USDOL/OALJ Law Library: STAA Whistleblower Digest, DIVISION IV A -- PRIMA FACIE CASE

USDOL/OALJ STAA Whistleblower Digest
DIVISION IV -- BURDEN OF PROOF AND PRODUCTION
SUBDIVISION A -- PRIMA FACIE CASE

[Last updated June 29, 2015]

[Caution: Prior to 2007, the STAA employed a three-step burden shifting framework derived from the McDonnell-Douglas Title VII framework. In 2007, the STAA was amended to employ instead the AIR21 two-step analytical framework: (1) whether the complainnat has met his burden of establishing that protected activity was a "contributing factor" in the alleged adverse personnel action, and if so, (2) whether the respondent can establish by "clear and convincing evidence" that it would have takne the same adverse action in the absence of the protected activity. See Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014).

This Digest contains casenotes on cases decided under the old framework. Researchers should take care not to rely on caselaw that was supplanted by the 2007 amendments.]

IV. Burden of proof and production

A. Elements; establishing causation

1. Elements, generally

2. Establishing causation element

a. Generally

b. Circumstantial evidence

i. Generally

ii. Proximate timing of adverse action

iii. Showing that respondent's reason for adverse action was baseless

iv. Pattern of retaliation

c. Illustrative cases

d. Requirement that respondent have been aware of protected activity

3. Error to consider respondent's reasons for adverse action at prima facie phase

4. Derivative complaint

[STAA Digest IV A 1]
ALJ'S DISCUSSION OF FACTS UNDER THE McDONNELL-DOUGLAS ANALYTICAL FRAMEWORK DID NOT PREVENT THE ARB FROM AFFIRMING THE ALJ'S DECISION WHERE THE ALJ ULTIMATELY APPLIED THE CORRECT POST-2007 AMENDMENT STAA BURDENS OF PROOF, AND THE ALJ'S PRETEXT ANALYSIS SUPPORTED THE FINDINGS PERTAINING TO "CONTRIBUTORY CAUSE"

In Blackie v. D. Pierce Transportation, Inc. , ARB No. 13-065, ALJ No. 2011-STA-55 (ARB June 17, 2014), the ARB, citing its recent decision Beatty v. Inman Trucking Mgmt. , ARB No. 13-039, ALJ No. 2008-STA-20 (ARB May 12, 2014), affirmed the ALJ's decision finding that the Respondent violated the STAA when it terminated the Complainant's employment, even though the ALJ had employed the McDonnell-Douglas prima facie case/pretext analysis (as erroneously sanctioned by former ARB caselaw). Despite employing the McDonnell-Douglas burden-shifting analysis, the ALJ also made rulings under the correct standard of proof under the STAA as amended in 2007. Further, the ALJ's findings on pretext were supportive of his weighing of the circumstantial evidence in the case, which together with evidence of proximity between the protected activity and the adverse action, supported the ALJ's finding that the preponderance of the evidence established that the protected activity was a contributing factor in the Respondent's decision to take adverse employment action against the Complainant. In a concurring opinion, one member of the Board noted that the McDonnell-Douglas analytical framework "overcomplicates and muddies" the ultimate "contributory cause" question and that an "ALJ need not go through the confusing mental ping pong required by the McDonnell Douglas framework."

[STAA Digest IV A 1]
STAA ANALYTICAL FRAMEWORK; 2007 AMENDEMENTS REPLACED THREE-STEP TITLE VII-DERIVED FRAMEWORK WITH TWO-STEP AIR21 FRAMEWORK

In White v. Action Expediting, Inc. , ARB No. 13-015, ALJ No. 2011-STA-11 (ARB June 6, 2014), the ALJ had recited the correct burden of proof standards applicable to STAA whistleblower complaints, but in denying the complaint relied upon Title VII case law to find that the Respondent established legitimate, non-discriminatory, non-retaliatory reasons independent of the Complainant's protected activity for terminating the Complainant's employment, and that the Complainant failed to establish that these reasons were pretextual. Citing its recent decision in Beatty v. Inman Trucking Mgmt , ARB No. 13-039, ALJ No. 2008-STA-20 (ARB May 12, 2014), the ARB found that although it had sanctioned use of the Title VII framework in past decisions, the 2007 amendments to the STAA replaced the three-step Title VII framework and replaced it with the two-step AIR21 framework, which is more protective of complainant-employees and much easier for complainant-employees to meet. The AIR21 framework involves only two steps: the complainant has the burden of proving that protected activity was a "contributing factor" in the unfavorable personnel action; the respondent then has the burden to establish by "clear and convincing evidence" that it would have taken the same adverse personnel action had there been no protected activity. The ARB remanded to the ALJ for further consideration consistent with the ARB's decision.

[STAA Digest IV A 1]
UNDER 2007 AMENDMENTS TO STAA'S BURDEN OF PROOF FRAMEWORK, THREE-STEP MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK IS NO LONGER APPLICABLE; THE STAA AMENDMENTS EMPLOY A TWO-STEP ANALYTICAL PROCESS: (1) WHETHER THE COMPLAINANT HAS MET HIS BURDEN OF ESTABLISHING THAT PROTECTED ACTIVITY WAS A "CONTRIBUTING FACTOR," AND IF SO, (2) WHETHER THE RESPONDENT CAN ESTABLISH BY "CLEAR AND CONVINCING EVIDENCE," THAT IT WOULD HAVE TAKEN THE SAME ADVERSE PERSONNEL ACTION HAD THERE BEEN NO PROTECTED ACTIVITY

In Beatty v. Inman Trucking Management, Inc. , the ALJ applied the McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) Title VII burden shifting paradigm to the Complainants' STAA blacklisting complaint, and denied the complaint based on his finding that the Complainants had not established by a preponderance of the evidence that the Respondent's articulated, legitimate non-discriminatory reason for filing negative DAC reports about the Complainants was pretext. On appeal, the ARB found that the McDonnell Douglas burden of proof framework was supplanted by the 2007 amendments to the STAA adopted as part of the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 7, 2007). That Act imposed the legal burdens of proof and framework imposed by AIR21:

Under the AIR 21 standard, a new burden of proof framework is established in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a "contributing factor" in the alleged adverse personnel action. Should the complainant meet the "contributing factor" burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by "clear and convincing evidence" that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 8 (footnotes omitted). The ARB described the framework:

The AIR 21 burden of proof framework is far more protective of complainant-employees and much easier for a complainant to satisfy than the McDonnell Douglas standard. As the Federal Circuit explained in Marano v. Dept of Justice , the "contributing factor" standard was "intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a significant, motivating, substantial, or predominant factor in a personnel action in order to overturn that action." The complainant need not demonstrate the existence of a retaliatory motive on the part of the employer taking the alleged prohibited personnel action, that the respondent's reason for the unfavorable personnel action was pretext, or that the complainant's activity was the sole or even predominant cause. The complainant "need only show that his protected activity was a contributing factor in the retaliatory discharge or discrimination." A "contributing factor," the ARB has repeatedly noted, is "any factor which, alone or in combination with other factors, tends to affect in any way the outcome of the [adverse personnel] decision." Thus, for example, a complainant may prevail by proving that the respondent's reason, "while true, is only one of the reasons for its conduct, and another [contributing] factor is [the complainant's] protected activity." Moreover, the complainant can succeed by providing either direct proof of contribution or indirect proof by way of circumstantial evidence.

If the complainant proves that his/her protected activity was a contributing factor in the unfavorable personnel action, the burden shifts to the respondent, in order to avoid liability, to prove "by clear and convincing evidence" that it would have taken the same adverse action in any event. "The clear and convincing evidence standard is the intermediate burden of proof, in between preponderance of the evidence and proof beyond a reasonable doubt. To meet the burden, the employer must show that the truth of its factual contentions is highly probable." Clear and convincing evidence is "evidence indicating that the thing to be proved is highly probable or reasonably certain."

USDOL/OALJ Reporter at 8-9 (footnotes omitted). The ARB acknowledged that it had sanctioned continued use of the Title VII analytical framework in past decisions, but concluded that use of the Title VII methodology had caused confusion and was legal error on its part. The ARB stated that federal appellate courts have recognized that "the statutory adoption of the new burdens of proof in several whistleblower case types has been was coupled with a new analytical framework." Id . at 10. See Stone & Webster Eng Corp. v. Herman , 115 F.3d 1568 (11th Cir. 1997) (ERA recodification); Allen v Administrative Review Board , 514 F.3d 468 (5th Cir. 2008) (analyzing independent burden-shifting framework of SOX and AIR21); Araujo v. New Jersey Transit Rail Operations, Inc. , 708 F.3d 152, 157 (3d Cir. 2013) (in AIR 21 Congress set forth, in place of the McDonnell Douglas burden-shifting framework, a two-part burden-shifting test); Bechtel v. Admin. Review Bd., U.S. Dept of Labor , 710 F.3d 443, 448 (2d Cir. 2013) (in SOX cases, burden-shifting scheme has no basis in relevant law or regulation). The Board stated:

The Title VII framework imposes a three-step analytical process, beginning by requiring from the complainant an initial "prima facie" showing which, if met, is followed by a rebuttal showing by the respondent which, if met, returns the ultimate burden of proof again to the complainant. The STAA amendments instead impose a two-step analytical process that focuses first on whether the complainant has met his burden of establishing that protected activity was a "contributing factor," which entitles the complainant to relief unless the respondent can establish in rebuttal, by "clear and convincing evidence," that it would have taken the same adverse personnel action had there been no protected activity.

USDOL/OALJ Reporter at 10.

