstate Complainant to his previous position as driver, with the same pay schedule, health, welfare and pension benefits as of the date of termination.

   2. Respondent shall pay Complainant back pay in the amount of $531 per week, beginning at the date of termination, March 4, 1999, until the date of reinstatement, or the date of Respondent's offer of reinstatement if Complainant declines reinstatement.

   3. Interest at the treasury-bill rate specified in 26 U.S.C. § 6621 in effect when this decision and order is filed with the Secretary of Labor shall be computed on all accrued benefits from the date on which each payment was originally due to be paid.

   4. The request for all other damages is DENIED.

   5. Within thirty (30) days of the date of this Decision and Order, Counsel for Complainant shall file a fully itemized and supported fee petition, sending a copy to Respondent's Counsel, who shall have twenty (20) days to respond.

       DANIEL A. SARNO, JR.
       Administrative Law Judge

DAS/AMM

NOTICE: This recommended Decision and/or Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210. See CFR §1978.109(a); 61 Fed. Reg. 19978 (1996).