Account Manager Peter Ferrio sought business for Clean Harbors by placing sales calls and presenting information on the company to potential customers. T.605. Ferrio was not Dutkiewicz's supervisor, T. 662, was not present when Dutkiewicz picked up waste shipments, never loaded any shipments himself, and did not have responsibility for safety or compliance with hazardous waste regulations. T. 641, 674. Ferrio testified that in November or December 1993 customers began to complain about Dutkiewicz taking too much time at their sites. T. 612. Shortly thereafter, Dutkiewicz received a favorable performance evaluation and a salary raise. CX 7a; T. 94-98.

    Dutkiewicz received both oral and written warnings about log book violations, RX 4b, 4e, and was warned orally and disciplined in writing for transporting loads without load locks and for double stacking drums. T. 446; see RX 4g. Although Cheyne mentioned the customer complaints to Dutkiewicz, the company did not give him any written warnings about the complaints. T. 216.

    In a second six-month performance review dated September 1, 1994, Cheyne gave Dutkiewicz the overall rating of "meets expectations" and a salary raise. CX 7b. About two weeks later, Ferrio sent a memorandum informing Cheyne that customers had complained about Dutkiewicz's poor customer relations, uncooperative attitude, taking too much time, and causing DOT violations. RX 5b; T. 633-634. Ferrio asked Cheyne either to reassign or replace Dutkiewicz. T. 634; RX 5b. Two days after Ferrio's notification, Cheyne discharged Dutkiewicz, stating that Dutkiewicz wasted too much time fixing waste drums and could not be sent to customers any more. T. 169.

    Dutkiewicz promptly telephoned and wrote to the company's Vice President for Compliance, Health and Safety to complain that he was pressured to transport drums that were not properly labeled and prepared for shipment. CX 3a; T. 109. The company investigated the situation and upheld the discharge. T. 172-173. Dutkiewicz' wife next telephoned the Director of Transportation Compliance and threatened to inform the press and the Federal government if the discharge decision were not reversed. T. 174, 520-521. The Director of Human Resources notified Dutkiewicz that the company would again review the discharge and that Dutkiewicz would be paid for the next three weeks. T. 175.

    After the review, Clean Harbors offered Dutkiewicz a new position as a driver based at Bristol, Connecticut, transporting waste between the company's facilities. T. 213. The offer placed conditions on rehire, including a requirement that Dutkiewicz direct any questions about his duties to John Caron (Caron), Transportation Coordinator, or if Caron was unavailable, to Brian Monahan, Director of Logistics. CX 21a; T. 215, 789-790.     Dutkiewicz accepted the employment offer and upon reporting to Bristol, he met with Caron and Monahan, who told Dutkiewicz that he was on a "short leash"

and would be watched closely. T. 219-220, 788; RX 8. Monahan noted in a memorandum that any coaching or disciplinary actions taken would be documented and kept on file. RX 8; T. 788.

    About three months after his return to work, Dutkiewicz was discharged without warning. T. 206, 217, 250-251. Dutkiewicz timely filed this complaint, alleging that both the rescinded and the final discharges violated the STAA.

    The STAA prohibits discharging or otherwise discriminating against an employee because he "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. . . ." 49 U.S.C.A. §31105(a)(1)(A). An employee's internal complaint to superiors conveying his reasonable belief that the company was engaging in a violation of a motor vehicle safety regulation is a protected activity under the STAA. Stiles v. J. B. Hunt Transportation, Inc., Case No. 92-STA-34, Sec. Dec. and Ord., Sept. 24, 1993, slip op. at 3-4 and cases there cited; see also R. D. and O. at 16.

    Clean Harbors proffered as a legitimate basis for initially discharging Dutkiewicz, the numerous customer complaints about Dutkiewicz. Clean Harbors contends that the ALJ did not adequately consider its evidence on this point and "incorrectly ruled that crucial testimony of customer complaints was hearsay and therefore not admissible to counter complainant's assertions that he was discharged for engaging in protected conduct." Resp. Br. at 17.

