This provision "was enacted in 1983 to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles." Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987). "Congress recognized that employees in the transportation industry are often best able to detect safety violations and yet, because they may be threatened with discharge for cooperating with enforcement agencies, they need express protection against retaliation for reporting these violations." Id.
We analyze STAA whistle-blowing claims using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Moon, 836 F.2d at 229. Under this standard,
the plaintiff has the initial burden of establishing a prima facie case of retaliatory discharge. Once a prima facie case is established, one which raises an inference that protected activity was the likely reason for the adverse action, the burden of
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production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination.
Id. To establish a prima facie case, Ridgley must adduce evidence establishing that: (1) he engaged in protected activity under the STAA; (2) the employer had knowledge of his protected conduct; (3) he was the subject of an adverse employment action; and (4) there was a causal link between his protected activity and the adverse action of his employer. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir. 2008).
Ridgley established the first three elements. He made numerous safety-related complaints to Dannemiller regarding the condition of the Company's trucks and about working conditions. With respect to Ridgley's complaint on the morning of Monday, December 1, 2003 about the length of his route that day, the ALJ found that a safety concern related to working conditions could be inferred from Ridgley's comments, making the complaint protected activity under the STAA, despite the fact that Ridgley's complaint "centered on" his desire to avoid performing extra work assignments, (JA 18), a matter that does not come under the protection of the STAA. We similarly conclude that Ridgley's comments during the phone conversation in which he was terminated were related to a safety concern, since they dealt with whether Dannemiller was telling the truth about the length of the Monday route. Dannemiller was aware of Ridgley's protected conduct, and Ridgley was the subject of an adverse employment action when he was discharged. The final element—whether a causal link existed between Ridgley's safety complaints and his discharge—requires further analysis.
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The ALJ concluded that, at the prima facie stage, Ridgley satisfied the causation element by establishing the proximity in time between his initial complaint about the Monday route (Monday morning) and his termination (Monday evening). We need not reach the question of whether temporal proximity alone can be sufficient evidence of causation because the parties do not dispute that Ridgley was terminated for an insubordinate comment, nor is there any dispute that this comment was related to his earlier complaint about the length of his Monday route. At the prima facie stage, this is sufficient to meet Ridgley's burden on causation.
Once a prima facie case is established, the burden of production shifts to the Company to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802. To meet its burden of production, a defendant "need not persuade the court that it was actually motivated by the proffered reasons . . . [but] must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981) (citation and footnotes omitted). Dannemiller's testimony that he terminated Ridgley solely for insubordination satisfied this burden.
The employer's proffered legitimate reason for the termination rebuts the presumption raised by the prima facie case, and Ridgley must then carry his ultimate burden of persuasion to show that he was terminated in retaliation for raising safety concerns. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993). Substantial evidence supports the conclusions of the ALJ and the Board that Ridgley did not meet this burden. The record shows that Ridgley was not discharged because he raised safety concerns but because he accused Dannemiller of being a liar.
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First, when Ridgley initially complained about the length of the Monday, December 1, 2003 route, Dannemiller took no adverse employment action against him. On the contrary, Dannemiller tried to obtain a helper for Ridgley and considered whether some of Ridgley's stops could be eliminated. After Dannemiller determined that neither of these options was feasible, he did not attempt to force Ridgley to drive but assigned the route to a substitute driver and sent Ridgley home without indicating that Ridgley would be disciplined in any way.
Second, Ridgley had previously complained about his workload and refused trips without being disciplined. The Company's willingness to accommodate Ridgley, without penalty, on numerous occasions, including when he complained about the length of his Monday, December 1, 2003 route, shows that the Company intended to retain Ridgley, not retaliate against him for complaining about his assignment.
Third, after Ridgley complained about the Monday route and it was reassigned to a substitute driver, Dannemiller actively sought Ridgley's services for the next day. Dannemiller's message on Ridgley's telephone answering machine shows that Dannemiller expected and desired Ridgley to work on Tuesday and had no intention of firing him. The ALJ found that the taped message "does not show an employer on the verge of firing an employee; in fact, it is just the opposite." (JA 6.) The ALJ found that Dannemiller's statement in the message about the length of time in which the substitute driver had completed the route was simply meant to inform Ridgley that Ridgley had overestimated the length of the route. The ALJ, who listened to Dannemiller's message, found that Dannemiller did not imply that Ridgley should have driven the Monday route or that Ridgley would be penalized for failing to do so.
