1. Whether the Complainant was engaged in protected activity under the Act.

2. If the Complainant was engaged in protected activity, whether the Respondent took adverse action against him in retaliation for his protected activities, in violation of the STAA.

Testimony of the Complainant

   Lyninger drove the truck that morning and attempted to contact the mechanics while on the road. After unsuccessfully trying to contact the mechanics through Usry or Scott Kiel, he brought the truck back to the shop between 11:00 a.m. and Noon (Tr. 124). He reported that the right/front shock was "sheared in half" and the steering rod was bent forty-five degrees. He said the damage had been there when he inspected the truck that morning (Id.).

   Lyninger claims that while at the shop, Usry told him to return the truck to the Byars site and he refused (Tr. 126). He told Usry that "[The damages] need to be corrected" (Tr. 126). Lyninger claims that Mr. Usry replied, "‘Either drive it or you're fired.'" Shortly after this statement, Lyninger testified that Usry turned around and said, "‘You're fired'." (Id.).

   The Complainant said that he was very conscious of safety issues, partly due to his involvement in an accident with a truck with faulty brakes (Tr. 77). Prior to his employment with Casazza, he was involved in an accident when stopped on the downhill side of a road on Interstate 80 and was rear-ended by a tanker (Id.). In accordance with company policy, the Complainant regularly inspected the trucks which he was assigned to drive and documented his concerns in a Driver Vehicle Inspection Report (DVIR) (Tr. 81). He performed vehicle inspections each morning and recorded "what needs to be taken care of" (Tr. 68, 84). He testified that if he thought a truck should not be driven, he would call his supervisor at home after his inspection to communicate his concerns concerning the safety of the truck (Id.).

   The Complainant regularly made detailed comments about the state of the trucks to which he was assigned. He reported his concerns as a new employee. He made his first DVIR for truck #416 on April 7, 2000, his first day on the job (Tr. 85). He reported chunks were out of the tires, cords were showing, and that the jake brake was not working (CX 66). His next DVIR, dated April 11, 2000, noted that the brakes needed adjustment, power steering leaks, chunks out of the tires, and fuel gauge problems (CX 67). He said that the problems he identified in his DVIRs were not being corrected by the Respondent. Lyninger testified that on many occasions, he would report a safety/maintenance concern in his DVIR, and the problem would not have been corrected by the next time he drove the truck. He said that the purpose of the DVIRs was to inform the mechanics of problems with the trucks, but the mechanics were not examining the DVIRs on a daily basis. He said that mechanics would sometimes wait three or four weeks before picking up the DVIRs after they were placed in the drivers' room (Tr. 90). Even when they picked up the DVIRs, the Complainant claimed that his concerns were routinely unaddressed. He reported almost identical concerns for truck #416 from May 4 through May 11, 2000 (CX 84-90). Those concerns included some problems the Complainant reported as early as April 14, 2000 (CX 70). Lyninger testified that he was told by Roger Usry on June 8, 2000, to write "see previous" on his daily DVIRs instead of listing the same concerns. He reported the same complaints from June 1, 2000 through June 20, 2000, referring midway through those reports to his DVIR dated June 7, 2000 (CX 101, 105, 111). He considered many of the problems to be serious, e.g., "massive air loss" in the air brake system (not holding more than 90 lbs.), May 1, 2000 DVIR (Tr. 90; CX 82). The Complainant continued to list "massive air loss" from the brake system in each of his DVIRs from May 1, 2000 through May 11, 2000 (CX 82-90), even after Usry signed and marked the Complainant's May 5, 2000 DVIR as "above defects corrected" (CX 85).