[STAA Digest IV A 1]
AIR21 BURDEN OF PROOF STANDARDS APPLY TO STAA, 49 U.S.C.A. 31105 WHISTLEBLOWER COMPLAINTS

In Ass't Sec'y & Bailey v. Koch Foods, LLC , ARB No. 14-041, ALJ No. 2008-STA-61 (ARB May 30, 2014), the ARB noted that the recodification of the STAA made pursuant to the 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266 (Aug. 3, 2007), amended the burdens of proof standard to incorporate the AIR 21 standards set forth at 49 U.S.C.A. 42121(b). See 49 U.S.C.A. 31105(b)(1). The ARB reiterated its recent ruling in Beatty v. Inman Trucking Management, Inc. , ARB No. 13-039, ALJ Nos. 2008-STA-20 and 21 (ARB May 13, 2014), in which the ARB stated that

in its adoption of the AIR 21 burden of proof standards Congress replaced the McDonnell Douglas Title VII burden of proof standards and burden-shifting analytical framework applicable under STAA prior to the 2007 amendments

with a new burden of proof framework in which the complainant is initially required to show by a preponderance of the evidence that protected activity was a contributing factor in the alleged adverse personnel action. Should the complainant meet the contributing factor burden of proof, the burden shifts to the employer who is required, in order to overcome the complainant's showing, to prove by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected conduct.

USDOL/OALJ Reporter at 4, quoting Beatty , ARB No. 13-039, slip op. at 8 (citations omitted).

[STAA Digest IV A 1]
BURDEN OF PROOF AND PRODUCTION UNDER 9/11 ACT AMENDMENTS TO THE STAA; EFFECTIVE DATE

The 9/11 Commission Act of 2007, Pub. L. No. 110-53, 121 Stat. 266, amended the STAA to provide that STAA whistleblower complaints will be governed by the legal burdens set out in AIR21, 49 U.S.C.A. § 42121(b). The ARB found that because the amended provision had no expressed effective date, it became effective on the date of enactment - August 3, 2007, and that the law to be applied is the law in effect on the date that the adjudicator renders its decision. In Salata v. City Concrete, LLC , ARB Nos. 08-101, 09-104, ALJ Nos. 2008-STA-12 and -41 (ARB Sept. 15, 2011), the ARB described the legal burdens under the 2007 amendments:

Under the 2007 amendments to the STAA, to prevail on his STAA claim, [a complainant] must prove by a preponderance of the evidence that his complaints about his truck were protected activity; that his employer ... took an adverse employment action against him; and that his protected activity was a contributing factor in the unfavorable personnel action. Clarke v. Navajo Express, Inc. , ARB No. 09-114, ALJ No. 2009-STA-018, slip op. at 4(ARB June 29, 2011), citing Williams v. Domino's Pizza , ARB 09-092, ALJ 2008-STA-052, slip op. at 5 (ARB Jan. 31, 2011). A contributing factor is "any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision." Williams , ARB 09-092, slip op. at 5. [A complainant] can succeed by "providing either direct or indirect proof of contribution." Id. "Direct evidence is smoking gun' evidence that conclusively links the protected activity and the adverse action and does not rely upon inference." Id . If [the complainant] "does not produce direct evidence, he must proceed indirectly, or inferentially, by proving by a preponderance of the evidence that retaliation" was a contributory reason for terminating his employment. Id . "One type of circumstantial evidence is evidence that discredits the respondent's proffered reasons for the termination, demonstrating instead that they were pretext for retaliation." Id. (citing Riess, ARB 08-137, slip op. at 6). If [the complainant] proves pretext, we may infer that the protected activity contributed to the termination, although we are not compelled to do so. Williams, ARB 09-092, slip op. at 5.

If [the complainant] proves by a preponderance of evidence that his protected activity was a contributing factor in the unfavorable personnel action, [the respondent] may avoid liability if it "demonstrates by clear and convincing evidence" that it would have taken the same adverse action in any event. Williams, ARB 09-092, slip op. at 5 (citing 49 U.S.C.A. § 42121(b)(2)(B)(iv); 29 C.F.R. § 1979.109(a)). "Clear and convincing evidence is [e]vidence indicating that the thing to be proved is highly probable or reasonably certain.'" Williams , ARB 09-092, slip op. at 5, quoting Brune v. Horizon Air Indus., Inc. , ARB No. 04-037, ALJ No. 2002-AIR-008, slip op. at 14 (ARB Jan. 31, 2006) (citing Black's Law Dictionary at 577).

USDOL/OALJ Reporter at 9.

[STAA Digest IV A 1]
BURDENS OF PROOF; GENERAL STATEMENT OF

See Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), for a general overview of the standards and burdens for claims arising under Section 405 of the STAA.

[STAA Whistleblower Digest IV A]

FAILURE TO ESTABLISH A PRIMA FACIE CASE AT HEARING

In Smith v. Sysco Foods of Baltimore , ARB No. 03-134, ALJ No. 2003-STA-32 (ARB Oct. 19, 2004), the Complainant put on a case that was based on the Respondent's policy of assessing its employees penalty points for coming to work late. The Respondent then moved to dismiss the complaint because the Complainant had not presented any evidence that he had engaged in protected activity and therefore had not presented a prima facie case of discrimination. The ALJ granted the motion because he found that the Complainant provided no evidence that he either filed a complaint related to vehicle safety or that he refused to operate a vehicle. The ARB affirmed, noting that although the Complainant was pro se, "the burden of first establishing, and ultimately proving, the necessary elements of a whistleblower claim is no less for pro se litigants than it is for litigants represented by counsel."

[STAA Digest IV A 1]
LEGAL ANALYSIS; ONCE RESPONDENT PRESENTS REBUTTAL EVIDENCE, PRIMA FACIE CASE ANALYSIS IN NO LONGER RELEVANT

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the erred when he described the legal burden of proof in a STAA whistleblower cases in terms of establishing a prima facie case, and then briefly analyzed each element of the claim, but was not clear whether he was using the ultimate burden of proof requirements to prevail or whether he was applying the burden of persuasion requirements to establish a prima facie case. The ARB observed that the Secretary of Labor explained in Carroll v. Bechtel Power Corp. , No. 1991-ERA-46, slip op. at 11 (Sec'y Feb. 15, 1995), that "[o]nce the respondent has presented his rebuttal evidence, the answer to the question whether the plaintiff presented a prima facie case is no longer particularly useful."

[STAA Whistleblower Digest IV A 1]
ANALYTICAL FRAMEWORK; SHANNON DECISION

In Leach v. Basin Western Inc. , ARB No.02 089, ALJ No. 2002 STA 5 (ARB July 31, 2003), the ARB recommended Shannon v. Consol. Freightways , ARB No. 98 051, ALJ No. 1996 STA 15, slip op. at 5 7 (ARB Apr. 15, 1998), aff'd 181 F.3d 103 (6th Cir. May 14, 1999) (table), for a "concise discussion of the principles relevant to evaluation of conflicting evidence pursuant to the McDonnell Douglas paradigm and the dual/mixed motive doctrine in a STAA case."

[STAA Digest IV A 1]
PRIMA FACIE CASE ANALYSIS NOT RELEVANT ONCE CASE FULLY TRIED ON THE MERITS

In Pike v. Public Storage Companies, Inc. , ARB No. 99-072, ALJ No. 1998-STA-35 (ARB Aug. 10, 1999), the ARB adopted the ALJ's recommended decision, but noted in regard to the ALJ's analysis of a prima facie case: "In a case fully tried on the merits, ... It is not particularly useful to analyze whether the complainant established a prima facie case. ... Rather, the relevant inquiry is whether [the complainant] established, by a preponderance of the evidence, that the reason for his discharge was his protected safety complaints." (citation omitted).

IV.A.1. Overview of burden of proof in STAA proceedings

From Mace v. Ona Delivery Systems, Inc., 91-STA-10 (Sec'y Jan. 27, 1992):

Under the burdens of proof in STAA proceedings, complainant must show that he engaged in protected activity, that he was subjected to adverse action, and that Respondent was aware of the protected activity when it took the adverse action. Complainant also must present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. An employee is protected if he "has filed any complaint or instituted or caused to be instituted any proceeding relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). See Davis v. H.R. Hill, Inc., 86-STA-18 (Sec'y Mar. 18, 1987), slip op. at 3-4 (both internal and external safety complaints protected). Cf. Bivens v. Louisiana Power and Light, 89-ERA-30 (Sec'y June 4, 1991), slip op. at 4-5 (citing cases) (internal safety complaints to employer protected under environmental whistleblower laws).

Section 2305(b) of the STAA also prohibits discriminatory treatment of employees in either of two "work refusal" circumstances. First, an employee may not be disciplined 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 . . . ." ("When" clause.) Second, discipline is prohibited for refusing to operate a vehicle "because of the employee's reasonable apprehension of serious injury to himself or the public due to the unsafe condition of such equipment." ("Because" clause.) This second ground for refusal carries the further requirement that the unsafe condition causing the employee's apprehension of injury must be such that a reasonable person, under the circumstances, would perceive a bona fide hazard. Finally, section 2305(b) stipulates that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."

