TR 11-14; ALJX 3. The parties' stipulations are adopted as findings.

   A. The Claimant's Testimony and Supporting Documentary Evidence

   The Complainant testified that he completed a tractor-trailer driving training program, and he has about eight years of truck driving experience, the last two of which have been with a Class A commercial driver's license with all endorsements. TR 24. He was hired by the Respondent as a driver on June 21, 1999. He received no formal training and learned the duties and responsibilities of his new position from the Respondent's other drivers, Ron, Art and Mohammed. TR 25-26, 73. Essentially, his job was to deliver lumber and building products, although he was occasionally assigned general maintenance duties around the lumber yard when things were slow. TR 26. The Complainant usually drove the same vehicle, Number 1990, an International box truck. TR 35. He was initially paid at a rate of $10.00 per hour and received a raise to $10.50 per hour in late October 1999. He was paid for 37 hours per week and received medical benefits which he valued at $40.00 per month. TR 120-21.

   On a typical day, the Complainant would start work at 8:15 a.m., at which time Tom, the dispatcher, would have delivery tickets made out indicating where the drivers were scheduled to drive that day. TR 27-28. After obtaining his delivery orders, he would perform a pre-trip inspection of his truck, a process which he described as taking approximately 15 to 20 minutes. TR 28-33. The Complainant testified that he was unable to document the pre-trip inspection as he was taught in driver training school because the Respondent did not utilize vehicle inspection report ("VIR") forms which enable a driver to determine if a prior driver had noted any defect or deficiency in the truck. Instead, the Complainant, who usually was the only driver of his truck, would check his driver's log. TR 30-31, 35. According to the Complainant, a driver would fill out the driver's log in duplicate on a daily basis, noting his production and any defects in the vehicle. TR 67-70. The Complainant further testified that one of the Respondent's other drivers, Mohammed, is a non-certified mechanic who takes care of some vehicle repairs, while more serious problems are sent out to a certified repair shop. TR 33. When a problem arose with his truck that needed attention, he initially notified his supervisor, Rick Collin, or Gerry Zartmann after he became the Respondent's general manager. TR 34, 38. If he was not satisfied after a week or two, he would go to Ed Collins, the owner. TR 35.

that it was drafted on December 28, 1999, and it covers the period of July 26, 1999 to December 29, 1999. CX 1. This document, in its entirety, reads as follows:

7/26/99 Back door broken. I nailed it up. Needs to be fixed!

7/27/99 Box van door needs to be fixed.

8/25/99 Verbally notified Rick of muffler clamp problem.

8/31/99 Told Rick again about $2 muffler clamp. He told me to talk to Ed! Ed said no problem go get one and install it myself. I never got it because I didn't feel it was my job to fix his vehicles! . . .

9/3/99 I was sat down by Rick. He suggested that I complain too much about my work vehicle and he has never seen anyone complain so much.

9/8/99 Upon routine random inspection I found muffler clamp to be in place.

9/17/99 Vechile [sic] taken to H.L. gauge in Albany for some mechanical problem.

9/21/99 Vechile [sic] picked up from H.L. gauge in Albany, N.Y.

11/24/99 Note states (Gerry the oil in this machine is way overdue. Also could the governer [sic] be turned up on this truck and occasionally the brake light comes on and gas gauge needs a little fixing. It's off by 1/4 tank. Thank you!

11/30/99 I pulled Gerry aside to show him how exhaust was leaking and were [sic]. I told him how I have to open my windows to get fresh air. He told me he was still new and I should just keep writing up the matters so I did and nothing happened. So I kept writing up the vechile [sic] whenever I deemed there was a problem!. . .

12/2/99 The brake light constantly comes on. When checked by mechanic (another driver not certified in commercial motor vechile [sic] repairs). It ends up just being low on fluid or a loose wire (There's always an excuse). When driving down College Ave today at 9:15 a.m. I smelt a burning brake smell. The brake light is on. I notified my supervisor Gerry. He advised me to write the matter up. Matter was written up at 9:32 a.m. 2/2/99.

12/6/99 Vechile [sic] needs 2 new wipers. Not clearing good at all!. . .

12/8/99 Vechile's [sic] brake light is on again and comes and goes. Also driver side mirror bracket is broken.. Had to tape it up with duct tape. Please order or fix bracket!. . .

12/10/99 Please have back door fixed. Hard to lift!. . .

12/20/99 Sheet of paper indicating a D.O.T. inspection of Hino [sic] truck was given to Gerry indicating needed vechile [sic] repairs! . . .

12/21/99 Vechile [sic] was written up on 12/20/99 by D.O.T. for bare wires, no license plate light and a brake adjustment. Vechile [sic] was loaded. I'm driving it at 11:00 a.m. I called the NYS police. They met with me at Exit 9 rest stop and advised me what to do about the violations that weren't fixed. That's when he said they were going to conduct a repair compliance investigation against Collins Lumber Co.