   Because he felt the mechanics were not addressing the concerns listed in his DVIRs, on July 11, 2000, Lyninger requested that Nevada Highway Patrol Officer, Janay Sherven, perform an inspection of the truck (Tr. 76). In the inspection report, Officer Sherven wrote that truck #416 should be taken out of service and listed three particular problems, one of which was "front brakes out of service" (CX 42). The Complainant testified that on June 27, 2000, Officer Sherven cited him for failure to maintain and inspect his vehicle which was out of service (Tr. 66; CX 42). This citation was later dismissed as being the responsibility of Casazza. He said that two weeks earlier he was pulled over by Officer Sherven and truck #416 was placed out of service (Tr. 67). No citations or Vehicle Inspection Reports were issued at that time.

   Lyninger testified that he was told by Usry when hired that his pay would start at twelve dollars per hour and increase by one dollar per hour every thirty days until it reached fifteen dollars per hour (Tr. 56). When the pay increase did not automatically take effect after thirty days, he wrote to Mr. Lippincott after which he received his first raise (Tr. 64). His raise to $13 was recorded in a "Personnel Action Change Form" dated June 23, 2000, prepared by Scott Kiels, with the reason for the increase noted as merit (CX 33). He wrote another letter on June 29 seeking his next pay raise (CX 39). The raise was recorded in a "Personnel Action Change Form" dated July 3, 2000, prepared by Scott Kiels, again marked for merit (CX 40; Tr. 73). The reverse side of that personnel form noted "This raise was per Doug" (CX 41). The Complainant testified that Usry told him that the raises were for merit. As of July 3, he had received no reprimands or warnings that would indicate otherwise (Tr. 65, 73). He was assigned to drive a truck to Byars' sites through July 21, 2000 (Tr. 119). He requested to be trained on a fuel truck in July, and said that Usry refused because Byars was happy with his performance on the water truck. (Tr. 116). Lyninger testified that he was unaware that Byars was unhappy with his performance as a driver.

   Lyninger testified to three incidents concerning damage to trucks. In the first instance, he was a passenger in a truck driven by Roger Usry, who was not a licensed commercial driver. He said Usry "cut a corner too close and took a stop sign out on the [freeway]" (Tr. 71). The second incident occurred on April 11, 2000, when he was driving truck #416. He claims that while stopped at a Byars site with Usry as a passenger, one of Byars' trucks "came around and side-swiped the truck" (Tr. 86). The Complainant listed the damage to the truck in his DVIR dated April 12, 2000, and continued to list the damage through June 7, 2000, and thereafter by the words "see previous" or "see dated 6/7/2000" (CX 68, 105, 111). The Complainant testified that he was never reprimanded for the incident, and never had money deducted from his paycheck to pay for the damage (Tr. 86). The third incident occurred when he got stuck in the mud at a Byars site while driving truck #416 (Tr. 109). He claimed that a Byars supervisor instructed him to go into an area to water it down, and he ended up getting stuck in the mud, unable to move the truck forwards or backwards (Id.). He was instructed by Larry at Casazza to "take a chain and tie it around the rear axle and have them pull you out" (Id.). Lyninger testified that damage was caused to the rear brakes when the chain moved and damaged the air lines. He said he was not given a reprimand or warning (Id.).

   Lyninger testified that after his termination on July 24, 2000, he submitted twenty to thirty job applications per week (Tr. 151). He admitted that he had not sent applications to Byars Construction, Allied Trucking, LST, or HARCO (Tr. 152). Larry Huffman later testified that Allied Trucking, LST, or HARCO are three of the largest trucking companies in the Reno/Sparks area (Tr. 173). Lyninger worked temporarily for SOS Staffing from September 27, 2001 to December 6, 2001, and then worked full-time for Higgins until April 4, 2001 (Tr. 133, 151). The Complainant said that while working for Casazza, he averaged about twenty hours a week in overtime, for which he was paid time-and-a-half. Based on his projected salary of $14.00 per hour plus time and a half for twenty hours per week overtime, he calculated his lost wages from July 24, 2000 to March 12, 2002, at $83,300, had he continued to work for Casazza (Tr. 133). He said that this amount would total $87,555 had he received his final raise to $15 per hour (Id.). Lyninger said that he has been paid $27,200.00 from other employment since leaving Casazza.

