Complainant has been a professional truck driver for approximately thirty-two years, operating as an independent contractor for approximately the past six years. (Tr. at 46-47). As an independent contractor, Complainant owns and operates his own tractor, and enters into contracts with various companies to haul freight for them. (See Tr. at 47-48).

Nature of Employment Relationship:

   Trussway manufactures materials used in the construction industry, such as wall panels and roof and floor trusses. (Tr. at 13). Respondent, in turn, is party to an exclusive contract with Trussway to provide trucking services and deliver Trussway goods to its customers. (See Tr. at 12-13). Billy Myers testified that, at the time of the hearing, Trussway made use of approximately twenty-one or twenty-two trailers, which are primarily owned or leased by Trussway and Respondent, to conduct deliveries. (Tr. at 14). Respondent, though, is solely responsible for maintenance on all the trailers, irrespective of actual ownership, and makes all arrangements for repair work. (Tr. at 15-16, 73; see also Tr. at 89). Additionally, Respondent is responsible for obtaining all necessary licenses and permits. (Tr. at 19-20).

   On or about January 1, 2001, Complainant entered into an agreement with the late Mr. Maurice Riley, the former owner of Respondent, to provide trucking services to Trussway for Respondent as a subcontractor. (See Tr. at 48, 106, 172). This employment relationship ended on November 30, 2001 when Respondent terminated Complainant from employment. (Tr. at 50; RX 1). While employed by Respondent, Complainant was never disciplined, had a good rapport with his co-workers and supervisors, and was generally regarded as a very reliable driver. (Tr. at 14, 73).

Complainant's Alleged Protected Activity:

   Mr. Myers, Trussway's shipping and receiving supervisor, acknowledged that the trailers had minor problems from time to time, but that these were fixed by Respondent when they arose. (Tr. at 15, 18). Mr. Myers also offered testimony that he could not recall any significant mechanical problems involving any of the trailers while Complainant was employed by Respondent. (Tr. at 18-19). Mr. Myers stated that all of the drivers, including Complainant, raised complaints about the condition of the trailers from time to time, and that those issues were addressed in course. (Tr. at 20). All drivers were responsible for checking the trailer for unsafe conditions before leaving the yard, and if the driver was concerned about the condition of a particular vehicle, he would not be forced to take that load. (Tr. at 20).

   Other concerns of Complainant were related to Respondent's failure to obtain the appropriate state permits, specifically wide load permits. Particularly, in Maryland, North Carolina, and Virginia, certain truck drivers would intentionally bypass weigh stations when delivering their loads to avoid being caught without the appropriate licenses and required paper work, including pre-trip and post-trip safety inspections of the trailers. Again, liability for failure to have any of these required papers would fall on Complainant and the other drivers personally because they did not have a lease agreement from Respondent. (Tr. at 49-51, 55, 60-61, 85-86, 93). According to Complainant, all of the drivers were "very concerned" about these working conditions. (Tr. at 61).

Respondent's Addressing of Safety Concerns:

   Trailer Repair. In response to the complaints raised by the drivers, Trussway hired a maintenance company, Truck Maintenance Enterprise, in August 2001 to examine the trailers and make necessary repairs. Claimant testified, however, that this practice ended after costly repairs were made to only two trailers. (Tr. at 62). Therefore, Complainant and the other drivers continued to complain to Trussway employees about their safety concerns. (Tr. at 63).

   Respondent employed on-site mechanics, but Complainant testified that these individuals would not actually perform needed repairs, and would shirk their responsibilities and obligations. (Tr. at 83, 116). Complainant further explained that while the mechanics would make occasional light repairs, they would not work on more serious problems, such as brake systems. (Tr. at 84, 116-17). In addition to the on-site mechanics, Respondent also hired R & S Truck Repair on a retainer basis to perform repairs as needed; however, Complainant testified that he was never informed of the availability of the mechanic at R & S Truck Repair while he worked for Respondent. During Complainant's employment, he never personally took a trailer to a mechanic for repairs. (Tr. at 85, 89).

