of malfunctions reported by him on November 17 were not repaired by the mechanics prior to his departure. Finally, I reject, as not supported by substantial record evidence, the ALJ's finding that Ertel provoked Ames following his protected refusal, thus "instigating" his own discharge.

    Ertel did not submit a Vehicle Inspection Report (V.I.R.) after being taken out of service on November 13 because all defects had been repaired prior to completion of the work day. T. 49-50, 101-102. After being taken out of service on November 17, Ertel provided Jimmy Giroux with the State inspection materials and a V.I.R. T. 90-100; Exh. RX-1.

    Gary Giroux testified that drivers were required to document any defects found during the pre-trip inspection on a V.I.R. and to present the V.I.R. to a mechanic so that repairs could be made before departure from the truck yard. If the pre-trip disclosed no defects, then the driver turned in the V.I.R. at the conclusion of the work day with any defects documented that had developed in the interim. T. 143, 184-185. Giroux disputed Ertel's understanding that abbreviated pre-trip inspections were encouraged, T. 161, and testified that in his view Ertel's being taken out of service was directly attributable to his inadequate pre-trip inspections, T. 159, 163-164. According to Giroux, Ertel's being stopped and taken out of service was a reason for his decision to discharge Ertel. T. 170-171.

    In contravention of portions of Gary Giroux's testimony, the V.I.R. form, see Exh. RX-1, states: "This report must be completed and turned in at completion of each day's work or tour of duty on both tractor and trailer." It does not direct the documentation of defects at any earlier point in the work day. In addition, findings contained in a U.S. Department of Transportation Motor Carrier Safety Investigation tend to refute Giroux's testimony that written documentation of defects uniformly was required. T. 104-106, 111, 116; Exh. CX-2, pp. 1, 21-26. Finally, Ertel's testimony regarding the limited repairs actually made by the Giroux Brothers mechanics during the pre- trip phase is quite plausible in light of the small number of mechanics on duty, the comparatively large number of vehicles scheduled, and the mere two-hour time period during which all pre-trip repairs for all vehicles could take place. That tractors were permitted to leave the yard with leaking fuel injectors, for which the mechanics alone were responsible, strongly suggests that the mechanics did not make requisite examinations and repairs. See T. 175-178. Based on my consideration of the record, I find that cursory pre-trip inspections were encouraged by management, that drivers were expected to report any defects orally to the mechanics before departing, that completion of the V.I.R. forms was required only

at the conclusion of the workday, and that the mechanics did not repair all reported defects prior to the vehicles' morning departures.

    The remaining factual aspect in dispute is the November 17 conversation between Ertel and Mike Ames, the dispatcher, which preceded Ertel's discharge. Mr. Ertel testified regarding this incident, as did Gary Giroux. Giroux neither witnessed nor overheard the exchange. The record does not include testimony by Mr. Ames.

    The Ames exchange marked the culmination of considerable apprehension on the part of Mr. Ertel. Ertel testified that when he refused to remove the out-of-service sticker and to drive the tractor back to the garage, Jimmy Giroux "got mad," Exh. RX-3, p. 3, and "called [him] a baby or something like that, we got to come pick you up . . . . " T. 65. See T. 15-16. When the Girouxs arrived at the tractor "one of them said . . . you could have just driven it back to Worcester . . . . " Id. Gary then removed the sticker and drove the tractor to the garage. Ertel returned in the van driven by Jimmy Giroux. T. 66. Ertel testified:

Q. And did you have a discussion with [Jimmy Giroux) in the van?

A. Yeah, we were talking about I said I hope that I wasn't going to get into trouble for not driving the tractor back. And that was about the extent of it.

