1. Whether deferral to the decision of the Ohio Joint State Grievance Commission in this matter is appropriate.

2. Whether the Complainant was discriminated against by the Respondent as a result of having engaged in a protected activity under the STAA.

Background:

   The Complainant was hired as an over-the-road truck driver by the Respondent in April of 1990. (Tr. 376) The Respondent is a national freight carrier with a regional terminal

located in Columbus, Ohio. (Tr. 15) As an employee of Consolidated Freightways, the Complainant was represented by the Teamsters Local 413 and was covered by the national collective bargaining agreement known as the National Master Freight Agreement [hereinafter referred to as "the NMFA"]. This agreement was supplemented with regional and state riders. The Complainant, as an employee of the Respondent, was also subject to the Transport Operators Manual and the Road Work Rules Agreement. (Resp. Exs. A, D) These guidelines required that employees of the Respondent familiarize themselves with, and adhere to, the regulations published by the Department of Transportation. The Complainant acknowledged receipt and an understanding of all of these rules and regulations. (Resp. Exs. B, C)

   One regulation, of particular importance in this matter, concerns the amount of time that a truck driver is permitted to drive over the course of an eight day period. In relevant part, this regulation states that:

(b) No motor carrier shall permit or require a driver of a commercial motor vehicle to drive, nor shall any driver drive, regardless of the number of motor carriers using the driver's services, for any period after-

(2) Having been on duty 70 hours in any period of 8 consecutive days if the employing motor carrier operates commercial motor vehicles every day of the week.

   The Complainant had an inconsistent personnel record with the Respondent, having received safe driving commendations along with warnings for absenteeism and failure to follow instructions. (Resp. Ex. G) The factual core of this case began on July 20, 1994, when the Complainant was involved in a confrontation with a co-worker. Feeling that Debbie Dowler, a linehaul secretary, was meddling in her personal affairs, she confronted Mrs. Dowler outside of the ladies restroom. The Complainant, in a threatening and profane manner, told Mrs. Dowler to stay out of her affairs. (Resp. Ex. AAA; Tr. 283) This incident was brought to the attention of Stuart Koble, the assistant terminal manager, who scheduled a meeting for the next day to discuss this episode.

   On July 21, 1994, the Complainant and John Starkey, the union business agent, met with Mr. Koble. At this meeting, Mr. Koble orally told both the Complainant and Mr. Starkey that his intent was to discharge her based on this incident. (Tr. 125, 403) Immediate discipline, however, was not an option as the collective bargaining agreement required a hearing at the local level prior to such action. (Resp. Ex. E) According to the agreement, such hearings not only concerned the particular incident, but also the employee's overall work record for the preceding nine months. (Id.) Mr. Koble scheduled this hearing for August 2, 1994. (Resp. Ex. M) The hearing was re-scheduled to August 23, 1994, due to the fact that the Complainant was under

the care of a physician and could not attend. (Comp. Ex. 14; Resp. Ex. O) Due to a scheduling conflict, the hearing was again postponed and rescheduled for August 30, 1994. (Resp. Ex. P)

   On August 24, 1994, the Complainant began a round trip from Columbus, Ohio to Peru, Illinois. It is undisputed that, at the time the Complainant left for Peru, she had 20.75 hours left of her 70 DOT hours within this eight day period. Company policy required that the driver who bids on a trip that involved a lay-over was required to have in excess of 20 DOT hours remaining in which to complete the run. (Resp. Ex. D)

   The Complainant, while waiting for her truck to be readied for departure, did not record her time as relieved of duty. (Tr. 275) Instead, she recorded this forty-five minute time period as on-duty. Consequently, according to her logs, she was now out of DOT hours and could no longer drive under the standards espoused in the regulations. (Resp. Ex. S) Prior to her departure from the terminal in Sidney, the Complainant again telephoned Ms. White for further instruction. According to the Complainant, Ms. White instructed her to drive until her DOT hours were exhausted at which time she was to call the terminal again. (Tr. 281)