Testimony of Officer Janay Sherven

   Janay Sherven, a state trooper with the Nevada Highway Patrol, testified that she knew Lyninger as a truck driver for Casazza and recalls he first contacted her in June 2000 (Tr. 22). Sherven testified that the Complainant's demeanor was "very curious in regards to safety, and I would say passionate over safety" (Tr. 31). He would ask many questions about whether a particular defect was an out-of-service defect, and was very involved in the safety of his truck (Id.). She gave Lyninger a citation on June 27, 2000 for failure to maintain and inspect his truck (Tr. 27; CX 117). Officer Sherven said that it was not unusual for a driver to request an officer to inspect a vehicle. "Nine times out of ten," a request is made because the driver's concerns with maintenance are not being addressed by their mechanics, or the vehicle was not being maintained as the driver thought it should be (Tr. 30). She performed an inspection of truck #416 on July 11, 2000, at the request of the Complainant (Tr. 34). She felt the truck was unsafe and wrote "Request for Federal Audit of Company" on her inspection report which would let Casazza know that it was serious and it had a few months to get its trucks in order (Tr. 36, 37). It was her practice, after doing an inspection report, to have it approved by her supervisor after which it was sent to the Federal Motor Carrier's Safety Federal Projects Program. Once the repairs were made, the motor carrier was to return a signed reply copy showing that the repairs were made (Tr. 33).

Testimony of Larry Huffman

   Larry Huffman is a full-time driver for Casazza Trucking. He does not have a commercial drivers license. He was taken to the work site by an employee with a commercial drivers license and would drive a truck for the day at the site (Tr. 161). When he arrived at the site on July 21, 2000, he assumed that truck #416 was ready to go. He did not perform an inspection and did not recall a problem with air pressure, or any serious problem with the windshield, oil leak, timing chain, steering rod, or the shock [all problems noted by Lyninger] (Tr. 163-164). There was no serious problem with the windshield, shocks, jake brake, driver side step, rear tire cuts, or back-up lights (Tr. 165, 166, 168).

   Casazza's mechanics categorize problems in order of importance and take care of the most serious first (Tr. 167). Huffman witnessed Lyninger driving over rocks and in spots at the Vista Ridge construction site where he should not have been driving (Tr. 170). If a truck sat overnight, air might leak out of its brake system, and that a safe range was between 90 to 125 lbs. It was not uncommon for water trucks to get stuck in the mud while at a work site (Tr. 171, 183).

   Huffman has been a driver for Casazza for three years, is paid $18.00 per hour, has been a truck driver in the area for twenty years and earns between $42,000 and $45,000 per year (Tr. 172, 182-183). He said that LST, HARCO, and Sierra Rental were some of the larger driving companies in the Reno area and he would send each an application if he were searching for a truck driving job (Tr. 173).

Testimony of Doug Lippincott

   Doug Lippincott is the President and Manager of Casazza Trucking Company, dba Advanced Trucking. In the summer months, his company employs up to forty employees, of which thirty to thirty-five are drivers (Tr. 186). There is an extreme amount of turnover. Business tapers off in September and by Thanksgiving, they are done for the year (Tr. 187). Lyninger was hired as a water truck driver, a seasonal position (Tr. 188).

   Lippincott said that a number of concerns raised by the Complainant were not serious, e.g., brakes losing air overnight is normal, the windshield stars were not on the driver's view, passenger side seat belts were of no concern because the trucks never had passengers, and the jake brakes are non-essential because their use is prohibited by law in the area where the Complainant was driving (Tr. 190-192). Lyninger complained of nicks in tire sidewalls more often than any other driver. The nicks were caused by driving over rocks (Tr. 192). On two or more occasions, mechanics had to assist the Complainant in changing a tire due to damage when he ran over rocks (Tr. 208). He testified that the Complainant was the cause of getting "stuck" on July 8, 2000, because the truck was driven into a bad spot on the side of the hill (Tr. 198). Larry Rambeau, an employee of Casazza for fifty years, threatened to quit if Lyninger did not stop damaging vehicles. At that time, Lippincott told Usry to fire Lyninger on the spot if he caused any further damage.

