The ALJ reviewed the record evidence, including the testimony of each witness, in great detail. Very briefly, Complainant and a co-driver were assigned to drive Respondent's Tractor #45 with a trailer from Horizon City, Texas, to Seattle, Washington, where they were to pick up another trailer for delivery in Memphis, Tennessee. They arrived in Seattle on June 1, 1985. Later that same day, when Complainant turned on the ignition of Tractor #45, the oil pressure fell and the engine stopped or "seized". After consulting with Russ Thomsen, Respondent's General Manager, and with Dennis Marino, Respondent's Operations Manager, Complainant and his co-driver left Tractor #45 in Seattle and proceeded in a rental tractor to Ogden, Utah, where they switched to Tractor #64, a company owned unit. Driving en route to Memphis, they had engine problems with ractor #64 and were compelled to pull into a truck stop in Alma, Arkansas, where they were advised that the alternator on Tractor #64 had to be replaced. Marino arranged for a replacement tracd to Alma for use during the remainder of the trip. In order to be transported to Alma for use during the remainder of the trip. In order to attach this replacement tractor to the trailer, it was necessary that Tractor #64.be moved. The mechanic, however, would not take responsibility for any damage to Tractor #64 if it were started without a new alternator. Complainant refused to accept that responsibility himself and waited for the new alternator to be placed in Tractor #64. After the replacement was completed, Complainant and his co-driver proceeded to Memphis. They encountered further problems with Tractor #64 but, following the instructions given to them by Marino when they reported these problems, they continued to Memphis without making further repairs.

Marino's testimony as to the June 5, 1985 conversation with Complainant was not credible. Thus, the ALJ found that Complainant threatened to report Respondent to DOT. This threat, according to the ALJ, was an activity protected under paragraph (a) of section 2305 of the STAA which prohibits, among other things, the discharge of an employee "because such employee . . . has filed any complaint relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order. . ." The ALJ reasoned that an employee's threat to report his complaints to DOT is covered by this statutory language because otherwise employers would be encouraged to terminate-employees before they could file complaints with DOT. R.D. and O. at 10, n.6.

    The ALJ further found that Complainant had established a prima facie case of discriminatory discharge. The ALJ then applied the "dual motive' test and concluded that Respondent had failed to establish that it would have terminated Complainant even if he had not engaged in a protected activity. Accordingly, he found that Respondent had violated paragraph (a) of section 2385.

    The ALJ's weighing of the evidence and his credibility determinations were proper. Accordingly, I adopt the ALJ's factual findings as to the events which preceded Complainant's termination, and find that Complainant advised Respondent, on June 5, 1985, that he would no longer drive broken down equipment, that he would no longer drive in excess of the speed limit, that he would no longer falsify logs, and that he intended to complain to DOT.

did Respondent fail to take corrective action, but Respondent's policies required drivers to engage in such violations. Complainant testified that the schedules set by Respondent for various runs could not be met without exceeding applicable speed limits, and that a driver who arrived late at his destination was considered as not doing his job. T. at 31-40. Complainant further testified that, when a driver took a look at the schedule given him, he would ask Marino whether Marino wanted him to speed:

He [the driver] would say, well, do you want us to speed. He [Marino] said, it is against the law to go over 55 miles an hour. And then you would say, well, look man, you can't make this run legally. He would say, I can't officially say anything about you can't go over 55 miles an hour.

But -- so you were caught in between a situation where in fact you had to do it to fulfill your job.

T. at 37. As the ALJ found, Complainant's testimony was uncontroverted.

    Complainant also testified that drivers were required to note on--their daily logs certain speeds for particular runs even though the actual rate of speed at which they had driven was considerably higher. T. at 34-6. This testimony, too, was uncontroverted.

    In addition, Complainant testified that drivers were compelled by Respondent to fill out the Driver's Vehicle Inspection Report, which is on the reverse side of the Driver's Daily Log, in such a manner as to conceal mechanical defects in the equipment they had driven that trip. The Vehicle Inspection Report (Ex. R-6) requires that the driver check either of two boxes, one box indicating that "I detect no defect or deficiency in this motor vehicle as would be likely to offset the safety of its operation or result in its mechanical breakdown" and the other box indicating that such defects or deficiences were found. The form also requires a listing of all defects or deficiencies found.

    Complainant testified that Respondents' drivers were instructed to check the box which noted that no defects or deficiencies were found, T. at 150-151, and that, had he violated this instruction and listed any such defects, he would have been fired. T. at 207-8. According to Complainant, Respondent's reason for insisting that the drivers indicate no defects or deficiencies in the equipment driven was that Respondent did not want any record on vehicular breakdowns available for inspection by DOT. Marino, who in the normal course of business received the daily-logs from the drivers and was aware that the drivers were not indicating mechanical defects in the Vehicle Inspection Report, admitted that Respondent made no effort to ensure driver compliance with the reporting requirement. Despite the fact that the report form clearly states that it is "Required By The DOT Federal Motor Carrier Safety Regulations,' Marino claimed that he did not know that the form had to be filled out. T. at 274-5. The ALJ found Marino's testimony to this effect to be "almost incredible." R.D. and O. at 10.

