Schulman clearly understood that only Gager had the requisite authority to allow a driver to switch trucks and/or trailers. R. D. & O. at 15. Schulman left a note on Gager's desk Friday afternoon, which, he argued, indicated his intention to take an alternative trailer on Monday based upon his assessment of the condition of his assigned trailer. In fact, however, the note stated:

Loading trailer Monday morning, Taking 682 because I have ten stops, Give 622 to Kevin. [signed] Rick/Big Puff Daddy.

R. D. & O. at 4. See Respondent's Exhibit 1. Schulman admitted that he did not see Gager at Clean Harbors on that Friday afternoon. T. 137. The following Monday, Schulman switched trailers as he had indicated he would do in his note. Upon completion of his assigned runs for the day, he was issued a written warning for switching trailers without having first obtained the necessary authorization. R. D. & O. at 5.

To which Schulman responded (by e-mail from his truck):

Must need glasses, Looked at the board before I left yesterday, Could've sworn it said 682!!!!!

R. D. & O. at 7.

   On Thursday, February 19, 1998, Gager informed Schulman that he would be receiving a second written warning, and that the two of them would meet the following morning. R. D. & O. at 8. That evening, Schulman called Gager at home. He raised concerns about Trailer 622, blamed Gager for log book violations, and threatened to take his concerns to the state Labor Board. The same evening, Schulman called the home of David Bujak, Clean Harbors' Northeastern Regional Logistics Manager, repeating much of what he had stated to Gager. R. D. & O. at 8. See CX 10B.

   The next morning Gager presented Schulman with the second written warning, as

promised. Schulman refused to sign it and, after what Schulman described as "badgering" by Gager, informed Gager that he was "not signing (expletive)." R. D. & O. at 8. Shortly thereafter Gager telephoned Bujak, stated that he could no longer manage Schulman, and urged that his employment be terminated. Id. Bujak agreed, but indicated that he would need to obtain approval for the termination from the human resources department, which approval he subsequently obtained on Monday, February 23. R. D. & O. at 9. The next day, February 24, Schulman was terminated. The reason given by Clean Harbors for taking this action was "insubordination." Id.

   A full hearing on the merits was held by the ALJ. In evaluating the evidence presented, the ALJ looked to whether Schulman had demonstrated by a preponderance of the evidence that he was discriminated against for engaging in STAA-protected activity. R. D. & O. at 12. The ALJ found that Schulman engaged in protected activities, but held that he failed to prove a causal link between those activities and his ultimate termination from employment. R. D. & O. at 18-20.

   Specifically, the ALJ concluded that although Schulman failed to establish that he had engaged in activity protected by the STAA's refusal to drive clause (§31105(a)(1)(B)), R. D. & O. at 15, Schulman did establish that he had engaged in activity protected under STAA's complaint clause (§31105(a)(1)(A)). The ALJ cited Schulman's phone calls to Gager and Bujak the evening of February 19, wherein Schulman communicated his concerns about Trailer 622, blamed Gager for log book violations, and threatened to report his concerns to the state Labor Board. R. D. & O. at 14. Also cited was Schulman's complaint to Gager, prior to his termination, about the insufficient time allowed for pre-trip inspections, and Schulman's VIRs submitted subsequent to the second trailer switching incident but prior to his termination. Id. However, the ALJ reasoned that because Clean Harbors proffered a legitimate business reason for terminating Schulman (i.e., insubordination), which Schulman was unable to show was pretext, Schulman failed to prove that he was terminated for engaging in the protected activity, and thus recommended dismissal of Schulman's claim.

   This case presents two issues for review:

   1) Whether Clean Harbors violated the STAA's complaint clause, 49 U.S.C. §31105(a)(1)(A), by discharging Schulman for making safety complaints;

   2) Whether Clean Harbors violated the STAA's refusal to drive clause, 49 U.S.C. §31105(a)(1)(B), by discharging Schulman for refusing to operate an unsafe vehicle.

I. Standard for Determining Claims Arising Under Section 405

   Schulman claims that Clean Harbors terminated his employment in violation of the following provisions of STAA Section 405:

(a) Prohibitions. (1) A person may not discharge an employee or discipline or discriminate against an employee regarding pay, terms, or privileges of employment because -

(A) the employee, or another person at the employee's request, has filed a complaint or begun a proceeding related to a violation of a commercial motor vehicle safety regulation, standard, or order, or has testified or will testify in such a proceeding; or

(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;

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

49 U.S.C.A. §31105(a). Subsections (1)(A) and (1)(B) of the foregoing provision are referred to as the "complaint" clause and the "refusal to drive" clause, respectively. See LaRosa v. Barcelo Plant Growers, Inc., ARB Case No. 96-089, ALJ Case No. 96-STA-10, Rem. Ord., Aug. 6, 1996, slip op. at 1-3.

