54). In addition, he gave as reasons for terminating him the fact that he received three calls from Dry Ice's customers, who complained about Complainant's conduct and work habits, and asked that he not make future deliveries to their business establishments (Tr 54-55).

    Another reason for Complainant's termination was his use of the company credit card. Mr. Jackson testified that Complainant was authorized to use the company credit card to purchase diesel fuel and oil for Respondent's trucks only. His use of the credit card for towing was unauthorized. Moreover, Complainant did not inform him that he had used the company credit card to pay for fuel in exchange for towing at the Oshkosh truck plaza. (Tr 49). Instead, he learned of the incident from one of the other employees (Tr 50).

    Mr. Jackson stated that Complainant's reporting of the faulty wiper blades and loose mirror had nothing to do with his termination, as reports of faulty equipment by drivers "happens every day." (Tr 56). He testified that upon terminating Complainant, he told him that his driving skills were inadequate and he was not trustworthy, and that he did not possess the qualities in a driver Dry Ice needed. (Tr 56).

    Finally, Mr. Jackson stated that Complainant's failure to conduct a pre-trip inspection and identify the condition of the wiper blades on the Mercedes truck prior to leaving for Wausau on December 6, 1994 violated the Department of Transportation's requirements. (Tr 56-7). He explained that, had the state police observed the defective wiper blades under the weather conditions on December 6th, the truck would have been tagged, and Complainant would have been unable to move it.

    Section 405(b) of the Act prohibits discharge, or any other manner of discrimination, against an employee "for refusing to operate a vehicle when such operation constitutes a violation of any federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health...." 49 U.S.C. §31005. The initial burden is on complainant to establish a prima facie case of retaliatory discharge. To do so, the complainant must demonstrate that: (1)he engaged in some activity protected under the Act; (2) the employer knew of the protected activity, and that the employer took some adverse action against him; and (3)

there was a causal link between his protected activity and the adverse action of his employer, i.e. it was likely the adverse action was motivated by the protected activity. Anderson v. Jonick & Co., Inc., 93-STA-6 (Sept. 29, 1993); St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).

    Under Section 405 of the Act, protected activity may consist of complaints or actions with agencies of federal or state governments, or it may be the result of purely internal activities, such as complaints to management relating to the violation of a commercial motor vehicle safety rule, regulation, standard, or order. 49 U.S.C. §2305.

    Once the prima facie case is established, the burden of production shifts to the Respondent to present evidence sufficient to rebut the inference of discrimination. To rebut this inference, the employer must articulate a legitimate, nondiscriminatory reason for its employment decision. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992). The Respondent must simply present evidence of any legitimate reason for the adverse employment action taken against the Complainant. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). If the employer successfully presents evidence of a nondiscriminatory reason for the adverse employment action, the Complainant must then prove, by a preponderance of the evidence, that the legitimate reason proffered by the employer is a mere pretext for discrimination. The employee must prove that the asserted reason for the adverse employment action is false and that discrimination was the true reason for the adverse action. Hicks, supra.

    Upon review of the record, I find that Complainant has failed to establish a prima facie case of discriminatory treatment under the STAA. Complainant has established that: (1) his written notification to Mr. Jackson of the defects with the Mercedes truck did constitute a protected activity under the Act; (2) he was the subject of adverse employment action; and (3) Respondent knew of the protected activity. However, he has failed to establish that there was a causal link between the protected activity and the adverse action of Respondent. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987).

    The facts are not disputed that, after returning from Wausau on December 6, 1994, Complainant informed Respondent's manager that the Mercedes truck had defective wiper

blades and a loose mirror, and that he stated to Mr. Jackson that he was "not refusing to work or anything like that, but I don't want to drive that truck under those conditions again." (Tr 13). It is likewise undisputed that Mr. Jackson told him to put any complaints in writing, and that Complainant left a note describing the problems with the wiper blades and mirror.

    Mr. Jackson's testimony is uncontroverted that Respondent's usual practice is that, in emergency situations, the driver is required to notify Respondent and assistance is dispatched to the site by Respondent. In the case of mechanical difficulties with company trucks, the driver is customarily required to submit in writing any complaints about the vehicle to management, which is then transmitted to Quality Truck Service for repairs. (Tr 48). I, therefore, find that the manner in which Complainant dealt with the emergency road service problem, on December 6, 1994, was not in conformance with Respondent's policy. I further find that Complainant's written note on December 7, 1994, was received consistent with the employer's policy relating to repairs, and employer acted in compliance with its policy, when it referred the matter to Quality Truck for repairs and the wiper blades were replaced on December 8, 1994. (Tr 29, 51).

    Complainant does not dispute Mr. Jackson's testimony that he was not required to drive the Mercedes truck after he returned from the Wausau trip and prior to the time that the windshield wipers were repaired. Moreover, he admitted that he willingly drove the truck on December 8, 1994 prior to his termination.

