A Yes.

Q And did you terminated for (sic) for failure to follow the orders and the rules and regulations of the company?

A Right. He continually disobeyed my orders.

Q And is that the only reason he was fired, Mr. Hill?

A Yes.

    Mr. Hill testified that when Mr. Davis was initially hired, he was assigned an older truck, Unit #12, and that Mr. Davis complained of problems with his truck "[p]ractically from the time [h]e came to work for the company." (Tr. 166) Mr. Hill testified in particular that in early September, it was brought to his attention by Mr. Davis' dispatcher, Bill Cullen, that Davis' problems had gotten "out of hand." (Tr. 167) When Mr. Hill learned of these problems, he reassigned Mr. Davis Unit #17, which was the most maintenance free truck of that model (Tr. 169), because Mr. Hill indicated that he suspected that Mr. Davis' problems were "phantom." (Tr. 170) Mr. Hill testified that he learned that Mr. Davis continued to have problems even with Unit #17, and with respect to his discussion with Mr. Davis about these problems, Mr. Hill stated, "I have no idea what his problem was." (Tr. 168) Mr. Hill also testified that he considered the "problems" that he had with Mr. Davis at that time (in September) to be "major" (Tr. 221), and I interpret this to indicate that Mr. Hill considered the fact that Mr. Davis voiced so many complaints to be a "major" problem. Regarding the incident in Monroe, Louisiana, where Mr. Davis called to report the driver's seat on his unit had deflated, Mr. Hill's instruction to Mr. Davis to "[p]ut a cushion under your ass, and get that truck over to the shop" (Tr. 174), also inflicates to me that Mr. Hill was annoyed with Mr. Davis on that occasion regarding Mr. Davis' complaints.

    Although Mr. Davis' frequent complaints were not cited by Employer as one of its reasons for his discharge, I find from the testimony of Mr. Hill, as well as his demeanor at the hearing, that Mr. Davis' complaints irritated him and that

these complaints played at least some part in Mr. Hill's ultimate decision to discharge Mr. Davis, though I do not believe that Mr. Hill discharged Mr. Davis solely for his complaints. Given the Secretary's determination, however, that internal complaints are covered under Section 2305(a) and his instruction that I should find the burden of proof to shift to the Employer where the protected activity played a part in the decision to discharge the Complainant, I find that the Employer violated Section 2305(a). Based upon the Secretary's Order of Remand, the Employer bears the burden of proof and persuasion that it was motivated solely by Mr. Davis' unprotected conduct, and I do not find that the Employer has met that burden.

    As previously noted, Mr. Hill indicated that Mr. Davis "continually disobeyed [my] orders." (Tr. 182) In this regard, Mr. Hill testified to three specific orders he gave the Complainant which he believed Mr. Davis disobeyed. Mr. Hill stated that Mr. Davis disobeyed his orders when Mr. Davis was instructed to have repairs to lights made at the International shop in Monroe, Louisiana, and later to have his cab seat fixed. (Tr. 172-174) Mr. Hill also testified that he told Mr. Davis to go to the Kenworth garage, and that he did not follow that instruction immediately. (Tr. 176) Mr. Hill stated that Mr. Davis also violated the rules and regulations of the company by failing to drive any of the vehicles offered him on December 9, 1985. (Tr. 181) When asked whether he would have fired Mr. Davis had the Kenworth incident not occurred, Mr. Hill replied that he did not know. (Tr. 204-5)

    Mr. Hill testified that he saw Mr. Davis' truck parked at home on Saturday morning, December 8, 1985, and that this conduct was a violation of the company rules about which Mr. Davis had been warned on several occasions. (Tr. 177-178) However, Mr. Hill acknowledged that he was aware other drivers stopped at their homes before they came into the shop. (207-208) Mr. Hill also testified that Mr. Davis was "almost always" late, which he defined as three to four times a month, with deliveries. (Tr. 191) However, other than the incident which occurred in Monroe, Louisiana, Mr. Hill did not testify to any specific instances of which he was aware that Mr. Davis was fate, nor did the Employer offer the testimony of Mr. Davis' dispatcher to support these allegations.

    It is evident from the testimony that certainly there were reasons other than Mr. Davis' conduct on December 9, 1985, which entered into Mr. Hill's decision to fire him; and according to the Secretary's Decision and order of Remand where both protected and unprotected conduct, or "legitimate" and "prohibited" reasons entered into the Employer's decision to terminate the employment, "the employer, in order to avoid liability, has the burden of proof and persuasion to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct." [D & O of Remand at p. 8, citing Dartey v. Zack Company, 80-ERA-2, slip op. at 9 (April 25, 1983)].