[STAA Digest IV A 1]
DIRECTED VERDICT/JUDGMENT AS A MATTER OF LAW

In Scott v. Roadway Express, Inc. , 1998-STA-8 (ALJ Nov. 6, 1998), the ALJ, viewing the evidence in a light most favorable to Complainant and drawing all reasonable factual inferences in Complainant's favor, granted Respondent's "motion for a directed verdict" on Complainant's section 405A complaint upon completion of Complainant's case, finding that Complainant had not established a causal connection between his protected activity and his discipline or discharge. The ALJ noted that current FRCP 50, now provides for a "Judgment as a Matter of Law" rather than a "directed verdict," but that the change was not intended to change the standards under which "directed verdicts" could be granted. The ALJ also noted that the use of "directed verdicts" appears to have the imprimatur of the Sixth Circuit in STAA cases, citing Moon v. Transport Drivers, Inc. , 836 F.2d 226 (6th Cir. 1987). The ALJ, however, refused a similar motion for a directed verdict at the close of Complainant's evidentiary presentation on a section 405B,"refusal to drive" complaint, finding that Complainant had established a prima facie case. He also denied a motion for a directed verdict on the issue of whether the Secretary of Labor should defer to the outcome of an action under a collective bargaining agreement.

[STAA Digest IV A]
PRIMA FACIE CASE ANALYSIS IS NOT RELEVANT ONCE COMPLAINT IS FULLY TRIED ON MERITS

Where the case is fully tried on the merits, it is not necessary to determine whether the complainant presented a prima facie case and whether the respondent rebutted that showing. Once the respondent produces evidence in an attempt to show that the complainant was subjected to adverse action for a legitimate, nondiscriminatory reason, it no longer serves any analytical purpose to answer the question whether the complainant presented a prima facie case. Instead the relevant inquiry is whether the complainant prevailed by a preponderance of the evidence on the ultimate question of liability. If he or she did not, it matters not at all whether he or she presented a prima facie case. If he or she did, whether a prima facie case wsa presented is irrelevant. Ass't Sec'y & Ciotti v. Sysco Foods Co. of Philadelphia , 97-STA-30 (ARB July 8, 1998).

[STAA Digest IV A]
GENERAL BURDENS OF PROOF AND PRODUCTION

In Clean Harbors Environmental Services, Inc., v. Herman , __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the First Circuit recited the generally accepted statement of burdens of proof and production in an STAA whisteblower proceedings:

A prima facie case of unlawful termination under the STAA requires a showing that the employee engaged in protected activity, that the employee was subjected to adverse employment action, and that there was a causal connection between the protected activity and the adverse action. See Moon , 836 F.2d at 229. Clean Harbors took adverse employment action against Dutkiewicz, but contests that Dutkiewicz engaged in any protected activity, and that there was a causal link between any protected activity and the adverse employment action.

The familiar burden-shifting analysis employed under Title VII has also been employed under the STAA. Where a complainant has made out a prima facie case of retaliatory discharge, the employer may rebut that showing with evidence of a legitimate, non-retaliatory reason for the discharge. The burden then shifts back to the complainant to prove that the proffered reason is pretext for unlawful retaliation. See id . (adapting framework set forth in McDonnell Douglas Corp . v. Green , 411 U.S. 792 (1973), to a STAA claim). Where evidence of a dual motive exists, i.e., where there are legitimate reasons for a discharge in addition to the unlawful reasons, the employer bears the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee's protected activity. Cf. Price Waterhouse v. Hopkins , 490 U.S. 228, 242 (1989). Both parties have accepted this as the standard and we do not reexamine it.

1998 WL 293060 *9.

[STAA Digest IV A]
GENERAL BURDENS OF PROOF AND PRODUCTION

In Byrd v. Consolidated Motor Freight , 97-STA-9 @ 4-5 (ARB May 5, 1998), the ARB summarized the burdens of proof and production in STAA whistleblower cases:

To prevail on a whistleblower complaint, a complainant must establish that the respondent took adverse employment action because he engaged in protected activity. A complainant initially may show that a protected activity likely motivated the adverse action. Shannon v. Consolidated Freightways , Case No. 96-STA-15, Final Dec. and Ord., Apr. 15, 1998, slip op. at 5-6. A complainant meets this burden by proving (1) that he engaged in protected activity, (2) that the respondent was aware of the activity, (3) that he suffered adverse employment action, and (4) the existence of a "causal link" or nexus," e.g., that the adverse action followed the protected activity so closely in time as to justify an inference of retaliatory motive. Shannon , slip op. at 6; Kahn v. United States Sec'y of Labor , 64 F.3d 261, 277 (7th Cir. 1995). A respondent may rebut this prima facie showing by producing evidence that the adverse action was motivated by a legitimate nondiscriminatory reason. The complainant must then prove that the proffered reason was not the true reason for the adverse action and that the protected activity was the reason for the action. St. Mary's Honor Center v. Hicks , 509 U.S. 502, 506-508 (1993).2/

2/ Although the "pretext" analysis permits a shifting of the burden of production, the ultimate burden of persuasion remains with the complainant throughout the proceeding. Once a respondent produces evidence sufficient to rebut the "presumed" retaliation raised by a prima facie case, the inference "simply drops out of the picture," and "the trier of fact proceeds to decide the ultimate question." St. Mary's Honor Center , 509 U.S. at 510-511. See Carroll v. United States Dep't of Labor , 78 F.3d 352, 356 (8th Cir. 1996) (whether the complainant previously established a prima facie case becomes irrelevant once the respondent has produced evidence of a legitimate nondiscriminatory reason for the adverse action).

IV A 1 Source of analysis in STAA cases

Cases arising under the employee protection provision of the Surface Transportation Assistance Act are reviewed by the Secretary of Labor in accordance with the same prescription for allocating burdens of proof and production or going forward with the evidence as applied to analogous employee protection laws under 29 C.F.R. Part 24. See, e.g., Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983). See also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981) and NLRB v. Transportation Management Corp., 103 S. Ct. 2469 (1983).

Nix v. Nehi-RC Bottling Co., Inc., 84-STA-1 (Sec'y July 13, 1984) (first STAA decision by the Secretary).

IV.A.1. Source of test

The burdens of proof and production for use in proceedings under the employee protection provision of the STAA were derived from models articulated and applied in Texas Dept. of Community 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 Express v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987).

Brothers v. Liquid Transporters, Inc., 89-STA-1 (Sec'y Feb. 27, 1990), slip op. at 4 n.3.

IV.A.1. Elements of prima facie case

Under the burden of proof in proceedings under the STAA employee protection provision, in order to establish a prima facie case, the complainant must show by a preponderance of the evidence that he engaged in protected activity, that he was subjected to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992), slip op. at 2; Dartey v. Zack Co. of Chicago, 82-ERA-2 (Sec'y Apr. 25, 1983), slip op. at 7-9 (case under analogous provision of ERA). The complainant must also present evidence sufficient to raise the inference that the protected activity was the likely reason for the adverse action. Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), slip op. at 2.

IV.A.1. Elements of prima facie case under the STAA

Adapting the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L.Ed.2d 668 (1973) to the STAA, the plaintiff has the initial burden of establishing a prima facie case of retaliatory discharge. Once a prima facie case is established, one which raises an inference that protected activity was the likely reason for the adverse action, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination.

To establish a prima facie case of retaliatory discharge, the complainant must prove:

That he or she engaged in protected activity under the STAA;
That he or she was the subject of adverse employment action; and
That there was a causal link between his or her protected activity and the adverse action of the employer.

Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987).

IV A 1 Burden of articulation for prima facie case

Corroborating evidence is not necessary to establish a prima facie case. In order to present a prima facie case the complainant need only to present evidence sufficient to prevail if not contradicted and overcome by other evidence. Ass't Sec'y and Brown v. Besco Steel Supply, 93-STA-30 (Sec'y Jan. 24, 1995), slip op. at 3. Thus, a complainant's testimony that he was forced to falsify logs by itself is sufficient to establish a prima facie case, i.e., the complainant would prevail on the point if respondent does not introduce evidence rebutting and overcoming that allegation. Toland v. Burlington Motor Carriers, Inc., 93- STA-35 (Sec'y Feb. 27, 1995).

IV.A.1. Overview of burden of proof in STAA proceedings

Section 405 of the STAA was enacted to encourage employees in the transportation industry to report noncompliance with applicable safety regulations governing commercial motor vehicles and to protect these "whistle-blowers" by forbidding the employer to discharge, or to take other adverse employment action, in retaliation for their safety complaints. Brock v. Roadway Express, Inc., 481 U.S. 250 , 258, 262 (1987); 49 U.S.C. app. § 2305(a), (b). The STAA does not, however, prohibit an employer from discharging an whistleblower where the discharge is not motivated by retaliatory animus. See, e.g., Newkirk v. Cypress Trucking Lines, Inc., 88-STA-17 (Sec'y Feb. 13, 1989), slip op. at 9; cf. Lockert v. United States Dept. of Labor, 867 F.2d 513, 519 (9th Cir. 1989). To prevail under the STAA, the employee must establish that the employer discharged him because of the protected whistleblowing activity. Newkirk, slip op. at 8-9. More specifically, to establish the initial prima facie case, a complainant must present evidence sufficient to raise an inference of causation. Where he does so, and the employer proffers a legitimate, nondiscriminatory reason for the discharge, then the complainant must show either that his protected conduct more likely motivated the employer or that the employer's proffered explanation is incredible.

Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23,1992).

IV.A.1. Pro se complainant's burden of proof

While a pro se complainant may be held to a lesser standard than legal counsel with regard to matters of procedure, the burden of proving the elements necessary to sustain a claim of discrimination is no less. Flener v. H.K. Cupp, Inc., 90-STA-42 (Sec'y Oct. 10, 1991).

