84-STA-11

Robert K. Borland,
   Complainant

    v .

Halls' Motor Transit Co.,
   Respondent

    Administrative Law Judge (ALJ) Thomas M. Burke submitted a recommended decision to me on October 19, 1984 in this case under the employee protection provision of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 2305. Judge Burke recommended that the complaint be dismissed on two grounds, first, that complainant did not engage in any protected conduct because he did not have a reasonable belief that a truck assigned to him was unsafe when he reported it to the state police, and that respondent met its burden under Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274,¹ that complainant would have been discharged for other reasons even if he had not engaged in protected activity.

    The record has been reviewed and it supports Judge Burke's conclusion that respondent met its burden of proving it would have fired complainant even absent any protected activity. Although the ALJ found that complainant did not engage in protected activity, he carefully considered the evidence of the independent, legitimate reasons for complainant's discharge. His finding in favor of respondent on the "dual motive" issue was a sufficient, independent basis for his decision, and I adopt it on those grounds alone.

    The complaint in this case is therefore DENIED.

       FORD B. FORD
       Under Secretary of Labor

Dated: DEC 11 1984
Washington, D.C.

¹The Secretary has consistently applied the Supreme Court's analysis of "dual motive" discharge cases in Mt. Healthy and NLRB v. Transportation Management Corporation, ___ U.S. ___, 103 S. Ct, 2469 (1983), to "whistleblower" cases, see, e.g. Dean Dartey v. Zack Company of Chicago, 82-ERA-2 (April 25, 1983), and Mackowiak v. University Nuclear Systems, Inc., 82-ERA-8 (April 29, 1983); Mackowiak was affirmed on this point by the Ninth Circuit, although it was reversed and remanded on other grounds, 735 F.2d 1159 (1984).