On November 1, 2000, Mr. Jackson amended his complaint to allege that Wyatt Transfer had retaliated against him for filing Vehicle Inspection Reports by denying him the opportunity to work for four days. On November 15, 2000, the undersigned issued a pre-trial order indicating that the hearing would be limited to the loss of wages between October 16, 2000 and October 19, 2000.

   At the hearing, the parties notified the Court that Wyatt Transfer had discharged Jackson on December 8, 2000. Jackson alleged that Wyatt Transfer discharged him in retaliation for filing complaints about commercial motor vehicle safety. Considering the seriousness of the employment action, the Court broadened the scope of the hearing to include the issue of Jackson's discharge and allowed the parties to testify about the matter.

   Notwithstanding the possible lack of notice prior to the administrative hearing, due process is not offended if an agency decides an issue that the parties fairly and fully litigated at a hearing. When parties fully litigate an issue, they obviously have notice of the issue and have been given an opportunity to respond. This satisfies the requirement of administrative due process. Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992). The court in Martin emphasized that "[t]he fundamental elements of procedural due process are notice and an opportunity to be heard." Yellow Freight System, Inc. v. Reich, 27 F.3d 1133. In this case, the undersigned allowed the parties to supplement the record post-hearing to ensure that they had the opportunity to fully litigate the issue of Jackson's discharge.

   The undersigned must conclude that Wyatt Transfer had adequate notice of Jackson's allegations. Therefore, this case will not be limited to the issues raised in the initial complaint investigated by OSHA or the pre-trial order issued by the undersigned. See Brame v. Consolidated Freightways, Case No. 90-STA-20, Sec. Final Dec. and Order June 17, 1992.

Whether Respondent violated 49 U.S.C. § 2305(a) by withholding work from Complainant for four days in October 2000 or by discharging Complainant in December 2000.

   Wyatt Transfer hired Mr. Jackson as a truck driver on December 7, 1998. (Tr. at 5.) On May 24, 2000, Jackson filed a complaint with OSHA in which he stated that his employer forced him to drive tractors that emitted hazardous levels of carbon monoxide and noise. At that time, he stated, "I am afraid that if I refuse to drive these trucks, my employer will force me to quit or be fired." He also alleged that his employer discouraged him from reporting defects on Driver Vehicle Inspection reports. After investigating the complaint, the Secretary of Labor found that reasonable cause did not exist to believe that Wyatt Transfer had violated Section 31105(a) and/or (b) of the Act.

   Jackson returned to work around October 23, 2000 and continued to work until December 8, 2000. (Tr. at 28.) Prior to his return, Wyatt Transfer installed a new seat in tractor 172. (Cx. 1.) Jackson testified that he drove tractor 172 and did not have any problems with it. (Tr. at 29.) He also stated that he did not have any problems with trucks during the months of November and early December. (Tr. at 30-31.)

   Jackson alleges that Wyatt Transfer discriminated against him in violation of Section 405 of the Surface Transportation Act. The Act provides in pertinent part:

No person shall discharge, discipline, or in any matter discriminate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because such employee...has filed any complaint or instituted or caused to be 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.

   To establish a prima facie case of discrimination under the Act, Jackson must prove by a preponderance of the evidence that: (1) he engaged in protected activity, (2) that Wyatt Transfer was aware of the activity, (3) that he was subjected to adverse employment action, and (4) the existence of a casual 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, Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op at 5-6; Kahn v. United States Sec'y of Labor, 64 F.3d 261, 277 (7th Cir. 1995); Zessin v. ASAP Express, Inc., Case No. 92-STA-0033, (Final Dec. and Order of the Secretary, January 19, 1993). The Court notes that both parties are pro se. While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).

   Once a prima facie case is established, the burden of production shifts to Wyatt Transfer to articulate a legitimate nondiscriminatory reason for its employment decision. If Wyatt Transfer rebuts the prima facie case, then Jackson may demonstrate that the proffered reason was a pretext for discrimination. Id.; see also Wrenn v. Gould, 808 F.2d 493, 500-01 (6th Cir. 1987); and Jackson v. Pepsi-Cola, Dr. Pepper Bottling Co., 783 F.2d 50, 54 (6th Cir.), cert. denied, 478 U.S. 1006 (1986).

   Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of demonstrating intentional discrimination rests with Jackson throughout the proceeding. Where evidence of a dual motive exists, i.e., where there are legitimate reasons for a discharge in addition to unlawful reasons, Wyatt Transfer bears the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of Jackson's protected activity. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989) Once Wyatt Transfer produces evidence sufficient to rebut the "presumed" retaliation raised by a prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 510-511 (1993)

Four Day Period

   Jackson engaged in protected activity if he "filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard or order..." 49 U.S.C. app. § 2305(a). Internal complaints to management are protected activity in all Federal circuits under the STAA. Doyle v. Rich Transport, Inc., 93-STA-17 (Sec'y Apr. 1, 1994). Where the complainant in an STAA action makes complaints to his supervisor "relating to" alleged violations of Department of Transportation (DOT) regulations, these complaints constitute protected activity under the STAA even if the alleged violation is ultimately determined to be meritless. Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992) (citing Allen v. Revco D.S., Inc., 91-STA-9 (Sec'y Sept. 24, 1991), slip. op. at 6, n.3.).

   In this case, Jackson argues that Wyatt Transfer discriminated against him because he filed a complaint with the Department of Labor. The complaint alleged that Wyatt Transfer violated Department of Transportation safety provisions relating to carbon monoxide and noise exposure. See 49 C.F.R. § 392.66 and 49 C.F.R. § 393.94. He also argues that Wyatt Transfer discriminated against him for filing various Driver's Inspection Reports with the company in which he documented a myriad of safety problems and concerns with the trucks he operated. Based on the foregoing information, Jackson established that he engaged in protected activity when he filed complaints relating to alleged violations of DOT regulations.

   Jackson also argues that Wyatt Transfer subjected him to adverse action by withholding work from him for four days in October 2000. In Ass't Sec'y & Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995), the Secretary found that the complainant's uncontradicted testimony that the employer engaged in adverse action satisfied the requirement for his prima facie case. Applying the Secretary's reasoning, this Court finds that Jackson's testimony established the adverse action element of his prima facie case. Moreover, the record reflects that Wyatt Transfer was aware of the protected activity when it took the adverse action against Jackson.

   Jackson must raise the inference that his protected activities motived the adverse action in order to make his prima facie case. The proximity in time between protected conduct and adverse action alone is sufficient to establish the element of causation for purposes of establishing a prima facie case. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989) (temporal proximity is sufficient as a matter of law to establish the final element in a prima facie case of retaliatory discharge); accord Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984).

   On Friday, October 13, 2000, Jackson filed a Driver's Inspection Report for tractor 172 in which he documented the lack of oscillation in the driver's seat. When Jackson reported to work on Monday, October 16, Mr. Chewning informed him that he did not have a tractor available for Jackson to use. During the course of that week, Jackson missed four days of work because Mr. Chewning maintained that he did not have a suitable tractor available for Jackson. The Court finds the temporal proximity between Jackson's complaints and Wyatt Transfer's adverse action establishes the prima facie element of causation. Therefore, the Court finds that Jackson established his prima facie case.

   However, Wyatt Transfer articulated a legitimate nondiscriminatory reason for its conduct that rebuts Jackson's prima facie case. Mr. Chewning testified that Jackson could not work for the four days in October 2000 because Wyatt Transfer did not have a tractor that satisfied Mr. Jackson's needs. On Monday, October 16, Mr. Chewning told Jackson to meet with Mr. Coltrain prior to returning to work to find a tractor with a proper seat. For some reason, Mr. Jackson did not meet with Mr. Chewning until Tuesday afternoon. As soon as possible after Mr. Jackson and Mr. Coltrain found a suitable tractor, Mr. Chewning allowed Jackson to resume his driving assignments. On Wednesday afternoon, Mr. Jackson documented noise and fume problems relating to the replacement tractor, which was the only other tractor available to Mr. Jackson that had a proper seat for him. Mr. Coltrain stated that he supervised the installation of a proper seat into Jackson's tractor on October 20 and Mr. Jackson resumed driving on October 23. Based on the foregoing information, the Court finds that Wyatt Transfer satisfied its burden of production and overcame the inference of causation in this case.