Q. And what did he say?

A. He didn't say much. He really didn't.

Q. You didn't get a response to that one way or the other?

A. He didn't really respond, no. He didn't want to talk. So that's why I knew I was in trouble.

Q. Do you recall saying anything else during this 20-minute drive?

A. No.

Q. Nothing? You said nothing and he said nothing?

A. There wasn't, there was no conversation going on.

T. 67.

    The van arrived at the garage ahead of the tractor, and Ertel went inside to report to Ames, the dispatcher. Ertel asked if there was a tractor available for him to pick up the trailer which he had been instructed to leave in Connecticut. Ames said "we don't have another tractor." T. 68. "I [Ertel] said do you have anything else that you want me to do and he (Ames) said no." Id. Ertel suggested that they telephone him that evening about his work schedule for the following day. Ames then told Ertel to wait a few minutes, that the Girouxs wanted to see him. Ertel testified in a lengthy answer:

I said okay. Then I'm talking and just joking I said, . . . the amount of times that I broke down by the side of the road or been put out of service, I says you should put some sleepers on this tractor . . . and make it more comfortable for me. It was a joke . . .and he was joking too at first . . . and then he started . . . saying about nobody else has this problem . . . you're always breaking down and getting put out of service. What happened with the deliveries wasn't the fact that I was too slow, I was learning . . .the area that they were servicing. It's just that the tractors kept on getting broke down. There was one day it was four times it broke down and had to be jumped. I was not responsible for those things . . . . he was trying to . . . say it was my fault that fuel injectors were weeping and that I was getting put out of service and I said it's not my responsibility . . . . I said do you have anything that you want me to do or do you want me to go home or what and he said why don't you just wait around for awhile.

And I was there a good half an hour waiting around and finally I said . . . do you want me to work or not . . . and he didn't say anything and then I said it again, do you want me to work for you or not. He says. . . you're fired. . . . . I says you can't fire me, I says you're not the boss and he says well, I just did and then I left.

T. 68-70. See also Tr. 17-18, 71-76; Exh. RX-3, p.4.

private outburst in some manner provoked by employer). Ertel testified:

[F]inally I just said are you going to let me work or are you going to fire me . . . what are you going to do? I just wanted--at that point he said there was no work for me and nothing for me to do there and he kept on saying stay here and hang around . . . and I couldn't see what for and so finally I says do you want me to work or don't you and he says well, you're fired. T. 19-20.

    In the face of this testimony, the ALJ found that in the concluding stages of the exchange:

Complainant could no longer stand receiving criticism of his work, and he told Mr. Ames "either let me work or fire me." Mr. Ames did not respond to that statement, and Complainant, refusing to let discretion be the better part of valor, again threw down the gauntlet and said, "either work me or fire me." Mr. Ames, apparently at that point had enough, and thus fired Complainant.

R.D. and O. at 4-5, Finding No. 10. The ALJ subsequently found, R.D. and O. at 7, that Ertel's conduct was "extremely provocative," and that Ertel "actually dared Mr. Ames to terminate his employment." Based upon my examination of the record in its entirety, I conclude that these findings are not supported by substantial evidence, and I do not accept them. The ALJ's failure to credit, or even to discuss, Ertel's account of the exchange is unexplained, as is his apparent decision to credit an account closer to that offered by a hearing witness, Gary Giroux, who was not present during, and did not overhear, the exchange. I fully accept Mr. Ertel's testimony describing the exchange between Mr. Ames and himself, T. 19-20, 68-70, and I find that it occurred as he testified.

    I turn now to the legal analysis appropriately applied in this case. I conclude that the ALJ erred in his analysis by presuming that only direct evidence would substantiate a finding of causation and by holding that Complainant had not established

a prima facie case of unlawful discrimination. The burdens of proof and production adopted for use in STAA proceedings derive from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). See Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). The complainant employee must make a prima facie showing sufficient to support an inference that protected conduct was a motivating factor in the employer's decision to take adverse action. The employer may rebut this showing by producing evidence that the adverse treatment was motivated by a legitimate, nondiscriminatory reason. The employee then must establish that the reason proffered by the employer is not the true reason. The employee may persuade either directly by showing that the unlawful reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence. See McGavock v. Elbar, Inc., No. 86-STA-5, Final Decision and order issued July 9, 1986, slip op. at 10-11.