IV.A.1. Elements of prima facie case

To establish a prima facie case of unlawful discrimination under the STAA, the complainant has the initial burden to show that 1) he or she engaged in protected activity under the STAA, 2) he or she was the subject of adverse employment action, and 3) his or her employer was aware of the protected activity when it took the adverse action. The respondent may then present a legitimate, non-discriminatory reason for the adverse action. The complainant may ultimately prevail by successfully rebutting the credibility of the respondent's proffered explanation for the adverse action.

In Sickau v. Bulkmatic Transport Co., 94-STA- 26 (ALJ June 22, 1994), the ALJ found the complainant's testimony to be more credible than the respondent's, and that the complainant had satisfied the elements of a prima facie case. The parties did not dispute that the complainant had been subjected to an adverse employment action, but rather, the reason behind the complainant's refusal to make the run. If it was determined that the complainant's reason was more compelling, then his refusal to take the assignment would constitute a protected activity. The respondent, however, could prevail only if the ALJ determined that the respondent's proffered reasons behind the complainant's refusal were based on laziness or misconduct. The ALJ found that the weight of the evidence submitted supported the complainant's version of events. Thus, the complainant had satisfied the elements of prima facie case and also successfully rebutted the respondent's alternative explanations.

The Secretary adopted the ALJ's findings and ordered the respondent to pay back pay plus interest and attorney fees to the complainant. Sickau v. Bulkmatic Transport Co., 94-STA-26 (Sec'y Oct. 21, 1994).

IV A 1 General statement of burdens of proof & production

To prevail on a STAA complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under section 405. A complainant initially must show that it was likely that the adverse action, e.g., discharge, was motivated by a protected complaint or work refusal. The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then must prove that the proffered reason was not the true reason for the adverse action. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987). In the event that a complainant demonstrates that the respondent took adverse action in part because he engaged in a protected complaint or refusal, the burden shifts to the respondent to demonstrate that the complainant would have been disciplined even if he had not engaged in the protected activity. Cf. Pogue v. United States Dept. of Labor, 940 F.2d 1287, 1289-90 (9th Cir. 1991); Mackowiak v. University Nuclear Sys., Inc., 735 F.2d 1159, 1164 (9th Cir. 1984). In such cases, a respondent "bears the risk that 'the influence of legal and illegal motives cannot be separated . . . .'" Mackowiak, 735 F.2d at 1164, quoting NLRB v. Transportation Management Corp., 462 U.S. 393, 403 (1983).

STAA section 405(a) prohibits an employee's discharge because he has filed a complaint "relating to a violation of a commercial motor vehicle safety rule, regulation, standard, or order . . . ." 49 U.S.C. app. § 2305(a). Internal complaints, e.g., to an employer, are protected. Protection is not dependent on actually proving a violation. Yellow Freight System, Inc. v. Martin, 954 F.2d 353, 356-357 (6th Cir. 1992).

STAA section 405(b) provides that "[n]o person shall discharge . . . an employee . . . 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." 49 U.S.C. app. § 2305(b). Protection under this criterion also requires that "[t]he 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" and that "the employee must have sought from his employer, and have been unable to obtain, correction of the unsafe condition."

Green v. Creech Brothers Trucking, 92-STA-4 (Sec'y Dec. 9, 1992); Hornbuckle v. Yellow Freight System, Inc., 92-STA-9 (Sec'y Dec. 23, 1992).

IV A 1 Ultimate burden on complainant

The ultimate burden of establishing that the respondent violated the employee protection provision of the STAA is on the complainant. Nolan v. A.C. Express, 93-STA-38 (Sec'y May 13, 1994) ( citing Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993).

IV.A.1. Burden of proof and production in STAA proceedings

The burdens of proof and production adopted for use in STAA proceedings are set forth in McGavock v. Elbar, Inc., 86- STA-5 (Sec'y July 9, 1986), slip op. at 10-11. These burdens derive from models articulated and applied in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981), and Mt. Health 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 (11th Cir. 1987). 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. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 254. However, the evidence must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. "The explanation provided must be legally sufficient to justify a judgment for the [employer]." Id. at 255. The complainant then must establish that the reason proffered by the employer is not the true reason for the adverse action.

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21, 1989), aff'd in part and rev'd in part both on other ground sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

IV. A. 1. Elements of a prima facie case

In Yellow Freight System, Inc. v. Reich, No. 93- 3488 (6th Cir. June 24, 1994) (available at 1994 U.S. App. LEXIS 15585), the court reiterated its holding in Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987), that the requirements for an employee to make out a prima facie case of a section 405 violation involve proof of three elements: (1) that the employee's employment engages him or her in protected activity; (2) that his or her employer took adverse employment action against him or her; and (3) that a "causal link" exists between his or her protected activity and the employer's adverse action.

Once an employee establishes a prima facie case, the court makes its determination of liability by adapting the familiar Title VII McDonnell Douglas burden-shifting rules to the STAA. At this point, "the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. If the defendant is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate burden of demonstrating by a preponderance of the evidence that the legitimate reasons were a pretext for discrimination."

IV.A.1. Prima facie case in STAA

In a case arising from section 405 of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305, in order to establish a prima facie case, a complainant must show:

that he or she engaged in a protected activity;
that he or she was subject to adverse employment action; and
that the employer was aware of his or her protected activity when it took the adverse action, raising the inference that the protected activity was the likely reason for the adverse action.

Obsorn v. Cavalier Homes of Alabama, Inc. and Morgan Drive Away, Inc., 89-STA-10 (Sec'y July 17, 1991).

IV.A.1. General statement of burdens

To prevail on a STAA whistleblower complaint, a complainant must establish that the respondent took adverse employment action against him because he engaged in an activity protected under Section 405. A complainant initially must show that it was likely that the adverse action was motivated by a protected activity. Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th Cir. 1987); Guttman v. Passaic Valley Sewerage Comm'rs, 85-WPC-2 (Sec'y Mar. 13, 1992), slip op. at 9, aff'd sub nom., Passaic Valley Sewerage Com'rs v. Dept. of Labor, 992 F.2d 474 (3d. Cir. 1993). The respondent may rebut such a showing by producing evidence that the adverse action was motivated by a legitimate, nondiscriminatory reason. The complainant then must prove that the proffered reason was not the true reason for the adverse action. St. Mary's Honor Center v. Hicks, 125 L. Ed. 2d 407, 416 (1993).

Moyer v. Yellow Freight System, Inc., 89-STA-7 (Sec'y Oct. 21, 1993).

IV A 1 Approval of Secretary's allocation of burdens

In Roadway Express, Inc. v. Brock , 830 F.2d 179 (11th Cir. 1987), the Eleventh Circuit indicated that the Secretary has correctly articulated the burdens of proof and production set forth by the Supreme Court in wrongful discharge cases. See Nix v. Nehi-RC Bottling Co., 84-STA-1 (Sec'y July 13, 1984) (relying on Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1982); Dartey v. Zack Co. of Chicago, Inc., 82-ERA-2 (Sec'y Apr. 25, 1983) (relying on Burdine, supra and Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)).

IV.A.1. Elements of prima facie case

IV. A. 1. Elements of a prima facie case

IV A 2 a Generally

[STAA Digest IV A 2 a]
LACK OF KNOWLEDGE OF PROTECTED ACTIVITY BY RESPONDENT; ARB FINDS SUBSTANTIAL EVIDENCE SUPPORTED ALJ’S FINDINGS THAT DOCUMENTATION PRESENTED BY COMPLAINANT FAILED TO SHOW THAT RESPONDENT’S OWNER KNEW ABOUT PROTECTED ACTIVITY PRIOR TO TERMINATION DECISION, AND THAT COMPLAINANT’S TESTIMONY ABOUT ORAL COMPLAINTS WAS NOT CREDIBLE

WHETHER ACTIONS BY COMPLAINANT ARE PROTECTED ACTIVITY, AND WHETHER RESPONDENT WAS AWARE OF THOSE ACTIONS ARE TWO DISTINCT QUESTIONS

In Davis v. Chem Canada Logistics, Inc. , ARB No. 08-075, ALJ No. 2006-STA-47 (ARB July 24, 2008), the ARB found that substantial evidence supported the ALJ’s decision finding the Complainant had not provide a violation of the STAA. The ARB found that the record supported the ALJ’s conclusion that the documentary evidence provided by the Complainant (notably, his travel logs containing complaints about safety problems) did not provide notice to the Respondent’s owner of the Complainant’s safety complaints prior to the owner’s decision to terminate the Complainant’s employment. The ALJ thus, found that such documentation could not have influenced the termination decision. In this regard, the ARB clarified a misstatement by the ALJ that the documentary evidence failed to establish protected activity. Actions are not determined to be protected activity based on an employer’s knowledge of the actions. Rather, knowledge of the protected activity by the respondent is separate component of the analysis of whether an STAA violation occurred.

The ARB also found that substantial evidence supported the ALJ’s finding that the Complainant’s testimony was not credible that he made verbal reports of safety defects to the Respondent’s owner prior to the termination. The ALJ cited Complainant’s testimony that he routinely delayed completion of his daily Driver’s Record of Duty Status, which diminished their probative value. The ALJ also found that the content of those reports diminished the Complainant’s credibility. The ALJ noted that the Complainant reported no safety defects on the status log of the first of two relevant trips despite his claim of oral complaints. The ALJ also found indications that the second log had been changed, among other indicators of lack of credibility. The ARB noted that the Complainant had the opportunity on appeal to challenge these findings by the ALJ, but had chosen not to do so.

