After receiving the Regional Administrator's determination on September 22, 2000, Mr. Journeay, through counsel, filed his exceptions to the determination and requested on October 20, 2000 a hearing with the Office of Administrative Law Judges. Pursuant to a Notice of Hearing, dated October 25, 2000, I set a hearing date of November 20, 2000 in Oklahoma City, Oklahoma (ALJ 1). After a subsequent continuance (ALJ 2), I conducted a hearing on December 4, 2000. Mr. Journeay, his attorney, Mr. Lee, Mr. John Barry Smith, and counsel for the Respondent, Mr. Parker, were present at the hearing. My recommended decision and order in this case is based on the testimony presented at the hearing and the documents admitted into evidence (ALJ 3, CX 1 to CX 5, and RX 1 to RX 3).

   Whether the Respondent, Barry Smith Transportation, violated the employee protection provision of the Act by terminating the employment of the Complainant, Mr. David Journeay.

   On October 11, 1999, after having already driven ten hours, Mr. Journeay was asked by his supervisor to drive additional hours later that same evening. The additional hours would have exceeded the maximum permissible under the Department of Transportation ("DOT") regulations. Mr. Journeay declined the assignment. One week later, Barry Smith Transportation discharged Mr. Journeay based on his refusal to take that assignment which would have caused him to violate the DOT hours of operations safety regulations. Mr. Journeay seeks compensatory damages for the difference between his wage at the time he was discharged and his subsequent wages for other jobs.

   On October 11, 1999, Mr. Journeay's supervisor did not ask him to accept a driving assignment that would have violated the DOT hours of operations safety regulations. Instead, other conduct and behavior by Mr. Journeay led to his discharge.

   Mr. Smith is the president and co-owner of Barry Smith Transportation. Prior to 1999, when the company engaged in mainly construction, or rock, transportation, its drivers were paid on an hourly basis. Starting sometime in early summer of 1999, due to a change in business, the drivers were paid a percentage of the gross pay of the load, about 23%. By 1999, to keep the trucks busy, the company had changed over to the new commission system and had two groups of trucks. The first group hauled pigs. These trucks were usually loaded in the late afternoon and then driven through the night to Nebraska or other locations. The second group of trucks carried a variety of loads and were driven during the daylight hours. In October 1999, about 40 drivers worked for Barry Smith Transportation.

   Under the DOT hours of operations regulations, a driver may work, or be on- duty, 12 hours a day; up to 10 hours of that time involving actual driving. The company's drivers record their hours in a 60-hour, or six-day, log. They are obligated to keep accurate and complete logs. The drivers give the log books to a company representative each week. In turn, the representative reviews the logs for any hours of operation problems.

   Mr. Journeay started driving for Barry Smith Transportation about March 1999. The company has a handbook setting out its policies and Mr. Journeay would have received a copy when he started work. During the period of October 11 to October 18, 1999, Mr. Terry Castonuay was the company's truck dispatcher foreman. He voluntarily left the company in November or December 1999.

   In the afternoon of October 11, 1999, Mr. Smith was in the company's office, which is located a few blocks from the truck parking lot. Between 6:00 p.m. and 6:30 p.m., Mr. Journeay entered the office and asked Mr. Smith about another driving assignment that night, which Mr. Castonuay had mentioned in a message. Mr. Smith explained the company had received a request to haul a load of pigs and they needed someone to drive. Mr. Journeay stated he couldn't drive because he had already worked all day. Based on that statement, Mr. Smith understood Mr. Journeay did not have enough driving hours left to start driving the load later that night by himself. However, he understood that Mr. Castonuay was trying to find a driver who had rested that day. Mr. Smith explained to Mr. Journeay that the company was only asking him to be part of a driving team and he was not expected to start out driving. The vehicle was a sleeper truck, so Mr. Journeay could legally get his rest as part of the driving team. At that time, Mr. Smith believed Mr. Castonuay was trying to find another driver for the team who had already rested that day. Mr. Smith then told Mr. Journeay to contact Mr. Castonuay and coordinate with him about the team assignment and the other driver. Mr. Journeay agreed to contact Mr. Castonuay.

   Later, in the evening of October 11, 1999, around 8:30 p.m., Mr. Journeay called Mr. Smith and informed him that he hadn't been able to contact Mr. Castonuay. Mr. Journeay stated he didn't know if there was anyone available to drive with him and he couldn't drive by himself. In response, Mr. Smith said he would try to contact Mr. Castonuay. When he made that call, he was able to speak to Mr. Castonuay. Mr. Smith told him about Mr. Journeay's concerns and asked about the status of the assignment. Mr. Castonuay replied that the other driver had not returned his call yet. Mr. Smith informed Mr. Castonuay that he needed to find someone with hours because Mr. Journeay was out of hours. He told Mr. Castonuay "if you can't get another driver to go, then we can't take the load."

   A couple days later, Mr. Castonuay told Mr. Smith that when he contacted the other driver, that driver had not rested on October 11, 1999 and was not able to drive. So, the load wasn't driven. He also stated Mr. Journeay had refused to go because he was out of hours. He refused to drive because the company couldn't find another driver to go with him. Mr. Smith believes that refusal was legal.

   On October 13, 1999, Mr. Smith and Mr. Castonuay signed a notice to all drivers, that effective October 15, 1999, any driver who refused a driving assignment would be subject to immediate termination (CX 1). The notice merely documented Mr. Smith's standing verbal policy. He can not verify that Mr. Journeay received a copy of the notice, but he believes all the drivers received a copy. Mr. Smith issued the notice because his drivers had been refusing driving assignments. The company had started going to brokers for material to haul. They received a variety of loads, including fertilizer, corn, and grain, for numerous locations. Since the drivers were on percentage pay, they sometimes declined a load because it was going to a location to which the driver did not want to drive. The drivers would look at the load, and refuse to take the assignment. Mr. Smith decided to send out the notice based on Mr. Castonuay's request. Mr. Castonuay believed the memo was necessary to prevent the drivers from picking their loads. The policy was important because the company had signed broker contracts agreeing to make deliveries. At the same time, prior to the notice, very few drivers had actually refused to take loads. Mr. Journeay had opined that he didn't like the new type of hauling.

