While I recognize that a complainant's initial complaint should not be construed as a formal legal pleading which may serve to limit a suit, see Richter v. Baldwin Associates, 84-ERA-9 (Sec'y Mar. 12, 1986), it is evident that Complainant here made reference to a single protected activity not only in his complaint, but also in his interrogatories, deposition, pre-hearing statement, and at the hearing. At no point, other than in his post- hearing brief, did Complainant allege that he had engaged in multiple protected activities for which he was terminated. Courts have struck down similar attempts by other parties to change theories after the hearing, where they have "reassessed the field, decided [their] old argument was lame, and now seek to ride a fresh mount in a new direction." U.S. v. Slade, 980 F.2d 27, 30 (1st Cir. 1992).

    Applying the foregoing due process standards to the facts in this case, I find that Respondent would be prejudiced if I considered Complainant's new theories of liability. Respondent was entitled to a clear statement of the theory on which Complainant intended to proceed prior to the post-hearing submissions. For example, since Complainant did not identify the October 22 and 28, 1998, events as alleged protected activity, Respondent had no reason to develop evidence regarding those dates, such as eliciting testimony from the dispatcher or other personnel with whom Complainant may or may not have communicated, or otherwise pursuing additional cross examination regarding Complainant's asserted fatigue and alertness, and the appropriateness of the routes he chose to drive.

    I also find that these additional issues were not raised and litigated by the implied consent of the parties, which is only established where it appears that the parties understood the evidence to be aimed at the unpleaded issue, and should not be interpreted as allowing parties to change theories in midstream. See Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 358 (6th Cir. 1992). Here, it is clear that the evidence regarding Complainant's activities on October 22 and 28, 1998, was not presented by Complainant for purposes of establishing that he engaged in protected activities; rather, it was presented by Respondent as evidence of its legitimate reasons for Complainant's termination.

    Finally, it is noted that Complainant had ample opportunity to cure any perceived deficiencies in his case by amending the complaint, but has not done so. See Stephenson v. NASA, 94-TSC-5 (ALJ June 27, 1994); see alsoDaves v. Payless Cashways, Inc., 661 F.2d 1022 (5th Cir. 1981) ("liberality in pleading does not bestow on a litigant the privilege of neglecting [his] case for a long period of time"). Thus, I conclude that the only issue for determination in this case is whether Complainant engaged in protected activity on October 31, 1998, and whether such activity resulted in his unlawful termination under the Act.

    On October 29, 1998, at 10:27 a.m., dispatch sent a message to Complainant asking him why he was not in Memphis. TR 65-66; JX 1:31. Complainant informed dispatch that he had made the mathematical error regarding his hours and estimated that he would arrive in Memphis on October 29, 1998 by 12:30-12:45 p.m. TR 65-66; JX 1:32-36. At 12:12 p.m., Complainant realized that he made another error in calculating his distance to Memphis, and informed dispatch to add another 1.5 hours to the estimated time of arrival he had previously submitted. TR 68; JX 1:38. At 1:45 p.m. on October 29, 1998, Complainant delivered the load to Memphis, Tennessee. TR 59; JX 2:29.

    On cross-examination, Complainant admitted that he was asleep in his truck when the facility at Huntley opened for truck loading. TR 113. In addition, Complainant admitted that he was late delivering the load to Memphis. TR 111.

    After delivering the load to Memphis, Complainant was given orders to drive a load from Memphis to Fairburn, Georgia. Complainant testified that on October 29, 1998, at 4:48 p.m., while he was still in Memphis, he sent an "out of hours" message to the dispatch center. TR 68-69; JX 1:40; JX 2:29. At 11:00 p.m., dispatch sent a message to Complainant inquiring whether he could start driving towards Georgia at midnight. JX 1:44. Complainant informed dispatch that he would start driving in the morning, and reminded dispatch that he did not have many hours available to drive. TR 75-76; JX 1:45.

    On October 30, 1998, at 6:39 a.m., dispatch sent a message to Complainant instructing him to "get moving." TR 76; JX 1:46. Complainant testified that he did not receive the message because he was sleeping in his truck. TR 76; JX 1:46. At noon, Complainant began driving in Memphis to pick up the freight due in Georgia. JX 2:30. At 4:13 p.m., Complainant sent a message informing the dispatch center that he would not be arriving in Georgia by the 5:00 p.m. deadline. TR 78; JX 1:48. Dispatch told Complainant that his late arrival was not a problem, but instructed him to arrive as soon as possible. TR 78; JX 1:49.

