scheduling problem, Andrews agreed that the first shift trucks should be brought in earlier to avoid the problem of second shift drivers, such as Michaud, leaving late and having to speed or violate service hours. T. 105-106. Soon after that conversation, Alex Kasny asked Michaud and another second shift driver to start two hours earlier in the afternoon to drive local runs. T. 107-109. According to Michaud, when he objected that additional hours would be illegal, T. 108, Kasny insisted that the DOT rule did not apply to BSP and told Michaud to "get it out of your thick skull about ... illegal hours." T. 109. Kasny denied that Michaud ever mentioned the hours of service regulations to him. T. 448-449, 459, 481-482.

    On December 23, 1993, a co-worker saw Michaud copying another driver's time card and reported it to his superior. T. 671-674; CX 15. Michaud, who was gathering evidence to support a complaint to DOT, tried to do the copying in secret because he feared being fired if he were caught. T. 188-190.

    Upon learning of the photocopying, Kasny telephoned Greany to report it. T. 735. Greany then consulted with Law. In a second telephone conversation, Greany told Kasny to ask Michaud exactly what documents he had been photocopying. T. 740. Upon Michaud's arrival later that day, Kasny asked whether he had been copying time cards and manifests. T. 133, 508. Michaud admittedly was evasive because he feared being fired. T. 133-135, 189-192. Ultimately Michaud admitted copying his own manifests and time cards and also another driver's time card. T. 133, 509. At that point, Kasny fired Michaud. T. 509. In a subsequent, third telephone conversation, Greany told Kasny that Michaud should be let go. T. 742.

    In a case such as this, where the Respondent has articulated a legitimate reason for its adverse action, the question whether the complainant previously established a prima facie case becomes irrelevant. Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046, Sec. Final Dec. and Ord., Feb. 15, 1995, slip op. at 11, aff'd, Carroll v. United States Dept. of Labor, 78 F.2d 352, 356 (8th Cir. 1996). "The [trier of fact] has before it all the evidence it needs to determine whether the defendant intentionally discriminated against the plaintiff.'" USPS Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

    The question in this case is whether Michaud established by a preponderance of the evidence that BSP fired him because he engaged in protected conduct. See Carroll, 78 F.3d at 356. BSP admittedly fired Michaud for photocopying both his own and other drivers' time cards and his own manifest. Drivers routinely photocopied their own time cards and manifests without being fired, however. T. 131, 159, 633, 802, 835. At the time Michaud was seen copying the time cards both Kasny and Greany knew that

Michaud had raised the issue of a "vicious cycle," R. D. and O. at 21, that caused second shift drivers to depart late on their airport runs and forced them either to speed or to violate the hours of service. Copying a different driver's time card would not be useful to Michaud except to document hours of service. We therefore find that at the time of the discharge, BSP suspected that Michaud was about to file a complaint to a government entity such as DOT.

    The ALJ believed that Michaud's statements about the vicious cycle "centered primarily on his extra job assignments and concern with making more money, rather than on perceived safety or hours violations." R. D. and O. at 21. Greany testified, however, that he believed Michaud mentioned the late departure of second shift drivers out of concern for the company's money: T. 728: "So Bob was talking about how he didn't think it was -- that it was a waste of money that we had these guys coming in, couldn't we bring the daytime guys -- bring the day [pick up and delivery] drivers, get them back earlier, so we could get to the -- get the freight onto their trucks, they could make the cutoffs down at Logan, get back in time for the third shift to strip the trucks, load the [pick up and delivery] trucks to get them out on time." Greany did not attribute Michaud's raising the issue to a concern with earning more money himself.

conversations with a DOT employee and a state trooper "suggests that he either did not make those contacts at all or that he was not really seriously concerned about management making a change." R. D. and O. at 21. According to Michaud, when he raised the issue informally with Osterberg and Kasny, they flatly denied that the DOT regulations applied. In light of BSP's failure to take corrective action when the violation was brought to it's attention, it is very plausible Michaud would pursue other avenues. The fact that Michaud was gathering evidence to document hours of service violations for a complaint underscores the seriousness with which he considered the problem. Common sense dictates that Michaud would want to have documentary evidence of a violation before filing a complaint and would not want his employer to know about the complaint until it was filed.