   Although the notice also included a provision that the driver should provide prior notice of his inability to drive, Mr. Smith can't recall specifically telling his drivers they could decline a load if they were out of hours. But, Mr. Smith does believe a lack of hours would cause a driver to be unable to accept a load. The notice only applied to situations were the driver refused to take a load when he had the ability to drive the load within his or her hours of operation limitations. The drivers were responsible for keeping track of their driving hours in their log books. After October 14, 1999, Mr. Journeay never refused a load. The drivers also complete commission sheets for their compensation (CX 3 and CX 4); however, Mr. Smith never compares the commission sheets with the driving logs.

   After discussions with Mr. Castonuay, the company terminated Mr. Journeay on October 18, 1999 because he hadn't followed company policy to keep his truck clean "for some time." The reasons for his discharge were set out by Mr. Castonuay in the termination sheet (CX 2). Around October 18, 1999, Mr. Castonuay approached Mr. Smith and discussed terminating Mr. Journeay's employment. Mr. Castonuay couldn't get Mr. Journeay to keep his truck clean. Mr. Journeay had not washed his truck in two weeks. In addition, Mr. Journeay sometimes did not come to work at the specified time. Mr. Castonuay's comments were consistent with the complaints about Mr. Journeay that Mr. Smith had received from an earlier truck supervisor, Mr. Wendell Aary. Mr. Smith wasn't surprised by Mr. Castonuay's criticisms. The company couldn't have drivers who didn't take care of their trucks. He told Mr. Castonuay to do what he thought was necessary and Mr. Castonuay discharged Mr. Journeay.

   The termination document, signed by Mr. Castonuay, lists three reasons for the termination: (1) refusal to take a load, (2) tardiness to work, and (3) failure to wash his truck for two weeks. Of the three reasons, Mr. Castonuay did not talk to Mr. Smith about the refusal to take a load. Mr. Smith was not aware that reason had been placed on the termination sheet after Mr. Journeay left the company. He doesn't know which specific load Mr. Castonuay was using as a reason for discharge but he is also certain it was not the October 11, 1999 refusal. If Mr. Castonuay had told Mr. Journeay on October 18th that he was fired for refusing to take a load of pigs on the 11th, Mr. Smith would have expected Mr. Journeay to come to him about that statement because Mr. Smith clearly understood Mr. Journeay was out of hours the evening of the 11th. If Mr. Castonuay had been referring to a situation when Mr. Journeay refused to take a load he could lawfully handle either alone or on a driving team, then that would have been an appropriate basis for Mr. Journeay's termination.

   Concerning the tardiness basis for termination, Mr. Smith had been informed by Mr. Castonuay and Mr. Aary, the former truck supervisor, that Mr. Journeay had been tardy at "different times." On one occasion, Mr. Smith believes Mr. Journeay annotated in his log book an arrival time of 6:00 a.m. on October 11, 1999, but another employee, Mr. Ritz, who arrived at 7:00 a.m. didn't see Mr. Journeay come in until 8:00 a.m. to start his truck. For construction hauling, the usual start time is 6:00 or 7:00 a.m.

   Although tardiness does not affect the commission structure, it does matter in relation to the hours of duty time listed in a driver's log book. Upon review of Mr. Journeay's log book entry for October 11, 1999 (CX 5), Mr. Smith observed that it took Mr. Journeay three hours to drive from Hennessey, Oklahoma to McPherson, Kansas. Then, after he took his lunch and drove another six miles to pick up another load, he took over six hours to return to Hennessey, Oklahoma. In other words, the drive back took twice as long. Mr. Smith only recently became aware of that discrepancy; it was not used as basis for letting Mr. Journeay go.

   In 1999, Mr. Smith fired about three or four drivers. Two were let go for tardiness and Mr. Smith terminated another driver for failure to care for his truck. Before termination, drivers get about three warnings, usually in writing. Although Mr. Journeay may not have received any written warning for tardiness, he was counseled.

   Keeping the trucks washed is an important company policy. Mr. Smith has expressed to his drivers that the trucks must be kept clean. The drivers have free access to the company's truck wash. If a driver isn't cleaning his or her truck, Mr. Smith expects the supervisor to warn or reprimand the driver. Eventually, Mr. Smith will terminate a driver who doesn't clean the trucks. Since starting the trucking business in 1995, Mr. Smith has fired a few drivers for not taking care of their trucks. So, Mr. Journeay is not the only driver who has been discharged for not washing his or her truck. Mr. Journeay was warned several times about not washing his truck. None of the warnings were in writing.

   Mr. David Journeay, around 7:00 p.m. on October 11, 1999, went to the company office to discuss the new changes in compensation which started about the beginning of October 1999. Mr. Journeay had been able to drive 10 hours a day and then be home with his family in the evenings. But, the company was changing to long-haul loads which required the driver to be away from his or her family all week. Mr. Journeay did not care for the change. However, he only briefly saw Mr. Smith as he was leaving. Mr. Smith told Mr. Journeay that Mr. Castonuay had a load for him that night. Mr. Journeay doesn't recall whether he told Mr. Smith then that he was already out of hours. He did promise to call Mr. Castonuay to get the details. When Mr. Journeay arrived home, his wife gave him a message from Mr. Castonuay containing another driver's name and phone number. That message with another driver's name meant Mr. Castonuay was trying to

put together a driving team. Mr. Journeay called the other driver who told him that he just got back from hauling a load of pigs and was out of hours. The driver would not be able to drive again until 7:00 a.m. the next morning. He also indicated the truck wouldn't be "legally" in the yard until 11:00 p.m. that night. Mr. Journeay informed the driver that he also was "pretty much out of hours."

