uncontested. (Tr. 45-46; Tr. 145; Tr. 151-152). on January 22, Complainant turned down the load from Texas to Oregon. Complainant claims he refused the load because he did not have chains, because he believed chain laws were in effect on the route to Oregon, and because he was sick and on medication. (Tr. 49-50). Respondent claims that Complainant stated, as his sole reason for turning down the load, that he would not go where chain laws were in effect. (Tr. 157; Tr. 165; RX-5).

Mr. Palazzolo's Version of Events Prior to his Termination

    8. Complainant testified that he was employed with Respondent as an over-the-road truck driver from July 17, 1991, until January 22, 1992. He was authorized to drive in forty- eight states. His employment involved hauling dry freight and loading and unloading the truck. Complainant had worked as a truck driver for several other companies prior to his employment with Respondent. He was trained at Bowling Green State Vocational Center in Bowling Green, Kentucky. Complainant is licensed as a truck driver, with a commercial driver's license. (Tr. 19-20). Complainant stated that he had no driving tickets. He had had only one minor accident when he backed into another tractor owned by Respondent. (Tr. 20).

    9. On January 15, 1992, Complainant picked up a load of paper towels or napkins in Paris, Texas. When he got out of the truck to hook up the trailer, he began to feel a pain in his groin area, which became worse as the day progressed. Complainant was worried that he might have developed a hernia. (TR. 23). On the morning of January 16, while he was waiting for his trailer to be repaired, Complainant got the name of a local doctor from one of the mechanics. He then called his coordinator with PST Vans, Dina Sears, who was his immediate supervisor, and informed her that he thought he had a hernia. (Tr. 24). Ms. Sears told Complainant to call Respondent's workers' compensation office. Complainant stated that the workers, compensation office told him to go to a doctor. (Tr. 25).

    10. Complainant went to see a Dr. Burns, who told Complainant that he had a bladder infection which had spread to his testicles. (Tr. 27). Dr. Burns prescribed antibiotics for the infection and Talwin for the pain. (Tr. 30-31). Complainant stated that he took four antibiotics per day and two Talwin per day. He said that the Talwin made him feel "stoned." (Tr. 30).

The Doctor told Complainant not to drive while taking the Talwin. (Tr. 33). Complainant stated that the pain continued for eight days and that he continued to take two Talwin per day until the day he was fired. (Tr. 91-92). A note from Dr. Burns, dated February 18, 1992, stated that Complainant was "unable to drive for several days due to the pain associated with the infection." (PX-2). Complainant testified that he did not feel able to drive his truck safely during the period from January 16, 1992, to January 22, 1992. (Tr. 47).

    11. Complainant called Ms. Sears again on January 16 and reported the diagnosis of a bladder infection. He stated that he told Ms. Sears that he was in a great deal of pain and that the Doctor had prescribed a narcotic, Talwin. (Tr. 40). Complainant stated that he also told Sharon Crawshaw, an employee with PST Vans' workers' compensation office, that he was on a narcotic and antibiotics. (Tr. 89). Complainant was given one and three- quarters of a day off from work. (Tr. 41).

    14. On January 21, 1992, Ms. Millar told Complainant to "deadhead" again, this time to Ft. Worth, Texas. (Tr. 48). On January 22, 1992, Complainant stated that he called Ms. Sears from Ft. Worth and told her again that he needed time off. He stated that Ms. Sears replied that he was jeopardizing his job. Complainant then called Ms. Millar, who offered him a load to Oregon. Complainant told Ms. Millar that he was tired of being manipulated, that he had no chains and that he thought there was a chain law in effect on the route to Oregon. Ms. Millar asked him if he was refusing the load. (Tr. 49). Complainant stated that he told Ms. Millar that he was refusing the load because he did not want to drive through the mountains in the snow, given the condition that he was in. (Tr. 50). Complainant testified that he refused the load because he felt manipulated and because he was taught in driving school that he should not "break the law or endanger other people." (Tr. 53).

