Except as
clarified infra , I adopt the Findings of Fact, id .
at 3-7, as supported by substantial evidence in the record. 29
C.F.R. § 1978.109(c)(3) (1990).
I agree with the ALJ that when Complainant
declined on September 6, 1989, to take two offered runs for
September 7, his refusals constituted protected conduct because
Complainant had insufficient hours available to complete either
run on the 7th under 49 C.F.R. § 395.3 (1989). But
Complainant did not inform Respondent's dispatcher, Angela Josey,
when he refused the runs on September 6, or Respondent's Regional
Director, Robert Alcorn, to whom he complained on the 7th, that
either fatigue or hours of service were the reason(s) for his
refusals. When, on the morning of the 7th, Complainant sought a
longer (and more profitable for the driver) run from Josey than
either of the two runs he had refused on the 6th, her patience
was exhausted, and she barred Complainant from running out of the
Granite Quarry terminal. Even though Alcorn advised Complainant
that he could take runs from Respondent's other terminals, the
bar at Granite Quarry constituted an adverse employment action
under the STAA, since it affected Complainant's "terms,
conditions, or privileges" of employment. 49 U.S.C. app.
§ 2305(b).
The following week, Complainant signed a lease
to drive for another company. When Alcorn learned about the new
lease, he canceled Respondent's lease (which contained an
exclusive driving provision) with Complainant. While Complainant
has established an act of protected conduct and two subsequent
adverse actions, I find that he has failed to meet the other
burdens of his prima facie case.
As the ALJ's discussion of the facts reveals,
dispatcher Josey was not aware when she offered Complainant two
runs on September 6 that Complainant was approaching his maximum
hours or that she (Respondent) had a responsibility to enforce
the hours regulation. Complainant has not established that either
Josey, who imposed the bar at her terminal, or Alcorn, who
declined to rescind it and who later terminated Complainant's
lease with Morgan, knew of Complainant's protected conduct -
i.e. , that he refused to drive when to do so would violate
a federal regulation. Thus the necessary element that Respondent
be aware of the protected conduct has not been established. Even
if awareness is imputed to Josey and Alcorn, Josey's action
barring Complainant resulted from her reaction to Complainant's
effort on the 7th to manipulate his dispatch, and the record
shows legitimate management concern about the effect of such
manipulation on the operation of Respondent's business.3 Nor has Complainant
shown that termination of his lease after he signed a conflicting
lease with another company was pretextual. When a case has been
fully tried on the merits, the task of the fact finder is to
"decide whether 'the defendant intentionally discriminated
against the "employee].' [Citation omitted.] . . . In short,
[the trier of fact] must decide which party's explanation of the
employer's motivation it believes." United States Board
of Postal Serv. Bd. of Governors v. Aiken , 460 U.S. 711, 715-16 (1983). The ALJ did not believe that Respondent's adverse
actions toward Complainant were motivated by Complainant's
protected conduct. Neither do I.
In addition, on the facts here, even under a
dual motive analysis, Complainant's case fails. Regardless of
whether Cdmplainant's refusal of the two runs offered on
September 6 was protected conduct which in some respect motivated
the adverse actions, his solicitation of the longer run on the
7th would have triggered his bar at the Granite Quarry terminal
and his signing the competing driving lease would have triggered
cancellation of his lease with Respondent.
Accordingly, as clarified herein, I adopt and
append the Recommended Decision and Order of the ALJ, and the
complaint in this case is DENIED.
SO ORDERED.
LYNN MARTIN
Washington, DC
[ENDNOTES]
1
2
3