   Following his conversation with the driver, Mr. Journeay made several unsuccessful attempts, by phone, pager and cell phone, to contact Mr. Castonuay. Then, Mr. Journeay called Mr. Smith and "filled him in." Mr. Journeay explained that Mr. Castonuay wanted him and the other driver to take the load. But, both the other driver and Mr. Journeay were out of hours. It was at this point that Mr. Journeay believes he informed Mr. Smith about being out of hours. Mr. Smith "pretty much agreed" with Mr. Journeay and stated he would call Mr. Castonuay.

   Later that evening, around 8:30 p.m., Mr. Castonuay called Mr. Journeay and wanted to know why Mr. Smith was calling him. So, Mr. Journeay repeated his observations and indicated he would not be able to take the load that evening. Mr. Castonuay replied that Mr. Smith might not like that response. He informed Mr. Journeay that he was arranging a driving team and had a team driver. However, Mr. Journeay still believed he was out of hours. And, though he could have been part of a driving team that night if he started in the sleeping berth, Mr. Journeay still had a concern because the proposed other driver was out of hours also. Mr. Castonuay didn't state he was looking for another qualified driver or that he would call back if he located such a driver. At the same time, Mr. Castonuay did express his belief that the other driver could actually drive that night. Mr. Journeay said it didn't make any difference anyway because he was too exhausted to handle the load. Mr. Castonuay did not call back that evening. About three days later, Mr. Journeay discovered the load did not go out the night of October 11th.

   Between October 12 and October 18, 1999, Mr. Journeay did not refuse to drive any loads. On the morning of October 18th, Mr. Castonuay told Mr. Journeay that he was being fired for refusing to take the pig load. Mr. Journeay didn't get the termination statement until a week later when he requested the termination in writing. Only after he received the written termination letter did he become aware of the other two stated reasons for discharge. When he came to pick up the notice in the Barry Smith Transportation office, he was surprised by the other two reasons for discharge. He had never been warned about washing his truck and only counseled once for being late. But, they may have put the other reasons in because he was getting the document to obtain unemployment benefits and assistance.

   When he first started working at Barry Smith Transportation, Mr. Journeay's salary was $500 a week. By the time of his discharge, he was earning about $600 to $800 a week, depending on the loads. Two weeks after leaving the company, Mr. Journeay started working at a convenience store and earned about $1200 a month for the next eight months. Around March 2000, he started truck driving again, making about $500 a week.

   While it is "very possible" that Mr. Castonuay may have talked to him about washing the truck, he doesn't remember the conversation. At the same time, during one period, he didn't wash the truck for two weeks. He made several attempts to go to the truck wash but the water pressure was low and he wasn't able to wash his truck.

   Mr. Journeay is aware that if he is out of hours, he may still accumulate off- duty hours by being in a truck sleeper berth. When Mr. Journeay first started driving trucks, he was a member of a driving team. Mr. Journeay had driven on teams for Barry Smith Transportation on two occasions. On April 2, 1999, he refused to drive on a team because he believed the other driver did not seem stable and had been on medication. Mr. Journeay does not recall receiving a written warning about the refusal (RX 1). He does recall Mr. Aary talking to him about his attitude toward team driving and the company's expectation that their drivers may be called on to drive in teams.

   Mr. Journeay acknowledged that Mr. Ritz is a mechanic for the company. But, he might not see all the drivers coming and going. Mr. Journeay fills out his driving log daily, although not always contemporaneous with the duty changes. He has responsibility to properly fill out the logs but knows that all the trucking companies want are legal logs. He believes what his log records is what he did.

   His log for October 11, 1999 (CX 5) indicates Mr. Journeay came on duty (not driving) at 6:00 a.m. At that time, he conducted a pre-trip inspection and then at 6:30 a.m. started driving from Hennessey, Oklahoma to McPherson, Kansas. He arrived about 9:30 a.m.; the trip covered about 157 miles. He spent half an hour on duty (not driving) while the truck was unloaded and then went off duty for an hour. Mr. Journeay next drove about seven miles to Groveland, Kansas, where he spent another 30 minutes on duty (not driving) while the truck was loaded. At noon, he started his return trip back to Hennessey, Oklahoma. He arrived at 6:30 p.m.. Mr. Journeay can't explain the discrepancy in time between the trips from and to Hennessey, Oklahoma. It is possible that he returned to the yard earlier than indicated, picked up another load and drove another three hours without logging that specific trip. Mr. Journeay admitted that if he had taken a local trip, he should have logged it in the book as a separate trip. Based on the 6:30 p.m. return time at the company, Mr. Journeay had logged ten hours driving and was out of hours. The recorded mileage for that day is 600 miles. Mr. Journeay believes the October 11, 1999 log is factually accurate.

   Mr. Journeay believes the load of fertilizer he hauled on Monday, October 11, 1999, had been loaded on his trailer Friday, October 8, 1999. So, the entry on the compensation log for October 8, 1999 and 183 miles is associated with his trip on October 11, 1999.

   Mr. Journeay confirms the company representative's statement (RX 3) that the drivers were told at a meeting that Mr. Smith wanted to have clean trucks out on the road. He doesn't believe the representative issued a warning because "on the most part, everybody did take care of their trucks."

   Mr. Journeay was typically suppose to arrive at work at 6:00 a.m. Some days he arrived on time; and, other days he was late. If he knew the trip he was going to drive that day, he would arrive at a time that ensured he had plenty of daylight to make a round trip. Usually, he was only tardy 0.1% of the time, although during one five day work week, he came in late two or three days. During the week of October 11, 1999, Mr. Castonuay talked to Mr. Journeay about his tardiness.

   The two-week period when Mr. Journeay didn't wash his truck occurred right before his discharge. He acknowledges not washing his truck in the week just prior to his discharge.

   Had another driver been able to drive on the team the night of October 11th, his assignment to that team would have been legal, but Mr. Journeay wasn't going to take the load anyway because he was "just too exhausted."