    In order to establish a prima facie case, Ertel must show that he engaged in protected conduct, that he was subject to adverse employment action, and that his employer was aware of his protected conduct when it took the adverse action. Ertel also must present evidence sufficient to raise the inference that the protected conduct was the likely reason for the adverse action. On November 171, Ertel refused to carry out the instruction given by Jimmy Giroux that he remove the out-of-service sticker and drive the unrepaired tractor back to the Worcester garage. T. 64-65 (Ertel), 168 (Giroux). The operation of the tractor in these circumstances would have constituted a violation of "Federal rules, regulations, standards, or orders applicable to commercial motor vehicle safety or health." 49 U.S.C. app. § 2305(b) (1982). The pertinent regulation appears at 49 C.F.R. § 396.9(c), and prohibits the operation of any motor vehicle declared out of service as well as the removal of the "out of service vehicle" sticker until all required repairs are completed. Ertel's refusal thus constituted activity protected under 49 U.S.C. § 2305(b). Ertel's discharge on the afternoon of November 17 clearly constituted an adverse employment action.

    In concluding that Ertel had not proved that he was discharged because of his protected refusal, the ALJ erroneously focused on a perceived lack of evidence that dispatcher Ames

    In order to rebut Ertel's prima facie showing, Giroux Brothers was required to produce evidence that its adverse action was motivated by a legitimate, nondiscriminatory reason. The ALJ chose the "words" with Ames as the motivation for Ertel's discharge in the absence of any "direct" evidence that Ames knew about Ertel's protected refusal. The ALJ's choice was premised exclusively on his mistaken conclusion that Ames' pronouncement had effect. The relevant focus, instead, is on Gary Giroux, who alone possessed the authority to discharge employees and who ratified Ertel's discharge.

    I conclude that the "pre-trip failure" rationale was a pretext for Ertel's discharge. I am not persuaded that Giroux relied on this asserted ground. Giroux's belief was highly unreasonable. Moreover, Ertel had experienced substantial mechanical difficulty prior to November 17 without having been subject to any manner of discipline. T. 18-19. I credit Ertel's testimony that he made the required pre-trip inspections to the extent possible under the circumstances and that the mechanics did not repair all reported defects. I also do not find this to be a case in which the employer harbored an honest, albeit mistaken, belief that the employee engaged in misconduct, thereby removing the situation from the pretext mode. There, "the circumstances would have to provide substantial indication that the employee is not innocent before the employer's belief could be credited." NLRB v. Charles Batchelder, Co., Inc., 646 F.2d 33, 42 n.1 (2d Cir. 1981) (Newman, J., concurring). That is not the case here.

    The ALJ found with regard to the November 13 shutdown that "[r]espondent's management concluded (whether correctly or incorrectly) that some of the cited deficiencies could have been remedied at the terminal before Complainant departed on his route if he had adequately performed his required pre-trip vehicle inspection before leaving the terminal" (emphasis added). Finding No. 7, R.D. and O. at 3. This finding leaves open the question whether they would have been remedied. In considering the November 17 shutdown, the ALJ stated: "I find the deficiencies of faulty lights, faulty brakes, and excessive steering lash should have been discovered by Complainant if he had adequately performed the required pre-trip inspection." Finding No. 8, R.D. and O. at 3. However, defects that should be detected logically may not be detected, despite conscientious inspection. With the exception of leaking fuel injectors for which Ertel was cited on both occasions, the violations found were of the type generally subject to detection by drivers during pre-trip inspections assuming their existence at the time of inspection. Detection of the faulty brakes cited on November 17 is questionable because the adjustment required was "minor," rendering the alignment problem difficult to detect visually. Ertel was not supplied with a gauge for this purpose. T. 55.

    The significance of the ALJ's Findings Nos. 7 and 8 is unclear. The subject surfaces again in Finding No. 10 where the

ALJ states that the exchange between Ames and Ertel "proceeded to get heated with Mr. Ames informing Complainant that the breakdowns and recent out-of-service situations probably could have been avoided if Complainant would have adequately performed his pre-trip vehicle inspection." R.D. and O. at 4-5. Ames' accusation was largely unfounded in that Ertel would have been shut down on both occasions for leaking fuel injectors for which he indisputedly had no responsibility. In any event, Findings Nos. 7 and 8 in no manner preclude my conclusion that Respondent did not in fact rely on this asserted rationale in discharging Ertel.