    None of the complaining customers testified at the hearing. Rather, Account Manager Ferrio recounted complaints about Dutkiewicz that customers orally made to him. Hearsay is a "statement, other than one made by the declarant while testifying at the . . . hearing, offered in evidence to prove the truth of the matter asserted." Fed. R. Evid. 801(c); see also 29 C.F.R. §18.801(c). Clean Harbors argues that the testimony of customer complaints was offered to show the state of mind of the listener and therefore the testimony was not hearsay. Resp. Br. at 17. Since the ALJ allowed the testimony of customer complaints and properly determined the weight it was due, see Adams v. Coastal Production Operators, Inc., Case No. 89-ERA-3, Sec. Dec. and Remand Ord., Aug. 5, 1992, slip op. at 10, we find no error in the ALJ's treatment of the evidence.

    Customer complaints may constitute a valid reason to discharge an employee. See R. D. and O. at 17. According to Ferrio, many Clean Harbors customers

complained that Dutkiewicz took too much time loading shipments, that his behavior was irritating and condescending, and that some of his work was inaccurate. Id; T. at 615-616, 625. Clean Harbors therefore offered evidence of a legitimate reason for the first, rescinded discharge.

    Under the applicable DOT regulations, the driver is responsible for checking the manifest for errors and missing information. 49 C.F.R. §172.200 et seq.; see CX 27 at 2. The driver must recognize and identify the markings on containers to determine regulatory compliance for purposes of proper handling, loading, and emergencies. 49 C.F.R. §172.300 et seq.; see CX 27 at 2. The regulations direct the driver not to accept damaged or leaking packages, incompatible materials, or improperly prepared shipments. CX 27 at 4; T. 368-369. Clean Harbors' policy requires drivers to comply with the DOT regulations governing handling of hazardous materials. T. 702, 705. In addition to work place discipline, failure to comply with these regulations can result in fines or jail. CX 27 at 2.

    When Clean Harbors personnel told Dutkiewicz that he had to load shipments faster, he replied that the regulations required him to check the waste shipment's packaging and labeling and that is what took so much time. T. 124-126. The form he designed to document the problems he found with shipments revealed failure to label drums, waste on the outside of drums, leaking drums, surface rust on lids, and missing bung caps. CX 9. Dutkiewicz did not transport drums until they complied with the regulations.

    Ferrio testified that customers complained about Dutkiewicz reexamining and changing the labels and packaging that the customers' own compliance departments already had checked:

Mr. Macomber told me that Mr. Dutkiewicz took it upon himself to begin changing drum labels without Mr. Macomber's permission, that Mr. Dutkiewicz insisted on changing things that had been reviewed and audited by our entire compliance people and him and his entire compliance people.

T. 619; see also T. 614-615, 625. Therefore, Clean Harbors discharged Dutkiewicz the first time, at least in part, because he insisted on following the regulations despite customer complaints. The ALJ correctly noted that Dutkiewicz did not have to prove that the tendered waste drums actually violated the regulations; it was sufficient for him to show that he had a reasonable belief that there were such violations. R. D. and O. at 16. We agree with the ALJ that the documentary evidence, together with Dutkiewicz's testimony, shows that Dutkiewicz had a

genuine, reasonable belief on many occasions that drums tendered to him for shipment did not comply with the DOT regulations. R. D. and O. at 16.

    Where, as here, there are both legitimate and unlawful reasons for the discharge, the burden of proof is on the respondent to show that it would have discharged the complainant for the legitimate reasons alone even if the complainant had not engaged in any protected activities. Harris v. Apaca Van Lines, Case No. 91-STA-39, Sec. Fin. Dec. and Ord., Aug. 31, 1992, slip op. at 2. In such a case, the respondent bears the burden that the legitimate and the unlawful motives cannot be separated. Id. In the absence of testimony from any of the complaining customers, there is no basis for concluding that any customer complaints that were unrelated to Dutkiewicz's enforcement of the STAA and motor carrier regulations would have been sufficient to justify Clean Harbors' adverse action.

    It is undisputed that Dutkiewicz received no oral or written warnings concerning any of the events cited as the basis for the second discharge. Monahan testified that the incidents occurred one after the other and there was no time to give a warning. T. 829-830.

    The ALJ found that the second discharge was tainted by the first, unlawful discharge for several reasons. First, no one at Clean Harbors provided a copy of, or discussed, the written employment contract with Monahan, who made the second discharge decision. Second, the contract put Dutkiewicz on a "short leash" in which all his actions were scrutinized more closely than those of other new employees. Finally, contrary to the promise of providing written warnings, Clean Harbors did not warn Dutkiewicz about any of the incidents that led to the second discharge and did not tell him the specific reasons for the final discharge. R. D. and O. at 18.