   Mr. Journeay is married and has five children. Because his wife also works during the day, it is important for Mr. Journeay to be home at nights with his family. When he started for the company, he earned about $500 a week and was usually able to be home with his family in the evenings. However, with the change-over in operations, the drivers started doing more long hauls requiring them to be out over night either in a truck sleeper cab or motel. The trip and motel expenses came out of the "driver's pocket." The additional $200 a week under the new system was not worth it considering the out of pocket expenses and "being gone away from the family."

   Mr. Journeay believes his protected activity was refusing to drive when he was out of hours on the evening of October 11th. Barry Smith Transportation's request did not violate his hours of operations so long as they were referring to a "legal team, where at least one of the drivers is able to drive any certain amount of hours, to where that the other driver can accumulate more driving hours, so that they can be equally switched rotated." Mr. Journeay told Mr. Castonuay that he could not drive that night. If Mr. Castonuay had gotten the impression that Mr. Journeay was refusing to drive on a legal team, he got the wrong impression. Had Mr. Castonuay found another legitimate driver, Mr. Journeay would have agreed to go.

   Barry Smith Transportation Company hired Mr. Journeay on March 15, 1999 as a commercial truck driver. In his January 7, 2000 complaint, Mr. Journeay stated that after completing a ten hour driving workday on October 11, 1999 and returning home, the company's transportation manager directed him to return to work to drive a load of pigs with a co-driver from Oklahoma City to a slaughter house in Kansas and return. Because he was already out of hours, Mr. Journeay contacted the other driver who stated he was also out of hours. Consequently, Mr. Journeay contacted both the company president and transportation manager and informed them that he would not be able to take the load because he was out of hours. The transportation manager convinced Mr. Journeay to attempt to drive the load anyway. But, after taking a shower, he called

the transportation manager and indicated he was too tired and could not make the trip. For the next week, he continued working with the company and no one mentioned his refusal to drive. Then, on October 18, 1999, he was discharged for refusing to take the October 11, 1999 pig load.

   A representative for Barry Smith Transportation denied retaliation and asserted Mr. Journeay had started his driving day on October 11, 1999, two hours later than reflected in his log. Mr. Journeay was discharged because of his failures to maintain his truck and respond to repeated warnings about his chronic tardiness. When discharged, Mr. Journeay had failed to wash his truck for two weeks in succession, despite the company policy that trucks be washed at least once a week.

   In a policy announcement, dated October 13, 1999, signed October 14, 1999, and effective October 15, 1999, Mr. Smith indicates drivers who refuse the assignment of any load, regardless of cargo, will be subject to immediate termination. Notification of any inability to drive must be reported to the supervisor with as much advance notice as possible.

   The termination letter for Mr. Journeay lists October 18, 1999 as the effective date and carries Mr. Castonuay's signature with the date of October 18, 1999. The reasons for termination are "refusal to take a load, tardiness to work, did not wash truck for two weeks in a row."

   Between October 3 and October 15, 1999, Mr. Journeay hauled 14 loads in truck number T-22. He earned a total of ,254.57. The longest trip covered 250 miles; the shortest trip was 107 miles.

   On October 11, 1999, Mr. Journeay recorded arriving to work at 6:00 a.m. He was on duty (not driving) for half an hour and then departed for McPherson, Kansas from Hennessey, Oklahoma at 6:30 a.m. Mr. Journeay arrived in McPherson at 9:30 a.m., spent the next half hour on duty (not driving), and then went off duty for one hour, starting 10:00 a.m. At 11:00 a.m., he traveled to Groveland, Kansas in 30 minutes, spent 30 minutes on duty (not driving) and left Groveland at noon. At 6:30 p.m., Mr. Journeay arrived in Hennessey, Oklahoma. He spent another 30 minutes on duty (not driving) for "post trip" and went off duty at 7:00 p.m. His total driving time for the day was 10 hours and his on duty time (not driving) amounted to two hours. The total distance recorded was 600 miles.

   On April 2, 1999, according to supervisor Mr. Wendell Aary, Mr. Journeay refused to "run teams." Mr. Aary believed Mr. Journeay was aware of the load but didn't refuse it till the last minute. Based on Mr. Journeay's refusal, Mr. Aary issued a warning for failure to follow instructions. According to Mr. Aary, the next consequence could be dismissal because Mr. Aary needed drivers who were reliable and could drive teams. Mr. Aary signed the document on April 5, 1999. The employee signature block is empty.

   On October 29, 1999, Mr. Castonuay was interviewed about Mr. Journeay's complaint. Instead of a final incident leading to termination, Mr. Castonuay stated, "All of these things happened the same week: he was tardy, he refused a load & didn't wash his truck." The last incident occurred the week October 11 to October 15, 1999. Mr. Castonuay was unable to state whether Mr. Journeay had been warned about those problems before because he had only been with Barry Smith Transportation, and Mr. Journeay's supervisor, for a month.

   According to Martha, who handles the paperwork, all the drivers were warned in a meeting about washing and caring for their trucks. She also believed Mr. Smith had talked to Mr. Journeay about his performance, at least once on an unspecified date.

   The parties agreed to, and I accepted, the following stipulations of fact: (1) Mr. David Journeay met the statutory time limitation requirements in filing his complaint; (2) on October 11, 1999, an employer-employee relationship existed between the parties; and, (3) the subject matter of the complaint confers jurisdiction on the Office of Administrative Law Judges.

   The employee protection provisions of the STAA, 49 U.S.C. §31105, prohibits the discriminatory treatment of employees who have engaged in certain activity related to commercial motor vehicle safety. First, under 49 U.S.C. §31105 (a) (1) (A), an employee is protected if he or she has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order. The U.S. Department of Labor ("DOL") interprets this provision to include internal complaints from an employee to an employer. DOL's interpretation that the statute includes internal complaints "is eminently reasonable." Clean Harbors Environmental Services, Inc. v. Herman 146 F.3d 12 (1st Cir. June 10, 1998) (case below 95-STA-34). The U.S. Circuit Court of Appeals also stated internal communications, particularly if oral, must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. There is a point at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. Id.