    BSP contends that it cannot be found liable under the STAA because the sole person responsible for the firing, Michael Greany, was unaware of Michaud's protected activities, Resp. Br. at 10-12, and the ALJ agreed. R. D. and O. at 25. We disagree for two reasons: the record shows that Kasny was instrumental in the firing and also that Greany knew about Michaud's copying of the time cards.

    The ALJ stated that "[i]t is undisputed that the person who made the decision, and the only person with authority to make the decision to discharge Mr. Michaud was Michael Greany." R. D. and O. 25. But Greany is not even mentioned in Kasny's and Osterberg's contemporaneous memoranda concerning the discharge, both of which state simply that Kasny fired Michaud. CX 14, 16.

    Also, there is a conflict in the testimony of BSP's two key witnesses on the firing. Kasny testified that he had two telephone conversations with Greany, questioned Michaud, fired him, and then telephoned Greany again to "let him know of the conversation that I had, and that Mr. Michaud was -- was, indeed, dismissed from employment." T. 509. Greany testified that he authorized the discharge only during his third telephone conversation with Kasny. T. 742. We find that Kasny first fired Michaud and Greany thereafter affirmed that Michaud should be let go.

    Kasny's responsibility for the discharge is telling because he had strong reason to suspect that Michaud was gathering evidence of hours of service violations. Kasny was fully aware of the requirements of the DOT regulations, T. 560, and also would know that Michaud had no use for a copy of a different driver's time card except to document a complaint concerning hours of service violations. Nowhere is it suggested that copies of time cards would provided a competitor with an advantage.

    Even if Greany were considered solely responsible for the firing, he too had actual knowledge of Michaud's complaint about the "vicious cycle" and in light of that knowledge he also knew that copies of the time cards could substantiate Michaud's suspicion of time in service violations. T. 728. On the basis of substantial record

evidence, we find then that both Greany and Kasny suspected that Michaud was preparing to file a complaint to a government agency.

    BSP contends that firing Michaud for photocopying documents was legitimate because manifests were confidential. But, the documents copied by Michaud contained no proprietary information. There were no written policies or verbal instructions against copying manifests, T. 798 (Greany), and drivers routinely copied their own and other drivers' manifests without being fired. T. 131 (Michaud), 159 (Labrecque), 633 (Andrews), 802 (Greany), 835 (Taylor). Nor were the manifests labeled confidential. See CX 7. Finally, manifests were posted and left in and around the docks where a driver from another company who was working on the docks could see them. T. 132 (Michaud), 158-160 (Labrecque), 593-594 (Kasny).

    Kasny testified that manifests might disclose BSP's rate structure to a competitor, T. 607, but the manifests do not contain any price information, T. 583, 802-803, and Greany conceded that an astute sales representative already knows what his competitors are charging. T. 806. Greany hypothesized that a manifest might tell a competitor that one of his "exclusive" customers was cheating by using BSP as well. T. 761. But whereas that information might lead the competitor to cancel any discount it gave in exchange for the customer's promise of exclusive use, it would not give the other company a competitive advantage over BSP. The reasons given for BSP considering manifests to be confidential simply do not ring true. Nor is any reason offered why Michaud would be copying time cards. The only apparent use of the time cards would be to establish time in service violations which BSP had good reason to fear. It is this legitimate fear of the revelation of violations of DOT regulations that best accounts for BSP's actions in this case.

    We find that the stated "legitimate" reason for firing Michaud is not credible because the company did not treat the manifests as confidential and the information on manifests would reveal little to a competitor. We further find that Michaud established by a preponderance of the evidence that BSP discharged him for engaging in the protected activity of gathering evidence that BSP suspected would be used to support a complaint about hours of service violations.

    Under the STAA, Michaud is entitled to an order requiring BSP to take affirmative action to abate the violation, reinstate him to his former position with the same pay and terms and privileges of employment, and compensatory damages, including back pay. 49 U.S.C. § 31105(b)(3)(A). The Board also may assess against BSP the costs, including attorney's fees, reasonably incurred in bringing the complaint. 49 U.S.C. § 31105(b)(3)(B).

    Since the ALJ recommended dismissal, there were no

recommended findings on remedies. Accordingly, we will remand the complaint to the ALJ for any further proceedings she deems necessary and a supplemental recommended decision on the full complement of remedies to which Michaud is entitled.

SO ORDERED.

      DAVID A. O'BRIEN
      Chair

      KARL J. SANDSTROM
      Member

      JOYCE D. MILLER
      Alternate Member