That same day Becker met with Andie Vogt, West Side's Vice-President of Human Resources. Following the meeting Vogt drafted a letter to Becker dated November 20, 1998, (the Vogt letter) that stated: "Many times when drivers quit West Side they don't give us the opportunity for an exit interview; although I am sorry you decided to take that action, I appreciate your taking the time to discuss your decision and give us your comments." Joint Exhibit (JX) 5. Becker then left West Side's premises. Leslie testified that no actions were taken to terminate Becker's employment. 2T 42.

   Becker filed his complaint with OSHA on May 18, 1999. OSHA concluded that West Side did not violate the STAA. Becker appealed OSHA's determination to an Administrative Law Judge (ALJ), and a hearing was conducted on March 28 and 29, 2000.

   The ALJ issued a Recommended Decision and Order (R. D. & O.) on December 28, 2000. The ALJ held that Becker's testimony during the hearing was "inconsistent and evasive," R. D. & O. at 25, and he was "unable to credit his testimony on any of the key issues." R. D. & O. at 15. On the other hand, he found the testimony of West Side's witnesses to be reliable. In his R. D. & O., the ALJ found that Becker engaged in STAA-protected activity when he complained to management that its trip scheduling and planning practices caused him to be tired or fatigued. R. D. & O. at 28. The ALJ determined that West Side did not retaliate against Becker because he voluntarily quit his employment. R. D. & O. at 28. However, the ALJ also found that with the exception of his initial refusal to drive the hurricane relief supplies because he was fatigued, Becker had not advised West Side at the time that he was driving that he was fatigued. R. D. & O. at 5-7. The ALJ also held that West Side articulated a legitimate non-discriminatory reason for refusing to rehire him. R. D. & O. at 29.

(1) Did Becker engage in protected activity?

(2) Did the ALJ err in ruling that Becker quit his employment with West Side?

(3) Did the ALJ err in ruling that West Side did not violate the STAA by refusing to rehire Becker?

(4) Did West Side violate the STAA by supplying negative information about Becker to an employment history-reporting service?

   The Administrative Review Board ("ARB" or "Board") has jurisdiction to decide this matter by authority of 49 U.S.C. § 31105(b)(2)(C)(1994) and 29 C.F.R. § 1978.109(c)(2002). See also Secretary's Order 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002).

   In reviewing the ALJ's conclusions of law, the Board, as the designee of the Secretary, acts with "all the powers [the Secretary] would have in making the initial decision . . .." 5 U.S.C. § 557(b) (1994). Therefore, the Board reviews the ALJ's conclusions of law de novo. See Roadway Express, Inc. v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991). However, when reviewing STAA cases, the ARB is bound by the factual findings of the ALJ if those findings are supported by substantial evidence on the record considered as a whole. 29 C.F.R. § 1978.109(c)(3); BSP Trans, Inc. v. United States Dep't of Labor, 160 F.3d 38, 46 (1st Cir. 1998); Castle Coal & Oil Co., Inc. v. Reich, 55 F.3d 41, 44 (2d Cir. 1995). Substantial evidence is that which is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

   In addition, we accord special weight to an ALJ's demeanor-based credibility determinations. See Phillips v. Stanley Smith Security, Inc., ARB No. 98-020, ALJ No. 1996-ERA-30 (ARB Jan. 31, 2001), citing Kopack v. NLRB, 668 F.2d 946, 953 (7th Cir. 1982) ("One must attribute significant weight to an ALJ's findings based on demeanor because neither the Board nor the reviewing court has the opportunity similarly to observe the testifying witnesses.").

   Requirements of the STAA

The STAA provides in pertinent part:

(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 . . . 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. § 31105(a)(1)(A) (1994).

   To prevail under the STAA, the complainant must prove that he engaged in protected activity, that the employer was aware of the protected activity, that the employer discharged, disciplined or discriminated against him with respect to pay, terms, or privileges of employment, and that there was a causal connection between the protected activity and the adverse employment action. 49 U.S.C. § 31105 (1994); See, e.g., BSP Trans, Inc., 160 F.3d at 46; Yellow Freight Systems, Inc. v. Reich, 8 F.3d 1133, 1138; Metheany v. Roadway Package Systems, Inc., ARB No. 00-063, ALJ No. 2000-STA-11, slip op. at 7 (ARB Sept. 30, 2002).

1. The ALJ's Ruling That Becker Engaged in Protected Activity is Supported by Substantial Evidence.

   The Board finds substantial evidence to support the ALJ's ruling that Becker engaged in protected activity. See R. D. & O. at 28. Becker's September 1998 complaint to the dispatcher that he was fatigued and therefore could not drive was protected by the STAA. R. D. & O. at 5. Moreover, Becker's letter to management commenting on its procedures that could cause drivers to drive while fatigued may also constitute protected activity.

2. The ALJ's Ruling That Becker Quit His Employment is Supported by Substantial Evidence.

   Becker contends that West Side violated the STAA by discharging him in retaliation for his protected activity. West Side argues that it took no adverse employment action against Becker with respect to his employment status because Becker voluntarily quit his position. We conclude that the ALJ's determination that Becker voluntarily quit his employment at West Side and was not discharged is supported by substantial evidence. The ALJ's determination that West Side legitimately treated Becker as having quit because of his statements that he was quitting and his conforming conduct also is supported by substantial evidence.

   The record establishes that Becker told two West Side managers that he was quitting. Leslie testified that Becker "told me he's had it. I was f'ing nuts, that he was going to, he wanted to come in and quit, run him back to CR." 2T 37. Cruise testified that Becker told him "I had enough of this shit. I've got an app in at GSTC, you route me in so I can turn my truck in." T. 234.