[STAA Digest V A 2 a]
PROTECTED ACTIVITY; COMPLAINT ABOUT LENGTH OF TIME RENTAL CAR WAS PROVIDED FOR RETURN TRIP WAS NOT PROTECTED ACTIVITY BECAUSE THE RENTAL CAR WAS NOT A COMMERCIAL VEHICLE AS DEFINED BY THE STAA

[STAA Digest V A 2 a]
PROTECTED ACTIVITY; REFUSAL TO FLY ON RETURN TRIPS IS NOT PROTECTED ACTIVITY

In Israel v. Branrich, Inc. , ARB No. 09-069, ALJ No. 2008-STA-1 (ARB Sept. 29, 2011), the Respondent normally paid for drivers to fly back to the point of origin after delivering a commercial vehicle to a customer. Upon learning mid-route on the Complainant's first assignment that he could not fly due to motion sickness, the Respondent instead provided the Complainant with a 24 hour car rental. Later, the Respondent agreed to a 48 hour car rental and a single night of lodging. Ultimately, the rental and fuels costs were reimbursed, but the hotel costs were not.

In his STAA complaint, the Complainant asserted that the 24-hour rental car without hotel reimbursement encouraged him to exceed the hours-of-service requirement and violate fatigue rules. The ALJ ruled that the hours-of-service and fatigue complaints concerning the rental car were not covered as protected activity because the rental car was not a "commercial vehicle" under the Act. On appeal, finding that the Complainant had cited no legal authority to counter the ALJ's finding, the ARB affirmed the ALJ on the coverage issue.

The ARB also affirmed the ALJ's finding that the Complainant did not engage in protected activity by refusing to fly on an airplane on return trips.

[STAA Digest IV A 2 a]
CAUSATION; STAA DOES NOT PROVIDE AN EVIDENTIARY PRESUMPTION OF RESPONDENT'S AWARENESS OF PROTECTED ACTIVITY

In Litt v. Republic Services of Southern Nevada , ARB No. 08-130, ALJ No. 2007-STA-14 (ARB Aug. 31, 2010), the ARB found that substantial evidence supported the ALJ's finding that the officials who decided to terminate the Complainant's employment were not aware of reports made by the Complainant about exposure to exhaust fumes. On appeal, the Complainant argued that because some of the decision makers were aware of an anonymous OSHA complaint, and because the Complainant had told other employees of the Respondent that he had filed the complaint, it was reasonable to infer that the officials knew that he had filed the complaint. The ARB, however, agreed with the ALJ's finding that the Complainant offered no evidence that any of the decision makers involved in the termination knew of or were informed of the complaint. The ARB held that the Complainant's "mere assertions that it can be inferred that they did know he filed the complaint are not sufficient to constitute circumstantial evidence to establish that Republic was aware of Litt's OSHA complaint or alleged protected activity by a preponderance of the evidence, and we note that there is no presumption available under the STAA or its implementing regulations to establish this necessary element of his claim."

[STAA Digest IV A 2 a]
CAUSATION; 2007 AMENDMENTS TO THE STAA DO NOT APPLY TO COMPLAINT FILED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENTS

In Fleeman v. Nebraska Pork Partners , ARB Nos. 09-059, -096, ALJ No. 2008-STA-15 (ARB May 28, 2010), the ALJ erred in applying the causation standard of the whistleblower provision of the STAA as amended in 2007 rather than the standard in effect at the time that the complaint was filed earlier in 2007. Although such a legal error would normally result in a remand to apply the correct legal standard, the ARB found that application of the correct legal standard led to the same result in favor of the Complainant. Accordingly, the ARB found that substantial evidence supported the ALJ's finding that the Complainant had been fired because of his protected activity in violation of the STAA's whistleblower protection provisions.

[STAA Whistleblower Digest IV A 2 a ]
CAUSATION; ALL INSTANCES OF ALLEGED PROTECTED ACTIVITY MUST BE ASSESSED IN ORDER TO PROPERLY EVALUATE WHETHER THEY CONTRIBUTED TO THE ADVERSE EMPLOYMENT ACTION

In Williams v. Capitol Entertainment Services, Inc. , ARB No. 05-137, ALJ No. 2005-STA-27 (ARB Dec. 31, 2007), the ARB remanded the case for additional proceedings where the ALJ had not addressed whether the Complainant's complaints concerning the lack of, and subsequently the improper use of, "defect logs" were protected activities under STAA. The ARB found that the "ALJ's evaluation of causation is not complete since the effect of this possible protected activity was not assessed. To properly evaluate whether protected activity contributed to CES's decision to terminate Williams's employment, all instances of protected activity must be thoroughly assessed."

[STAA Whistleblower Digest IV A 2 a ]
MOTIVATION; MUST BE RETALIATION TO BE ACTIONABLE, EVEN IF RESPONDENT'S UNDERSTANDING OF THE CIRCUMSTANCES WAS MISTAKEN

An employer's discharge decision must be motivated by retaliation to be actionable, even if the employer's decision is based on a mistaken conclusion about the circumstances. Thus, evidence presented by Complainant that he suffered a hearing impairment and therefore may not have heard commands made by supervisors was not relevant. Clement v. Milwaukee Transport Services, Inc. , ARB No. 02 025, ALJ No. 2001 STA 6 (ARB Aug. 29, 2003).

[STAA Whistleblower Digest IV A 2 a]
VIOLATION OF TERM OF SETTLEMENT AGREEMENT; MUST ESTABLISH ALL ELEMENTS OF WHISTLEBLOWER COMPLAINT TO ESTABLISH NEW AND SEPARATE VIOLATION; CAUSATION ESTABLISHED

In Bettner v. Daymark, Inc. , ARB No. 01 088, ALJ No. 2000 STA 41 (ARB Oct. 31, 2003), the ALJ had found that Respondent's failure to immediately provide full health benefits when the Complainant was reinstated pursuant to the settlement of a prior whistleblower complaint was a de minimus violation (because it related the resolution of Complainant's prior complaint) and that it required no further remedy. The ARB agreed that a violation of a settlement agreement may constitute a new and separate STAA violation, but only where all the elements of a STAA whistleblower complaint are established. In the instant case, Respondent presented credible evidence and testimony to the effect that the delay resulted from Complainant's refusal to complete an enrollment form. Thus, the element of causation was not established. There was no evidence that the delay was motivated by Complainant's protected activity (filing the previous complaint), and therefore no new STAA violation.

[STAA Digest IV A 2 a]
CAUSATION; ABANDONMENT OF JOB; UNNECESSARY FOR ALJ TO MAKE RULING ON NON-DISPOSITIVE ISSUES

Where the Complainant could have worked in the Respondent's warehouse until the truck he complained about was repaired and then driven it, or could have taken a different truck, but instead just left and never asked to return to work, the ARB agreed with the ALJ that the complaint was deficient as a matter of law. The Complainant offered no reason for walking off the job rather than waiting for the repairs to be made or driving a different truck. The ARB's decision implies that it was proper for the ALJ not to determine whether the defects the Complainant identified constituted violations of safety laws or supported a reasonable apprehension of serious injury, because the case could be resolved solely on the Complainant's failure to establish that the Respondent retaliated against him for refusing to drive the truck. Prior v. Hughes Transport, Inc. , ARB No. 04-044, ALJ No. 2004-STA-1 (ARB Apr. 29, 2005).

[STAA Whistleblower Digest IV A 2 a]
CAUSATION; COMPLAINANT'S TERMINATION FROM EMPLOYMENT BASED ON INABILITY TO ADJUST TO AN OVERNIGHT SHIFT DOES ESTABLISH RETALIATORY MOTIVE

In Schwartz v. Young's Commercial Transfer, Inc. , ARB No. 02 122, ALJ No. 2001 STA 33 (ARB Oct. 31, 2003), Respondent supplied commercial trucking services for freshly harvested tomatoes during a three month harvest season. Respondent's 12 hour shift schedule on successive work days did not violate applicable federal and state law, which provided exceptions for the type of agricultural transport operations at issue in the case. Complainant was aware of the 12 hour shift, but had difficulty adjusting to the night schedule he had been assigned (6:00 pm to 6:00 am) because of fatigue. Respondent terminated Complainant's employment after seven scheduled nights because it had become clear that Complainant was not going to be able "to get the job done" for Respondent. The ARB found that the evidence established that Complainant "failed to demonstrate that he was prepared to take on the rigors of performing, on a continuing basis, the 12 hour overnight shifts required by the Y job. We therefore conclude that [Complainant] has failed to establish by a preponderance of the evidence that [Respondent] terminated his employment in retaliation for engaging in protected activity." Slip op. at 10 (citations omitted).

[STAA Whistleblower Digest IV A 2 a]
INFERENCE OF CAUSATION; COMPLAINANT MUST STILL ESTABLISH BY PREPONDERANCE OF THE EVIDENCE

In Coppola v. Quality Associates, Inc. , ARB No. 02 114, ALJ No. 2002 STA 13 (ARB Aug. 29, 2003), the ALJ found that the evidence was sufficient to raise an inference of a causal nexus between the protected activity and the termination decision. The ARB observed that this ruling left it unclear whether Complainant carried his ultimate burden to establish B by a preponderance of the relevant evidence B that Complainant's protected activity played a role in the termination decision. The ARB, however, found that any error in the ALJ's analysis was harmless because of his finding, which the ARB affirmed, that Respondent would have fired Complainant because of speeding and performance problems even in the absence of his protected activity.