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Fourth, there was substantial evidence, as the ALJ determined, that Ridgley's complaint about his Monday route was motivated in part by his desire to avoid performing extra work, making it less likely that Ridgley was terminated in retaliation for raising safety concerns.
Fifth, the ALJ found that it was not in the Company's interest to terminate Ridgley during its busiest time of year, making it unlikely that Ridgley's complaint regarding his route was the basis for his termination.
There was also substantial evidence for the ALJ's determination that the Company would have continued to accommodate and address Ridgley's complaints if he had not made insubordinate remarks to Dannemiller. The ALJ found Dannemiller to have been "ever-patient" with Ridgley and to have been "convincing" in stating that he would not have fired Ridgley if Ridgley had not called him a liar. (JA 6.) Dannemiller's motivation for terminating Ridgley's employment is a question of fact, and the ALJ's factual determinations are supported by substantial evidence.
Ridgley argues that because he was fired for a comment made during a conversation about the length of his Monday route, he was necessarily retaliated against. But "an employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern," Am. Nuclear Res., Inc. v. U.S. Dept. of Labor, 134 F.3d 1292, 1295 (6th Cir. 1998), as long as the termination is not because of the safety complaint. Ridgley claims he was fired "for challenging the employer's honesty about safety compliance," (Appellant's Reply Br. 2 (emphasis added)), but the ALJ found that the termination was motivated solely by the accusation of dishonesty, not by the fact that the accusation was related to the length of Ridgley's route. Similarly, Ridgley argues that he had "the right to speak out when his employer [used] deception to break
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trucking safety laws" and states that "the lying employer cannot ask, on a question of compliance with motor carrier laws, ‘Are you calling me a liar', and then fire an employer for saying, ‘Yes.'" (Id. at 4 (emphasis added).) These arguments presuppose facts that the ALJ found did not exist: that Dannemiller used deception to break trucking safety laws and that he lied to Ridgley.
Ridgley relies on Kenneway v. Matlack, Inc., No. 88-STA-20, 1989 DOL Sec. Labor LEXIS 47, at *7-8 (Sec'y of Dep't of Labor June 15, 1989), which held that the STAA provides some leeway for impulsive behavior, including insubordination, in connection with a protected safety complaint. By its own terms, Kenneway stated that "[t]he issue of whether an employee's actions are indefensible under the circumstances turns on the distinctive facts of the case," Id. at *8, and the ALJ convincingly distinguished the facts at issue here. The complainant in Kenneway was terminated for refusing to perform an assignment that would have caused him to violate a Federal Motor Carrier Safety Regulation, while Ridgley was accommodated when he expressed a desire not to drive his Monday route and was never asked to violate any commercial vehicle regulation. The ALJ was well-supported in concluding that circumstances of Ridgley's termination did not entitle him to the impulsive behavior protections discussed in Kenneway.
Ridgley is not entitled to a mixed-motive analysis. "If an employer retaliates for both legitimate and illegitimate reasons, courts apply the ‘dual motive' test, under which the employer must show that it would have retaliated even if the protected activity had not occurred." Am. Nuclear Res., 134 F.3d at 1295. "The employer bears the risk if the two motives prove inseparable." Id. Because the ALJ found that retaliation was not even a partial motivating factor, the mixedmotive analysis is inapplicable. Ridgley's reliance on Pogue v. United States Department of Labor,
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940 F.2d 1287 (9th Cir. 1991), is misplaced because the employer in that case conceded that it had been partially motivated by illegal factors.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the decision of the Board.
[ENDNOTES]
* The Honorable Karl S. Forester, United States District Judge for the Eastern District of Kentucky, sitting by designation.
1 The STAA was amended in 2007, after the relevant actions in this case, and this subsection is now codified as § 31105(a)(1)(A)(i).