   Therefore, Mr. Jackson bears the ultimate burden of demonstrating by a preponderance of the evidence that this legitimate reason is a pretext for discrimination. Although Mr. Jackson argues that Wyatt Transfer had trucks available for him to use during this four day period, there is no evidence in the record to support his contention. Wyatt Transfer allowed Mr. Jackson to resume working as soon as he and Mr. Coltrain located a tractor that accommodated his special seating requirement. Unfortunately, he could not continue driving that vehicle because of its documented problems with noise and fumes. Besides Jackson's bare assertion that other suitable trucks were available at that time, there is no evidence in the record that Wyatt Transfer had another tractor that satisfied Mr. Jackson's needs. Wyatt Transfer installed a suitable seat into Jackson's original tractor on October 20, 2000, at which point Mr. Jackson resumed work.

   However, Wyatt Transfer produced a legitimate, non-discriminatory reason that rebuts Mr. Jackson's prima facie case. Mr. Chewning testified that he dismissed Mr. Jackson because of his substandard driving record. Mr. Webb, Wyatt Transfer's insurance agent, stated that a reckless driving ticket within the last three years would not be acceptable to the insurance carrier. According to Mr. Chewning, the insurance agent stated that the company had to terminate Mr. Jackson if it wanted to keep its insurance in good standing. The Court finds that this legitimate, nondiscriminatory reason satisfies Wyatt Transfer's burden of production.

   As stated above, Mr. Jackson retains the ultimate burden of persuasion in this case. Unless he can show that Wyatt Transfer's proffered reason is pretextual, then this Court must recommend dismissal of his claim. Mr. Webb's letter indicates that the insurance meeting that precipitated Mr. Jackson's dismissal occurred on December 11, 2000. Mr. Jackson argues that Wyatt Transfer dismissed him on December 8, 2000, which would indicate that Wyatt Transfer did not dismiss him because of problems with his driving record. He maintains that Wyatt Transfer discharged him in retaliation for filing safety complaints.

   The relevant inquiry for this Court is whether Mr. Jackson prevailed by a preponderance of the evidence on the ultimate question of Wyatt Transfer's liability. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, 97-STA-30 (ARB July 8, 1998). The record indicates that Wyatt Transfer notified Mr. Jackson on Friday, December 8, that it had a problem with Jackson's driving record and that Mr. Jackson last worked on that day. According to Mr. Webb's letter, he and Mr. Chewning discussed the driving records on Monday, December 11. Mr. Chewning testified that he terminated Mr. Jackson on the day after his meeting with the insurance agent. Despite Mr. Jackson's credible testimony, he has not established that Wyatt Transfer's reasons for terminating him are pretextual. In light of Mr. Chewning's testimony and the other documentary evidence, this Court finds that Mr. Jackson failed to establish by a preponderance of the evidence that Wyatt Transfer discharged him in retaliation for filing safety complaints. Therefore, the Court recommends that Mr. Jackson's complaint be dismissed.

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 safety complaints with his employer and with the Department of Labor under the STAA.

3. Complainant demonstrated that he suffered adverse employment actions when he was unable to work for four days and when he was dismissed.

4. Complainant demonstrated that Respondent had knowledge of his complaints at the time of the adverse employment actions.

5. Complainant presented sufficient evidence to raise the inference that the protected activity was the likely reason for the adverse action.

6. Respondent demonstrated legitimate non-discriminatory reasons for its actions.

7. Complainant failed to demonstrate that Respondent's articulated reasons for withholding work from Complainant and for Complainant's termination were pretextual.

   On the basis of the foregoing, IT IS HEREBY RECOMMENDED that the complaint filed under the STAA by Theodore Jackson be dismissed.

      RICHARD K. MALAMPHY
      Administrative Law Judge

RKM/kap
Newport News, Virginia

NOTICE: This Recommended Decision and Order and the administrative file in this matter will be forwarded for review by the Administrative Review Board, U. S. DEPARTMENT OF LABOR, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. See 29 C.F.R. § 1978.109(a); 61 Fed. Reg. 19978 (19960.