   The Complainant drove from 1:45 p.m. until 2:15 p.m., when she checked into a hotel in Troy, Ohio. (Tr. 276) After checking-in, she called the terminal in Columbus, but was put on hold by a dispatcher. (Tr. 277) After waiting on hold for five minutes, the Complainant hung-up and went to get something to eat. (Id.) The Complainant ate from 2:30 p.m. to 3:15 p.m. and then contacted Ms. White at the Columbus terminal. (Tr. 278) Ms. White instructed her that she was being "cushioned in," that is, she had two Transport Operators on-the-clock waiting to come pick up her and her truck. (Id.) However, Ms. White did not know the whereabouts of the Complainant and she requested that the Complainant get the exit number of her hotel so that she could be picked-up. (Id.) The Complainant contacted Mr. Bowen and was instructed to get the information that Ms. White had requested. (Tr. 279) The Complainant then called Ms. White with the exit number. (Tr. 280) The Complainant was picked-up at 2:30 a.m. of August 26, 1994, and returned to Columbus around 4:30 a.m. (Tr. 280)

   Upon her return to the terminal, the Complainant received three warning letters that had been posted awaiting her arrival. The Complainant was reprimanded for her failure to promptly file her logs, failure to follow instructions in neglecting to fill-out her T-card and failure to follow instructions and causing a delay in freight for her delay in notifying Ms. White of her whereabouts in Troy, Ohio. (Res. Ex. Q, R, U) The Complainant was not reprimanded for driving in excess of the 70 DOT hours. (Tr. 94)

   On August 30, 1994, the hearing originally scheduled for August 2, 1994, was held. The Complainant was represented by her union. The hearing focused on five major infractions: excessive absenteeism; insubordination and physically threatening the well being of a fellow CF MotorFreight employee; falsifying paysheets/timecards; and failure to comply with Federal Motor Carrier Safety Regulations 395; failure to comply with Company Policy as outlined in the safety manual, by not submitting monthly log recaps. (Resp. Ex. Z) The Respondent concluded that discharge was appropriate and notified the Complainant of this decision at the hearing and in a letter dated August 31, 1994. (Id.) Pursuant to the NMFA, a member of the collective bargaining unit cannot be discharged until their appeal has been addressed through the grievance process. (Resp. Ex. E, p.207) Consequently, the Complainant remained on the job pending this review.

   The Complainant appealed the Respondent's decision of discharge to the Ohio Joint State Grievance Committee. The OJSGC denied her claim and upheld her discharge in a unanimous decision. (Resp. Ex. GG) The Complainant, through her union representative, also filed an unfair labor practice charge with the National Labor Relations Board (NLRB) alleging that the

Respondent failed and/or refused to submit documents they requested for the hearing before the OJSGC. (Resp. Ex. NN) This charge was found to be unfounded and, thus, the NLRB declined to issue a complaint. (Resp. Ex. OO) Based on the decision of the OJSGC, the Complainant was formally discharged.

Deferral:

   The Complainant, when initially informed of the Respondent's decision to discharge her, contested this determination. The Ohio Joint State Grievance Commission heard this dispute and unanimously found that the Respondent's decision to discharge the Complainant was proper. The Respondent asserts that deferral to the decision of the OJSGC is appropriate and should end this analysis.

   The regulations establish the framework for determining when deferral to the outcome of another proceeding is appropriate. Specifically, the regulations state, in relevant part, that:

[b]efore the Assistant Secretary or the Secretary defers to the results of other proceedings, it must be clear that those proceedings dealt adequately with all the factual issues, that the proceedings were fair, regular and free from procedural infirmities, and that the outcome of the proceedings was not repugnant to the purpose and policy of the Act.

   In the instant case, I find that deferral is not appropriate. I base this finding on the fact that this proceeding did not adequately deal with the Complainant's alleged protected activity. The majority of the hearing before this panel was spent debating the admissibility of issues and evidence not addressed at the local hearing level. (Resp. Ex. DD) Additionally, this hearing dealt extensively with the alleged non-production of requested documents by the Respondent as well as specific work absences by the Complainant and whether or not these were excused. There was little or no meaningful discussion regarding the core of this claim, the events of July 20, 1994 and August 25, 1994. In addition, the decision of the panel was a one sentence disposition upholding the discharge. (Comp. Ex. 17; Resp. Ex. DD) It is unclear, from this brief statement, what factors the committee actually considered and decided. As such, I cannot find that this proceeding dealt adequately with all of the factual issues involved in the pending claim. Consequently, I find that deferral to the decision of the OJSGC is not warranted.