[STAA Whistleblower Digest IV A 2 a]
PRIMA FACIE CASE; SUMMARY DECISION APPROPRIATE WHERE CAUSAL LINK ELEMENT NOT ESTABLISHED BECAUSE TERMINATION DECISION OCCURRED PRIOR TO PROTECTED ACTIVITY

Where the ALJ found that it was undisputed that the decision to terminate Complainant's employment occurred prior to the alleged protected activity, the ALJ recommended dismissal of the complaint because the essential element of a prima facie case B causal link or nexus between the protected activity and the termination could not be established. Complainant did not address this finding before the ARB, and accordingly, the ARB adopted the ALJ's Decision and Order. Bushway v. Yellow Freight, Inc. , ARB No. 01 018, ALJ No. 2000 STA 52 (ARB Dec. 13, 2002).

IV A 2 b i Evidence of protected conduct immediately before employment action may militate against inference of causation

Evidence of wholly unprotected conduct immediately preceding an adverse employment action may militate against an inference of causation. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995) (citing Monteer v. Milky Way Transp. Co., Inc., 90-STA-9 (Sec'y July 31, 1990), slip op. at 4).

To the same effect: Carson v. Tyler Pipe Co., 93-WPC-11 (Sec'y Mar. 24, 1995) (Complainant acted inappropriately and contrary to established rules, leading to discharge).

IV.A.2.b.i. STAA; direct evidence not needed to establish causation

In a STAA, 49 U.S.C. app. § 2305(b) case, direct evidence is not required for a showing of causation. The presence or absence of establishing motive is provable by circumstantial evidence, even in the event that witnesses testify that they did not perceive such a motive. Clay v. Castle Coal & Oil Co., Inc., 90-STA-37 (Sec'y Nov. 12, 1991).

IV.A.2.b.1. Burden of establishing causation

In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary held that the Complainant's initial burden in establishing a prima facie case is not onerous. The causal connection component may be established by showing that the employer was aware of the protected conduct and that the adverse personnel action followed closely thereafter. Direct evidence is not required for a finding of causation.

[STAA Digest IV A 2 b ii]
TEMPORAL PROXIMITY; CONCURRING MEMBER’S OPINION THAT COMPLAINANT’S BURDEN TO PROVE CAUSATION IS NOT AUTOMATICALLY MET BY RELYING SOLELY ON SHORT TEMPORAL PROXIMITY AND KNOWLEDGE OF PROTECTED ACTIVITY; WHETHER BURDEN MET IS A CASE-BY-CASE DETERMINATION

In Dho-Thomas v. Pacer Energy Marketing , ARB No. 13-051, ALJ Nos. 2012-STA-46, 2012-TSC-1 (ARB May 27, 2015), the ARB summarily affirmed the ALJ’s dismissal of the Complainant’s STAA and TSCA whistleblower complaints. The ALJ had found that the Complainant failed to prove by a preponderance of the evidence that she engaged in protected activity under the STAA, and that she had failed to prove a causal relationship between TSCA-protected activity and her employment termination. Although the ALJ had applied "contributing factor" rather than "motivating factor" analysis to the TSCA causation issue, it was harmless error because a complainant who cannot might the lesser "contributing factor" test cannot met the heightened causation standard under the "motivating factor" test. One member of the panel concurred, stating that the majority’s ruling makes it clear "that, whether the causation standard is ‘motivating factor,’ as in this case or ‘contributing factor,’ a complainant does not automatically prove causation by relying solely on timing (short temporal proximity) and knowledge of protected activity; it is a case-by-case determination dependent on the facts of the case." USDOL/OALJ Reporter at 5 (footnote omitted) (emphasis as in original).

[STAA Digest IV A 2 b ii]
TEMPORAL PROXIMITY; INFERENCE OF CAUSATION BROKEN BY INTERVENING EVENT OF FALSIFICATION OF RECORDS

In Abbs v. Con-Way Freight, Inc. , ARB No. 12-016, ALJ No. 2007-STA-37 (ARB Oct. 17, 2012), the ARB affirmed the ALJ's finding that any inference of causation based on temporal proximity between the Complainant's protected activity and the adverse action had been broken where (1) there was an intervening event sufficient to independently cause the discharge (admitted falsification of driving logs and payroll records), and (2) it was undisputed that the Complainant's supervisor had told the Complainant that he was free to take safety breaks when he needed them.

[STAA Digest IV A 2 b ii]
CAUSATION; TEMPORAL PROXIMITY DECISIVE IN ESTABLISHING PRIMA FACIE CASE; BUT COMPLAINANT STILL MUST ESTABLISH CAUSATION ELEMENT BY PREPONDERANCE OF THE EVIDENCE WHEN THE MERITS REACHED IN THE PROCEEDING

In Spelson v. United Express Systems , ARB No. 09-063, ALJ No. 2008-STA-39 (ARB Feb. 23, 2011), the ARB affirmed the ALJ's finding that the Complainant failed to establish that his termination for insubordination was causally related to protected activity. The ARB noted that an inference of causation based on temporal proximity of adverse action and protected activity is decisive in establishing a prima facie case, but is not dispositive at the merits stage of an adjudication where the complainant is required to prove each element of a claim by a preponderance of the evidence.

[STAA Digest IV A 2 b ii]
TEMPORAL PROXIMITY; WHILE NOT INELUCTABLE, CIRCUMSTANCES MAY SUPPORT FINDING OF MOTIVE

In Simon v. Sancken Trucking Co. , ARB No. 06-039, -088, ALJ No. 2005-STA-40 (ARB Nov. 30, 2007), it was undisputed on appeal that the Complainant engaged in protected activity when he complained to the Employer and the FMSCA about drivers failure to complete time-on-duty logs where deliveries were being made more than 100 miles from the depot, and that the Employer was aware of such activity. The Employer, however, contested the ALJ's finding that the Complainant was reassigned and then fired because of such activity. The ARB affirmed the ALJ's finding given the close temporal proximity between the negative results of a FMSCA audit precipitated by the protected activity and the adverse action, coupled with the ALJ's findings of pretext, which were supported by substantial evidence. The reassignment had been made on a "take it or leave it" basis on the same day of receipt of the adverse report (and knowing that this would cause child care problems for the Complainant), and there were contradictions in the reasons the Employer gave for its actions relative to the subsequent firing. In regard to value of proximity in supporting the Complainant's case, the ARB wrote:

While not ineluctable, the circumstances of a given case may support a fact-finder's conclusion that the temporal proximity between protected activity and adverse action establishes that the adverse action was motivated by the protected activity. Thompson v. Houston Lighting & Power Co. , ARB No. 98-101, ALJ Nos. 1996-ERA-034, 036, slip op. at 6 (ARB Mar. 30, 2001). As the United States Supreme Court stated in Reeves v. Sanderson Plumbing Prods., Inc ., 530 U.S. 133, 147-48 (2000), "once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation" for an adverse action. The ultimate burden of persuasion that an employer intentionally discriminated because of a complainant's protected activity remains at all times with the complainant, Martin v. United Parcel Ser ., ARB No. 05-040, ALJ No. 2003-STA-009, slip op. at 9 (ARB May 31, 2007), but proof that an employer's "explanation is unworthy of credence" . . . "can be quite persuasive." Reeves , slip op. at 147.

USDOL/OALJ Reporter at 6-7.

IV.A.2.b.ii. Proximity raises inference

Close proximity between the protected activity and the adverse action may raise the inference that the protected activity was the likely reason for the adverse action. Kovas v. Morin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993) ( citing Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987)).

[STAA Whistleblower Digest IV A 2 b ii]
CAUSATION; INFERENCE RAISED BY TEMPORAL PROXIMITY MAY BE NEGATED BY INTERVENING EVENTS

In Johnson v. Rocket City Drywall , ARB No. 05-131, ALJ No. 2005-STA-24 (ARB Jan. 31, 2007), PDF | HTM the ARB held that intervening events negated any inference of causal relationship raised by temporal proximity between the Complainant's protected activity and his termination. Specifically, on his last day of work, the Complainant dropped two loads of drywall while unloading a truck at a job site, and then blew out a tire because he backed up his truck without using a spotter in violation of the Respondent's safety rules.

[STAA Whistleblower Digest IV A 2 b ii]
CAUSATION; SIX MONTH INTERVAL BETWEEN PROTECED ACTIVITY AND ADVERSE ACTION; INTERVENING EVENTS MAY BREAK INFERENCE OF LINK

In Anderson v. Jaro Transportation Services , ARB No. 05-011, ALJ Nos. 2004-STA-2 and 3 (ARB Nov. 30, 2005), the ARB held that a six month interval between the Complainant's protected activity and his termination from employment was not too long a time period from which to infer that the Respondent was retaliating. IN the instant case, after making the protected communication the Complainant failed to make timely deliveries and parked his tractor-trailer off route. The ARB found that these intervening events reasonably could have caused the Respondent to reprimand and terminate the Complainant's employment, and therefore "a logical reason to infer a causal relationship between the protected activity and the adverse action no longer exists." USDOL/OALJ Reporter at 7 (footnote omitted).

[STAA Whistleblower Digest IV A 2 b ii]
CAUSATION; TEMPORAL PROXIMITY NOT ESTABLISHED

In Simpkins v. Rondy Co., Inc. , ARB No. 02 097, ALJ No. 2001 STA 59 (ARB Sept. 24, 2003), the ARB affirmed the ALJ's finding that Complainant had not established a causal link between the protected activity and the adverse employment action where Complainant's protected activity was remote to warning letters and the ultimate termination, whereas the warning letters and termination closely followed incidents that Respondent believed were a deviation from company policy. There was also a lack of evidence indicating that Respondent's management held hostility against Complainant for STAA protected activity.