    Greene testified that on October 31, 1998, he planned to dispatch Complainant on a load from Georgia to Whitehouse, Florida, TR 200-201; that Complainant refused to take the load because the truck he was driving needed servicing, and made a comment about his physical and mental condition to drive, TR 201; that he then attempted to map out the trip for Complainant and explained that there was a way for him to drive to Florida that would accommodate his safety concerns, TR 201-202. Further, Greene testified that after realizing that Complainant was not going to accept the dispatch to Florida, Greene instructed Complainant to drive to the terminal and meet with his supervisor on Monday morning. TR 201-202. Greene then left the building and did not return to work on either Sunday or Monday. TR 207-208. In addition, Greene stated that he did not at any time between October 31 and November 2, discuss Complainant's refusal to accept the dispatch to Florida with Hartline. TR 206.

    Complainant testified that on November 2, 1998, he met with "Mr. Greene" at Respondent's terminal in Georgia. TR 93. According to Complainant, "Mr. Greene" presented him with a termination slip, which Complainant refused to sign because he believed the reasons stated for his termination on the ship were not true. TR 94-95; JX 3. Complainant also testified that Hartline was not present when he was terminated. TR 96. Hartline, on the other hand, testified that when he arrived at the terminal on November 2, 1998, he sent a message to Complainant requesting that he come to the office, and when Complainant arrived, Hartline took him into Greene's office for privacy, TR 234; that once inside, Hartline explained to Complainant that he was being terminated for his two service failures in delivering the Memphis and Maryland freight, TR 235; that Complainant did not respond to his statements and refused to sign the termination slip, TR 236; and that Hartline had not spoken with Greene, and thus was not aware of Complainant's refusal to accept the load to Florida, TR 239. Greene's testimony in this connection was that he was not at the terminal on November 2, 1998, because his wife was having surgery, and that he did not have any role in the termination meeting. TR 207-208. As I found both Greene's and Hartline's testimony entirely credible, I am convinced and find that neither of them knew of the other's communications with Complainant and it was Hartline, not Greene, who met with Complainant on November 2, 1998.

    With respect to the termination slip presented to Complainant on November 2, 1998, it stated that he was fired for failing to respond to dispatch inquiries for 33 hours after delivering freight to Louisville, Kentucky. In addition, the slip stated that Complainant delivered a load after the scheduled delivery time because he required rest after not sleeping for over 60 hours, and that he failed to notify dispatch that he was delivering the load to Memphis late until after the scheduled delivery time had passed. JX 3. It is noted in this connection, that on cross examination Complainant admitted that he did not protest that his termination was unfair, or that he was being fired in violation of federal law, nor did he deny the assertion that he had service failures. TR 128.

    Once a case has been fully tried on the merits, it is no longer necessary to determine whether a complainant has presented a prima facie case. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia, ARB No. 98-103, ALJ No. 97-STA-30 (ARB July 8, 1998) once the employer has produced evidence to show that the complainant was subjected to adverse action, such as termination, for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case). Instead, the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence in establishing that the reason for his discharge was his protected safety complaint. See Pike v. Public Storage Companies, Inc., ARB No. 99-072, ALJ No. 1998- STA-35 (ARB Aug. 10, 1999); Ass't Sec'y & Ciotti, supra; Waldrep v. Performance Transport, Inc., 93-STA-23 (Sec'y Apr. 6, 1994).

    Under the Act, a complaint need not explicitly mention a commercial vehicle safety standard to be protected. The statute requires only that the complaint "relate " to a violation of a commercial motor vehicle safety standard. Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984). Furthermore, internal complaints to management are protected activity under the whistleblower provision; the complainant, however, must prove by a preponderance of the evidence that he actually made such an internal complaint. Williams v. CMS Transportation Services, Inc., 94-STA-5 (Sec'y Oct. 25, 1995). In addition, it has been held that a threat to enforce motor carrier safety regulations is protected under the STAA's employee protection provision, 49 U.S.C. § 31105(a)(1)(A) (the "complaint" section). Williams v. Carretta Trucking, Inc., 94-STA-7 (Sec'y Feb. 15, 1995).