   West Side fulfilled Becker's November 19, 1998 request to return to Cedar Rapids by altering his assignment and dispatching him under a Cedar Rapids-bound load. Upon his return, Becker met with company officials who interpreted his words and actions as indicating he was quitting. This understanding is most vividly memorialized in the Vogt letter.

   Becker did not testify that he was ever told that he was discharged, nor did he indicate why he considered his request to be routed back to Cedar Rapids to be anything other than a quit. The ALJ correctly noted that:

The fact that Mr. Becker failed to raise or discuss his status after having been rerouted in pursuant to his declaration of "quit," may not be projected upon the Respondent as its failure, when at all times it acted consistently in the actions of its officials that they considered him to have quit his employment at West Side.

R. D. & O. at 29. Thus, the record supports the ALJ's findings that Becker did quit and that West Side understood Becker as having quit (because of Becker's statements and conforming conduct) and acted based on that understanding, not based on Becker's protected activity.

3. The ALJ's Determination that West Side's Refusal to Rehire Becker Did Not Violate the STAA is Supported by Substantial Evidence.

   The employee protection provision of the STAA does not require an employer to reinstate an employee who engages in STAA-protected activity, quits his employment and subsequently changes his mind. Moreover, an employer is not required to rehire an employee when that employer is dissatisfied with the employee's previous work record. See, e.g., Gibson v. Arizona Public Service Co., 90-ERA-29, 46 and 53 (Sec'y Sept. 18, 1995). In Gibson a supervisor who had knowledge of a former employee's protected activity did not select that person for rehire. The Secretary ruled that respondent was justified in its refusal to rehire the complainant because the supervisor took into account the complainant's prior performance as an unproductive and uncooperative employee.

   Substantial evidence in the record supports the ALJ's determination that Becker's conduct toward West Side employees and managers constituted a legitimate, nondiscriminatory reason for refusing to rehire Becker:

Mr. Becker was a relatively short term employee at West Side. Basically he contested the system that management used to run its operation from the outset of his employment there. His letter of November 21st recounts that fact. In reply, he simply has failed to meet his burden by a preponderance of the evidence. It is my conclusion . . . that Mr. Becker offered insufficient credible evidence to the accounts offered by Mr. Leslie and Mr. Cruise about this conduct, and by so doing, he basically set himself up for the result of his quit. He did so voluntarily, and is saddled with the result.

R. D. & O. at 29-30.

   The record indicates that Becker had conflicts with a number of dispatchers, 2T 19; did not conduct himself professionally, T. 249; was verbally abusive toward fleet managers and safety personnel, T. 249; would not pull his truck over and stop to sleep when fatigued, T. 61; did not call for relief when fatigued, T. 61; knowingly violated Department of Transportation regulations by falsifying logs, 2T 89; and violated company rules by directly contacting a West Side customer, T. 175.

   Becker bears the burden of showing that West Side's reason for refusing to rehire him was pretext for discrimination based on his protected activity. He has failed to do so.

4. Becker Has Not Proven by a Preponderance of the Evidence That, Because of His Protected Activity, West Side Informed DAC Services That Becker Made "Excessive Complaints."

   DAC Services is a company that maintains employment histories of commercial drivers for over 2500 truck lines and private carriers in the United States. West Side informed DAC Services that Becker had a work record of "excessive complaints." Respondent's Exhibit F. Communication of an adverse recommendation in retaliation for protected activity is a violation of the STAA. See, e.g., Earwood v. Dart Container Corp., 93-STA-16 (Sec'y Dec. 7, 1994); Leideigh v. Freightway Corp., 88-STA-13 (Sec'y June 10, 1991). Becker argues before the Board that West Side violated the STAA by providing negative information about his job performance to DAC Services.

   Becker suggests that Earwood and Leideigh compel a determination in his favor. He is mistaken, as the facts here differ in significant respects from those cases. In Earwood the Respondent company's office manager reported to a prospective employer that the former employee had taken the Respondent to court, specifically referencing the fact that Earwood had filed a STAA complaint. Similarly, in Leideigh, the employer referenced complaints to "other government agencies," implicating Leideigh's STAA complaint. Here, there is no evidence that the words "excessive complaints" specifically referenced STAA-protected activity or would be understood (by those viewing the report) as indicating STAA-protected activity. Further, in Earwood, the office manager acknowledged that he made the report because he was angry about Earwood's protected activity, and in Leideigh the employer acknowledged it would not rehire Leideigh because of his complaints to government agencies (including his STAA complaint). Becker has failed to show any such animus generated by his protected activity in this case.

   The record indicates both that Becker complained a great deal and that most of the complaints Becker made to management were not STAA-related. Leslie testified that "complaining was a continuing on thing with Dale." 2T 28, and that he had conflicts with a number of West Side's dispatchers. 2T 19. Cruise testified that Becker was always "second guessing" decisions made by the Operations Department, T. 218, and that Becker sent a message to dispatch stating that West Side was not a "very smart operation." T. 226. Becker also expressed disdain toward driving certain routes. 2T 28. Apart from his fatigue concerns, he was dissatisfied with the amount of time he had to wait between arriving at a destination and departing after his truck had been loaded, contending on at least one occasion that he should not be required to make a morning delivery to a location that was open during the afternoon. T. 220-221, 226. He also complained that West Side should change its policies on scheduling trips to include more pay for the loading phase of his assignments. R. D. & O. at 26, fn. 10.

   Becker bears the burden of establishing by a preponderance of the evidence that West Side provided the information to DAC in retaliation for his STAA-related activity. He has failed to do so.

   The record evidence supports the ALJ's findings of fact, and his legal conclusions are fully supported by the applicable law. Accordingly, the R. D. & O. is AFFIRMED and Becker's case is DISMISSED.

   SO ORDERED.

       JUDITH S. BOGGS
       Administrative Appeals Judge

       M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge