DATE July 31, 1990
CASE NO. 90-STA-9

IN THE MATTER OF

MARTIN W . MONTEER
   COMPLAINANT,

v.

MILKY WAY TRANSPORT COMPANY, INC.,
   RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR

   Before me for review is the [Recommended] Decision and Order (R.D. and O.) issued on April 13, 1990, by Administrative Law Judge (ALJ) Robert L. Cox in this case arising under section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982). The ALJ concluded that Complainant had not engaged in activity protected under the STAA and recommended that the complaint be dismissed. A review of the case record establishes that, for the most part, the AlJ's "Findings of Fact," R.D. and O. at 3-7, are supported by substantial evidence on the record considered as a whole, and thus they are conclusive. 29 C.F.R. § 1978.109(c)(3) (1989). As explained below, however, while agreeing ultimately that the Complainant has not prevailed, I disagree with an aspect of theALJ's legal analysis.

   The ALJ also issued, on April 13, 1990, an Order Denying Respondent's Motion for Award of Attorney Fees and Expenses, with which I agree completely. Cf. Stack v. Preston Trucking Co., Case No. 89-STA-15, Decision and Order of Remand issued April 18, 1990, slip op. at 7-9. the ALJ's April 13, 1990, order which is appended hereto.

   Pro se Complainant Martin W. Monteer contends that he was discharged by Respondent Milky Way Transport Company, Inc., due to his complaints regarding Respondent's refusal to compensate its drivers for layover delays experienced upon reaching a customer's location, where a given driver might spend an extended period waiting to be unloaded, loaded, or dispatched to his next assignment. Complainant argues

that because the hours spent on layover are noncompensable, drivers are encouraged to log them as off-duty or "sleeper berth" hours, regardless of how they are spent, so that the drivers will have available additional "driving" hours for which they are compensated.¹ See Hearing Transcript (T.) 166-168, 324, 331, 342-343, 348-356.

   STAA section 405(a) prohibits employment discrimination because [an] employee . . . has filed any complaint . . .relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a).² The ALJ concluded that Complainant's complaints were not protected because they related to compensation rather than to safety. R.D. and O. at 9-10. However, as my review of the record reveals a safety aspect to the complaints, I am constrained from accepting the ALJ's conclusion. To invoke protection, a complaint need only be "related to" a violation. The violation need not comprise the only or even the predominant subject of the complaint. Here, while lost compensation may have concerned Complainant primarily, Respondent's policy also raised the potential for logging and hours violations, and Complainant was protected in complaining about its effect in that regard.

   In order to establish a prima facie case of unlawful discrimination under the STAA, a complainant must show that he engaged in a 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. By showing that he was discharged following his complaints about Respondent's policy, Complainant met this component. However, a complainant also must present evidence sufficient to raise the inference that the protected activity was a likely reason for the adverse action, and a number of considerations militate against such an inference here.

   First, Complainant's complaints about the policy were ongoing. Although he routinely complained whenever he experienced a layover delay, Respondent never before had taken any form of action against him other than explaining the policy and management's reasons for it. Second, wholly unprotected activity immediately preceded, and apparently operated alone in precipitating, Complainant's discharge.

   Respondent's safety director, Ron Zuroweste, discharged Complainant during their brief, but heated, meeting on April 4, 1989. Zuroweste had not decided to discharge Complainant prior to that meeting. T. 229-230; R.D. and O. at 6. Following his return from a dispatch assignment, Complainant reported to Mr. Zuroweste's office.³ Zuroweste told Complainant that he wanted to discuss his (Complainant's) "attitude" and in particular Complainant's heated conversation with Respondent's dispatcher on April 2.⁴ Complainant advised Zuroweste that it was the dispatcher's attitude that needed to change. Complainant testified: "He had a rotten attitude, too. And I said he's an [expletive deleted] and he's always been an [expletive deleted] and always going to be [an] [expletive deleted]." T. 319. See T. 202. Zuroweste testified: "I asked Mr. Monteer to sit down and we would discuss it . . . . He became profane with me, was standing, shouting loudly. I, at that time, told him he could leave, he was terminated." T. 234.