    15. Complainant was told to take his truck to the Oklahoma City yard for repairs. (Tr. 54). Once he got to the yard, he received a telephone call from Terry Minnis, his terminal manager, who told him that a manager with PST Vans, Phil Smith, wanted Complainant fired. (Tr. 56). Mr. Minnis spoke with Complainant again the following day, January 23, and told him that there was nothing he could do to get his job back. (Tr. 57- 58). At this time, Complainant called OSHA and filed his Complaint. (Tr. 59).

    16. Hope Cook, Complainant's girlfriend, testified that she accompanied Complainant as a passenger in the truck during the time period relevant to this case. She stated that Complainant had difficulty sitting during this time and that he appeared to be in pain. She stated that she was "scared [of] the way he was driving." (Tr. 124). On January 22, as Complainant was speaking on the telephone, Ms. Cook heard him state that "he wasn't taking the load because he was in a great deal of pain." (Tr. 120).

    17. Silvia Bartlett, an OSHA investigator, testified concerning her calculation of back wages allegedly owed to Mr. Palazzolo by PST Vans. (Tr. 125-139).

The Medical Evidence

    18. Dr. Anthony Middleton was accepted as an expert

witness in the field of urology. Dr. Middleton explained that "epididymitis," the diagnosis of Complainant's condition by Dr. Burns, is "an inflammation or infection of the epididymis which is the structure that lies behind the testicle." (Tr. 257). The Doctor reviewed the notes by Dr. Burns and the January 16, 1992 urinalysis on Complainant. (PX-2; RX-13 (a) and (b)). Based on this evidence and on his experience as a urologist, the Doctor concluded that Complainant had suffered from a "full blown urinary infection" at the time that the urinalysis was done. This severe infection could exist with or without epididymitis. (Tr. 264). The Doctor stated, "the combination of the epididymitis, which is typically very painful . . . plus this strength of pain medication . . . would not make you a very safe driver." (Tr. 261-262). It was noted, however, that the prescription for the pain medication, Talwin, left the dosage of the drug to the patient's discretion. (Tr. 261; PX-1). The Talwin prescription was for fifteen pills. (PX-1).

PST Vans' Version of Events Prior to Mr. Palazzolo's Termination

    19. Kathryn Millar was the dispatcher for PST Vans who handled the Texas, Oklahoma and New Mexico areas. She coordinated the movement of freight out of those areas. (Tr. 141). She testified that she spoke to Complainant on January 15, 1992, and he stated that he had injured his back. (Tr. 142). She referred him to the workers, compensation office. About two days later, Complainant called in to get a dispatch. Ms. Millar testified that Complainant was "anxious to get moving again." Ms. Millar stated that Complainant did not tell her that he was on medication. (Tr. 145). She asked Complainant if he had spoken to the workers' compensation office and he said that he had. She called Sharon Crawshaw, an employee with workers, compensation, who told her that Complainant was "fine." Complainant never indicated to Ms. Millar that he was ill. (Tr. 145-146). Complainant told Ms. Millar that he was "fine" and that he could drive. (Tr. 164). I find that this testimony by Ms. Millar is credible. I accept and adopt this testimony.

    20. On January 22, 1992, Ms. Millar offered Complainant the load to Salem, Oregon. She testified that Complainant said nothing about being sick or on medication. Complainant simply stated, "I don't go anyplace where they have chain laws in effect." (Tr. 156-157). Ms. Millar then made an entry in Complainant's Driver Incident History, stating that Complainant

had turned down the load because "he won't go where there are chain laws." (Tr. 165; RX-4). She called Terry Minnis, Complainant's terminal manager, and reported that Complainant had refused the load. (Tr. 181). I find that this testimony by Ms. Millar is credible and I accept it.

