DATE: April 23, 1990
CASE NO. 90-STA-2

IN THE MATTER OF

JAMES E. LEACH,
   COMPLAINANT,

v.

B.R.F. TRUCKING COMPANY, INC.,
   RESPONDENT.

BEFORE:    THE SECRETARY OF LABOR

   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).

   The employee protection provision of the Act, as relevant to this case, 49 U.S.C. app. § 2305(b), prohibits an employer from discharging an employee for refusing to operate a motor vehicle in two circumstances: (1) when such operation constitutes a violation of any federal rules, regulations, standards or orders applicable to commercial motor vehicle safety; or (2) because of an employee's reasonable apprehension of danger due to an unsafe condition.¹ In the present case, Complainant alleged that Respondent discharged him for refusing to operate a vehicle which was unsafe due to faulty brakes and steering, when such operation would have constituted a violation of 49 C.F.R. § 392.7.² Complainant further alleged that operation of the truck in this condition would have been dangerous. Respondent contended, however, that Complainant was fired for his unreasonable refusal to complete an assignment (i.e. to take a load to New Jersey in the designated truck). Respondent further asserts that Complainant refused instructions to have the truck repaired, if necessary.

   The burdens of proof and production applicable to proceedings under the Act were accurately stated by the ALJ.³ See generally McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Order, July 9, 1986, slip op. at 10-11. In order to establish a prima facie case, a Complainant must show that he engaged in protected activity, that he was subject to adverse employment action, and that his employer was aware of his protected activity when it took the adverse action. After a prima facie case has been established, the burden shifts to the employer to rebut the presumption of discrimination by producing evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. Complainant must then establish that the reason proffered by the employer is not the true reason for the adverse action.

   Based on my acceptance of the ALJ's credibility determinations and factual findings, I conclude that Complainant failed to establish a prima facie case of retaliatory discharge based on protected activity under Section 2305(b). The ALJ correctly concluded that this case turns on a credibility determination and that the credible evidence of record demonstrated that Complainant's discharge was due to his unreasonable refusal to get any necessary repairs for the truck and to drive the load to New Jersey as instructed, and did not result from any protected refusal to drive the truck. As the ALJ also specifically found, the credible evidence of record does not support Complainant's allegations that the truck was unsafe or that he could not get it repaired. R.D. and O. at 7-8. These findings preclude Complainant from establishing that he was engaged in protected conduct under either prong of the prohibitions provided at Section 2305(b). Consequently, I hold that Complainant failed to show that he was engaged in any protected activity and therefore, cannot establish a prima facie case of discriminatory discharge.⁴

   Accordingly, the complaint is denied.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C

¹

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.

49 U.S.C. app. § 2305(b).

²

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). See Roadway 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.