[STAA Whistleblower Digest IV A 2 b ii]
INFERENCE OF CAUSATION ON PRIMA FACIE CASE; PROXIMITY AND INTERVENING EVENT

In Poll v. R. J. Vyhnalek Trucking , ARB No. 99 110, ALJ No. 1996 STA 35 (ARB June 28, 2002), the ALJ found that the Complainant failed to establish the causation element of a prima facie case because the Respondent alleged that it had discharged the Complainant because of an accident, which followed the protected complaint by about two weeks and preceded the discharge by a matter of days. The ARB, however, citing authority relating to the raising of an inference of causation based on temporal proximity, declined to adopt the ALJ's finding that a prima facie case had not been established. Rather, the ARB found "the accident somewhat less compelling in light of case precedent and the three week period at issue here. The accident simply does not represent the confluence of compelling evidence to the contrary cited by courts that have rejected the inference." The ARB, however, went on the consider the case under the pretext analysis and adopted the ALJ's alternative finding that the Complainant had failed to prove that Respondent's articulated nondiscriminatory reason for discharging the Complainant was pretext. In other words, although the evidence of an intervening event the accident was insufficient to prevent the invocation of the inference of causation under the prima facie analysis, once the Respondent articulated a nondiscriminatory reason for the adverse employment action, the prima facie analysis dropped out of the case, and it was Complainant's burden to prove pretext. Mere evidence of proximate timing was found inadequate to sustain Complainant's ultimate burden of proof by a preponderance of the evidence, given proof of the intervening accident and credible testimony of Respondent's president as to motivation for the discharge.

To the same effect: Gale v. Ocean Imaging , ARB No. 98 143, ALJ No. 1997 ERA 38 (ARB July 31, 2002).

IV A 2 b ii CAUSAL LINK; SIX WEEK LAPSE DOES NOT NEGATE INFERENCE OF CAUSATION

In Williams v. Southern Coaches, Inc., 94-STA-44 (Sec'y Sept. 11, 1995), the ALJ concluded that the temporal proximity of the Complainant's discharge - - six weeks -- was too distant to raise an inference of causation (although he did find a prima facie case established generally).

The Secretary rejected this conclusion, noting that in prior decisions, he had found that even a ten-month lapse may be sufficient to raise an inference of causation. A six week lapse, the Secretary held, is not so distant as to negate the inference of a causal link between the protected activity and the adverse employment action.

IV.A.2.b.ii. Six day interval between protected activity and adverse action meets criterion to show causation .

In Newkirk v. Cypress Trucking Lines, 88-STA-17 (Sec'y Feb. 13, 1989), Complainant was employed by Respondent as a truck driver. Respondent told Complainant to pick up a trailer that had already been loaded and transported locally a distance of several miles. After pulling the trailer a distance of about 100 yards, Complainant noted that the trailer was very heavy. Upon weighing the load it was evident that the load had shifted forward and could no longer be hauled safely. Complainant refused to haul the shifted load. When the president of the Respondent corporation discovered that the load had not been delivered, he reportedly said either "fire [the Complainant]" or "get rid of him." Six days later, Complainant was terminated. In the intervening six days, Complainant was not permitted to drive the load that had shifted after the weight had been redistributed and was not permitted to haul other loads that had previously been assigned to him.

The Secretary disagreed with the ALJ's finding that Complainant failed to establish a prima facie case and held that "the six-day interval between September 25 and October 1 coupled with [Respondent's] highly incriminating utterance and his refusal to assign [Complainant] to make several previously scheduled trips during that period" was sufficient to raise an inference that Complainant's protected activity and Respondent's adverse action were causally related.

However, the Secretary adopted the ALJ's findings that after Respondent's initial reaction, an investigation was conducted which absolved the Complainant of any wrong doing and by the time Complainant was terminated, the load-shift incident ceased to be a motivation for any adverse employment action. Rather other problems with Complainant motivated Respondent's adverse action.

IV.A.2.b.ii. Only inference of causation needed for prima facie case; proximate timing

In establishing a prima facie case a complainant need only raise the inference that his engaging in protected activities caused the adverse action. The proximity in time between protected conduct and adverse action alone may be sufficient to establish the element of causation for purposes of a prima facie case. Thus, where Complainant was discharged within a week of raising safety complaints about a truck, the Secretary found that Complainant raised the inference of causation. Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993).

IV.A.2.b.ii. Proximity of protected conduct and adverse action

Where the record indicated that the complainant was discharged in close proximity both to being overheard complaining on his CB radio about being overworked and to complainant's threat to fight his supervisor (which under the respondent's version of the facts occurred prior to the discharge), it was error for the ALJ to conclude that rule that the proximate timing of the adverse action to the protected activity raises an inference of causation would not be invoked because, in the ALJ's view, the "employer's position is just as consistent with the timing of complainant's termination as is complainant's [position]." The proximity in time between protected conduct and adverse action alone is sufficient to establish the element of causation for purposes of establishing a prima facie case. See Couty v. Dole, 886 F.2d 147 (8th Cir. 1989) (temporal proximity is sufficient as a matter of law to establish the final element in a prima facie case of retaliatory discharge); accord Donovan v. Stafford Construction Co., 732 F.2d 954, 960 (D.C. Cir. 1984). Although the ALJ cited Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) in support of his finding, the Secretary noted that she had distinguished that case because the court's ruling -- that the proximity of the safety complaints to the adverse action was insufficient to establish the prima facie case -- was based on the fact that the employer encouraged safety complaints, and here there was no evidence of such encouragement. See Ertel v. Giroux Bros. Transportation, Inc., 88-STA-4 (Sec'y Feb. 16, 1989), slip op. at 25 n.15.

Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992).

IV.A.2.b.ii. Failure of record to support raising of inference of causation based on temporal proximity of adverse action to protected activity

When considering whether a prima facie case has been established in an STAA complaint, the proximity in time between protected activity and adverse employment action may give rise to an inference of a causal connection. Temporal proximity alone, however, did not support such an inference in the face of compelling evidence that the employer encouraged safety complaints, and where complainant had been discharged on the stated ground of improper log entries after all employees had been warned about making improper log entries, and the complainant admitted knowing former employees who had been fired or suspended for log problems. See B. Schlei & P. Grossman, Employment Discrimination Law, Ch. 15 (2d ed. 1983), at 558- 59 ("Proof that similarly situated nonprotestors were disciplined just as harshly for the same infraction suggests nonretaliation."). Cf. DeCinto v. Westchester County Medical Center, 821 F.2d 111, 115 (2d Cir. 1987) (causal relationship show in part by evidence that plaintiff's fellow employees were not disciplined for engaging in identical, allegedly improper behavior). In addition, the complainant did not present any evidence that the warnings about log entries began shortly after he began to make safety complaints.

Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987).

IV.A.2.b.ii. Proximate timing of adverse action

To establish a prima facie case, the inference must be raised that the employee's protected activities motivated the adverse action. This inference is raised when the discharge immediately follows the protected activity. Bergeron v. Aulenback Transportation, Inc., 91-STA-38 (Sec'y June 4, 1992), slip op. at 3; Couty v. Dole, 886 F.2d 147, 148 (8th Cir. 1989).

Zessin v. ASAP Express, Inc., 92-STA-33 (Sec'y Jan. 19, 1993).

IV. A. 2. b. ii. Proximate timing of adverse action

In Chapman v. T.O. Haas Tire Co., 94-STA-2 (Sec'y Aug. 3, 1994), the Complainant was discharged several days after engaging in protected activity. This was sufficient to raise the inference of retaliation.

IV.A.2.b.ii. Discharge same day engaged in protected activity

Where Complainant was discharged the same day he raised safety complaints, the Secretary found that Complainant raised the inference that he was fired because he engaged in protected activity. Toland v. Werner Enterprises, 93-STA-22 (Sec'y Nov. 16, 1993).

IV.A.2.b.ii. Timing too remote

In Bolden v. Distron, Inc., 87-STA-28 (ALJ Mar. 21, 1988), aff'd, (Sec'y June 3, 1988), the ALJ found that the Complainant had failed to come forward with sufficient proof to raise the inference that participation in protected activity was the reason for the adverse action. Specifically, the Complainant's complaint to the DOT predated the discharge by at least fifteen months, and other complaints were even more distant in time. There was no evidence that the Respondent knew of the protected activities except for one of the more distant contacts, and the ALJ found this contact to be too remote to be a reasonable cause of the termination.

4 a 2 b 2
IV A 2 b ii Prima facie case; two months is sufficient to raise inference of causation

Where the Complainant made safety complaints in the late summer, in September he wrote a letter concerning safety to Respondent's headquarters, and two months later, the Complainant received two disciplinary warning notices and was laid off, the temporal proximity between the protected activities and the adverse actions raised the inference of causation. Nolan v. AC Express, 92-STA-37 (Sec'y Jan. 17, 1995).

IV.A.2.b.ii. Proximate timing/inference of causation

A complainant suffered adverse employment action in the form of a discharge within five weeks of giving testimony in a co-worker's grievance proceeding relating to a safety violation. The proximate timing of the protected activity vis-a-vis the adverse action tends to support an inference of causation. Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), slip op. at 25 and n.14. The inference was supported by the complainant's supervisor's threat of discharge if the complainant testified.

Moyer v. Yellow Freight Systems, Inc., 89-STA-7 (Sec'y Nov. 21 1989), aff'd in part and rev'd in part both on other grounds sub nom., Yellow Freight System, Inc. v. Martin, 954 F.2d 353 (6th Cir. 1992).