   In order to prevail on the merits of his claim, Schulman must prove that he engaged in activity protected by either or both of the foregoing provisions, and that he was terminated, at least in part, because of that protected activity. Somerson v. Yellow Freight System, ARB Case No. 99-004, ALJ Case No. 98-STA-9, Final Dec. and Ord., Feb. 18, 1999, slip op. at 8, citing Clean Harbors Environmental Services v. Herman, 146 F.3d 12, 21 (1st Cir. 1998); Byrd v. Consolidated Motor Freight, ARB Case No. 98-064, ALJ Case No. 97-STA-9, Final Dec. and Ord., May 5, 1998, slip op. at 4 n.2.

II. Analysis of Issues Presented

   A. Whether Schulman engaged in protected activity under the "Complaint" Clause

   It is well settled that STAA's complaint clause protects safety-related complaints "that are purely internal to the employer." Clean Harbors, 146 F.3d at 19; Ake v. Ulrich Chemical Co., Inc., Case No. 93-STA-41, Sec. Final Dec. and Ord., March 21, 1994, slip op. at 5. Moreover, as the ALJ correctly noted, protection under the complaint clause is not dependent on actually proving a violation of a commercial vehicle safety regulation, standard or order; the complaint need only relate to such a violation. R. D. & O. at 13, citing Byrd v. Consolidated Motor Freight, supra, slip op. at 5.

   We agree with the ALJ's finding that Schulman engaged in several forms of activity that qualify for protection under Section 405(a)(1)(A), including Schulman's pre-January 26 complaints regarding the length of time Clean Harbors allowed for Department of Transportation mandated pre-trip inspections, 49 C.F.R. §392.7, and the VIRs Schulman filed on February 19, 20 and 23 expressing safety-related concerns covered by 49 C.F.R. §396.3(a)(1). We also find Schulman's February 19 evening phone complaint to Messrs. Gager and Bujak, raising concerns about log-book violations, to be protected under subsection (a)(1)(A). See 49 C.F.R. §395.8.

   B. Whether Schulman engaged in protected activity under the "Refusal to Drive" Clause

    The STAA's "refusal to drive" clause provides two categories of circumstances in which an employee's refusal to drive will be protected thereunder, referred to as the "actual violation" and "reasonable apprehension of serious injury" categories, found at 49 U.S.C. §31105(a)(1)(B)(i) and (B)(ii), respectively. The ALJ analyzed Schulman's claim that his switching of trailers constituted protected activity under both (B)(i) and (B)(ii), see R. D. & O. at 14-15, and so do we.

(1) Schulman's claim of (B)(i) "actual violation" protection:

   "Under the 'actual violation' category, a refusal to drive is protected activity only if the record establishes that the employee's driving of the commercial motor vehicle would have been in violation of a pertinent motor vehicle standard." Ass't Sec'y and Freeze v. Consolidated Freightways, ARB Case No. 99-030, ALJ Case No. 98-STA-26, Final Dec. and Ord., Apr. 22, 1999, slip op. at 7.

   Schulman's argument that his switching of trailers on January 26 and again on February 17, 1998, constituted protected refusals to drive under (B)(i) fails for the simple reason that the evidence of record does not support a finding that if Schulman had driven his assigned trailer, doing so would have been, on either occasion, in violation of a pertinent motor vehicle standard.

49 U.S.C. §31105(a)(2).

   Schulman fails to establish that his trailer switching "refusal to drive" was any more protected under subsection (B)(ii) than it was under (B)(i). As previously noted, Schulman's stated reasons at the time he switched trailers, both on January 26 and on February 17, made no mention of any unsafe vehicular condition. Schulman nevertheless argues that his note left for Gager on January 23

regarding his trailer assignment evidences his apprehension about his ability to complete his run on January 26 due to safety concerns. We find it impossible to read Schulman's note of January 23 as conveying to Gager any such safety apprehension. Yet, even if it did convey apprehension, Schulman's refusal to drive would not be protected under (B)(ii) because he never communicated his concerns to Gager prior to switching the equipment -- on either occasion. As noted above, for an employee's refusal to drive to qualify for protection under (B)(ii), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition. Ass't Sec. and Freeze v. Consolidated Freightways, supra, slip op. at 5, 7.