12/22/99 D side outer rear tire where it was repaired in the past looks split enough to cause a concern factor for safety. Please have tire looked at.

12/23/99 Driver side rear tire on outside where it was once repaired externally needs to be replaced. Big slice hole that has just been getting bigger. Exhaust pipe on side of truck looks to be falling off. Asked to have it repaired so it didn't fall off and hit another MV. Request not granted. Also vechile's [sic] exhaust is coming into the cab in small quantities making it a somewhat sleepy environment. Have to pull over on many occasions for fresh air and open windows. Went to Dr. on 12/23/99. He advised me not to drive Int box truck due to possible carbon monoxide poisoning. Note given to Stan and Ed!. . .

12/28/99 Clocked in. I was there 2 minutes. Ed pulled me aside. Stated to me that he didn't have any work for me at this time due to my Doctor's note advising me not to drive my regular work vehicle. He said there's no other deliveries. 1 minute later I asked him if this was a temporary layoff or a permanent termination and he stated I was terminated!. . . I drove for the company for 6 months and 1 week driving a total of 11,809 miles never having any accidents. I never called in sick, I was never written up, and I was never suspended. There are other mechanical write ups on this vechile [sic] that were written on separate log sheets not in my possession but rather in the possession of Collins Lumber filed away and some were just only put in my log as reminders of such problems!. . .

* Please note that a tractor trailer flat bed at Collins Lumber Corp. with painted lettering stating Collins Lumber Co. hauls all of Collins' truss systems trusses under Collins Lumber Co.'s IFTA certificate. Is this legal. Also I was told that the driver of this rig gets paid by Collins Lumber Corp. and Collins Truss Systems along with cash on the side!

12/29/99 11:53 a.m. Called Gerry at Collins Lumber to ask for work seeing that the medical tests were negative and that the Doctor was releasing me. He said that the termination was final.

CX 1 (ellipses in original). The Complainant also testified regarding these entries in his log.

Concerning the November 24 entry about the truck's governor, he stated that the device was set to "top out" at 58 miles per hour ("MPH"), while the highway speed is 65 MPH, so he asked to have the governor adjusted to increase his productivity. TR 40. He testified that he was also concerned at this point with the truck's brake lights which constantly came on when he hit bumps or used the brakes going down hills. He stated that whenever this problem occurred, he wrote it up, and the brakes were either looked at or they were not. TR 40- 41.

   Regarding the November 30 entry, the Complainant testified that he told Gerry Zartmann about the exhaust leak and that he explained that he was concerned because he had to open the windows, and it was getting cold. According to the Complainant, Mr. Zartmann replied that he was still new and that he should just keep writing it up. TR 41. The Complainant also stated that Mohammed had told him that the problem with the brake light was due to a loose wire, and he stated that this condition was never repaired. TR 41-42.

   On December 2, 1999, the Complainant testified that he smelled burning brakes while operating the truck. He stated that he recognized the smell from past experience, and he observed that the brake light was on. He stated that he notified Gerry Zartmann who instructed him to write it up, and he went out on a delivery as he had been told. TR 42-43.

   The Claimant testified that he discovered that the wipers on the truck were bad on December 6, 1999 when he had to drive 190 miles in the pouring rain. He denied having any conversation with the Respondent on that date concerning his performance or receiving any oral warning or reprimand. TR 42-45. He further testified that he had to use duct tape on December 8, 1999 to repair the rear view mirror bracket on the truck because "they didn't want to go purchase a bracket." TR 45-46.

   Regarding the entry he made on December 20, the Complainant testified that he had pulled in to the Watervliet Housing Authority warehouse to make a delivery when he was stopped by a police officer who stated that he was conducting a D.O.T. Safety Check and directed the Complainant to follow him to a state motor vehicle agency inspection facility in Port Skyler. At Port Skyler, the Complainant's truck was inspected, and a citation was issued for three violations -- (1) improper tie-downs on the load, (2) faulty wiring and (3) defective of no lighting on the license plate. TR 48-51. The Complainant was issued a Driver Inspection Report by the Commercial Vehicle Enforcement Unit of the New York State Police which listed three violations as described by the Complainant: (1) improper securement system (tie-down assembly), one of two tie-downs, damaged webbing; (2) improper wiring installations (rear, bare and loose wires); and (3) no/defective lighting devices (plate light not working). CX 2. The Complainant testified he made the Respondent aware of these violations, but they were not corrected before be began driving the truck again. He further stated that he called the New York State Police on December 21 to report that the violations had not been corrected and was informed that a compliance investigation would be conducted. TR 51.

