I disagree with respondent's reading of Robinson. The facts presented in Robinson are very similar to the facts presented in this claim. Some discussion of the facts present in Robinson is necessary. Robinson was scheduled to make his usual run when he observed snow and ice, making the roads dangerous. Robinson stated that the television reports advised against anyone driving on the highways due to the weather conditions. Robinson called the dispatcher for his employer and reported that he had no intention of making his scheduled run and that he was reporting himself off of duty. Robinson proceeded to tell the dispatcher that he could not pull his vehicle out of his driveway and that he did not believe it was safe to drive in the weather conditions. Robinson was told that if he did not report to work, that he would be considered to have resigned from his employment. Robinson did not report to work.

   The Secretary for the United States Department of Labor ("Secretary") found that Robinson had engaged in protected activity. Respondent correctly states that the Secretary found that a reasonable interpretation of § 392.14 would apply "whenever a driver encounters hazardous weather conditions whether before his dispatch from the terminal or when he is on the road." Id. at 5. Reading this quote independent of the facts in Robinson would lead to the conclusion that respondent has drawn. However, reading the quote in connection with the facts presented in Robinson clearly indicates that the driver may invoke this protection before actually arriving at the terminal for dispatch. Such a reading of Robinson is justified by the Secretary's finding that Mr. Robinson had not reported to the terminal, yet was found to have engaged in protected activity.

   Respondent is correct that the decision as to whether complainant would violate §392.14 by driving in the hazardous conditions is one that should be made jointly between respondent and complainant. However, when complainant refuses to drive because of hazardous weather conditions and respondent disagrees with that assessment, the determination of whether the activity is protected falls within the province of the fact-finder. The Secretary clearly stated in Robinson that when such a situation arises, "it is appropriate to examine the record evidence as to whether conditions during the period [complainant] would have been driving" create a hazardous condition making it unsafe to drive. Id. at 6. Therefore, whether such hazardous conditions existed, entitling complainant to the protection of the STAA, at the time of the refusal to drive becomes a question of fact for the fact finder. As such, summary decision is inappropriate as a genuine issue of material exists.

   Respondent also alleges that summary decision is warranted on complainant's retaliation claim. Respondent states that complainant's "only real argument" for the warnings pertaining to tardiness and failure to follow instructions is that the warnings were "not merited." See Respondent's Reply Brief, p. 6. The allegation by complainant that the warnings were not merited creates an issue of fact as to whether the actions were pretextual. Complainant alleges that he was not late and that he was never given the instructions that he is accused of not following. The determination of the truthfulness of these allegations is a credibility determination that must be made by the court. Therefore, respondent is not entitled to summary decision on these issues.

   IT IS HEREBY ORDERED that respondent's motion for reconsideration is DENIED.

       ROBERT J. LESNICK
      Administrative Law Judge

RJL:JBM