   Lippincott said that the Complainant's job performance damaged the Company's relationship with Byars Construction, one of their largest clients. He received a complaint from Mark Rosa at Byars stating that Lyninger would leave the job site and be gone for long periods of time, and that he would over-water areas of the site (Tr. 200). Lippincott told Usry to fix the situation, even if it meant replacing the driver (Tr. 201). Byars began hiring A&A Water Truck Service during July 2000, the same month he received complaints about the Complainant's performance (Tr. 202). Byars put their complaint in writing and had Usry write a letter about Lyninger's job performance (Id.). The Complainant's raises were definitely not due to merit (Tr. 207). Lyninger often failed to do his vehicle inspections properly. He often recorded menial problems with vehicles, but ignored real safety issues, e.g., the only item listed in Officer Shervan's June 27, 2000 inspection report that coincided with Complainant's DVIR was a problem with the brake light (Tr. 211, 213; CX 119). This discrepancy was one of the main reasons that he called a meeting with all drivers on July 22, 2000 (Tr. 213).

   Regarding the day the Complainant was fired, Lippincott learned through a phone call from Roger Usry that Lyninger had brought a truck back to the yard "all torn up" (Tr. 223). Lippincott told Usry to fire Lyninger but was told nothing about Lyninger's concerns with the safety of the vehicle (Tr. 224). Lippincott said that he had no knowledge that any member of Casazza's management had ever directed any employee to drive an unsafe vehicle (Tr. 26). He said that drivers were not expected to leave the yard with an unsafe truck (Id). Chris Thorn, the driver of truck #416 immediately after the Complainant, reported no problems with the truck (Tr. 227; RX 3). Lippincott said that Lyninger's conduct was as bad or worse than other employees who were fired for damaging equipment (Tr. 230). Lippincott said that the only employee warnings submitted to OSHA were for other employees, and no reports were ever written up for damage caused by Lyninger (Tr. 233).

   After his termination, Lyninger said he would "cause problems for him [Lippincott]" and he felt the true reason for his termination was vehicle inspections not damage to company vehicles (Tr. 230-231). Lippincott said that the average salary for a truck driver is approximately $26,000 per year and that Lyninger was hired as a seasonal driver (Tr. 232).

   The Surface Transportation Assistance Act (hereinafter "STAA" or "the Act") 49 U.S.C. § 31105 provides in pertinent part:

    A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, or privileges of employment, because –

(B) the employee refuses to operate a vehicle because–

(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or,

(ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition.

   In order to bring a claim under the STAA, a complainant must first make out a prima facie case illustrating discriminatory treatment under the Act. In order to make such a case, a complainant must prove: (1) that he was engaged in an activity that is protected by the Act; (2) that he was the subject of adverse employment action; and, (3) that a causal link exists between his protected activity and the adverse action of his employer. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). By establishing a prima facie case, the complainant creates an inference that the protected activity was the likely reason for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A refusal to drive is a protected activity under the STAA if the driver's perception of the unsafe condition was reasonable at the time, even if subsequent mechanical inspection revealed no actual safety defect. Jackson v. Protein Express, 95-STA-38 (ARB Jan. 9, 1997); protection under the whistleblower provision of the STAA is not dependent on actually proving a violation. Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-7 (6th Cir. 1997).

