The following facts are undisputed. Respondent, R&L Transfer, Inc., hired More as a truck driver on June 15, 1999, subject to the successful completion of a 90-day probationary period. He had no permanent route, but instead was assigned to runs as loads became available.    On July 21, 1999, More reported to work at 5:15 a.m. and worked until 1:09 p.m. After More had gone home for the day, Michael Smith, the terminal manager, telephoned More and informed him that he was discharged. However, when More pleaded for another chance, Smith relented and gave More his job back on the condition that he become a model employee. More understood that he was to report back to work later that evening for a 9:00 p.m. run.

   More arrived at work shortly after 9:00 p.m., but by that time the load was already gone. He was told to report back at 10:00 p.m. Shortly thereafter, More took Frank Shelton, his immediate supervisor, aside and offered to pay him for the names and telephone numbers of truckers who had filed suits against their former employers. Shelton relayed this conversation to Smith. Viewing More's offer as a veiled threat, Smith summarily terminated More at approximately 9:45 p.m. because More had failed to improve his behavior.

RD&O at 6.

   The decision of the ALJ is before the Board pursuant to the automatic review procedures under 29 C.F.R. §1978.109(c)(1).

   Under the STAA implementing regulations, the Board is bound by the factual findings of the ALJ if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. §1978.109(c)(3). The Board reviews the ALJ's conclusions of law de novo. Johnson v. Roadway Express, Inc., ARB No. 99-011, ALJ No. 1999-STA-5 (ARB Mar. 29, 2000), citing Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

   Respondent also asserts that More's briefs contain references to materials and issues without providing any citations to the transcript or otherwise identifying where in the record these materials and issues may be found. According to Respondent, More's Briefs "present impertinent material not at issue or not raised at the Hearing or in his Complaint . . . . On that basis his Briefs should be struck. . . . pursuant to F.R.C.P. 12(f)." Respondent's Motion to Strike Complainant's Briefs at 6-7. In Response, More filed a motion essentially asking whether he needs to supplement his briefs with citations to the record or whether he needs to submit any additional evidence and/or arguments. Complainant's Motion Requesting that the Administrative Review Board Provide Him Notice Indicating Whether or Not He Must Provide the ARB Documents Explaining the Foundation of the Complainant's Claim that the Causes of Each of the Several Adverse Employment Activities that has been & is Present in this Case has been Imputable to the Statutory Breaching Commitment, Policies & Practices of the Respondent in Order that the Complainant's Position in this Matter Prevail Over the Respondent's Entirely Untenable Position [sic], at 1 and 4.

   We agree with Respondent that More's briefs are unaccompanied by adequate citations to the record. However, in the absence of a rule requiring such citations, we would be compelled to allow More to amend his briefs to include them. A second round of briefing would needlessly increase the cost of resolving what we believe is a straightforward case. We decline to take that course of action and, therefore, Respondent's request to strike the briefs on this ground is denied.

   To prevail on a claim under §31105(a), the complainant must prove by a preponderance of the evidence that he or she engaged in protected activity, that his or her employer was aware of the protected activity, and that the employer discharged, disciplined or discriminated against him or her because of that activity. Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Moon v. Transport Drivers, Inc., 836 F. 226, 228 (6th Cir. 1987).

   Under the STAA provision invoked in this case the "refusal to operate" provision More could not have engaged in protected activity unless he refused to operate a vehicle. More argues that he arrived after 9:00 p.m. on the evening of July 21, 1999, for the express purpose of avoiding a violation of the eight-hour rule under 49 C.F.R. §395.3(a)(1) (1999). According to More, this was tantamount to a refusal to take the load and, therefore, was a protected activity under the STAA. Official Complainant's Brief Submitted for Administrative Review to the Administrative Review Board, at 12.

   We think this is an untenable theory. However, assuming that the eight-hour rule under 49 C.F.R. §395.3(a)(1) (1999) is applicable, and that More's legal argument is something other than a post hoc rationalization for being tardy, More has still failed to establish a case of unlawful discrimination. Even if More were to prove that he engaged in protected activity, that fact is ultimately irrelevant unless he can also show a causal connection between the protected activity and the adverse action (i.e., unless he can show a retaliatory intent). No such connection can be demonstrated unless More can first establish that Respondent had actual or constructive knowledge of his protected activity. More has never asserted, let alone proven, that Respondent had actual or constructive knowledge that he deliberately reported to work late in order to avoid violating 49 C.F.R. §395.3(a)(1). Therefore, we find that More failed to prove an essential element of his case and concur with the ALJ's recommendation that this complaint be dismissed.

   SO ORDERED.

      CYNTHIA L. ATTWOOD
      Member

      RICHARD A. BEVERLY
      Alternate Member