Complainant and Respondent stipulated to the following findings of the Secretary:

1. Respondent, Rondy Co., Inc., is engaged in interstate trucking operations and maintains a place of business in Barberton, OH. In the regular course of this business, Respondent's employees operate commercial motor vehicles in interstate commerce principally to transport recyclable materials. Consequently, Respondent is a commercial motor carrier and subject to the STAA.

2. Respondent is now and, at all times material herein, has been an employer as defined in Section 31101(3) of the STAA (49 U.S.C. 31101(3)).

3. Complainant, Oscar Simpkins, was originally hired as a driver of commercial motor vehicles, with gross vehicle weight rating in excess of 10,001 pounds. Complainant is currently unemployed.

4. At all times material herein, Oscar Simpkins, was an employee in that he was a driver of a commercial motor vehicle having a gross vehicle weight rating of 10,001 pounds or more used on the highways to transport recyclable materials and in that he was employed by a commercial motor carrier and, in the course of his employment, directly affected commercial motor vehicle safety. (Section 31101 (2) of the STAA, 49 U.S.C. 31101 (2)).

5. On or about November 20, 2000, Complainant, Oscar Simpkins, filed a complaint with the Secretary of Labor alleging that Respondent had discriminated against him in violation of Section 31105 of the Act (49 U.S.C. 31101). This complaint was filed timely.

6. The Secretary, acting through her duly authorized agents, thereafter investigated the above complaint in accordance with Section 31105 (b)(2)(A), and has determined that there is reasonable cause to believe that Respondent has not violated Section 31105 of the STAA.

7. Complainant Oscar Simpkins alleged he was discharged in reprisal for complaining to management about unsafe commercial motor vehicles. Respondent denied Complainant's allegations.

8. Complainant began work with Respondent on or about July 5, 2000, as a truck driver. Complainant alleged that shortly after he began working, he began to raise safety concerns to Respondent management regarding the truck he was driving.

(Tr. 7, JX 1). The parties further stipulated:

9. Complainant engaged in protected activity under the STAA. (Tr. 8).

10. Respondent was aware that Complainant was engaged in protected activity. (Tr. 9).

11. Respondent subjected Complainant to adverse action. (Tr. 8)

(Tr. 7, JX 1).

1. Whether Respondent terminated Complainant's employment based on Complainant's commercial motor vehicle safety complaints in violation of Section 405 of the STAA.

   Complainant twice returned a truck with a bent exhaust pipe. (Tr. 92, 129). The second time that this happened resulted in the required replacement of the entire exhaust system. (Tr. 132, DX 6). Complainant's explanation for the damage was that "[t]he equipment was no good." (Tr. 92).

   During Complainant's employment, a truck's clutch had to be adjusted three times. (Tr. 173). In October 2000, the truck's clutch and its universal joint required replacement. (Tr. 85, DX 7). Mr. Gordon stated that this damage resulted from Complainant changing gears while in "high range transmission." (Tr. 125). Mr. Gordon testified that he saw Complainant changing gears in this way, having observed his truck move up and down and smelled the clutch burning. (Tr. 124-25). Complainant acknowledged that changing gears in this way could damage a truck's transmission, but denied that he had done so. (Tr. 86, 125).

   Complainant did not receive a written warning for any equipment damage. (Tr. 127). Mr. Gordon testified that, at the time, Complainant was a new employee and that he wanted to give Complainant the "benefit of the doubt." (Tr. 127).

   Despite all of these problems, a final incident was, perhaps, the most consequential. On October 6, 2000, Complainant returned in the afternoon with his truck very low on fuel. (Tr. 34). Complainant usually waited until the following morning to refill the tank. (Tr. 33-38). Complaint did not fill up on this particular afternoon either, though the gas station remained open. (Tr. 34-37). The following morning, Mr. Gordon was attempting to position the truck for unloading, when the engine shut down before the brakes could be released. (Tr. 129). Mr. Gordon was forced to carry thirty gallons of fuel from the gas station back to the truck. (Tr. 129). The truck had a diesel engine, requiring that Mr. Gordon prime and bleed the fuel system before the truck could be restarted, a process that took over two hours. (Tr. 129). There was no company rule requiring that trucks be brought back with adequate fuel, but Mr. Gordon testified that Complainant's behavior went against "common sense." (Tr. 130). Complainant received a written warning for this incident. (Tr. 90, DX 3). Complainant signed the warning, acknowledging that he had read and understood the notice. (DX 3).

