4. On April 12, 1999, Complainant was in Jessup, Maryland. On that date, Shirley Fromme, Respondent's dispatcher, dispatched him to pick up a load in Chester, New York, and deliver it to St. Joseph, Missouri. (Tr. 108,158, Tx. 8). Complainant reached the New York state line that evening. (Tr. 186).

5. A dispute arose between Complainant and Fromme because the truck Complainant was driving did not have a New York Highway Use Tax (HUT) sticker. (Tr. 108,184). Although the HUT sticker had not been obtained, the permit had been applied for and on April 13, 1999, Fromme sent a fax to Complainant with information concerning the permit application. (Tx. 4; Rx. 30). Complainant contacted the New York police concerning the permit issue, but apparently they were satisfied with the documentation provided by Fromme as they permitted Complainant to continue driving in the state. (Tr. 133, 134). There is no evidence that Complainant informed Respondent or that Respondent was otherwise aware that Complainant had contacted the New York police. At trial, Complainant asserted that a HUT sticker is a safety matter, reasoning that he could be detained by the police for not having one and reasoning that, in order to attain a HUT sticker, operators must assert they will drive safely while in New York. He also asserted that operators must show certain documentation related to the safety of the vehicle and insurance coverage in order to attain a HUT sticker. (Tr. 113-115). However, despite Complainant's assertions, I find the HUT sticker is not related to safety and relates only to collection of a tax. (Tr. 221; Rxs. 30, 38, 39).

6. After loading in New York, Complainant called Fromme, who told him to continue driving because her records showed that he had extra travel time. (Rx.1, p.2). Complainant disagreed and an argument ensued. After realizing she had made a miscalculation, Fromme apologized and told Complainant to continue driving after an eight hour break. Complainant again disputed the amount of break time, claiming that he was due a twelve hour break. (Tr. 189). He did not base his request for a twelve hour break on fatigue. Rather, he based his request on the fact that Bill Saylor, the previous dispatcher, had allowed Complainant to take twelve hour breaks. (Tr. 190). Respondent's safety director, Roger Ites, testified at trial that Fromme and others at Respondent's Pasadena terminal were afraid of Complainant and worried about their safety. (Tr. 227-228; 256). Ites also testified, and I find, that the regulations require an eight hour break period, not a twelve hour break period. (Tr. 226; 49 C.F.R. 398.6). The argument with Fromme ended when Complainant told Fromme that he would make his delivery in the morning but that he would be quitting. (Rx. 1, p.3; Tr. 191).

7. On April 16 or April 17, Complainant called Ites at his home in Omaha, Nebraska, to discuss his work situation. Complainant called from St. Joseph, Missouri, and Ites promised to meet Complainant in Houston the following Monday, April 19, to investigate his complaints. (Tr. 148,151,154,157,210). In that conversation, Complainant discussed the HUT permit issue and possible hours of service violations. (Tr. 207,208). This is the only time Ites ever spoke to Complainant prior to April 19, 1999. (Tr. 264). There is no evidence that there was anything of a harassing or coercive nature in this conversation. There was a misunderstanding about when Ites would be in Houston. Complainant thought he would be there the following Monday, April 19. (Tr. 148). Ites testified that he never specified when he would be there. Ites arrived at the Houston terminal Monday afternoon around 2 p.m. (Tr. 209).

14. On or about April 29, 1999, Complainant filed a timely complaint with the Department of Labor's Occupational Safety and Health Administration (OSHA) pursuant to 29 C.F.R. §1978.102 (1999). He claimed he was instructed by Respondent to violate hours of service regulations and to drive without the permits required by some states. Complainant alleged he quit his job with Respondent, partly because he was coerced to break regulations and partly because he wanted to run for mayor of his town. (ALJ 2).

15. In accordance with 29 C.F.R. §1978.104, OSHA issued written findings on April 27, 2001, concluding the complaint was without merit. Complainant filed timely objections to OSHA's findings and requested a hearing under 29 C.F.R. §1978.105. (ALJ 2).

16. On May 24, 2001, the Court ordered Complainant to file a complaint detailing each and every violation in detail. On June 4, 2001, Complainant filed a complaint in which he alleged he objected to being dispatched into New York without proper permits. (ALJ 3).

