Law Judge (ALJ) found that CF had a legitimate, nondiscriminatory reason for taking these actions and recommended that the complaint be denied. The ALJ's findings of fact, R. D. and O. at 3-12, are supported by substantial evidence on the record as a whole, and therefore are conclusive. 29 C.F.R. §1978.109(c)(3). We accept the ALJ's recommendation and dismiss the complaint.

390-392; RX 34 at 189, for his music teacher ceasing to teach him, RX 1; RX 4 at 378, and for the fact that he no longer was being asked to chaperon events for his children's school band. RX 1; RX 4 at 382-383. He alleged that an EEOC employee was investigating him and that other EEOC investigators were posing as employees of several Atlanta stores. RX 1; RX 4 at 400.

   Eagelston saw a copy of the letter to ALJ Neal and immediately sought a professional's help in determining whether Griffin posed a potential danger. T. 140-141. A psychiatrist, Richard Wyatt, reviewed the letter and provided a written opinion that

collectively his claims of harassment are so numerous and unusual that they raise the question if Mr. Griffin has developed a delusional disorder with his employer as its center. This situation raises a concern for potentially dangerous behavior during employment activities, e.g., truck driving.

and concluded that there was a "significant issue of whether [Griffin] was fit for duty." T. 54-56. Stock suggested that CF remove Griffin from driving, with continued pay, pending a full psychological evaluation. T. 57, 145. Stock assisted CF in writing a letter advising Griffin that he was being taken out of driving service effective May 28, 1996. T. 58; RX 12.

   In an interim report, Stock recommended that CF find Griffin temporarily unfit for driving duty pending mandatory psychological treatment. RX 15 at 3.

Stock recommended two local psychiatrists who had agreed to treat a person with Griffin's diagnosis. T. 76.

remained employed by Super Service until January 7, 1997, when he was fired for insubordination and willful disregard, including refusing a dispatch, acting insubordinate toward his dispatcher, and driving 260 miles out of route. T. 127-128; CX 31.

    Griffin filed this complaint, alleging that because of his earlier safety complaints and earlier filed STAA complaint, CF removed him from driving service, discharged him, and blacklisted him with Super Service.

   We are mindful that in some contexts, an employer's "order that [a complainant] undergo a psychological evaluation" of fitness to work may be based "solely on retaliatory animus for his protected activity." Robainas v. Florida Power & Light Co., Case No. 92-ERA-10, Sec. Dec. and Remand Ord., Jan. 19, 1996, slip op. at 5 (under the analogous employee protection provision of the Energy Reorganization Act of 1974). In Robainas, the employer ordered a psychological evaluation of fitness for duty when an employee threatened to go to the press with his safety complaint. The Secretary found that the employer's asserted reason for the evaluation, that it feared the employee would engage in sabotage, was a pretext for discrimination because the employee was not violent and had never threatened sabotage or harm. Slip op. at 9-10. See also Robainas v. Florida Power & Light Co. (Robainas II), Case No. 92-ERA-10, Sec. Order Denying Motion for Reconsideration, Apr. 15, 1996, slip op. at 6 ("The record does not substantiate that Florida Power observed, or that Robainas engaged in, abnormal or aberrant behavior suggestive of any risk to public health and safety.").

   In a different case, however, the Secretary found that the employer adequately explained the reasons for examining an employee's psychological fitness for duty because the employee's immediate supervisor, union officials, and managers had observed the employee's unusual statements and behavior, including excited and hostile reactions. Mandreger v. Detroit Edison Co., Case No. 88-ERA-17, Sec. Dec. and Order, Mar. 30, 1994, slip op. at 16. See also Robainas II, slip op. at 4 (noting that in Mandreger, referral to counseling "was warranted because the testimony and evidence substantiated Mandreger's aberrant behavior in the workplace.").

   Robainas and Mandreger show that we examine the evidence in each case carefully to determine if the employer observed unusual or threatening behavior prior to referring an employee for a psychological evaluation of fitness for duty. In this case, CF observed unusual behaviors that justified removing Griffin from service pending a psychological evaluation, including Griffin's letter to ALJ Neal, and his statements at the deposition.