   An additional two types of employee activity are also protected under the STAA. Title 49 U.S.C. §31105 (a) (1) (B) (i) provides protection for an employee who refuses to operate a vehicle in violation of any Federal rules, regulations, standard, or orders applicable to commercial vehicle safety or health. And, 49 U.S.C. §31105 (a) (1) (B) (ii) protects an employee who refuses to operate a commercial motor vehicle which he or she reasonably believes would cause serious injury to the employee or the public due to its unsafe condition. The Secretary, through the Administrative Review Board ("ARB"), has determined that if an employee makes an objection regarding an unsafe condition and then actually drives the vehicle, the complaint should be more properly analyzed under the "complaint" provision of 31105 (a)(1)(A). Zurenda v. J & K Plumbing & Heating Co., Inc. 97-STA-16 (ARB, June 12, 1998). In addition, the complainant must prove that an actual violation of a regulation, standard, or order would have occurred if he or she actually operated the vehicle. Brunner v. Dunn's Tree Service, 94 STA 55 (Sec'y Aug. 4, 1995).

   Under the provisions of the Federal Highway Administration, U.S. Department of Transportation, regulations, 49 C.F.R. §395.3 (a) (1), no motor carrier employer "shall permit or require" a commercial vehicle driver to drive more than ten hours following eight consecutive hours off duty. A driver is considered on duty from the time he or she begins work until the driver is relieved from work, 49 C.F.R. §393.2. On duty time includes driving time; however, time spent in a qualified sleeper berth is not considered on duty, 49 C.F.R. §393.2 (4).

   In order to invoke the whistle blower provisions of the STAA, a complainant has the burden of proof to establish the respondent took adverse employment action because the complainant engaged in one of the STAA's protected activities. The analysis for determining whether a complainant meets his or her burden of proof is derived from the long, and continuing, line of Federal employment law discrimination cases.

   As set out in exhaustive detail by the U.S. Circuit Court of Appeals for the Eleventh Circuit, in Wright v. Southland Corp., 187 F. 3d 1287 (11th Cir. 1999), a complainant may take two fundamental approaches to establish unlawful discrimination. First, relying on the traditional approach, a complaint may attempt to prove by direct evidence that more likely than not, the employer engaged in unlawful discrimination. Id. at 1289. If in response, the employer provides evidence of legitimate purposes for its actions, then the case becomes a "mixed motive" case and the burden of persuasion shifts to the employer to demonstrate, as an affirmative defense, by a preponderance of the evidence that it would have taken the same action, in the absence of the discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 252 to 255 (1989) and Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977).

   Since directly proving an employer's intent of illegal discrimination may be difficult, the U.S. Supreme Court developed a second approach that enables a complainant to present a rebuttable presumption of illegal discrimination. See Wright, 187 F. 3d at 1290 and McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). The ARB has applied this approach in STAA cases and in Byrd v. Consolidated Motor Freight, 97-STA-9 @ 4-5 (ARB May 5, 1998), recently summarized the burdens of proof and production in this type of case:

   The ARB in a footnote to the above paragraph provided further explanation on this last phase of the adjudication process:

    Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant, throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by the prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary' Honor Center, 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor, 78 F. 3d 352, 356 (8th Cir. 1996) (whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).

   The United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc. 120 S.Ct. 2097 (2000), provided further explanation of the pretext phase of the analysis introduced in the St. Mary Honor Center case. The court first reiterated that if an employer articulated a non-discriminatory reason for the challenged adverse action, the complainant retains the ultimate burden to show the stated reason is pretext for unlawful discrimination. In meeting that ultimate burden, the complainant may, but not necessarily, prevail based on the combination of a prima facie case and sufficient evidence to demonstrate the asserted justification is false. In light of the false justification, the trier of fact may conclude the employer engaged in unlawful discrimination. Reeves, 120 S.Ct. at 2108. In other words, there may be an inference that the employer's falsehood is an attempt to cover up the unlawful discrimination.

   Finally, concerning witness credibility, all factual findings, including credibility findings must be supported by substantial evidence in the record as a whole. NLRB v. Cutting, Inc. 791 F.2d 659, 667 (7th Cir. 1983). At the same time, the Secretary has observed that a lack of evidence to corroborate conflicting testimony on an issue, coupled with an inability to discern the truth through the demeanor of the witnesses, may lead to an inability to find a complainant's version of the facts more credible. In that case, there may be an insufficient basis for finding a prima facie case. Cook v. Kidimula International, Inc. 95 STA 44 (Sec'y Mar. 12, 1996).

   On March 15, 1999, Barry Smith Transportation hired Mr. David J. Journeay as one of its 40 truck drivers. At that time, he was paid by the hour and earned approximately $500 a week.

   In the early evening of October 11, 1999, in the company's office, Mr. Smith told Mr. Journeay that Mr. Castonuay was trying to arrange a load for him that evening. Mr. Journeay informed Mr. Smith that he was out of hours for that day. Because a truck driven by a team contains a sleeping berth, and time in the sleeper area is off-duty time, Mr. Journeay, even though he was out of driving hours, could still have been a member of the driving team that night if he traveled in the sleeper. Mr. Journeay indicated that he would contact Mr. Castonuay when he got home.

   Around 8:30 p.m., October 11, 1999 , Mr. Journeay called Mr. Smith at home because he had not been able to get in touch with Mr. Castonuay. Mr. Journeay again stated that he was out of hours. In response, Mr. Smith expressed his intention to contact Mr. Castonuay. Shortly after his conversation with Mr. Journeay, Mr. Smith called Mr. Castonuay and relayed Mr. Journeay's concerns. The load was not hauled on the night of October 11, 1999.