17. At a pre-hearing telephone conference on June 5, 2001, I granted Respondent's request that Complainant provide a more detailed statement of the protected activities in which Complainant alleges he engaged. On June 18, 2001, Complainant filed a Preliminary Statement of Fact. (ALJ 3). Based on these documents and Complainant's agreement at trial, the only protected activities that Complainant alleges to have engaged in occurred during the period April 12 to April 17, 1999.

The employee protection provisions of the STAA provide in pertinent part:

(a) Prohibitions - (1) A person may not discharge an employee, ... 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.

(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; or

(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. § 31105(a).

   Thus, under the employee protection provisions of the STAA enforced by the Secretary of Labor, it is unlawful for an employer to impose an adverse action on an employee because the employee has complained or raised concerns about possible violations of these DOT regulations. 49 U.S.C. § 31105(a)(1)(A). See, e.g. Reemsnyder v. Mayflower Transit, Inc., Case No. 93-STA-4, Dec. and Ord. on Recon., May 19, 1994, slip op. at 6-7 and cases there cited. Furthermore, it is unlawful for an employer to impose an adverse action on an employee who has refused to work because operating the vehicle would violate DOT regulations or because he has a reasonable apprehension of serious injury to himself or the public. 49 U.S.C. § 31105(a)(1)(B).

   Claims under the STAA are adjudicated pursuant to the standard articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, the Complainant must initially establish a prima facie case of retaliatory discharge, which raises an inference that the protected activity was likely the reason for the adverse action. Once a prima facie case is established, the burden of production then shifts to the Respondent to articulate, through the introduction of admissible evidence, a legitimate, nondiscriminatory reason for its employment decision. If the Respondent is successful, the prima facie case is rebutted, and the Complainant must then prove, by a preponderance of the evidence, that the legitimate reasons proffered by the Respondent were but a pretext for discrimination. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987); see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

   To establish a prima facie case of retaliatory discharge, the Complainant must prove: (1) that he engaged in protected activity under the STAA; (2) that he was the subject of adverse employment action; and (3) that there was a causal link between his protected activity and the adverse action of his employer. Moon, supra, 836 F.2d at 229. The Secretary has taken the position that, in establishing the "causal link" between the protected activity and the adverse action, it is sufficient for the employee to show that the employer was aware of the protected activity at the time it took the adverse action. See Osborn v. Cavalier Homes, 89-STA-10 (Sec'y July 17, 1991); Zessing v. ASAP Express, Inc., 92-STA-0033 (Sec'y Jan. 19, 1993). It follows that in order to establish a causal link between the adverse action and a protected activity, the protected activity must occur before the adverse action. To establish a prima facie case, the inference must be raised that the employee's protected activities motivated the adverse action. This inference is raised when the discharge immediately follows the protected activity. Bergeron v. Aulenback Transportation, Inc., 91-STA-38 (Sec'y June 4, 1992), slip op. at 3; Couty v. Dole, 886 F.2d 147,148 (8th Cir. 1989).

   The Supreme Court addressed the burden-shifting after a prime facie case has been established under statutes such as the STAA in extensive detail in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). In that case, Justice Scalia, writing for the Court, held that in meeting its burden of production, and employer need only articulate a legitimate reason for the adverse action, and that no credibility assessment is appropriate at that time. Id. at 2748. In proving the asserted reason is pretextual, and employee must do more than simply show that the proffered reason was not the true reason for the action. Instead, he must prove both that the asserted

reason is false (i.e. not the true reason for the action), and that discrimination was the real reason for the adverse action. Id. at 2752-2756. Such a requirement is necessary in that it is the employee who bears the ultimate burden of persuading the trier of fact that he was the victim of intentional discrimination. Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 253; see also Hicks, supra, 113 S.Ct. at 2751.

   In the present case, I find that Complainant engaged in protected activity when he complained to Fromme that he was due a break after loading in Chester, New York. Complainant called Fromme and was told to continue driving because her records showed that he had extra travel time. (Rx.1, p.2). Complainant disagreed and an argument ensued. After realizing she had made a miscalculation, Fromme apologized and told Complainant to continue driving after an eight hour break. Drivers may not drive for more than 10 hours at a time and must rest for eight hours thereafter. 49 C.F.R. § 398.6. To require Complainant to drive for more than ten hours would have been a violation of the hours of service regulations. Therefore, Complainant's argument with Fromme and his refusal to drive in excess of the hours of service is protected activity under the STAA.