   Complainant stated that he finally contacted an individual at DOT at some point around April 2001 but could not remember the exact date. (Tr. at 80-81). While there, a DOT employee instructed Complainant to fill out the requisite paperwork if he wished to file a formal complaint with the DOT, but he also informed Complainant that the agency "d[id] not have the manpower to go and investigate" Complainant's concerns even if he did file a formal complaint. (Tr. at 81-82). Therefore, Complainant never completed the formal complaint; he did, however, tell Maurice Riley and Tim Ward about this meeting. Mr. Riley promised Complainant that he would address his concerns in the near future. (See Tr. at 82-83).

   After having a conversation with Complainant in August 2001, in which Mr. Ravenell became aware of the licensing problems the drivers were experiencing, he obtained permits from various states and requested that Trussway provide him with the needed information to activate the one-day licenses. Since that time, most drivers at the time of the hearing were equipped with the proper licenses when making deliveries; however, if a driver does not contact Mr. Ravenell to inform him of the need for the license, then the driver still runs without the permit. This still occurs on occasion. (Tr. at 188-189).

Complainant's Alleged Wrongful Activities:

   Alleged business take-over. According to Complainant, in August 2001, Mr. Myers notified Complainant that Trussway was examining the possibility of awarding the hauling contract to a different company and encouraged Complainant to submit a proposal. (Tr. at 65; see also Tr. at 67 (Complainant stating that Mr. Ward informed him of the same), (Tr. at 89 (Complainant stating that he was informed at a monthly meeting that Trussway was "looking into other contractors.")). Complainant met with Mr. Dianza, who also suggested that he submit a proposal that he would forward to Trussway's management. (Tr. at 65, 67; see also Tr. at 102-03). Complainant promptly drafted a letter on August 28, 2001, in which he explained to Trussway that if he were awarded the contract, he would personally ensure that all of the trucks and trailers were maintained properly, that each job site was accessible and appropriately sized trailers were used, and that all necessary permits were obtained. (Tr. at 65-66; CX 1). Complainant testified that he received no response from Trussway regarding his letter. (Tr. at 104).

   Complainant denied ever discussing monetary issues with Trussway, but commented to Mr. Dianza that many of the drivers were slightly disgruntled due to the pay situation, and that Complainant would probably take 10 percent off the top rather than 15 percent if he were in Respondent's position. (Tr. at 68; see also Tr. at 105-06). Complainant also testified that several of the drivers were upset after they learned that Respondent kept 15 percent of what it charged Trussway for delivery services. (See Tr. at 63). Complainant explained that his sole concern at all times was the condition of the trailers, not pay; however, Complainant acknowledged that the general focus of the drivers gradually shifted from safety concerns to compensation concerns. (Tr. at 63-64, 72, 75, 88, 97-98, 207).

   The employee protection provisions of the STAA, 49 U.S.C. §31105, prohibit discriminatory treatment of employees who have engaged in certain activities related to commercial motor vehicle safety. To invoke the whistleblower provisions of the STAA, complainant has the burden of proof to establish that he engaged in protected activity and that he was subjected to adverse action. He must also present evidence that Respondent was aware of the protected activity and took adverse action because of this awareness. Byrd v. Consolidated Motor Freight, 1997-STA-9 at 4-5 (ARB May 5, 1998).

   Under 49 U.S.C. §31105 (a)(1)(A), an employee is engaged in protected activity 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. Courts have found that it is "eminently reasonable" for the DOL to interpret this provision to include internal complaints from an employee to an employer." Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 20 (1st Cir. 1998). If the internal communications are oral, however, they must be sufficient to give notice that a complaint is being filed and thus 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. at 22. A safety complaint made to any supervisor in the chain of command is deemed to be protected activity. Zurenda v. J & K Plumbing and Heating Co., Inc., 1997-STA-16 at 5 (ARB, June 12, 1998).