   During the two week period, prior to October 18, 1999, Mr. Journeay did not wash his truck. And, in the week before October 11, 1999, Mr. Castonuay counseled Mr. Journeay about being tardy for work. On Monday, October 18, 1999, Mr. Castonuay discharged Mr. Journeay. After he requested to have his discharge placed in writing, Mr. Journeay went to the company office and picked up his discharge notice signed by Mr. Castonuay, and dated October 18, 1999. The notice included three reasons for the discharge: refusal to take a load, tardiness to work and failure to wash his truck for two weeks.

   Two weeks after leaving Barry Smith Transportation, Mr. Journeay started working in a convenience store at $300 a week. He worked in the store until April 2000 when he started driving trucks again, earning $500 a week.

   Mr. Journeay generally appeared to give straight-forward answers during his examination. However, his less than candid demeanor during pointed questioning about his tardiness record and associated equivocation in response; several internal inconsistencies in his testimony, a disconnect with a prior statement about his conversation on October 11, 1999 with Mr. Castonuay; and other evidence in this case, notably his time log for October 11, 1999, cause me to lose some confidence in the integrity of his testimony.

   On the subject of reporting to work on time, Mr. Journeay first stated that he arrived at the company yard at his regularly scheduled time of 6:00 a.m. 99.9% of the time. Queried about the accuracy of his estimate, Mr. Journeay then acknowledged that during one, unspecified five day work week, he arrived late to work on two or three days. Also, when asked if any supervisor had talked to him about being late to work, Mr. Journeay replied, "No." However, when asked the follow-on question "They did not?" Mr. Journeay acknowledged that Mr. Castonuay once talked to him about being late and expressed Mr. Smith's desire that he report to work at 6:00 a.m. (TR, pages 130 to 131).

   On at least four occasions concerning important factors in this case, Mr. Journeay presented, within his sworn testimony, conflicting or inconsistent, and, at times, reluctant responses. First, Mr. Journeay testified that Mr. Castonuay did not indicate that he was trying to find another driver for the team (TR, page 84). But later, Mr. Journeay stated that Mr. Castonuay "felt for certain this other driver could definitely drive" (TR, page 88). Second, when asked whether Mr. Castonuay had counseled him about not washing his truck, Mr. Journeay said, "No" (TR, page 94). Then, when asked to verify his answer, Mr. Journeay announced he didn't recall such a conversation, but it was "very possible" Mr. Castonuay may have talked to him about not washing his truck (TR, page 94). Third, Mr. Journeay denied receiving a warning from his truck supervisor, Mr. Wendell Aary, in mid-April 1999 (TR, page 98). But RX 1, dated April 5, 1999, demonstrates that Mr. Aary did warn Mr. Journeay about refusing driving assignments and when asked again if a supervisor had spoken to him about team driving, Mr. Journeay acknowledged that Mr. Aary "said something" about his attitude toward team driving (TR, page 103). Fourth, concerning his refusal to drive, Mr. Journeay stated that it would not have made any difference if a qualified team driver had been available to drive on October 11th; he wasn't going to handle the load because he "was just too exhausted" (TR, page 132). Later, he reversed course and stated that if Mr. Castonuay had found a qualified driver, he would have gone on the team (TR, page 142).

   A portion of Mr. Journeay's sworn testimony also appears to conflict with an earlier statement he made about his exchange with Mr. Castonuay on the night of October 1999. At the hearing, Mr. Journeay described only one phone conversation with Mr. Castonuay. In that one phone call, Mr. Journeay told Mr. Castonuay that the other proposed driver for the team that night was out of hours and that Mr. Journeay was also too tired to drive on any team (TR, pages 82 to 87). However, during the initial investigation of his complaint, Mr. Journeay described two, separate telephone calls with Mr. Castonuay. In the first call, Mr. Journeay told Mr. Castonuay that he was out of hours; but, Mr. Castonuay convinced Mr. Journeay to attempt to drive anyway. After taking a shower and deciding he was too tired to drive, Mr. Journeay called Mr. Castonuay and told him in this second conversation that he was too tired and could not make the trip (ALJ 3). The notable difference between these two versions is the absence of any mention at the hearing of two separate phone conversations with Mr. Castonuay and his initial acquiescence to Mr. Castonuay's request.    Finally, Mr. Journeay's DOT driving log for October 11, 1999 is a telling testament to his ability to truthfully record his activities, and consequently an adverse reflection of his veracity. Although Mr. Journeay acknowledged that he was responsible for accurately recording his trips, his driving log for that day contains numerous, and unexplained, misrepresentations (TR, page 108, CX 5 and RX 2). On October 11, 1999, Mr. Journeay recorded a duration of six and a half hours for his return trip at the end of the driving day from Groveland, Kansas back to the Barry Smith Transportation parking lot in Hennessey, Oklahoma (192 miles). That time was over double his recorded time of three hours for his earlier outbound trip from Hennessey, Oklahoma to McPherson, Kansas (189 miles), which is just ten miles from Groveland. Likewise, Mr. Journeay recorded a total mileage for the day of 600 miles, yet the combined distance of his three trips actually equals only 391 (189 + 10 + 192) miles.

   While Mr. Journeay asserted his driving log is accurate (TR, pages 111 and 112), he did not provide an acceptable explanation for the travel duration discrepancy between the two trips of nearly equal length (or the recorded total mileage for October 11, 1999 of 600 miles). Mr. Journeay didn't recall why the homeward bound leg was recorded as six and a half hours. He could only speculate that he might have arrived back at the company early, taken another local load, and completed that trip at the time he recorded as his arrival time for the Groveland-Hennessy trip (TR, pages 118 to 122). However, Mr. Journeay's compensation summaries (CX 3 and CX 4) do not reflect any payment for such a trip. And, even if Mr. Journeay did make another short afternoon trip, his log still remains inaccurate because he clearly failed to record such a trip in his log book.