   Complainant also testified that he considered the HUT permit a safety matter. However, I find that the HUT sticker was a tax and not related to safety in any manner. I find the HUT permit laws do not relate to commercial motor vehicle safety or health therefore §31105(a)(1)(B)(i) does not apply.

   I have also considered the HUT permit issue under §31105(a)(1)(B)(ii) wherein the employee's activity is protected if he has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition. The Board has emphasized that a refusal to drive is protected activity under the STAA if the driver's perception of the unsafe condition was reasonable at the time, even if subsequent mechanical inspection revealed no actual safety defect. Jackson v. Protein Express, 95-STA-38 (ARB Jan.9, 1997). However, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health. I find that no reasonable person could conclude that the failure to have a HUT sticker established a real danger of accident, injury or serious impairment to health. To qualify for protection, the employee must also have sought from the employer, and been unable to obtain, correction of the unsafe condition. The evidence establishes that Respondent corrected the alleged unsafe condition, they obtained the HUT sticker. Therefore, I base my finding that Complainant has successfully established the first prong of a prima facie case solely on his complaint to Fromme and refusal to drive in excess of the hours of service regulations.

   The second prong of a prima facie case under the STAA requires Complainant to show that he suffered an adverse employment action. Complainant was never formally discharged. However, in order to establish an adverse employment action, he alleges he was constructively discharged. Constructive discharge assumes that a complainant was not formally discharged, the issue being whether he was forced to resign or whether he quit voluntarily. A finding of constructive discharge requires proving that working conditions were rendered so difficult,

unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign, i.e., that the resignation was involuntary. Johnson v. Old Dominion Security, 86-CAA-3 to 5 (Sec'y May 29, 1991), slip op. at 19-22 and n.11. See also Sure-Tran, Inc. v. N.L.R.B., 104 S.Ct. 2803, 2810 (Employer purposefully creates working conditions so intolerable that the employee has no option but to resign); see also Jurgens v. E.E.O.C., 903 F.2d 386, 390 (5th Cir. 1990). Thus, the adverse consequences flowing from an adverse employment action generally are insufficient to substantiate a finding of constructive discharge. Rather, the presence of "aggravating factors" is required. Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir. 1981). Unless constructively discharged, a complainant is not eligible for post-resignation back pay or for reinstatement.

   Complainant alleges that Respondent created such a coercive working atmosphere for him that he was forced to quit his job. To prove this, he points to the fact that Ites was not at the Houston office on Monday morning, April 19, 1999. He also points to his arguments with Fromme arising from the HUT permit incident and rest periods. He states that these incidents were the breaking point in a long list of incidents creating a coercive working atmosphere.

   However, any alleged coercive working atmosphere that existed prior to April 12, 1999, was not the result of protected activity on the part of Complainant. Rather, if it existed at all, it appears to have been the result of Complainant's political views and his various confrontations with entities other than Respondent. The only contact Complainant had with Respondent after he engaged in protected activity were the calls to Ites, the secretary and Fromme. I find these incidents do not rise to the level of difficulty, unpleasantness, unattractiveness, or unsafe condition that would lead a reasonable person to feel compelled to resign. On the contrary, Ites listened to Complainant's concerns and flew to Houston from his home in Omaha, Nebraska, in order to investigate Complainant's concerns. Fromme apologized to Complainant when she realized her mistake in calculating driving hours and told Complainant to get his eight hours of rest before completing his delivery.

   As previously stated, I find Complainant's testimony concerning his alleged perception of harassment to be totally disingenuous. On the evidence presented, by no stretch of the imagination could the Court find that working conditions were rendered so difficult, unpleasant, unattractive, or unsafe that a reasonable person would have felt compelled to resign. Complainant has failed to present a prima facie case of discrimination under the STAA.

   Accordingly, I find that Complainant has failed to establish that he was a victim of discrimination under the STAA and recommend that the Secretary enter the following order pursuant to 29 C.F.R. § 1978.109(c)(4):

   The Complaint of Ricky D. Forrest is DENIED

   SO ORDERED.

       LARRY W. PRICE
       Administrative Law Judge

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, NW, Washington, DC 20210. See C.F.R. § 1978.209(a); 61 Fed.Reg. 19978 (1996).