   While the compensation complaints may have operated to some degree in influencing Zuroweste's impression of Complainant's "attitude," T. 233, the reference focused more particularly on discrete behavior, i.e., Complainant's written refusal to

service a particular customer location, T. 216-217, Complainant's threat to dispose of company property, and Complainant's persistent antagonism towards the dispatcher.⁵ Unformulated prior to the April 4 encounter, Zuroweste's discharge decision issued in direct response to Complainant's recriminations. I view Complainant's comments to Zuroweste as an expression that he would continue to oppose the dispatcher, see T. 320, and as akin to the defiant demeanor that has justified discharge in other circumstances. See Dunham v. Brock, 794 F.2d 1037, 1041 (5th Cir. 1986); compare Kenneway v. Matlack. Inc., Case No. 88-STA20, Final Decision and Order issued June 15, 1989, slip op. at 12-14. That Respondent would discipline Complainant for this behavior was reasonable, and I conclude that it constituted the sole basis for Complainant's discharge. Therefore, Complainant has not shown a causal nexus between his protected activity and Respondent's adverse action, and thus he has not established a prima facie case of unlawful discrimination.

   Accordingly, the complaint in this case IS DISMISSED. The ALJ's Order Denying Respondent's Motion for Award of Attorney Fees and Expenses, attached hereto, is AFFIRMED.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C.

¹Under Department of Transportation regulations, motor carriers are prohibited from permitting or requiring drivers from driving, and drivers are prohibited from driving: (1) more than ten hours following eight consecutive hours off duty or (2) for any period after having been on duty for 15 hours following eight consecutive hours off duty. 49 C.F.R. § 395.3(a) (1989). Depending on a motor carrier's operating schedule, drivers may not drive for any period after having been on duty 60 hours in any seven consecutive days or 70 hours in any eight consecutive days. 40 C.F.R. § 395.3(b). On-duty time is defined as "[a]ll time from the time a driver begins to work or is required to be in readiness to work until the time he is relieved from work and all responsibility for performing work" and includes, inter alla, "[a]ll time at a carrier or shipper plant, terminal, facility, or other property, or on any public property, waiting to be dispatched, unless the driver has been relieved from duty by the motor carrier" and "[a]ll time loading or unloading a vehicle, supervising, or assisting in the loading or unloading, attending a vehicle being loaded or unloaded, [or] remaining in readiness to operate the vehicle . . . ." 49 C.F.R. § 395.2(a)(1) and (5).

²As the ALJ correctly held, internal safety complaints are protected under the STAA. See R.D. and O. at 8-9.

³Complainant's intention was to discuss a letter that Complainant had requested but that Zuroweste had not written. On the following day Complainant was scheduled for a jury trial regarding a speeding infraction, and he previously had requested that Zuroweste write the prosecutor on his behalf so that the violation could be reduced.

⁴Zuroweste testified that Chris Cantrell, Respondent's safety supervisor who "was filling in on the dispatch phones," had called him on his "off duty day at home" to advise him that Complainant "had called and w[as] disgruntled that [he] had to wait to load and had threatened to sell the seats out of our unit." T. 198, 201. The supervisor/dispatcher was concerned that the company might need to impound the truck. See T. 227228. The ALJ found the following with regard to the telephone conversation:

Complainant became "extremely irate" and wanted to know if he was going to get paid for [the required layover] time. Mr. Cantrell replied to the effect of, "What do you think?" . . . Complainant told Mr. Cantrell that another driver there wanted to buy the seats from his truck and he was going to sell them to him. . . . The Complainant concluded, [expletive deleted], and hung up.

R.D. and O. at 5-6.

⁵The antagonism apparently originated with a misunderstanding over expense monies. T. 308-310.