   At this point, Mr. Gordon had "had enough." (Tr. 148-49). Mr. Gordon contacted the home office to complain about Complainant's job performance. (Tr. 149). Given the ongoing problems, Mr. Gordon believed that Complainant was not satisfactorily performing his job and Mr. Gordon recommended Complainant's termination. (Tr. 152, 180). Mr. Gordon testified that Complainant's employment probably would not have been terminated absent his recommendation. (Tr. 181). Mr. Gordon stated that the home office "pretty much took it over from there." (Tr. 149). Complainant's employment was terminated on October 10, 2000, just before the end of his probationary period. (Tr. 31, DX 4).

   Complainant alleged that his dismissal came as a resulted of his complaints about truck safety. Complainant did not maintain, however, that he refused to drive a truck because of safety concerns. (Tr. 106-107, 153). Moreover, Complainant only once noted a defect on his inspection report. (Tr. 100, 104).

   The major complaints involved the condition of Respondent's tires. (Tr. 96). Respondent purchased its recapped tires from a tire manufacturer. (Tr. 136). In response to complainants about the condition of the tires, Mr. Gordon or a mechanic would perform an inspection. (Tr. 134). Respondent sometimes repaired or replaced the tire, but at other times Respondent took no action. (Tr. 97-99). On Complainant's first day of work, Complainant complained about the condition of a tire and then experienced a blowout on his subsequent trip. (Tr. 44, 97). This blowout, however, did not involve the particular tire which Complainant had reported. (Tr. 136). Complainant had a heated argument with Mr. Gordon after another of these blowouts, but the tire was later fixed. (Tr. 44, 106). At a later point, Complainant had a third blowout. (Tr. 44). However, Mr. Gordon testified: "If the tire was not good, [Complainant] did not go in a truck. I didn't want anybody driving an unsafe vehicle." (Tr. 143). Mr. Gordon admitted to other incidents when drivers had blown out tires and suggested that blowouts were quite common on trucks. (Tr. 155-56).

   Complainant also raised two minor issues. The first involved the conveyor on the dump truck. Mechanic Wesley Turnage wrote a letter on Complainant's behalf stating: "I drove the dump truck (in very unsafe condition) to go to different towns and pick up buffings, which really should have had two people to work with the conveyor, because of the bad shape it was in." (PX 1). Mr. Gordon conceded that the conveyor was badly worn, but that a replacement could no longer be obtained from the manufacturer. (Tr. 133). Mr. Gordon realized that the worn conveyor made this job more difficult and testified that he did not hold Complainant's complaints against him. (Tr. 147). The second issue involved the interior light in one of the trucks. (Tr. 134). Mr. Gordon inspected the light after each complaint, but could not find anything wrong with it. (Tr. 134).

   Mr. Gordon testified that Respondent's equipment was generally well maintained. (Tr. 133). Mr. Gordon also testified that whenever any problem with a truck was mentioned he always inspected the equipment. (Tr. 144-45). In addition, Mr. Gordon noted that the trucks are maintained according to a monthly mileage service plan. (Tr.133).

   Complainant testified that a regional manager had repeatedly commended his job performance. (Tr. 42-43, PX 2). Complainant believed that he had completed his work duties to the best of his ability. (Tr. 43). Complainant had a good work history and he offered testimony that he was a hard-working and honest worker. (Tr. 43, PX 4, PX 5). Complainant's pastor Carl Wells also testified that Complainant was strongly committed to his family and had shown a positive ethic in the work which he had performed for the church. (Tr. 116). Mr. Wells had no first hand-knowledge, however, of any of the activities that took place during Complainant's employment with Respondent. (Tr. 118-19). Complainant began a new job as a driver with a different company beginning in April 2001.

   Complainant failed to prove discrimination under the STAA. While Respondent acknowledged that Complainant engaged in protected activity, and that it took adverse action, Complainant failed to prove that the protected activity was the cause of Respondent's decision to take adverse action. Even assuming that Complainant could meet this burden, Respondent offered legitimate nondiscriminatory reasons for the adverse action. Complainant did not show that these reasons were a pretext for discrimination. Consequently, I recommend that the complaint be dismissed.

