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.
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).