Applicable Law:

   Section 405 of the STAA, provides:

(a) No person shall discharge, discipline, or in any manner discriminate against any employee with respect to the employee's compensation, terms, conditions or privileges of employment because such employee (or any person acting pursuant to the request of the employee has filed any complaint or instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order, or has testified or is about to testify in any such proceeding.

(b) No person shall discharge, discipline, or in any manner discriminate against any employee with respect to the employee's compensation, terms, conditions or privileges of employment 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, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment. The unsafe conditions causing the employee's apprehension of injury must be of such nature that a reasonable person, under the circumstances then confronting the employee, would conclude that there is a bona fide danger of an accident, injury, or serious impairment of health, resulting from the unsafe condition. In order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition.

   To establish a prima facie case of discriminatory treatment under the STAA, the Complainant must prove: (1) that she was engaged in an activity protected under the STAA; and (2) that she was the subject of adverse employment action; and (3) that a causal link exists between her protected activity and the adverse action of her employer. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). The establishment of the prima facie case creates an inference that the protected activity was the likely reason for the adverse action. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At a minimum, the Complainant must present evidence sufficient to raise an inference of causation. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992).

   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 mut articulate a legitimate, nondiscriminatory reason for its employment decision. Id., supra. A credibility assessment of the non- discriminatory reason espoused by the employer is not appropriate; rather, 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 non-discriminatory 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. Moon, supra; See also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). In proving that the asserted reason is pretextual, the

employee must do more than simply show that the proffered reason was not the true reason for the adverse employment action. The employee must prove both that the asserted reason is false and that discrimination was the true reason for the adverse action. Hicks, supra, at 2752- 56.

   Under subsection (a) of Section 2305, protected activity may be the result of complaints or actions with agencies of federal or state governments, or it may be the result of purely internal activities, such as internal complaints to management. Reed v. National Minerals Corp., 91-STA-34 (Sec'y Decision, July 24, 1992). The Complainant asserts that her protected activity consisted of her complaints to Jody White that she could not be relieved of duty at the terminal in Sidney, Ohio, as well as her notation of this safety regulation violation in her logs. Additionally, the Complainant alleges that her refusal to log her time in Sidney as off-duty constituted a refusal to operate a motor vehicle in a manner contrary to federal law pursuant to subsection (b) of Section 2305.

   The Secretary has ruled that once a case has been tried on the merits, the question of whether a prima facie case has been presented is not particularly useful in the analysis. White v. Maverick Transportation, Inc., 94-STA-11 (Sec'y Feb. 21, 1996); See also Carroll v. U.S. Dept. of Labor, 78 F.3d 352 (8th Cir. 1996)(circuit court approved Secretary's analysis). Thus, the key issue to be resolved is whether the adverse employment action taken against the Complainant was based upon legitimate, nondiscriminatory reasons, or rather founded in discrimination. If the Complainant cannot prevail on this ultimate question of liability, it does not matter whether a prima facie case is presented. White, supra.

   The Respondent contends that the decision to terminate the Complainant was made on July 21, 1994, by Stuart Koble, over a month prior to the Complainant's alleged protected activity. This decision to discharge the Complainant was based on the Complainant's confrontation with Ms. Dowler. As previously discussed, the Complainant does not deny that this confrontation occurred. Although unable to recall the specifics, the Complainant further acknowledged that she had no reason to doubt Ms. Dowler's depiction of this confrontation. (Tr. 396) Following this incident, the Complainant was told to be present at a meeting with Mr. Koble scheduled for the next day. At this meeting, the Complainant was told she was going to be discharged. According to the testimony of Mr. Koble, he explicitly stated that it was his intent to take the steps necessary to discharge her based on that incident. (Tr. 125) According to the Complainant, Mr. Koble told her that "he was very unhappy with the incident that happened, and that if there was any way possible, he would see me fired somehow." (Tr. 286)