    Complainant believed that Respondent operated poor quality equipment. Complainant specifically complained about Respondent's tires, the condition of the dump truck conveyor, and the interior light of one truck. Respondent does not dispute that it was aware of the complaints. The purpose of this proceeding, however, is not to decide whether the complaints were accurate or justified. The relevant question, instead, is whether the complaints were the cause of Respondent's decision to terminate Complainant's employment.

   Complainant failed to present sufficient evidence to raise an inference of causation. There is no indication that the complaints generated any animosity on the part of Respondent. While Complainant and Mr. Gordon had an argument following a tire blowout, the tire was subsequently repaired, and the incident did not lead to any negative action. In fact, Respondent made inspections after every single complaint, and promptly made any repairs it believed to be required. Contrary to his theory, moreover, Complainant regularly failed to complete his own inspection reports, calling into question his purported concern for vehicle safety.

   Furthermore, the record does not indicate that the complaints and the adverse action were close in time. The complaints occurred on his first day of employment and then at unspecified times during the following three months. In contrast, Respondent issued to Complainant his first written warning immediately following his alleged improper absence from work. Respondent issued to Complainant his second written warning immediately following his failure to refuel the truck. Respondent terminated Complainant's employment immediately following issuance of the second written warning. This pattern of events defeats a suggestion that the complaints were the cause of the adverse action.

   The record simply does not reflect that the complaints, however justified, led to Respondent's decision to terminate Complainant's employment. Consequently, Complainant has failed to prove a causal link between his protected activity and the adverse action.

   B. Respondent's Rebuttal

   Even assuming that Complainant could present sufficient evidence that his protected activity is causally linked to the adverse action, Respondent would still prevail. Once the prima facie case is established, the burden of production shifts to the employer to present sufficient evidence to rebut the inference of discrimination. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993). The employer must articulate a legitimate, nondiscriminatory reason for its employment decision. See id. If the employer presents evidence of a nondiscriminatory reason for the adverse employment action, the complainant must prove by a preponderance of the evidence that the reason proffered by the employer is a mere pretext for discrimination. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To prove that the proffered reason is pretextual, the complainant must prove both that: (1) the asserted reason is false; and (2) that discrimination was the true reason for the adverse action. See Hicks, 509 U.S. at 2752-56.

   Respondent offered a litany of legitimate nondiscriminatory reasons for its discipline and termination of Complainant's employment. Respondent alleged that Complainant failed to properly complete his paperwork, did not appropriately report absences from work, regularly neglected to weigh the dump truck, damaged company equipment on several occasions, and returned a truck with inadequate fuel. The United States Supreme Court held in a similar discrimination case that an employee "ought not to be able, by engaging in such [protected] conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record . . ." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 286 (1977). In accordance with this principle, Respondent was free to assess Complainant's performance record when deciding whether to retain Complainant as an employee. Respondent's proffered reasons for terminating Complainant's employment are legitimate and well-supported by the record. The fact that Complainant engaged in protected activity cannot insulate him from this workplace decision.

   In response, Complainant did not offer any evidence that the nondiscriminatory reasons were a pretext for discrimination. Complainant admitted to failing to complete his paperwork, to having partially damaged the truck, and to having returned the truck low on fuel. Complainant disputed only minor details of the other allegations. Respondent's course of discipline is documented by two written warnings, one of which predates his termination by over two months. Complainant offered no evidence that his complaints were the true reason for the adverse action.

   Complainant failed to prove a prima facie case of discrimination under the STAA. While Respondent acknowledged its awareness of Complainant's protected activity, and that it took adverse action, Complainant failed to prove a causal link between the protected activity and the adverse action. At any rate, Respondent offered several legitimate nondiscriminatory reasons for the adverse action. Complainant did not prove that these reasons were a pretext for discrimination.

   Each party presented its side of the story. In the end, it was not shown that Respondent terminated Complainant's employment because of his safety complainants. While the question resolved by this proceeding is narrow and specific, one need not be indifferent to the other issues raised. Losing a job can impose a hardship on workers and their families. An employer's decision to dismiss an employee may sometimes appear unfair. This, nevertheless, is not the venue for resolving these concerns. Based on the laws requirements, and the facts as they have been presented, I cannot offer a remedy to Complainant.

   It is hereby ORDERED that the complaint filed in this matter is DISMISSED.

       Daniel A. Sarno, Jr.
       Administrative Law Judge

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, 19982 (1986).

DAS/dmj