The question we consider is whether substantial evidence in the record supports the ALJ's ruling that Rocket did not violate the STAA by terminating Johnson's employment because he made protected safety complaints.

    The Secretary of Labor has delegated her jurisdiction to decide this matter to the Administrative Review Board (ARB or Board). 49 U.S.C.A. § 31105(b)(2)(C). See Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17 2002). See also 29 C.F.R. § 1978.109(c). When reviewing STAA cases, the ARB is bound by the ALJ's factual findings if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F. 3d 41, 44 (2d Cir. 1995). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In reviewing the ALJ's legal conclusions, the Board, as the Secretary's designee, acts with "all the powers [the Secretary] would have in making the initial decision . . . ." Therefore, the Board reviews the ALJ's legal conclusions de novo. 5 U.S.C.A. § 557(b) (West 1996). See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991).

1. The Legal Standard

    The STAA provides that an employer may not "discharge," "discipline" or "discriminate" against an employee-operator of a commercial motor vehicle "regarding pay, terms, or privileges of employment" because the employee has engaged in certain protected activity. The protected activity includes filing a complaint or beginning a proceeding "related to a violation of a commercial motor vehicle safety regulation, standard, or order." 49 U.S.C.A. § 31105(a)(1)(A).

    To prevail on this STAA claim, Johnson must prove by a preponderance of the evidence that he engaged in protected activity, that Rocket was aware of the protected activity, that Rocket took an adverse employment action against him, and that there was a causal connection between the protected activity and the adverse action. Regan v. Nat'l Welders Supply, ARB No. 03-117, ALJ No. 03-STA-14, slip op. at 4 (ARB Sept. 30, 2004); BSP Trans, Inc. v. U.S. Dep't of Labor, 160 F.3d 38, 45 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994); Schwartz v. Young's Commercial Transfer, Inc., ARB No. 02-122, ALJ No. 01-STA-33, slip op. at 8-9 (Oct. 31, 2003). If the employee fails to prove any one of these elements, the claim must be dismissed. Eash v. Roadway Express, ARB No. 04-036, ALJ No. 1998-STA-28, slip op. at 5 (ARB Sept. 30, 2005).

    There is no dispute here that Johnson's complaints about unsafe operation of commercial motor vehicles were protected and that Rocket was aware of Johnson's protected activity. R. D. & O. at 16. Since Rocket terminated Johnson's employment, Johnson certainly suffered adverse action. Therefore, we must decide whether substantial evidence supports the ALJ's finding that Johnson did not prove by a preponderance of evidence that Rocket fired him because of his protected activity.

2. Johnson Did Not Prove That Rocket's Reasons For Terminating Him Were Pretexts

   Johnson, who appeared pro se at the hearing, filed a petition for review, alleging only that Rocket's witnesses perjured themselves to avoid higher rates on unemployment compensation. Testifying at the hearing on behalf of Rocket were Charles and Jewell Stanley; Kenny Bannister and Mike Blackmon, employees; and James Andrews, Rocket's general manager and Johnson's supervisor. Johnson testified on his own behalf.

   The ALJ found all of Rocket's witnesses to be "highly credible." R. D. & O. at 16. He also found that Rocket's witnesses consistently testified that Johnson "was fired because of his careless attitude, accident/incident history, and final precipitating mishaps with the drywall and blown tire on 4 June." Tr. 85; R. D. & O. at 16. The ARB will uphold an ALJ's credibility findings based on substantial evidence unless they are "inherently incredible or patently unreasonable." Negron v. Vieques Air Link, Inc., ARB No. 04-021, ALJ No. 2003-AIR-10, slip op. at 4-5 (ARB Dec. 30, 2004). Accord Lockkert v. United States Dep't of Labor, 867 F.2d 513, 519 (9th Cir. 1989). Here, we defer to the ALJ's credibility determinations and findings of fact. See Safley v. Stannards, Inc., ARB No. 05-113, ALJ No. 2003-STA-54, slip op. at 6, n.3 (ARB Sept.

30, 2005); Roberts v. Marshall Durbin Co., ARB Nos. 03-071, 03-095; ALJ No. 2002-STA-35, slip op. at 8-9 (ARB Aug. 6, 2006).

   After reviewing the hearing transcript, we conclude that the ALJ fairly and thoroughly analyzed the witnesses' testimony and concluded that Rocket fired Johnson "because he violated Respondent's rules regarding backing up, ignored the advice of co-workers, destroyed property, and manifested a careless attitude toward his work." R. D. & O. at 17. The record contains substantial evidence to support the ALJ's finding.

   Johnson has offered no other evidence that Rocket's proffered reasons for terminating him are pretextual. An inference of discrimination, however, may arise when adverse action closely follows protected activity. Although the ALJ made no findings as to exact dates of Johnson's protected activity, he concluded that there was insufficient evidence of a temporal nexus between Johnson's protected activity and his termination to raise the inference of causation. R. D. & O. at 17.

   Temporal proximity is not always dispositive. "[W]hen the protected activity and the adverse action are separated by an intervening event that independently could have caused the adverse action, the inference of causation becomes less likely because the intervening event also could have caused the adverse action." Thompson v. Houston Lighting & Power Co., ARB No. 98-101, ALJ Nos. 96-ERA-34, 38, slip op. at 6-7 (Mar. 30, 2001). Here, assuming arguendo that Johnson's final complaint in April 2004 was in temporal proximity to his termination, intervening events reasonably could have caused Stanley to terminate Johnson's employment. On his last day of work, Johnson dropped two loads of drywall while unloading a truck at a job site, damaging 68 boards. He then blew out a tire because he backed up his truck without using a spotter – a violation of Rocket's safety rules that alone was grounds for termination. Tr. 83-84; 139. These intervening events negate the inference of causal relationship between Johnson's protected activity and his termination. See Anderson v. Jaro Trans. Servs. and McGowan Excavating, Inc., ARB No. 05-011, ALJ Nos. 2004-STA-2, 3 (ARB Nov. 30, 2005).

   Like the ALJ, we find it especially probative that Charles Stanley allowed Johnson to return to full driving duties on June 4, the same day that he fired Johnson for destroying two loads of drywall and violating safety rules regarding backing up a truck. If Stanley had any animus toward Johnson for his safety complaints, he would not have allowed him to return to full driving duties on June 4. And we concur with the ALJ that Rocket terminated Johnson for legitimate, non-discriminatory reasons unrelated to his protected activity. Johnson violated Rocket's safety rules, ignored warnings of co-workers, and destroyed property.

   Substantial evidence in the record as a whole supports the ALJ's finding that Rocket did not fire Johnson because of his protected activity. The ALJ properly applied the relevant law. Therefore, we agree with the ALJ's conclusion that Rocket did not violate the STAA. Accordingly, we DENY the complaint.

   SO ORDERED.

         M. CYNTHIA DOUGLASS
         Chief Administrative Appeals Judge

         DAVID G. DYE
         Administrative Appeals Judge