    Once Complainant has proven that he engaged in a protected activity, he then must prove by a preponderance of the evidence that Respondent took adverse action against him. Respondent's termination of Complainant's employment on November 2, 1998 was clearly such an adverse action.

    Although Complainant has established that he engaged in protected activity and that Respondent took adverse action against him, he must also demonstrate by a preponderance of the evidence that the reason for his discharge was his protected safety complaint. See Pike v. Public Storage Companies, Inc., supra; Ass't Sec'y & Ciotti, supra; Waldrep v. Performance Transport, Inc., supra. Complainant must show either that his protected conduct more likely motivated the employer or that the employer's proffered explanation is incredible. Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992).

    As set forth above, the evidence in the present case is that after Complainant made two complaints over the computer dispatch system on October 31, 1998, in response to Greene's request that he commit to a pre-planned dispatch, TR 86-88, he was instructed by Greene to attend a meeting at the Heartland terminal on November 2, 1998, TR 93-94, and that when he arrived at the office, two days later, "Greene" fired him because he failed to respond to a dispatcher for 33 hours and had delivered a load from Sears late to Memphis. TR 94-96.

    Based on the credited testimony of Greene and Hartline, however, I disagree with Complainant's conclusion that such chronology (alone) establishes that the reason for the termination was the asserted safety complaints. See Bank v. Chicago Grain Trimmers Assoc., Inc., 390 U.S. 459, 467, reh. denied, 391 U.S. 929 (1968); N.L.R.B. v. Jacob E. Decker & Sons, 569 F.2d 357, 364 (5th Cir. 1978).

    First, it is significant that Greene, the person to whom the complaints were made, testified that he did not play any role in the firing of Complainant, TR 209, and, as found herein, that in fact Greene was not present at the meeting where Complainant was terminated on November 2, 1998. TR 208-209. Second, it is found that Greene never told Hartline that Complainant had made these complaints or refused the dispatch. TR 203, 206-207, 209-210. Third, Hartline's testimony is credited to the effect that he decided to terminate Complainant on October 29, 1998, after the Sears load was delivered late and there was no communication between Complainant and dispatch for more than 33 hours, TR 226, 229-230; that he (Hartline) did not tell anyone about his decision because he feared that someone might inform Complainant of his impending termination before the trucking equipment could be secured, TR 230-232; and that Hartline never spoke with Greene regarding Complainant's refusal to accept a dispatch for safety reasons, nor heard about it from anyone, prior to the termination meeting on November 2, 1998. TR 239.

    In summary, therefore, based on the testimony provided by Greene and Hartline, it is clear that Hartline was not aware of Complainant's asserted protected activity when he terminated Complainant on November 2, 1998, and the evidence establishes that Hartline had in fact made his decision to terminate Complainant on October 29, 1998, which was two days prior to any safety-related complaints made by Complainant. The Secretary of Labor has held that where an employer does not have knowledge of the employee's protected conduct, it can not be causally established that the employer's decision to take adverse action was motivated by the employee's protected conduct. Perez v. Guthmiller Trucking Co., 87-STA-13, 25 (Sec'y Dec. 7, 1988).

    Accordingly, based on the totality of the record evidence in this case, I find that the decision to terminate Complainant's employment was a disciplinary action dictated by legitimate, non-prohibited considerations and was not in retaliation for any complaint or threat(s) to file a complaint with the federal government regarding safety violations. It is thus concluded that Complainant was not discriminated against under the Act and the complainant must be DISMISSED.

    SO ORDERED

       ALFRED LINDEMAN
       Administrative Law Judge

San Francisco, California
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NOTICE: This Recommended Decision and Order will automatically become the final order of the Secretary unless, pursuant to 29 C.F.R. § 24.8, petition for review is timely filed with the Administrative Review Board, United States Department of Labor, Room S-4309, Frances Perkins Building, 200 Constitution Avenue, N.W., Washington, D.C. 20210. Such petition for review must be received by the Administrative Review Board within ten business days of the date of this Recommended Decision and Order, and shall be served on all parties and on the Chief Administrative Law Judge. See 29 C.F.R. §§ 24.8 and 24.9, as amended by 63 Fed. Reg. 6614 (1998).