   C. Failure of Schulman to prove causation

   As previously discussed (supra pg. 7), we found that Schulman engaged in activities protected under Section 405(a)(1)(A) (the "complaint clause"). However, Schulman has nevertheless failed to prove by a preponderance of the evidence that his protected activities were the cause of his termination from employment.

   As the ALJ noted (R. D. & O. at 15), Schulman relied heavily on the temporal proximity between his (a)(1)(A) protected activities and his subsequent discharge. On this we are no more persuaded than was the ALJ. Although the decision by Clean Harbors to terminate Schulman's employment was in close temporal proximity to Schulman's VIR submissions, the evidence of record indicates that Clean Harbors made its decision to discharge Schulman prior to learning of the VIRs. Moreover, even if Clean Harbors had known of the VIRs prior to its termination decision, the concerns raised in Schulman's VIRs appear to have been no more significant than those generally raised (and required to be raised) in the past not only by Schulman, but by all of Clean Harbors' drivers, without retaliation.

   Nor do we find that Clean Harbors was motivated to terminate Schulman's employment because of the concerns raised by Schulman in his phone conversation with Gager the evening of February 19. Notwithstanding Schulman's phone call, wherein Schulman raised issues about "log book violations" and threatened to report Clean Harbors, the next morning Gager's singular intent upon meeting with Schulman was to issue a warning for the unauthorized trailer switching -- as Gager had advised Schulman he would do the day before, and nothing more. See R. D. & O. at 8.

   In this case, the temporal proximity between Schulman's protected activities and his termination from employment is insufficient to satisfy his burden of proof by a preponderance of the evidence, particularly in light of the evidence presented by Clean Harbors regarding its motivation for discharge.

   Clean Harbors presented evidence that the reason for termination was Schulman's insubordination, R. D. & O. at 9, arguing that its action was thus based on legitimate, non-discriminatory reasons. Schulman argued that if insubordination were the sole basis for his termination, that he had been treated disparately, in violation of what he claimed was Clean Harbors' progressive disciplinary policy

requiring four written warnings for insubordination before a driver could be terminated on such grounds. See R. D. & O. at 18. However, Clean Harbors' transportation manual (in which Schulman asserted this policy was set forth), was not found to contain any such requirement, only the statement that, "The company reserves the right to terminate an employee immediately when an employee's conduct warrants immediate termination." Id. Moreover, Clean Harbors presented unrebutted evidence that it had in the past similarly discharged other employees for insubordination. Id.; CX B-C, T. 720.

   Based on the foregoing, we conclude that Schulman's termination was not for having engaged in activity protected under Section 405. We thus concur with the ALJ's final assessment that,

[i]n this case, the evidence established that the Complainant was terminated only after he had twice been insubordinate in refusing to follow the policy against switching equipment, the second instance of which immediately followed a meeting reiterating the policy, and only after he had made it clear to his immediate supervisor, by the use of foul language, that he would not be managed.

R. D. & O. at 18.

   D. The ALJ's Dual Motive Analysis

   The ALJ sought to analyze the instant case in the alternative, applying the "dual motive" test which is appropriate where the record supports a finding of both legitimate and unlawful reasons for an employer's adverse action. R. D. & O. at 19. See Spearman v. Roadway Express, Inc., Case No. 92-STA-1, Sec. Final Dec. & Ord., June 30, 1993, slip op. at 4, aff'd sub nom. Roadway Express, Inc. v. Reich, 34 F.3d 1068 (6th Cir. 1994). If the evidence of record were to support such an analysis, the burden of proof would shift to the respondent to prove, by a preponderance of the evidence, that it would nevertheless have taken the same adverse action even if the complainant had not engaged in protected activity. See Clean Harbors, 146 F.3d at 21-22; Carroll v. United States Dep't of Labor, 78 F.3d 352, 357 (8th Cir. 1996) (concerning employee protection provisions of related Energy Reorganization Act, 42 U.S.C. §5851 (1992)); Faust v. Chemical Leaman Tank Lines, Inc., Case No. 93-STA-15, Sec. Dec. & Rem. Ord., Apr. 2, 1996, slip op. at 9. In the instant case the evidence of record clearly does not support a finding of any unlawful motive on the part of Clean Harbors in dismissing Schulman. Thus the "dual motive" analysis is inappropriate to the case before us.

   Based upon the foregoing, we conclude that Schulman failed to prove, by a preponderance of the evidence, that his termination from employment was the result of having engaged in STAA-protected activity. Accordingly, this case is DISMISSED.

   SO ORDERED.

      PAUL GREENBERG       Chair

      E. COOPER BROWN       Member

   I concur in the result.

      CYNTHIA L. ATTWOOD
      Member