    In this instance, although Mr. Hill testified that Mr. to Davis was almost always late with deliveries, evidence to support this allegation was not offered, and, furthermore, if this alone were an independent basis for Mr. Davis' discharge, no reason was given why this behavior was tolerated for so long. Likewise, although stooping at home with a unit before reporting to the trucking yard was a violation of company policy, Mr. Hill indicated that at least one other employee violated this rule and that the practice was tolerated, or at least that it did not result in automatic discharge. Neither am I persuaded that Mr. Davis' insubordination, or his failure to follow Hill's orders, would have resulted in his discharge in the absence of his refusing to drive the "unsafe" trucks on the morning of December 9, 1985. Although Mr. Hill testified that there were several occasions upon which he was displeased with the Complainant's performance, the fact remains that despite these incident, Mr. Hill did not terminate Mr. Davis until the final incident occurred on December 9, 1985. Mr. Hill's testimony demonstrated that his patience had grown increasingly thin with Mr. Davis, but it does not show that Mr. Davis' refusal to drive the two "safe" trucks on December 9, 1985, alone would have triggered his decision to discharge Mr. Davis in the absence of his other conduct, at least some of which I now determine to be protected based upon the Secretary's interpretation of the Act.

    In my original decision, I found that Mr. Davis had engaged in protected activity in refusing to drive two trucks on the morning of December 9, 1985, and that this conduct had played a role in the Employer's decision to discharge Mr. Davis. However, I felt this fact was insignificant given the other

reasons alleged by the Employer for Mr. Davis' discharge. on that basis, I concluded that there was no violation of Section 2305(b). In his Order of Remand, however, the Secretary stated that because I had found that Mr. Hill's discharge decision was influenced by both a legitimate and illegal motive, that I had failed to apply the improper burden of proof, for where there are both legitimate and illegal motives the employer has the burden to show by a preponderance of the evidence that it would have reached the same decision absent the protected conduct.

    As previously discussed, I am persuaded and have always been that other factors entered into the Employer's discharge decision in addition to Mr. Davis' refusal to drive the two "unsafe" trucks offered to him on the morning of December 9, 1985, and in accordance With the Secretary's interpretation of this section that a discharge decision which is motivated in any part by the protected conduct is sufficient to constitute a violation, I find that the Employer violated Section 2305(b) of the Act. Just as with the Section 2305(a) violation, based upon the Secretary's Order of Remand, the Employer bears the burdens of proof and persuasion that it was motivated solely by Mr. Davis' unprotected conduct, and I do not find that the Employer has met that burden.

    From almost the inception of his employment with the Employer until the time of his termination, Mr. Davis consistently complained to the Employer about the safety and condition of its equipment. Initially it was my impression that these internal complaints to the Employer did not arise to the level of protected conduct under the Act; however, based upon the Secretary's finding in his Order of Remand that such conduct is protected and once proven shifts the burden of proof to the Employer to demonstrate that the employee was terminated only for unprotected conduct, I reverse my original recommended decision. Although no immediate retaliation was taken by the Employer, it is clear from a reading of the record that Mr. Davis' complaints over his nine month period of employment certainly contributed in some part to his termination, although the specific event of December 9, 1985, could arguably be classified as unprotected conduct on Mr. Davis' part. In sum, Mr. Davis has

proven that at least some of his conduct was Protected, and the Employer has failed to prove that the termination of Mr. Davis would have occurred even in the absence of this protected conduct.

    Based upon the foregoing, I find that Leon Davis is entitled to relief under the Act. Mr. Davis testified that he had paid an attorney who initiated his case $100 and that he still owed $100. (Tr. 237-9) Mr. Davis does not seek reinstatement, but he testified that he was unemployed from December 10, 1985, to the first week of April, 1986, and lost wages of $400.00 per week for this 15 week period. (Tr. 11) The Act provides that where a violation is found, the Secretary of Labor may award compensatory damages and reasonable attorney's fees. Section 2305(c)(2)(B)(iii). In this instance, the amounts alleged by Mr. Davis have not been disputed, and because they appear reasonable to me, I recommend that they be awarded to Mr. Davis. Accordingly, I recommend that the Employer be ordered to pay to Leon Davis $6,000.00 lost wages as compensatory damages and $200.00 in expenses. Mr. Davis has also asked that punitive damages be awarded, but the Act does not provide for such damages and he has cited no authority which authorizes such.

    Based upon the foregoing, the Respondent, H. R. Hill, Inc., is ORDERED to pay to the Complainant Leon B. Davis, lost wages in the sum of $6,000.00, and his costs for attorney fees in the sum of $200.00, all because of the Employer's violations of the Surface Transportation Assistance Act of 1982 as herein discussed.

       C. Richard Avery
       Administrative Law Judge