   Lyninger made repeated claims of the truck's unsafe condition and on several occasions requested that a state trooper examine the truck and write up a discrepancy report. The Complainant states that the discrepancies were not corrected. The Act § 405(b) protects an employee who refuses to operate a commercial motor vehicle when the unsafe condition is one that a reasonable person, under the circumstances, would perceive a bona fide hazard and the employee was unable to get correction of the unsafe condition from the employer. Duff Truck Line, Inc. v. Brock, No. 87-3324 (6th Cir. May 4, 1988), aff'g Robinson v. Duff Truck Line, Inc., 86-STA-3 (Sec'y Mar. 6, 1987). Lyninger claims that he was fired as a result of his protected activity. Resolving any doubt as to whether the hazards were bona fide and not corrected by the Employer, I find that the Complainant has made a prima facie case of discrimination under the Act.

   Once a prima facie case has been made by the complainant, the respondent has the opportunity to rebut an inference of discrimination by presenting evidence of a non-discriminatory justification for the adverse employment action. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992). The respondent does not need to prove a nondiscriminatory justification; they must merely articulate one by presenting evidence of the legitimate reason. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The Respondent presented credible evidence that the firing was for nondiscriminatory reasons. Lyninger was fired because he repeatedly damaged the truck he was driving and because of complaints from the Employer's customer that the employee's work was unsatisfactory. I find that the Respondent has rebutted an inference of discrimination by showing a nondiscriminatory justification for terminating his employment.

   If the respondent employer does present evidence of a nondiscriminatory motive for the adverse employment action, the complainant must then prove by a preponderance of the evidence that the legitimate reason articulated by the employer was merely a pretext for discrimination. Moon, supra; See also, Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To show that the justification was merely pretextual, the complainant must do more than simply show that the reason articulated by respondent was not the true reason for termination. The complainant must prove both that the asserted reason is false and that discrimination was the true reason for the adverse action. Hicks, supra, at 2752-56. The complainant,

... may demonstrate that the reasons given were a pretext for discriminatory treatment by showing that discrimination was more likely the motivating factor or by showing that the proffered explanation is not worthy of credence .... In order to determine that [the complainant] has established discriminatory intent in regard to this adverse action by the [respondent], however, ‘[i]t is not enough ... to disbelieve the employer; the fact finder must believe the plaintiff's explanation of intentional discrimination.'

St Mary's Honor Center, 113 S.Ct. at 2749, 2754, 125 L.Ed. 2d at 424.

   When an employer offers a nondiscriminatory justification for an adverse employment action, the next step in the analysis of a claim under the STAA is to decide whether the employer's reason is pretextual. Instead of deciding whether a prima facie case has been made, "the relevant inquiry is whether [the complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." Pike v. Public Storage Companies, Inc., ARB No. 99-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999) (citing Frechin v. Yellow Freight Systems, Inc., ARB Case No. 97-147, ALJ Case No. 96-STA-34, Final Dec. and Ord., Jan. 13, 1998, slip op. at 1).

   The complainant bears the burden of proving by a preponderance of evidence that the proffered, legitimate reason for termination was false and that he was terminated because of his protected activity. The respondent bears the burden of presenting enough evidence to rebut an inference of discriminatory conduct, it is not enough to prove that the non-discriminatory justification was the true reason for the adverse employment action. The ultimate burden of persuasion remains with the complainant. 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 complainant bears the burden of proving that the proffered reason for his termination was false, and that he was actually fired for protected activity.

   Lyninger alleges that he was fired because he refused to drive truck #416 due to safety concerns. The Respondent claims that Lyninger was fired for causing damage to its trucks and because he endangered its relationship with Byars Construction, one of its largest customers. After review of the record, I find that the Complainant has not carried his burden of proof to show by a preponderance of the evidence.

   The Respondent presented evidence of a nondiscriminatory justification for Lyninger's termination, namely that the Complainant continually damaged a company truck and endangered the Employer's relationship with one of its largest customers. The Respondent presented testimony of two individuals, both describing instances in which the Complainant damaged company trucks. Larry Huffman observed Lyninger driving over "too many rocks" and driving his truck in bad spots at Byars' Vista Ridge site (Tr. 170). Lippincott, Casazza's President and Manager, testified that his Company had many problems with the Complainant damaging trucks. He claimed that Lyninger routinely caused unnecessary damage to tires (more than any other driver) by running over rocks, and that he had negligently gotten the truck stuck and severely damaged the brakes on July 8, 2000 (Tr. 192, 198). Lippincott said that it was then that he demanded Usry fire the Complainant if he caused further damage to any vehicle (Tr. 199).

