employed by Respondent, alleged that he was discharged from his employment in
retaliation for having engaged in the protected activity of refusing to load shipments of poison
and shipments of food products on the same trailers. Respondent moved for dismissal of the
complaint claiming that the delay of over a year and a half between notice of the complaint and
receipt of the written findings of the Assistant Secretary for Occuptional Safety and Health
(OSHA) violated Respondent's right to due process. Furthermore, Respondent contended that it
had discharged Complainant because of his managerial deficiencies in handling the loading and
unloading of trucks at the dock.
The ALJ denied Respondent's Motion to Dismiss relying primarily on 29
C.F.R. § 1978.114 (1987), which provides that the time requirements imposed by the
Secretary in the implementing regulations 'are directory in nature" and failure to observe
them does not invalidate action by either the Assistant Secretary or the Secretary, and on the
failure of Respondent to show that it was prejudiced by the delay. R. D. and O. at 2. The ALJ
then went on to find that, although Complainant established that he had engaged in protected
activity and had experienced an adverse action (discharge), he had failed to estabish a
"causal link", R. D. and O. at 7, between the two. Absent this link, Complainant did
not meet his burden for making a prima facie case. The ALJ reviewed all of the evidence,
however, and found that, assuming arguendo a prima facie case, Respondent's stated reasons for
discharge were not pretextual, R. D. and O. at 8-10, and he concluded that Respondent would
have discharged Complainant even if Complainant had not engaged in a protected activity.
Id . at 10. The ALJ thereupon recommended that the complaint in this case be
dismissed.
Based on a thorough review of the record, I conclude that the ALJ's
findings, except as indicated in note 2 supra , and his conclusions are supported by
substantial evidence and are in accordance with law. 29 C.F.R. § 1978.109(c)(3).
Accordingly, I adopt and append to this order ALJ Kerr's R. D. and O. of August 14, 1987.
Complainant Yost's complaint is DENIED and this case is DISMISSED.
SO ORDERED.
DENNIS E. WHITFIELD
Washington, D.C.
[ENDNOTES]
1
2