   Under the terms of the collective bargaining agreement, a formal hearing had to be conducted prior to the company taking any disciplinary action against an employee. These hearings addressed the particular incident(s) that led to the hearing as well as the Complainant's work record for the prior nine months. As noted above, the hearing was initially scheduled for August 3, l994. However, as also noted, the hearing was postponed on several occasions. When the meeting finally took place on August 30, l994, it was after the Complainant's trip to Peru, Illinois. At the hearing, Mr. Koble outlined the Respondent's decision to discharge the Complainant and the reasons

for this action. Specifically, the Complainant was discharged for excessive absenteeism; insubordination and physically threatening the well being of a fellow CF MotorFreight employee; falsifying paysheets/timecards; failure to comply with Federal Motor Carrier Safety Regulations 395; and, failure to comply with Company Policy as outlined in the safety manual, by not submitting monthly log recaps. (Resp. Ex. Z)

   Based on the Complainant's undisputed confrontation with Ms. Dowler, I find that the Respondent has articulated a legitimate, nondiscriminatory reason for discharging the Complainant. Therefore, the Complainant must prove, by a preponderance of the evidence, that the legitimate reason proffered by the Respondent is a pretext for discrimination.

   In an attempt to satisfy this burden, the Complainant has pointed to several similarly-situated employees of the Respondent who have allegedly been treated differently than herself. Specifically, the Complainant points to several employees who have had numerous and repeated violations of company policies and have not been terminated. (Tr. 130-35; Comp. Exs. 32, 33, 41) However, none of the employees alluded to by the Complainant were involved in a confrontation with a co-worker. Two employees, who did threaten and/or have a confrontation with a co-worker, were terminated by the Respondent. (Tr. 137, 180-82; Comp. Ex. 42; Resp. Exs. WW, CCC) As the Respondent has asserted that the Complainant was discharged because of her confrontation with Ms. Dowler, the only similarly-situated employees of the Respondent were those that were involved in such a confrontation. As both such employees were also terminated, I find that the Respondent has dealt consistently with the discipline of its employees, specifically the Complainant. Although not conclusive in and of itself, I note that the Respondent followed the proper procedural steps in disciplining this employee. There are no irregularities in this regard which would indicate that the Respondent was utilizing the confrontation with Mrs. Dowler as pretext for an unlawful motive.

   The Complainant's pretext argument is further undermined by the testimony of Stuart Koble. As discussed above, Mr. Koble stated that he intended to discharge the Complainant based on the episode of July 20, 1994. The testimony of the Complainant in regards to what she was told at the meeting of July 21, 1994, confirms Mr. Koble's statement. I find that Mr. Koble was a credible witness and I have no reason to dispute his assertion that he intended to discharge the Complainant at the formal hearing. Based on the testimony of Mr. Koble, I further find that the Complainant would have been discharged had this formal hearing taken place as scheduled, which was well prior to the Complainant's run to Peru, Illinois.

   The Complainant has argued that the letters sent to the Complainant in regards to the scheduling of these hearings indicates that the decision to discharge the Complainant had not been made at the time asserted by the Respondent. The letters of July 21 and August 9, 1994, both warn the Complainant not to have any further contact with Mrs. Dowler. (Resp. Exs. M, O) Each letter then warns, "[i]f you violate this request, I'll [Stuart Koble] have no alternative but to pursue discharge and legal action." (Id.) Mr. Koble testified that the reference to discharge referred to an immediate discharge as opposed to a discharge that allowed the Complainant to continue work pending review by the OJSGC as mandated by the NMFA. (Tr. 178-79) Again,

I find that the testimony of Mr. Koble is credible and is a rational explanation for the language contained in the letters. Consequently, I find that the language in the warning letters issued to the Complainant regarding the pursuit of discharge do not indicate that the decision to terminate the Complainant had not already been made prior to her trip to Peru, Illinois.

   Based on the foregoing, I find that the Complainant has failed to establish, by a preponderance of the evidence, that the reason articulated by the Respondent for the Complainant's discharge is a mere pretext for discrimination.

Conclusion

   In summation, I find that the adverse action taken by the Respondent against the Complainant was motivated by her confrontation with a co-worker. I have found no evidence to indicate that the adverse action taken by the Complainant was in any way motivated by the Complainant's engagement in alleged protected activity. As the Complainant has failed to establish that her discharge was motivated by any prohibited reason, her claim must be dismissed.

   IT IS RECOMMENDED that the complaint of Cynthia Shannon for relief under the Act be DENIED.

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