This proceeding arises under the employee protection provision of the
Surface Transportation Assistance Act (STAA) 49 U.S.C. app. § 2305 (1982), which
prohibits covered employers from discharging or otherwise discriminating against employees
who have engaged in certain protected activities.
Complainant Tucker alleges that he was discharged from his position as
an over-the-road truck driver for Respondent because he refused to drive a city truck that did not
have an air-ride seat, that had no seat belts, contained litter, and that exceeded the maximum
weight permitted under Federal regulations. Respondent contends that the only reason
Complainant gave for refusing to drive was the lack of an air-ride seat, that city trucks are not
required to have air-ride seats, that the truck had seat belts, that the truck was not littered, and
that the weight of the truck was within Department of Transportation prescribed limits.
Subsequent to a hearing on the merits of the complaint, Administrative
Law Judge (ALJ) Daniel Lee Stewart issued a Recommended Decision and Order concluding
that Respondent did not discharge Complainant in violation of the STAA. In his decision, the
ALJ makes clear that he found that Complainant refused to drive the truck solely because he
preferred an air-ride seat to a stationary seat. R.D. and O. at B. The ALJ also found that there
was no evidence supporting Complainant's allegations that operation of the truck he was assigned
to drive would have violated any Federal rule or regulation, or would have injured his back.
R.D. and O. at 9.
[Page 2]
Based on a thorough review of the record, I conclude that the ALJ's
findings and conclusions are supported by substantial evidence and are in accordance with law.
51 Fed. Reg. 42,091 (1986) (to be codified at 29 C.F.R. Part 1978); see § 1978.109(c)(3).
As noted in Palmer v. Western Truck Manpower, Case No. 85-STA-6, issued January
16, 1987:
Where the standard of review of an ALJ decision is whether the findings of
fact are supported by substantial evidence in the record as a whole, the ALJ's credibility
determinations will not be disturbed by the reviewing authority unless they
"conflict with a clear preponderance of the evidence" or "are 'inherently
incredible and patently unreasonable'." Cordero v. Triple A MachineShop, 580 F.2d 1331, 1335 (9th Cir. 1978).
Slip op. at 7.
Accordingly, I adopt and append to this order ALJ Stewart's
Recommended Decision and Order Dismissing Complaint of June 23, 1987.