    Furthermore, the record contains sufficient evidence from which it can be inferred that Respondent permitted its drivers to drive equipment which is likely to result in a breakdowns On the basis of this evidence the ALJ found that Respondent's mechanics were as much to blame for the seizure of Tractor #45's engine as Complainant. R.D. and O. at 11.

    Since I find that Complainant engaged in a protected activity under § 2305(b), I do not need to decide whether his threat to complain to DOT was protected under paragraph (a) of the same section.

    I also find that Complainant has established that Respond-ent discharged him for engaging in activity protected under section 2305(b). The applicable burdens and order of presentation of proof in cases arising under section 2305 of the STAA are the same as those established for cases arising under the Energy Reorganization Act of 1974 and analogous employee protection statutes covered by 29 C.F.R Part 24 (1985). Nix v. Nehi-RC Bottling Company, Inc., 84-STA-1, issued July 13, 1984, slip op. at 9. These burdens were set forth in the Secretary's decision in Dartey v. Zack Company, 80-ERA-2, issued April 25, 1983. There I held that:

[T]he employee must initially present a prima facie case consisting of a showing that he engaged in protected conduct, that the employer was aware of that conduct and that the employer took some adverse action against him. In addition, as part of his prima facie case, 'the plaintiff must present evidence sufficient to raise the inference that . . . protected activity was the likely reason for the adverse action.' [Citation omitted). if the employee establishes a prima facie case, the employer has the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, nondiscriminatory reasons. Significantly, the employer bears only a burden of producing evidence at this point; the ultimate burden of persuasion of the existence of intentional discrimination rests with the employee. [Citation omitted].

If the employer successfully rebuts the employee's prima facie case, the employee still has "the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision . . . . [The employee] may succeed in this either directly by persuading the court that A discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." [Citation omitted]. The trier of fact may then conclude that the employer's proffered reason for its conduct is a pretext and rule that the employee has proved actionable retaliation for protected activity. Conversely, the trier of fact may conclude that the employer was not motivated, in whole or in part, by the employee's protected conduct and rule that the employee has failed to establish his case by a preponderance of the evidence. [Citation omitted]. Finally, the trier of fact may decide that the employer was motivated by both prohibited and legitimate reasons, i.e., that the employer had 'dual motives."

. . . [I]f the trier of fact reaches the latter conclusion, that the employee has

proven by a preponderance of-the evidence that the protected conduct was a motivating factor in the employer's action, the employer, in order to avoid liability, has the burden of proof or 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. [Citations omitted].

Slip op. at 7-9.

    Review of the record evidence confirms that Complainant carried his initial burden by establishing a prima facie case. Without question, Complainant has shown that he was engaged in protected conduct, that Respondent was aware of that conduct and that Respondent took adverse action against him. Additionally, the evidence as to the existence of a knocking sound in the engine of Tractor #45 prior to its "seizure", Complainant's testimony that be had never received any warnings and had never been suspended, the testimony that another driver who had seized an engine had not been discharged, all constitute evidence which was credited by the ALJ and is sufficient to raise the inference that Complainant's protected conduct was the likely reason for discharge.

    Respondent did articulate a legitimate,, non-discriminatory reason for discharging Complainant. The ALJ, however, found that Respondent's stated reason for Complainant's termination was pretextual. As noted in Dartey, where the employee establishes that the employer's proffered explanation is not credible, the employee prevails. It is only where there are mixed legitimate and illegal motives for the adverse action, that the *dual motive test' is applicable and it is necessary to determine whether the employer would have taken the adverse action against the employee even if the protected conduct had not occurred. That is not the case here. The ALJ, therefore, erred in utilizing the "dual motive" test to determine whether the Respondent violated § 2305. This error, however, is harmless in view of his finding that Respondent's stated reason for Complainant's discharge was pretextual.

    The record supports the ALJ's finding that Respondent's proffered reason for its discharge of Complainant was pretextual. 1, therefore, find that Complainant established a prima facie case of discriminatory discharge which Respondent has failed to rebut. Accordingly, I find that Respondent violated section 2305(b) of the STAA by terminating Complainant for his refusal, on June 5, 1985, to drive in violation of Federal regulations.

    The ALJ further found that Complainant's refusal to move Tractor #64 at the Alma truckstop was not an activity protected by the prohibition in section 2305(b) against the discharge of an employee for refusing to operate a vehicle 'because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment.' I agree with the ALJ's analysis of this allegation. I, therefore, adopt his finding. D. and O. at 11.

1. To reinstate Complainant to his former position with the same terms, benefits, conditions and privileges of employment Complainant would have had if he had not been discharged on June 13, 1985.

2. To pay back wages (less any interim earnings) plus interest to Complainant from June 13, 1985, until the date of his reinstatement. Interest shall be paid pursuant to 28 U.S.C. § 1961 (1982).

3. To restore to Complainant all benefits he was deprived of during the period of June 13, 1985, to the date of his reinstatement.

4. To expunge from its records all material and references relative to Complainant's discharge on June 13, 1985.

       WILLIAM E. BROCK
       Secretary of Labor

Dated: JUL - 9 1986
Washington, D.C.