    21. Dina Sears, Complainant's coordinator and immediate supervisor, testified that Complainant called her on January 16, 1992, and told her that he thought he had a hernia. (Tr. 217- 218). She told him to call Sharon Crawshaw in the workers' compensation office. (Tr. 218). Later that afternoon, Complainant called Ms. Sears back and reported that he had a bladder infection. He stated that he needed a couple of days off. (Tr. 219). Ms. Sears stated she did not speak to Complainant until January 21, 1992, when he called to tell her that he was ready for dispatch. She testified that she was working on another job on January 18, and she did not know that Complainant took a load from Oklahoma to Texas during this time. (Tr. 222-223). This statement conflicts with Complainant's testimony that he called Ms. Sears daily from January 16 to January 22 and that, although he told her he was too sick to drive, she pressured him to accept loads. (Tr. 47). Ms. Sears testified that Complainant never told her that he was too sick to drive or that he was on medication that would affect his driving. (Tr. 223). On January 22, Complainant told Ms. Sears that he turned down the load to Oregon because he would not go where he needed chains. (Tr. 224). I find that Ms. Sears testified credibly. I credit and accept her testimony.

    22. Sharon Crawshaw, the workers, compensation manager for PST Vans, spoke with Complainant on January 16, 1992, because Complainant thought that he had a hernia. (Tr. 269). Later that day, Complainant called her to report the diagnosis of a severe bladder infection. He said he was on a medication that would make him drowsy and that he needed a couple of days off. (Tr. 276). Ms. Crawshaw also testified that the requirement of a medical release contained in the PST Vans' Driver Handbook refers only to personal injuries, not to illness. (Tr. 277; PX-4 at 14). However, she normally requires a medical release when a driver has received medication from a doctor. (Tr. 278).

    23. Pamela Trujillo, a coordinator with PST Vans, spoke with Complainant on one occasion. Ms. Trujillo was unsure of the date of this conversation. Complainant told her that he was

unable to take a load from Paris, Texas because he was sick and on medication. (Tr. 303). Complainant testified that the load from Paris, Texas was "repowered" (i.e., given to another driver) while Complainant took time off for his illness. (Tr. 51-52). This places the conversation with Ms. Trujillo on January 16 or January 17. Ms. Trujillo informed Ms. Millar that Complainant could not take the load from Paris, Texas because he was on medication. (Tr. 305).

    24. Dan Donner, an employee with the driver relations office of PST Vans, testified that Complainant told him that he refused the load to Oregon because of chain laws. (Tr. 329). Mr. Donner stated that Terry Minnis, Complainant's terminal manager, made the decision to fire Complainant. On January 23, 1992, Mr. Minnis told Mr. Donner to make an entry in the computer that Complainant was disqualified from driving. Mr. Donner stated that Complainant was fired for "ongoing poor attitude, a late delivery and refusal to take a load into an area because of chain laws." (Tr. 338). This testimony was credible and it is accepted.

    25. Brent Martin, an upper-level manager with PST Vans, stated that Complainant was fired for refusing a load to an area where there were chain laws. (Tr. 388, Tr. 400). Mr. Martin stated that PST Vans has provisions for accommodating drivers dispatched to areas with snow and that the company will pay for the rental of chains where required. (Tr. 390-391).

    26. Several witnesses for PST Vans testified that it is not the policy of PST Vans to fire an employee because he is sick, or to allow any employee to drive who is sick or on medication which would affect his driving. These witnesses testified that if a driver is sick for more than forty-eight hours, their policy is to "re-seat" the truck with another driver. (Tr. 193-194; Tr. 225-226; Tr. 319; Tr. 375-376). A driver who is sick for more than two days would normally lose his equipment and would be given another tractor once he recovers. The sick employee would normally be sent home by bus until he recovered from his illness. The fare would be advanced out of his salary. (Tr. 225-226). The testimony on PST Vans' policy regarding sick drivers was credible and it is adopted and accepted.

    27. Given the credited and accepted testimony of Ms. Sears

and Ms. Millar, Complainant's testimony that he informed both of these witnesses that he was too sick and medicated to drive to Oregon is rejected. Ms. Cook's testimony that Complainant stated, while speaking on the telephone, that he was refusing the load because he was in pain, is not credited in view of the competent and accepted testimony by Ms. Sears and Ms. Millar. I find that Complainant's only stated reason for refusing the Oregon trip was his refusal to drive where there were chain laws in effect.

Allegations Regarding the Payment of Bus Fare to Michigan

    28. Complainant stated that he told Brent Martin, the upper-level manager with PST Vans, that he had filed a Complaint with OSHA. Mr. Martin allegedly told Complainant that PST Vans would pay for food and bus fare for him and for Ms. Cook and implied that he should drop his Complaint. (Tr. 63-64). I did not find this testimony credible.