   The Complainant testified that on December 22, 1999, he developed a headache and sleepiness after driving for 45 minutes with the windows rolled up even though he was "more than prepared for work" by getting six to seven hours of good, undisturbed sleep at night. He also stated that these symptoms abated after he was out of the vehicle for at least half of an hour. The Complaint testified that he consulted his eye doctor to see if a vision problem was causing the headache and drowsiness, but was told that his vision was normal and stable. TR 52-53. He then saw his family physician, Russell Wenacur, M.D. Dr. Wenacur's initial impression was possible carbon monoxide poisoning, and he gave the Complainant a note recommending that he not drive the International box truck. CX 3; CX 4 at 1. The Complainant testified that Dr. Wenacur referred him to a hospital for blood testing and that he provided a copy of Dr. Wenacur's note to Stan Duda, the Respondent's personnel/human resources director. TR 57. According to the Complainant, Mr. Duda threw his hands in the air upon reading the note and stated that he didn't want to have anything to do with it. Instead, he told the Complainant to see either Mr. Collins or Mr. Zartmann. TR 58-59. The Claimant stated that Mr. Zartmann was not there, so he went to Mr. Collins's office and, finding that Mr. Collins was at lunch, left Dr. Wenacur's note on his desk. TR 59. The Complainant stated that he then went to Tom, the dispatcher, who said that there was nothing really to do, so he spent the remainder of the afternoon reading newspapers, drinking coffee and eating food as there were no deliveries to make and it was just before the Christmas break. TR 61-62. The Complainant stated he and the other employees all received bonuses before leaving work on December 23 and that he had December 24th off as a paid holiday. TR 62.

   The Complainant testified that he next reported for work at 8:01 a.m. on December 28, 1999, at which time Mr. Collins told him that he was permanently terminated because of his doctor's note since he could no longer perform his duties with the truck, and there was no work with the other vehicles. TR 63. After he left work, the Complainant testified that he contacted OSHA to file the complaint in this matter, and he filed a claim for unemployment compensation which the Respondent opposed. TR 64-65. The record shows that a hearing was conducted on the unemployment claim before an administrative law judge of the New York State Unemployment Insurance Appeals Board who ruled in the Complainant's favor. In this regard, the administrative law judge wrote:

    The evidence in this case establishes that the claimant was discharged by the employer but not for work-related misconduct within the meaning of the Unemployment Insurance Law. At the hearing the employer contended that the claimant had been discharged due to poor work performance particularly that the claimant was taking too long to complete his deliveries. The employer contended that the claimant had been counseled regarding this issue in early December of 1999, and had been told on December 16, 1999, that he would be discharged for this reason sometime between Christmas and New Year's. However, the claimant denied having been warned about and having been advised that he would be fired because of poor job performance and the employer issued no writings to the claimant in this regard.

    The evidence shows that the claimant was discharged shortly after submitting the medical excuse in question, which event shortly followed citation of the claimant's truck for certain safety violations. Under the circumstances, the claimant was discharged because he was perceived by the employer to be a troublesome employee and the evidence does not establish that he engaged in any conduct amounting to a substantial disregard of the employer's interests rising to the level or work-connected misconduct for purposes of his eligibility for benefits. While the prerogative of the employer to discharge the claimant is recognized, the evidence shows that his employment ended under non-disqualifying circumstances.

   The Complainant again denied ever having any discussion with Mr. Zartmann regarding his job performance or whether he would be terminated. TR 100. He was also questioned about his testimony at the Unemployment Insurance Appeals Board hearing and acknowledged that he had testified in that proceeding that he believed that Fred Morelock, a driver who was hired by the Respondent on or about December 5, 2000, had been brought in to replace him because Mr. Morelock had told him that Mr. Zartmann had called him in November 1999 begging him to come to work at the Respondent. TR 100-104.

49 U.S.C. §31105(a). The elements of a violation of the STAA's employee protection provisions are "that the employee engaged in protected activity, that the employee was

subjected to adverse employment action, and that there is a causal connection between the protected activity and the adverse action." Scott v. Roadway Express, ARB Case No. 99-013 (July 28, 1999) (Roadway Express), slip op. at 7, quoting Clean Harbors Environmental Services, Inc. v. Herman, 146 F.3d 12, 21 (1st Cir. 1998) (Clean Harbors). A complainant initially may show that protected activity likely motivated the adverse action by proving: (1) that he engaged in protected activity; (2) that the respondent was aware of the activity; (3) that he suffered adverse employment action; and (4) the existence of a causal link or nexus, e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon v. Consolidated Freightways, 96-STA-15 (ARB April 15, 1998), slip op. at 5-6; Kahn v. United States Secretary of Labor, 64 F.3d 261, 277 (7th Cir. 1995). An employer may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate, non-discriminatory reason, and the complainant must then prove that the employer's proffered reason was not the true reason for the adverse action and that protected activity was the real reason for the action. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-508 (1993).

