Administrative Law Judge (ALJ) Thomas M. Burke submitted a
Recommended Decision and Order (R.D. and O.) in this case which arises under the employee
protection provision of the Surface Transportation Assistance Act of 1982 (the Act), 49 U.S.C.
app. § 2305 (1982). In that decision, issued on January 30, 1990, the ALJ recommended
that the case be dismissed because Complainant was not unlawfully discharged. Neither party has
filed a brief in support of or in opposition to the ADJ's R.D. and O. as permitted in the applicable
regulations. 29 C.F.R. § 1978.109(c)(2).
No person shall
discharge, discipline, or in any manner discriminate against an employee with respect to the
employee's compensation, terms, conditions, or privileges of employment for refusing to operate
a vehicle when such operation constitutes a violation of any Federal rules, regulations, standards,
or orders applicable to commercial motor vehicle safety or health, or because of the employee's
reasonable apprehension of serious injury to himself or the public due to the unsafe condition of
such equipment. The unsafe conditions causing the employee's apprehension of injury must be of
such nature that a reasonable person, under the circumstances then confronting the employee,
would conclude that there is a bona fide danger of an accident, injury, or serious impairment of
health, resulting from the unsafe condition. In order to qualify for protection under this
subsection, the employee must have sought from his employer, and have been unable to obtain,
correction of the unsafe condition.
No motor vehicle
shall be driven unless the driver thereof shall have satisfied himself that the following parts and
accessories are in good working order, nor shall any driver fail to use or make use of such parts
and accessories when and as needed:
Service brakes, including trailer brake connections.
Parking (hand) brake.
Steering mechanism.
Lighting devices and reflectors.
Tires.
Horn.
Windshield wiper or wipers.
Rear-vision mirror or mirrors.
Coupling devices.
49 C.F.R. § 392.7.
3These burdens derive from
models articulated and applied in Texas Dept. of Communitv Affairs v. Burdine, 450
U.S. 248 (1981), and Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977). SeeRoadway Exp., Inc. v. Brock, 830 F.2d 179, 181
n.6 (1lth Cir. 1987).
4Inasmuch as this complaint is
dismissed for failure to establish any protected conduct by Complainant, I need not address any
additional issues.