    The employee protection provision of the STAA provides:

    No person shall discharge, discipline, or in any manner discriminate against an employee with respect to the employee's compensation, terms, conditions, or privileges of employment for refusing to operate a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety of health, or because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment.

49 U.S.C. app. § 2305 (b) (emphasis added).

In addition, the STAA provides that "[i]n order to qualify for protection under this subsection, the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition." Id.

    The Prosecuting Party and the Complainant in this case have alleged that Respondent violated both clauses of section 2305 (b),

by discriminating against Complainant for refusing to operate a vehicle when such operation constituted a violation of a Federal regulation and by discriminating against Complainant for refusing to operate a vehicle because of Complainant's reasonable apprehension of serious injury to himself or the public.

    To establish a prima facie case of discrimination under the STAA, the following must be shown:

1. the employee engaged in protected conduct;

2. the employer was aware of such conduct; and

3. the employer took some action adverse to the employee which was more likely than not the result of the protected conduct.

See Dartey v. Zack Company of Chicago, Case No. 82-ERA-2, Sec. Decision and Final Order, Apr. 25, 1983, slip op. at 7-8. See, e.g., McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final Decision and Order, July 9, 1986, slip op. at 10-11. Accord Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). See also Barr v. ACW Truck Lines, Inc., Case No. 91-STA-42, Sec. Final Decision and Order, Apr. 22, 1992, slip op, at 2-3. The burden of demonstrating discrimination under the STAA lies with the employee, who must prove his case by a preponderance of the evidence. See, e.g., Moon, 836 F.2d at 229; Dartey, slip op. at 7-8.

Discussion

1. Whether Complainant's refusal to drive to Oregon was protected activity under the STAA?

    Complainant testified that he was unable to drive safely during the period from January 16, 1992, to January 22, 1992, because of his illness and because of the effect of the Talwin that was prescribed to relieve his pain. Complainant was warned by his physician that he should not drive while taking the Talwin. (Finding 10). This testimony is uncontested and I accept it. Dr. Middleton also testified that the combination of epididymitis and the strength of the pain medication, Talwin, would adversely affect a person's ability to drive safely. (Finding 18). The physical condition of a driver that could

§ 392.4 Drugs and other substances.

    (a) No driver shall be on duty and possess, be under the influence of, or use, any of the following drugs or other substances:

. . .

    (3) A narcotic drug or any derivative thereof; or

(4) Any other substance, to a degree which renders the driver incapable of safely operating a motor vehicle.

49 C.F.R.§ 392 (1991). Based on Complainant's accepted testimony that he was unable to drive safely on January 22, 1992, because of his illness and because he was taking medication, it is clear that if Complainant had accepted the load to Oregon, he would have been in violation of the regulations cited above.

    Complainant testified that he refused the load to Oregon because his illness and the medication that he was taking made him unable to drive safely through the mountains in conditions where chains were needed. He also testified that he refused the load because he felt that he was being manipulated and because he was taught in driving school not to "break the law or endanger other people." (Finding 14). I accept Complainant's testimony that one reason for his refusal to drive was that he did not want to drive in violation of the law. Thus, since Complainant's work refusal was based, in part, on a refusal to violate Federal law

by accepting the dispatch on January 22, Complainant's conduct qualifies as protected activity under the STAA.

2. Whether Respondent was aware that Complainant refused to drive to Oregon because he was too sick or medicated to drive safely?

op. at 7-9. I find that PST Vans has produced persuasive evidence, sufficient to rebut any prima facie case, that the decision to fire Complainant was motivated solely by legitimate, nondiscriminatory reasons, including Complainant's refusal to drive in areas with chain laws. Finally, Complainant has not shown, and I find no reason to conclude, that Respondent's stated motivation for firing Complainant is unworthy of credence.

    It is ORDERED that the Complaint of Steven Palazzolo in Case No. 92-STA-23 be dismissed.

       JOHN M. VITTONE
       Deputy Chief Judge

JMV/rd/mb