   The Complainant contends that he engaged in activity protected by the STAA when he raised safety concerns to the Respondent, including his delivery of Doctor Wenacur's note on December 23, 1999 recommending that he no longer drive the International box truck, and that the evidence shows that he was terminated on December 28, 1999 because, as the Unemployment Insurance Appeals Board ALJ found, because he was perceived to be a troublesome employee. The Complainant further contends that the statements and conduct of the Respondents support a reasonable inference of a causal connection between his protected activity and the termination decision, and he seeks as a remedy compensation for his monetary losses and compensation for the time he has put in to prosecuting his complaint and for the adverse impact that the Respondent's conduct has had on his life. TR 146-158.

   The Respondent, on the other hand, asserts that the Complainant has not met his burden of proving that he was terminated for engaging in activity protected by the STAA. Rather, it avers that the evidence establishes that the Complainant was terminated for poor job performance, that he had prior knowledge that he would be terminated after the Christmas holiday, and that he began to write up his truck more frequently and submitted the note from Dr. Wenacur only after he had been notified that he would be terminated. Thus, the Respondent insinuates that the Complainant fabricated a case of unlawful retaliation once he learned that his employment was going to terminated. TR 158-162.

Therefore, to obtain protection under the "reasonable apprehension" clause, a complainant must show that "a reasonable person in the same situation would conclude that there was a reasonable apprehension of serious injury if he drove." Cortes v. Lucky Stores, Inc., 96-STA-30 (ARB February 27, 1998), slip op. at 4. In addition, a complainant must, where reasonably possible, inform the employer of the safety basis for his refusal to drive. La Rosa v. Barcelo Plant Growers, Inc., 96-STA-10 (ARB August 6, 1996), slip op. at 3; Assistant Secretary of Labor and Johnny E. Brown v. Besco Steel Supply, 93-STA-30 (Sec'y January 24, 1995), slip op. at 3. The Complainant testified that he experienced drowsiness while driving on December 22, 1999 despite getting adequate sleep at night, that he suspected exhaust fumes were entering the vehicle's cab and that he went to see his family physician who recommended that he not drive the International box truck pending the lab report on his blood test for carbon monoxide poisoning. On these facts, which are not contradicted, I find that the Complainant satisfies the reasonable apprehension requirement as any reasonable person in these circumstances would be in apprehension that continued operation of the vehicle could lead to an accident, injury, or serious impairment to his or her health. I also find that the Complainant satisfied the second requirement that he inform the Respondent of the safety basis of his refusal to drive since it is undisputed that he previously reported his concerns about exhaust to the Respondent and then provided a copy of Dr. Wenacur's December 23, 1999 note to Mr. Duda and Mr. Collins. Accordingly, I find that the Complainant's refusal to drive on December 23, 1999 was protected by section 31105(a)(1)(B)(ii).

    There is no dispute that the Respondent was aware of the Complainant's protected activity and that the Complainant was subjected to an adverse employment action when he was terminated on December 28, 1999. Based on the close proximity of the Complainant's protected activity, particularly his delivery of Dr. Wenacur's note to the Respondent on December 23, to the date of his termination, and the Complainant's uncontradicted testimony that Mr. Collins referred to Dr. Wenacur's note when he informed the Complainant on December 28 that his employment was terminated, I find that it is reasonable to infer that the Respondent's termination decision was, at least to some degree, motivated by retaliatory considerations.

   Having determined that the Complainant has established that he engaged in activity protected by the STAA, that the Respondent was aware of such activity, that he suffered an adverse action and that there is a sufficient nexus between his protected activity and the adverse action to justify an inference of retaliatory motivation on the part of the Respondent, it is incumbent on the Respondent to show that its decision to terminate the Complainant was based on legitimate, non-discriminatory considerations. In this regard, the Respondent maintains that the Complainant was terminated solely for poor performance and that his protected activity played no role in its decision. The evidence bearing on this issue consists of the testimony from the Complainant and the Respondent's general manager, Mr. Zartmann, who presented sharply conflicting versions of the pertinent events. After carefully considering the testimony of these two witnesses in light of the entire record and based on my observations of their demeanor on the witness stand, I find Mr. Zartmann's testimony that he counseled the Complainant about his performance and the time it took him to complete deliveries and that he notified the Complainant on December 16, 1999 that he would be terminated after Christmas to afford him time to find another job to be entirely credible. Mr. Zartmann testified consistently and answered all questions directly and without equivocation or evasion. In addition, his testimony that the Respondent decided in mid-December to terminate the Complainant for poor performance, but to