(a) Prohibitions - (1) A person may not discharge an employee, or discipline or discriminate against an employee regarding pay, terms, privileges or employment, because
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(B) the employee refuses to operate a vehicle because
(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health[.]
49 U.S.C.A. §31105(a).
3 Respondent's truck was equipped with a sleeper berth that would have allowed Journeay to rest while someone else drove. Journeay does not assert that there is anything improper in this arrangement as long as the other driver does not exceed the 10-hour driving limit.
4 OSHA is the agency within the Department charged with investigating complaints that an employer has violated the STAA's whistleblower protection provisions. 29 C.F.R. §1978.102(c) (2000).
5 We note that the ALJ focused his analysis on whether Journeay made out the elements of a prima facie case. However, once the case has been tried on the merits, the question of whether the complainant established a prima facie case is irrelevant. Instead, the question is simply whether the respondent intentionally discriminated against the complainant because he engaged in protected activity. See Carroll v. Bechtel Power Corp., No. 91-ERA-46, slip op. at 11 (Sec'y Feb. 15, 1995). Although the ALJ mischaracterized the issue, the mistake is harmless since the ALJ found that Journeay failed to prove his case of unlawful discrimination.