   Griffin's letter to the ALJ listed numerous witnesses who may have knowledge of CF's possible discrimination against him, including (1) employees of businesses in Atlanta who allegedly were "spies" for the EEOC, (2) EEOC employees who allegedly investigated and spied on Griffin, (3) FHA and NLRB officials, and (4) employees of a United States Senator and a member of the United States House of Representatives. CF rightly was concerned about the allegations that Griffin observed EEOC employee John Fitzgerald in numerous places (other than an EEOC office) and that Fitzgerald was "influenced by [CF] and is harassing my family in behalf of [CF]." RX 1 at 5. The letter outlined a broad conspiracy that reached into many facets of Griffin's and his family's life, including CF's alleged inducement to his music teacher to cease giving Griffin

music lessons, RX 1 at 6-7, CF's alleged large donation to the local high school band to induce the band to not include Griffin in activities as a member of the band's booster club, id. at 7, the implied involvement by CF in not granting Griffin's son an appointment with his high school guidance counselor and in the failure of colleges to receive documents from the guidance office, id., and CF's involvement in some mishaps at the debutante ball in which Griffin's daughter was a sub-debutante. Id. at 8. We agree with the ALJ that a lay person lacking psychological training justifiably would be concerned about Griffin's fitness to drive in light of the broad conspiracy he alleged. R. D. and O. at 15.

   The ALJ also found that Griffin's deposition statements justified examining his fitness to drive, and we agree. See R. D. and O. at 15. Griffin drove heavy tractor trailer units that can cause great harm if not operated safety. See T. 55 (Dr. Stock noted that Griffin "drove a truck over the road and obviously had an instrument of potential lethality"). At the deposition, Griffin spoke about the need for accidents before a company will ensure safety and implied that he could arrange an accident. In addition, Griffin articulated his belief that CF's attorney had conspired to arrange a break-in at Griffin's house and to steal documents and his car. See R. D. and O. at 15. CF justifiably was worried about Griffin's psychological state.

   In this case, we find that the decision to assess Griffin's fitness under the motor carrier regulations was both legitimate and prudent, as expert opinion bore out. The first expert CF consulted, psychiatrist Wyatt, reviewed the letter to the ALJ but did not meet with Griffin. On the basis of only the letter, Wyatt opined that Griffin may have a delusional disorder and the potential for dangerous behavior during employment activities. RX 2.

   CF did not stop with Wyatt's opinion, but rather arranged for Dr. Stock to review all the relevant documents and examine Griffin personally. Griffin objects that Stock, who is not a physician, improperly assessed whether he was medically fit to drive. The motor carrier regulations do not require that only a medical doctor may assess medical fitness to drive in the context of a driver's possible mental disorder. See 49 C.F.R.§391.43(a)(1) ("[T]he medical examination shall be performed by a licensed medical examiner as defined in §390.5 of this subchapter.") and 49 C.F.R. §390.5 ("Medical examiner . . . includes but is not limited to, doctors of medicine, doctors of osteopathy, physician assistants, advanced practice nurses, and doctors of chiropractic.") (emphasis added). Stock is a board certified forensic psychologist who specializes in assessing the threat posed by employees, R. D. and O. at 3, and the ALJ properly relied upon his testimony and documentary evidence. In turn, Stock relied upon the extensive psychological tests administered by a qualified neuropsychologist and a lengthy personal interview with Griffin to conclude that Griffin had

a delusional disorder, paranoid type. Like the ALJ, we accept Stock's unrefuted expert testimony.

   Stock advised CF to remove Griffin from service because he posed a danger to other drivers and to continue to pay him so as to minimize the disruption to his life. T. 76, 147. CF placed Griffin on a medical leave of absence under the Family and Medical Leave Act of 1993, codified at 29 U.S.C. §2611-2654. Neither that act nor the applicable collective bargaining agreement, RX 14, required CF to pay Griffin while on medical leave. Indeed, company policy was not to pay employees on medical leave. T. 151. Nevertheless CF continued Griffin's pay, in accordance with Stock's advice. It seems unlikely that a company bent on getting rid of an employee because of his safety complaints would go out of its way to pay him when it was not required.

   Stock also advised, and CF agreed, that Griffin's continued pay should be contingent upon his seeking and receiving psychiatric treatment. RX 17; T. 76, 150. There is no doubt that Griffin refused to seek treatment. Therefore, we find that the company legitimately ceased paying Griffin and placed him on medical leave without pay.