    The remaining rationales proffered by Giroux for Ertel's discharge are that he was "stopped" on November 13 and 17 and that he argued with Mike Ames. I similarly view these grounds as pretext. The implied rule that Giroux Brothers drivers were discharged due to being stopped did not in fact exist, thus squarely rendering this ground a sham. See NLRB v. Charles Batchelder Co., Inc., 646 F.2d at 42 n.1. Gary Giroux's testimony is unequivocal that the fact that a driver's vehicle required towing due to an accident, mechanical problems, or a "shutdown" had never precipitated a discharge, and that Giroux had discharged for accidents only "if the person is driving around like a maniac." T. 172.

    The Ames incident additionally appears to have been seized upon as a convenient occurrence for facilitating the discharge. Preliminarily, I question whether Respondent even met its burden of production with regard to the "insubordination" rationale, Giroux's specific testimony being that he discharged Ertel because he had "argue(d)" with Ames. T. 171. After the establishment of a prima facie case, 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." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. The evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. Id. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255.

    In any event, assuming the sufficiency of Gary Giroux's testimony, this explanation is not persuasive. It is uncontroverted that Ertel did not use vulgar or profane language.

His contribution to the exchange does not appear to have been particularly abrasive. Taken together, Ertel's testimony representing a first-hand account and Giroux's hearsay testimony establish that Ertel attempted to joke with Ames. Ames criticized Ertel's job performance. Ertel responded that the breakdowns and shutdowns were not his fault. Ertel eventually chafed at Ames' insistence that he wait there for in excess of a 30-minute period without being assigned further work. Ertel finally demanded to know what the company intended to do--work him or fire him. I do not find here the abusive and hostile behavior, use of obscene language, and presence of an incorrigible or cavalier attitude generally comprising insubordination. See Dunham v. Brock, 794 F.2d 1037, 1039 (5th Cir. 1986). Additionally, I am not persuaded, given Ertel's testimony of what actually transpired and Giroux's abbreviated testimony of Ames' account, that Ames related to Giroux an account that in any manner approached true insubordination.

    In sum, the "inadequate pre-trip inspection" rationale does not convince me largely because other drivers frequently experienced mechanical problems and shutdowns as had Ertel on prior occasions. Ertel therefore was "singled out" on this basis following his protected refusal. I similarly do not find plausible Giroux's explanation that the "words" with Ames motivated him, when the exchange involved no profanity, incorrigibility, or abusive behavior on Ertel's part. The remaining possible motivation is Ertel's protected refusal. In the particular circumstances presented here, this rationale is highly plausible, and I find that it most likely motivated Gary Giroux to discharge Ertel. Ertel had refused to drive the out- of-service tractor back to the garage in contravention of Federal regulations, an activity that Gary Giroux had no compunction about undertaking. As a result, the Giroux Brothers were inconvenienced to the extent that they were required to leave work, drive to Ertel's location, and perhaps attempt roadside repairs. The inconvenience was compounded by the fact that Ertel's refusal likely was unexpected. Otherwise the Girouxs would not have had the tractor towed and left just over the State line, directing Ertel to telephone them from that location for further instructions. If, as Respondent suggests, Resp. Br. 18, there was a "final straw" in Ertel's employment, this Complainant's protected conduct - was it. Accordingly, I find that Respondent's proffered legitimate, nondiscriminatory reasons for discharging Complainant are unworthy of credence and that

Respondent took adverse employment action against Complainant because of his protected activity.

    I find that Complainant Ertel established that the Respondent Giroux Brothers violated that STAA. Accordingly, Respondent IS ORDERED to offer Complainant reinstatement and to pay Complainant appropriate backwages from the date of his improper discharge

    SO ORDERED.

       ELIZABETH DOLE
       Secretary of Labor

Washington, D.C.