   An employee is also protected under the STAA when an employee refuses to operate a vehicle in violation of any federal rules, regulations, standard, or orders applicable to commercial vehicle safety or health. 49 U.S.C. §31105 (a)(1)(B)(i). Protection under this clause does not depend on actually proving a violation of a commercial safety regulation, standard or order. It is enough that the complaint merely relate to such a violation. Schulman v. Clean Harbors Environmental Services, Inc., 1998-STA-24 at 7 (ARB Oct. 18, 1999). Similarly, the STAA 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. 49 U.S.C. §31105(a)(1)(B)(ii); Schulman, 1998-STA-24 at 8. If an employee objects to an unsafe condition but nevertheless drives the truck, the protection afforded the employee should be analyzed as a "complaint" under 49 U.S.C. §31105 (a)(1)(A), not a refusal to drive. Zurenda, 1997-STA-16 at 5.

   A complainant may establish unlawful discrimination in either of two ways. Wright v. Southland Corp., 187 F.3d 1287, 1293 (11th Cir. 1999).

   Since directly proving discriminatory intent may be difficult, the U.S. Supreme Court developed a second approach that enables a complainant to present a rebuttable presumption of illegal discrimination through circumstantial evidence. See Wright, 187 F. 3d at 1290. The ARB has applied this approach in STAA cases, and in Byrd, 1997-STA-9 at 4-5, the ARB recently summarized the burdens of proof and production in this type of case (citations omitted):

A complainant initially may show that a protected activity likely motivated the adverse action. A complainant meets this burden by proving (1) that he engaged in protected activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse employment action, and (4) the existence of a "causal link" or "nexus," e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of a retaliatory motive. A respondent may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action and that the protected activity was the reason for the action.

   When the nexus between the protected activity and the adverse employment action is established inferentially in this way, temporal proximity may be sufficient to raise the inference that a respondent's adverse actions were taken in retaliation for a complainant's protected activities. See Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989); see also Simon v. Simmons Foods, Inc., 49 F.3d 386, 389 (8th Cir. 1995). Once a complainant successfully raises the presumption of discrimination, then the respondent may produce evidence that the action was motivated by a legitimate nondiscriminatory reason. If a complainant is able to meet this burden, then the burden shifts back to the complainant once again to show that the proffered reason for discrimination was not the true reason for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). This concept is referred to as the "pretext" analysis. Id. at 803.

   The United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), explained the "pretext" phase of the analysis as introduced in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993). 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. To meet that ultimate burden, the complainant may, but not necessarily will, prevail based on the combination of a prima facie case and sufficient evidence to demonstrate the asserted justification is false. If the justification is determined to be false, the trier of fact may conclude the employer engaged in unlawful discrimination. Reeves, 530 U.S. at 140. Thus, there may be a valid inference that the employer's falsehood is an attempt to cover up the unlawful discrimination.

   Regardless of whether a complainant establishes a prima facie case, the respondent may set forth an affirmative defense by showing that it had a legitimate business reason for terminating the employment relationship. Wignall v. Golden State Carriers, Inc., 1995-STA-7 at 5 (Sec'y July 12, 1995). In Johnson v. Roadway Express, Inc., 1999-STA-5 at 12 (ARB Mar. 29, 2000), the ARB recognized that once a respondent produces evidence to articulate a legitimate, nondiscriminatory reason for its actions, the more relevant inquiry is "whether complainant prevailed, by a preponderance of the evidence, on the ultimate question of liability." More specifically, the ALJ should consider whether one of the real reasons for the complainant's dismissal from employment was his safety complaints. Id..

   To prevail in a whistleblower case under the STAA, complainant must establish that he was employed by an employer covered by the STAA; that he engaged in protected activity during the course of that employment; that the employer was aware of his involvement in the protected activity; that he was subjected to adverse employment action; and that there is a nexus between the protected activity and the adverse employment action. Byrd, 1997-STA-9 at 4-5.