   In addition, Mr. Journeay recorded 6:00 a.m. in his driving log as his arrival time at work. However, Mr. Tom Ritz, who was in the company's lot by 7:00 a.m. that morning, reported that he did not see Mr. Journeay until 8:00 a.m. when Mr. Journeay started his truck and drove off. Based on a start time of 8:00 a.m., the two hour difference between the recorded and actual start times helps to account for a portion of the excess duration of the return trip. Concerning the remaining hour and a half excess for the return trip, I first note that Mr. Smith saw Mr. Journeay in his office between 6:00 p.m. and 6:30 p.m., a half an hour before Mr. Journeay's reported arrival time of 6:30 p.m. And, interestingly, the time Mr. Journeay recorded for the completion of his driving day, 6:30 p.m., gave him exactly 10 hours of on-duty driving, placed him out of hours, and consequently unavailable for any driving assignment, other than a driving team, for at least eight hours.

   Also, it appears remarkable that the distance of his recorded trips plus his possible, unreported, local afternoon trip just happened to exactly equal 600 miles. Whereas, the total mileage of 600 miles also just so happens to be the product of 10 hours times 60 miles per hour.

   Based on the these multiple, unexplained discrepancies and inaccuracies, I find Mr. Journeay clearly did not truthfully record in his official log book his driving activities for October 11th.

   As an initial step to establish a prima facie case of unlawful discrimination, Mr. Journey must demonstrate by the preponderance of the evidence he engaged in a protected activity. Within the context of this case, Mr. Journeay must show: A) Mr. Castonuay requested him to violate the DOT hours of operations regulations; and, B)His acquiescence to the request would have actually caused a violation of the DOT hours of operations regulations.

to accept the load from the pig farm if he couldn't find a qualified driver, since Mr. Journeay was out of hours. As a result, at the time Mr. Castonuay called Mr. Journeay, he knew that his boss, Mr. Smith, was aware Mr. Journeay couldn't start driving that night. Mr. Castonuay also had just received his boss' instruction to cancel the load if he couldn't find a driver who could legally start the drive that night with Mr. Journeay. In light of his recent discussion with Mr. Smith, it seems unlikely that Mr. Castonuay would have still tried to convince Mr. Journeay to participate on an illegal team. Further, as reported by Mr. Journeay, Mr. Castonuay told Mr. Journeay that he believed the other driver could definitely drive that night. That comment is not reflective of an intent to arrange an unlawful team for the pig load.

   Of course, the conversation of October 11, 1999 also does not stand alone. Mr. Journeay recounted another discussion with Mr. Castonuay on October 18,1999, which combined with the subsequent written discharge notice might provide some support for Mr. Journeay's portrayal of Mr. Castonuay's driving request. Mr. Journeay asserts that when Mr. Castonuay verbally terminated his employment on October 18, 1999, he presented Mr. Journeay's refusal to drive the pig load as the only reason for discharge. Mr. Castonuay did not mention either his tardiness or failure to wash his truck. Once again, however, since Mr. Journeay was the only participant of that exchange to testify, the accuracy of that conversation rests on Mr. Journeay's credibility. As a result, I am unable to verify Mr. Castonuay's actual statements to Mr. Journeay.

   From Mr. Castonuay's perspective, Mr. Journeay's refusal to take a legitimate driving assignment did not occur in a vacuum. In April 1999, Mr. Journeay had been counseled for refusing to drive on a team. Although Mr. Journeay subsequently accepted two team assignments, his refusal to join the driving team for the pig load on October 11, 1999 was consistent with his dislike for overnight team driving. His rejection of the team assignment also occurred during a period when the company was having trouble with drivers rejecting loads under the new compensation system. Also, within the approximate time frame of October 18, 1999, Mr. Journeay had been late to work and neglected to clean his truck for two weeks. Considering the totality of Mr. Journeay's employment relationship with Barry Smith Transportation, Mr. Castonuay's discharge comments to Mr. Journeay on October 18, 1999 and the written reasons on the subsequent discharge notice do not necessarily take on a sinister cast.

   In determining whether any other evidence in this case tips the evidentiary scale in favor of either explanation for Mr. Castonuay's behavior, I have also considered his conversations with Mr. Smith. A few days after October 11, 1999, Mr. Castonuay told Mr. Smith that the pig load didn't go out on October 11, 1999 because the other driver was out of hours and Mr. Journeay refused to go. Since Mr. Smith knew Mr. Journeay was out of hours at that time, and thus both drivers couldn't start driving, Mr. Journeay's refusal to drive on the team seemed appropriate. A week later, when discussing his proposal to discharge Mr. Journeay with Mr. Smith, Mr. Castonuay did not mention Mr. Journeay's rejection of the driving assignment. This omission seems curious. Based on Mr. Smith's opinion about the legitimacy of Mr. Journeay's refusal to go on the pig load team, he would not have found it a basis for discharge. Yet, absent any discussion with Mr. Smith, Mr. Castonuay included on the written notice, as one reasons for the discharge, Mr. Journeay's refusal to take the driving assignment. In that light, Mr. Castonuay's failure to talk to Mr. Smith about one of the reasons for Mr. Journeay's termination is troublesome and might reflect an intentional decision to keep that basis for discharge between him and Mr. Journeay.

   On the other hand, as mentioned above, if Mr. Castonuay believed Mr. Journeay had refused to be part of a legitimate driving team, his oral discharge statement to Mr. Journeay on October 18, 1999 and his inclusion of the refusal to take the load in the written notice were appropriate responses to that rejection. In addition, Mr. Castonuay really didn't keep that reason for discharge secret since he wrote it down on the company's discharge notice to Mr. Journeay. Instead, his failure to discuss that an apparently important basis for discharge with Mr. Smith remains an unexplained omission.

   Even if Mr. Journeay had established that Mr. Castonuay did ask him to violate the DOT hours of operations regulation concerning the driving team, he must also establish that had he agreed to the request, a violation would have occurred. As the situation unfolded on October 11,1999, a violation of the hours of operations regulations would have occurred that night only if Mr. Journeay and another driver agreed to drive on the team and they were both out of hours. Standing alone, Mr. Journeay's acceptance of Mr. Castonuay's assignment to the driving team on October 11, 1999 is not an infringement of the hours of operations regulations. Mr. Journeay's participation on a driving team that night became illegal only if the other potential team driver was also out of hours and still agreed to drive on the team. In this case, a violation of the hours of operations regulations required both Mr. Journeay and the other driver to agree to drive on that team.