    The telephone call Dutkiewicz made to DEP concerned the lack of a current vehicle identification card in the rental truck he was assigned for a specific load. See RX 12. In this instance, Dutkiewicz first telephoned Caron, who had left for the day. Dutkiewicz next telephoned a 24-hour supervisor, who advised him to take a different truck on the run. After a shift change, a second 24-hour supervisor confirmed the earlier advice and told Dutkiewicz to take a different truck. Nevertheless, Dutkiewicz telephoned DEP to inquire about the lack of a vehicle identification card, and the contact with DEP was one of the stated reasons for the second discharge.

    We are concerned any time that an employer faults an employee for seeking information from, or making a complaint to, a government agency such as DEP. See, e.g., Adams, slip op. at 13 (discharge for reporting oil spill to the Coast Guard violated analogous employee protection provision of the Clean Water Act). Here, even though Dutkiewicz received an acceptable response from Clean Harbors employees -- that he should drive a different truck rather than the one that lacked a vehicle identification card -- he still had the right to speak with DEP concerning a safety issue within that agency's purview. We find therefore that one of the articulated reasons for the second discharge directly violated the STAA. See Homen v. Nationwide Trucking, Inc., Case No. 95-STA-45, Sec. Dec. and Ord., Feb. 10, 1994, slip op. at 4 (driver reporting unsafe vehicles to California Highway Patrol constituted protected activity).

    Monahan also faulted Dutkiewicz for bucking the agreed-upon chain of command when he left the voice mail message concerning a problem with the waste tracking system. The record does not reveal whether the problem Dutkiewicz raised was related to transporting waste consistent with the DOT regulations. We note that an adverse action taken because an employee circumvented the chain of command to raise a safety issue would violate the employee protection provision. Pillow v. Bechtel Constr., Inc., Case No. 87-ERA-35, Sec. Dec. and Rem. Ord., July 13, 1993, slip op. at 22, aff'd sub nom. Bechtel Constr. Co. v. Dep't of Labor, 98 F.3d 1351 (11th Cir. 1996); see also Pogue v. United States Dep't of Labor, 940 F.2d 1287, 1290 (9th Cir. 1991) (superior's anger over employee's

failure to follow chain of command in reporting a whistleblower complaint was pretext for anger over the making of the complaint).

    Since there was at least one impermissible reason among those articulated for the second discharge, Clean Harbors had the burden of establishing that it would have discharged Dutkiewicz for legitimate reasons even if he had not engaged in any protected activities. There is no record evidence that the company discharged any other employees for bucking the chain of command to complain about a company procedure or system, or for asking for a benefit such as a cellular telephone.

    Unlike other employees, Dutkiewicz had a written requirement not to bring issues to managers other than Caron or, in Caron's absence, Monahan. One reason for the special requirement for Dutkiewicz was his engaging in protected activities during his first employment with Clean Harbors. Therefore, we agree with the ALJ that the reasons for the first discharge tainted the potentially "legitimate" reasons articulated for the second discharge. Upon review of the record, we find that Clean Harbors did not show that it would have discharged Dutkiewicz the second time if he had never engaged in any protected activities during his employment with the company. Therefore, Dutkiewicz has prevailed on his complaint that the second discharge also violated the STAA.

    A successful complainant under the STAA is entitled to affirmative action to abate the violation, reinstatement to the former position with the same pay, terms, and privileges of employment, attorney fees and costs, and may also be awarded compensatory damages. 49 U.S.C. §31105(b)(3). Clean Harbors has reinstated Dutkiewicz to a driver position based in Bristol, at his former rate of pay and with the same employment benefits. See June 18, 1997 letter from Jonathan Black to Dutkiewicz and July 24, 1997 letter from Gary Matsko. Since reinstatement clearly was possible, the ALJ correctly denied the request for front pay. R. D. and O. at 19. See also Clifton v. United Parcel Svc., ARB Case No. 97-045, Final Dec. and Ord., May 14, 1997, slip op. at 1-2 (no front pay where reinstatement is an appropriate remedy).

    3. Expunge from all its files any references to the adverse actions against Complainant.

    4. Post notice of its STAA obligations at its Bristol, Connecticut facility.

    SO ORDERED.

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member

      JOYCE D. MILLER
      Alternate Member