    Therefore, Complainant's operation of the vehicle with the defective wiper blades on December 7th did not constitute adverse action since, by his own admission, he was not forced to drive the truck prior to the repair of the defects. Further, Respondent took immediate corrective action on December 7, 1994 and the wiper blades were replaced on December 8, 1994. I note finally that the Secretary found that, in addition to having the wipers replaced, Mr. Jackson also had the right mirror adjusted and ordered a new mirror after receiving the Complainant's written notification. Thus, there were no defects in the Mercedes truck that were not immediately addressed, and the Complainant has not shown that anyone at Dry Ice was particularly disturbed by his report concerning the truck.

    The Secretary has held that an inference that

a Complainant's protected activities motivated the adverse action cannot be made where the Complainant's protected activities are encouraged and willingly complied with. Ake v. Ulrich Chemical, Inc., 93-STA-41 (Sec'y Mar. 21, 1994). Although the fact that Mr. Jackson saw the Complainant's note the day before he was terminated may appear to give rise to the inference of a causal connection, I find that this inference is not supported in the face of the compelling evidence that Mr. Jackson encouraged company drivers to write notes describing truck malfunctions as a common practice and that he willingly made arrangements with Quality Truck Service to repair the faulty blades and loose mirror upon reading the Complainant's note. Ake, supra; Moon, supra. Mr. Jackson's credible testimony establishes that requiring the Complainant to notify him in writing about the defective wipers and loose mirror was the established practice of Dry Ice for such matters, and his actions after finding the Complainant's written notification demonstrate that he took reasonable steps to correct the problem. Mr. Jackson's actions in asking the Complainant to write the note and in taking steps to have the problems with the truck addressed are clearly inconsistent with the Complainant's contention that he was terminated for writing the note. The Complainant has the burden of proof in establishing a prima facie case of discrimination under the Act, and I find that there is insufficient support for a finding that the Complainant's protected activities were a likely reason for his termination. Thus, I conclude that Complainant has failed to establish a prima facie case of discriminatory treatment under the STAA. Hicks, supra.

    Moreover, even if it could be concluded that the Complainant established an initial inference of illegal conduct, Respondent has presented enough sufficient evidence to rebut any such inference. Respondent's manager, Mr. Jackson, articulated several reasons for terminating the Complainant. In particular, I find Mr. Jackson's testimony credible that he concluded that the Complainant's driving skills were inadequate after riding in a truck with him. Mr. Jackson reached his conclusion based on his observation that the Complainant made lane changes and turns without the use of a turn signal, and as a result Mr. Jackson determined that the Complainant should not be driving a truck for Dry Ice. (Tr 53). In addition, the statement of Mr. Brand indicates that on at least one other occasion, the Complainant operated a company truck in an unsafe and reckless manner. In the face of his evidence, I do not find Complainant's statement that Mr. Jackson did not tell him he was being terminated because of his inadequate driving skills to be

credible. This reason, coupled with the fact that Respondent had received three customer complaints regarding Complainant within the first seven days of his employment, complainant's failure to disclose to him that he had engaged in the unauthorized use of the credit card during an emergency situation, his failure to adhere to Respondent's policy for drivers by not calling into the office for the dispatch of Quality Truck Service when his truck became disabled in Oshkosh, and his unauthorized use the Respondent's credit card are legitimate non-discriminatory reasons for termination of an employee who had been on the payroll for such a short period.

    Thus, I find that, based on Mr. Jackson's credible testimony and the corroborating statements of Mr. Brant and Mr. Slater, Dry Ice presented legitimate, non-discriminatory reasons for terminating its relationship with the Complainant. Nance v. Polycrest, Inc., 90-STA-43 (Sec'y Aug 5, 1992); White, supra; Hicks, supra.

    Moreover, the record is devoid of any convincing evidence which would establish that the manner in which Respondent addressed the infractions committed by Complainant was in any way different from its past actions with employees who had engaged in similar conduct. In the absence of such evidence, I find Claimant has failed to demonstrate that Respondent's proffered reasons for his termination were a mere pretext for discrimination.

    (1) The Surface Transportation Assistance Act governs the parties and the subject matter.

    (2) Complainant demonstrated that he was engaged in protected activity when he filed complaints with Respondent's management regarding safety violations;

    (3) Complainant demonstrated that he suffered adverse action when he was terminated.

    (4) Respondent had knowledge of his complaints at the time of the adverse employment action;

    (5) Complainant failed to present sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action;

    (6) Respondent has demonstrated legitimate non-discriminatory reasons for its termination of Complainant.

    (7) Claimant failed to demonstrate that Respondent's articulated reasons for his termination were pretextual.

    For the foregoing reasons, IT IS HEREBY RECOMMENDED that the complaint of Paul Andrea be dismissed.

      MOLLIE W. NEAL
      Administrative Law Judge

This Decision and Order and the administrative file in this manner will be forwarded for final decision to the Administrative Review Board, U.S. Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, NW, Washington, DC 20210. See 61 Fed. Reg. 19978 and 19982 (1996).

The parties may file with the Secretary briefs in support of or in opposition to the administrative law judge's decision and order within thirty days of the issuance of that decision unless the Secretary, upon notice to the parties, establishes a different briefing schedule.