Status as Employee and Employer:

   At the outset, I note that Respondent has not disputed that it is an employer for purposes of the Act; nor has it disputed that Complainant is an "employee" under the STAA. On November 30, 2001, as a commercial motor carrier, Respondent was an employer subject to the employee discrimination provisions of the STAA. In a similar manner, as an independent contractor driving for Respondent on that day, Complainant fell within the Act's definition of "employee." See 29 C.F.R. § 1978.101(d) ("Employee" means "a driver of a commercial motor vehicle (including an independent contractor while in the course of personally operating a commercial motor vehicle."))

Adverse Employment Action:

   Thus, I will treat Complainant's informal complaints as protected activity (not a refusal to drive) and analyze accordingly. See Zurenda, 1997-STA-16 at 3.

Employer's Notice of Protected Activity:

   Complainant expressed safety concerns to supervisors at both Respondent and Trussway; however, his daily complaints were made to Trussway representatives, not Respondent. The concerns heard only by Trussway representatives cannot be attributed to Respondent because there has been no evidence presented that shows Trussway discussed safety complaints with Respondent until just prior to Complainant's termination, and more importantly, there is no evidence that Trussway attributed any safety concerns that they may have raised to Complainant prior to that time.

   Although none of Complainant's safety concerns were documented in writing, supervisors of Respondent were fully aware of the problems Complainant had with the safety of Respondent's trailers and failure to issue licenses. In addition to his direct complaints to Mr. Riley, Complainant's frustration and concern with safety issues culminated in the occurrence of the November 26th meeting, which Complainant allegedly scheduled as a platform to discuss safety concerns. Even though none of Respondent's managers attended the meeting, Trussway met with them a few days afterwards to inform them about the meeting and other incidences of Complainant bringing safety concerns to their attention, and Complainant's termination immediately ensued. While Mr. Ravenell testified that he knew of no safety complaints by Complainant, the evidence shows that he was present at a meeting (occurring on or before November 30, 2001) attended by both Trussway and Respondent management and that Trussway discussed what happened at the November 26th meeting, including the safety concerns that were addressed. Later on November 30, 2001, Complainant received a letter terminating his employment with Respondent.

   Additionally, in one particular instance occurring approximately six months prior to his termination, Complainant went to the DOT to file a formal complaint but was dissuaded from formally filing it by the overworked officers there. Complainant did, however, inform Mr. Riley personally of this incident, ostensibly in an attempt to get the problems corrected.

   In view of the above, I find that Complainant made enough contacts with management at Respondent to put them on notice of Complainant's safety concerns and thus his engagement in protected activity. Since I have found that Respondent was aware of Complainant's protected activity, I must determine whether Complainant was terminated because he raised safety concerns to Respondent.

Causal Relationship:

   Complainant has already shown by a preponderance of the evidence that his employment relationship with Respondent falls within the purview of the STAA, he was subject to adverse action, he engaged in protected activity, and Respondent was on notice thereof. To fully establish unlawful discrimination, he must also show a causal relationship between Respondent's adverse action and the protected activity. Complainant can establish causation by showing that Respondent was aware of the activity and acted in response to it. As noted above, there are two approaches to establishing this element of unlawful discrimination – either by directly showing a causal relationship or by establishing a causal relationship inferentially. Wright, 187 F.3d at 1290.

   Temporal proximity may be considered as circumstantial evidence in determining whether a causal link existed between the adverse action and the protected activity. Complainant requested a meeting to discuss safety and other issues on November 26th, just four days before being terminated. When Trussway supervisors cancelled the meeting, Complainant angrily threatened to "shut them down" unless they kept their promise of holding the meeting. Complainant did not intend to "strike" or have other drivers refuse to take their loads, he simply wanted to be heard at the meeting that was supposed to take place, so he made this threat. Complainant's tactic was apparently successful because shortly after making that statement, the meeting was held as scheduled.

   IT IS HEREBY RECOMMENDED that the claim of Complainant, Mr. Floyd Lucas, for unlawful discrimination under the STAA be DISMISSED.

       PAMELA LAKES WOOD
       Administrative Law Judge

Washington DC

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, 200 Constitution Avenue, N.W., Washington D.C. 20210. See 29 C.F.R. § 1978.109 (a); 61 Fed. Reg. 19978 and 19982 (1996)