   Although Mr. Journeay contacted the other driver identified in Mr. Castonuay's message to his wife, that individual only told Mr. Journeay that he was out of hours. He did not indicate that Mr. Castonuay, while knowing the driver was out of hours, requested him to drive anyway. On the contrary, Mr. Castonuay reported to Mr. Smith a few days later that the pig load did not go that night because the other driver was out of hours. As a result, there is no evidence that the other driver, who was out of hours, agreed to drive the pig load on October 11, 1999 so that if Mr. Journeay had acquiesced to Mr. Castonuay's request, a violation of the hours of operations would have occurred.

    In summary, Mr. Journeay is unable to prove by a preponderance of credible evidence that Mr. Castonuay asked him on October 11, 1999 either to drive the pig load alone or to join a driving team with another driver who was also out of hours. Likewise, he has not demonstrated that his acceptance of such a request would have caused a violation of the hours of operation regulations. Since Mr. Journeay has not proven Mr. Castonuay made an illegal request that night and that his acceptance of such a request would have led to a regulatory violation, his refusal to drive that evening was not a protected activity. Having failed to prove a protected activity, Mr. Journeay has not established a prima facie case of unlawful discrimination.

   Since the written discharge notice contains a reference to Mr. Journeay's refusal to drive a load, that document might represent direct evidence of unlawful discrimination if the referenced event involved a valid refusal to operate a truck in violation of the DOT hours of operations regulations. But, Mr. Castonuay's discharge basis amounts to unlawful discrimination only if Mr. Castonuay had asked Mr. Journeay to violate the hours of operation regulations. As discussed in the analysis of the prima facie case, I have found Mr. Journeay has not demonstrated that Mr. Castonuay asked him to violate the DOT regulations of the night of October 11, 1999. Consequently, Mr. Journeay can not prove by a preponderance of the credible evidence that Barry Smith Transportation engaged in unlawful discrimination.

   I also note that even if Mr. Journeay had established a prima facie case through circumstantial evidence, he would have faced difficulty rebutting as pretext the tardiness and failure to clean his truck bases for his termination. Based on my assessment of Mr. Smith's credibility, I accept his presentation that Mr. Castonuay, in discussing Mr. Journeay's dismissal, stated Mr. Journeay continued to be tardy and he hadn't washed his truck in two weeks. Mr. Journeay had been previously counseled for tardiness and, based on Mr. Riggs' testimony, Mr. Journeay was late again on October 11, 1999. Also, as he admitted, knowing the company policy about truck washing, Mr. Journeay had failed to clean his truck in the two-week period prior to his termination, alleging the company's truck wash equipment was inoperative.

   In the past, Mr. Smith has discharged drivers for both failing to wash their trucks and tardiness. In light of this record, Mr. Smith had a reasonable basis for approving Mr. Castonuay's discharge proposal and telling him to do whatever was necessary. Thus, Mr. Journeay's termination was consistent with Mr. Smith's treatment of other company drivers who did not follow company policy and arrived late to work. At the time of his conversation with Mr. Smith, Mr. Castonuay did not mention the load refusal. Mr. Smith was not aware of that stated basis for termination until the initiation of litigation over Mr. Journeay's complaint. Consequently, Mr. Smith's approval of Mr. Castonuay's dismissal action was based solely on tardiness and failure to comply with company policy. Accordingly, those two stated reasons for discharge were not pretextual.

   Likewise, even if Mr. Journeay had proven unlawful discrimination due to his refusal to drive by direct evidence, Barry Smith Transportation would be able to present an affirmative defense. As just discussed, Mr. Smith's approval of the termination action by Mr. Castonuay was based solely on two legitimate reasons. While Mr. Castonuay's motive in seeking a dismissal could have been Mr. Journeay's refusal of his illegal request, Mr. Smith was unaware of that allegation, and approved Mr. Journeay's discharge even absent the discrimination.

   Although I did not have complete confidence in Mr. Journeay's testimony, he certainly firmly believes that his complaint is valid. This litigation may have developed because the two parties to the Mr. Castonuay-Mr. Journeay October 11, 1999 telephone exchange reached conflicting interpretations of their discussion. Because Mr. Journeay had informed Mr. Castonuay about the other driver being out of hours, he may have interpreted Mr. Castonuay's request that he go on the driving team as an illegal attempt to place two drivers, both out of hours, on a driving team the night of October 11, 1999. So, when Mr. Castonuay, verbally and in writing, indicated that he had been terminated for refusing that load, Mr. Journeay concluded he had been the victim of unlawful discrimination.

   On the other side of the conversation, Mr. Castonuay was trying to put together a legitimate driving team for a pig load later that night. Although he hadn't yet found a driver that had sufficient hours to start driving at 11:00 p.m. when he telephoned Mr. Journeay and asked him to join the driving team, he still needed Mr. Journeay to agree to be part of the team as the resting driver. Mr. Castonuay may have heard Mr. Journeay's declination as an absolute refusal to drive on any team that evening. Consequently, he reacted, in part, as if Mr. Journeay had violated company policy by refusing a driving assignment as part of a legitimate driving team.

   For the reasons discussed above, the complaint of Mr. DAVID J. JOURNEAY against BARRY SMITH TRANSPORTATION, under Section 31105 of the Surface Transportation Assistance Act is DISMISSED.

SO ORDERED:

      RICHARD T. STANSELL-GAMM
      Administrative Law Judge

Washington, D.C.

NOTICE: This Recommended Decision and Order and the administrative file will be forwarded for review to the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Ave., Washington D.C. 20210. See 29 C.F.R. § 1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996).