   Lippincott testified about the events on July 24, 2000, when he was told by Usry that the Complainant had brought a truck back to the yard that was "all torn up" and that he told Usry to fire him (Tr. 223). Lippincott said that the only way the damage could have been done was for something to have hit the truck, suggesting that the Complainant had been involved in an accident of some sort (Tr. 224). The Respondent produced no further evidence of the events that day, except to say that Usry never received a call from the Complainant that morning with concerns about the safety of truck #416. This evidence was presented through the testimony of Lippincott, who said that it was company policy to terminate individuals for damaging company property. Evidence was presented through past employee performance records showing such was the case. The Respondent presented testimony concerning the termination of Ted Pike and Roger Imalza for damage to company equipment. Both of these individuals were given employee warning reports, one for Pike and two for Imalza, before they were fired (RX 9, 11). This established that Casazza had a history of terminating individuals for damaging company property. I note that there were no employee warning reports presented for the Complainant and this somewhat damages the Employer's case. In some cases, failure to follow company policy for employee discipline can be enough to prove pretext. See Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992). However, this is insufficient in light of the Respondent's evidence and the Complainant's burden. The Employer also presented evidence that its relationship with one of its largest customers, if not the largest, was damaged due to Lyninger's performance on the job. He overwatered spots, repeatedly got stuck in the mud, and frequently disappeared from the job site for periods of time.

   The Complainant presented insufficient evidence to show that he was fired for reasons other than those put forth by the Respondent. He testified that he was concerned with the safety of the trucks he drove. His testimony is not sufficient to meet his burden of proof. When asked by the Respondent on cross-examination about his job search after losing his job with Casazza, the Complainant claimed that since he was fired, he had submitted between twenty and thirty applications weekly to other trucking companies. This, in itself, is implausible. When asked whether he had sent an application to Byars Construction, who he claimed was extremely satisfied with his performance, he answered no. When asked if he sent resumes to Allied, LST, and HARCO, three of the largest trucking companies in the Reno area, the Complainant admitted that he had not (Tr. 151, 152). It is unreasonable to believe that he mailed twenty to thirty applications per week and failed to send any to the largest firms in the area.

   The Complainant alleges that his job with Casazza was not seasonal. Based on his projected salary of $14.00 per hour plus time-and-a-half for twenty hours per week overtime, he calculated his lost wages from July 24, 2000 to March 12, 2002 at $83,300. Larry Huffman has been a truck driver in the area for twenty years, has worked for Casazza for the last three years, and earns $18.00 an hour. He earns between $42,000 and $45,000 per year. Doug Lippincott, President and Manager of Casazza Trucking, said that in the summer months his Company employs up to forty employees, of which thirty or thirty-five are drivers, that business tapers off in September, and by Thanksgiving they are done for the year. He said there is a large turnover and that Lyninger was hired as a water truck driver, a seasonal position. I find that the testimony of Larry Huffman, a seasoned driver, with annual earnings of $42,000 to $45,000 places great doubt on the Complainant's damage claims of $83,300. I find Lippincott's testimony to be credible and the claim by the Complainant that the job was not seasonal places further doubt on his credibility.

   After a review of the complete record, I find that the Complainant has not met his burden to establish by a preponderance of evidence that he was fired for engaging in protected activity.

   It is, therefore,

   ORDERED that the complaint of John Lyninger is hereby DISMISSED.

       Robert L. Hillyard
       Administrative Law Judge

NOTICE: This Recommended Decision and 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, N.W., Washington, D.C., 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (1996).