IV. A. 2. b. ii. Proximate timing of adverse action

IV.A.2.b.iii. Showing that respondent's reason for adverse action was baseless

The complainant, who was purportedly discharged for falsification of driving logs, cannot establish the causation element of a prima facie case of retaliatory discharge for safety complaints under the STAA simply by asserting that his logs were accurate. In order to give rise to an inference sufficient to make out a prima facie case, the complainant would have had to prove that his logs were accurate. Hence, where the record reasonably supported the Secretary's conclusion that there was insufficient evidence that the logs were accurate, the Secretary's decision that complainant failed to establish a prima facie case was affirmed. Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987) (noting as well that it is the respondent's perception of the justification for the firing that is the relevant inquiry).

IV.A.2.b.iv. Pattern of retaliation

The fact that another driver who voiced safety complaints similar to those voiced by complainant was terminated two months after the meeting in which the complaints were voiced did not support complainant's prima facie STAA case in regard to causation where there was no evidence that the termination of the co-worker was related to his safety complaints. In addition, the Secretary could have relied on the fact that the complainant failed to show that any driver who complained about truck problems were subjected to retaliation other than himself and the one aforementioned driver. See 3 A. Larson & L. Larson, Employment Discrimination 87.31 (1986) ("The employer's position is also bolstered by evidence that, although other employees had make similar protests ..., there was no pattern of retaliation against such employees."). Moon v. Transport Drivers, Inc., 836 F.2d 226 (6th Cir. 1987).

IV A 2 b iv Continuous nature of Respondent's actions over time can support inference of causal link

In Clifton v. United Parcel Service, 94-STA-16 (Sec'y May 9, 1995), the Complainant was discharged for taking an unauthorized break approximately one year after his safety related complaints prompted a state fine and the Complainant's telephone call to the Respondent's insurer about the safety condition. The ALJ concluded that there was no causal link between the discharge and the protected activity. The Secretary disagreed, noting that the inference of a causal link portion of a prima facie case may be established by temporal proximity between a discharge and the protected activity. The Secretary noted that the Complainant had been discharged three times within one year of the protected activity, beginning almost immediately after the state inspection and fine. Two prior discharges were reversed under internal grievance procedures. The Secretary concluded that the continuous nature of the Respondent's actions supported an inference of a causal link.

IV.A.2.b.iv. Coercion and harassment of other drivers

In Spearman v. Roadway Express, Inc., 92-STA-1 (Sec'y June 30, 1993), the Secretary noted with approval the ALJ's discussion of evidence of dispatcher coercion and harassment directed at drivers (in addition to Complainant) who attempted to comply with DOT fatigue and hours limitations, as evidence supporting a finding of animus.

[STAA Digest IV A 2 c]
CAUSATION; WHERE RESPONDENT’S OWNER DEVISED A PLAN TO CREATE A “FLASHPOINT” TO SUPPORT REMOVAL OF THE COMPLAINANT AS SHOP UNION STEWARD, WHICH WAS PARTLY MOTIVATED BY THE COMPLAINANT’S MANY SAFETY COMPLAINTS, CAUSATION ESTABLISHED AS A MATTER OF LAW

In Klosterman v. E.J. Davies, Inc. , ARB No. 12-035, ALJ No. 2007-STA-19 (ARB Dec. 18, 2012) (reissued with corrected caption Jan. 9, 2013), the ARB found under the facts of the case that because the Complainant’s refusal to drive constituted protected activity, causation was established as a matter of law. The ARB wrote:

To show that an employer retaliated in violation of the STAA, a complainant must show that the employer took adverse action against that complainant because of protected activity. The ALJ found that Klosterman [the Complainant] raised protected safety complaints before December 20th. She also found that, on December 19, 2005, Vordermeier [the Respondent’s owner] began devising a plan to neutralize Klosterman’s ability to make many of his safety complaints by removing him as the shop union steward. More importantly, Vordermeier could not fire Klosterman and knew that the union had to fire Klosterman or he had to quit to end his employment. Consequently, we conclude that these findings by the ALJ demonstrate that Klosterman’s safety complaints partly motivated Vordermeier’s adverse actions on December 19 and 20, 2005. We agree with Klosterman that the Respondent set out to create a “flashpoint” on December 20, 2005, and the ALJ’s fact findings support this conclusion, particularly her findings about previous protected activity, Vordermeier’s frustration, and Vordermeier’s plan on December 19, 2005. Additionally, the ALJ found that Vordermeier’s actions on December 20, 2005, in particular his injunction to “drive or go home,” were motivated in part by the Complainant’s refusal to drive on the same date. … She explicitly held in her earlier decision: “I also find the evidence establishes that Mr. Vordermeier’s “drive or go home” statement was made specifically in response to the Complainant’s comments about the vehicle he was assigned to drive.” ... Since Klosterman’s refusal to drive constituted protected activity, causation is established as a matter of law.

USDOL/OALJ Reporter at 9 (footnote and citations omitted).

[STAA Digest V A 2 c]
PROTECTED ACTIVITY; REASONABLENESS OF BELIEF OF SAFETY VIOLATION; COMPLAINT ABOUT RESPONDENT'S GOAL OF 600 MILES PER DAY WAS NOT PROTECTED ACTIVITY WHERE GOAL WAS ACHIEVABLE IN MANY CIRCUMSTANCES AND WAS ONLY A GOAL AND NOT A REQUIREMENT

In Israel v. Branrich, Inc. , ARB No. 09-069, ALJ No. 2008-STA-1 (ARB Sept. 29, 2011), the Complainant complained that the Respondent had a policy of encouraging drivers to complete 600 miles per day, a distance that the Complainant felt could not be accomplished without violating hours-of-service rules and local speed limits. The ALJ found that this was not protected activity under the STAA, 49 U.S.C. § 31105(a)(1)(A). The ALJ concluded that the Complainant's belief was unreasonable because the 600-mile goal was not a set requirement, was obtainable, and because the Respondent had a track record of compliance with hours-of-service rules. On appeal, the ARB affirmed the ALJ's legal conclusions and findings of fact.

[STAA Digest IV A 2 c]
LEEWAY DOCTRINE CANNOT BE INVOKED WHERE SUBSTANTIAL EVIDENCE SHOWS THAT THE COMPLAINANT WAS DISRUPTING BUSINESS

In Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-36 (ARB Dec. 18, 2009), although declining to formally consider the argument because it had not been raised before the ALJ, the ARB stated that the "leeway doctrine" -- which requires a balancing of leeway for implusive behavior with an employer's right to maintain order and respect in its business -- could not have been invoked in the instant case because there was substantial evidence that the Complainant was disrupting business on the dates at issue (upsetting a traffic clerk who was nearly brought to tears, having to be asked to leave the clerk's office three or four times, and later returning to the clerk's office on another issue, causing another confrontation).

[STAA Digest IV A 2 c]
CAUSATION; COMPLAINANT FIRED FOR HIS BEHAVIOR RATHER THAN BECAUSE HE RAISED A SAFETY ISSUE

In Formella v. Schnidt Cartage, Inc. , ARB No. 08-050, ALJ No. 2006-STA-35 (ARB Mar. 19, 2009), the Plaintiff engaged in protected activity under the STAA when he told company officials that he could not drive the assigned truck, because he had an objectively reasonable apprehension that unmatched tire treads could cause him to lose control of the truck. However, the ARB found that substantial evidence supported the ALJ's finding that the Complainant was provocative, intemperate, volatile, and antagonistic, and that he had been fired for this behavior rather than the protected activity. The ARB noted that the ALJ had been aware of, and cited the caselaw that provides that under certain circumstances, a whistleblower must be afforded leeway in presenting his safety concerns. Nonetheless, substantial evidence supported the ALJ's conclusion that the Complainant's behavior crossed the line of permissible behavior.

[STAA Whistleblower Digest IV A 2 c]
CAUSATION; EMPLOYER COULD NOT HAVE KNOWN WHAT WAS IN COMPLAINANT'S LOG BOOKS AT THE TIME THE DECISION WAS MADE TO FIRE HIM

In Davis v. Chem Canada Logistics, Inc. , ARB No. 08-010, ALJ No. 2006-STA-47 (ARB July 24, 2008), the ARB found that substantial evidence supported the ALJ's finding that the Respondent did not know about deficiencies recorded in the Complainant's log book prior to making the decision to terminate the Complainant because the Complainant had been terminated en route and therefore the Respondent could not have seen the log book. The ARB also affirmed the ALJ's finding that the Complainant's testimony regarding verbal reports of safety defects was not credible. The ARB noted that the Complainant had not challenged the ALJ's finding on appeal, having not responded to the Board's notice of a right to file a brief.

[STAA Digest IV A 2 c]
CAUSATION; DIRECT EVIDENCE THAT PROTECTED ACTIVITY WAS A MOTIVATING FACTOR IN DECISION TO DISCHARGE THE COMPLAINANT

In Carter v. Marten Transport, Ltd. , ARB Nos. 06-101, 06-159, ALJ No. 2005-STA-63 (ARB June 30, 2008), the Respondent's Human Resources director explained that she had discharged the Complainant because of, among other reasons, his excessive complaints about his equipment. The ARB found that substantial evidence supported the ALJ's finding that this ground for discharge was direct evidence that protected activity was a motivating factor in the decision to discharge the Complainant. The Respondent argued that the HR director was referring to equipment complaints that had been resolved, but the ARB rejected this argument because the HR director had not made this distinction when testifying.

IV.A.2.c. Responsible official rescinds discriminatory act of unauthorized employee; intent to discriminate cannot be imputed to employer

In Bates v. Kasbar, Inc., 85-STA-11 (ALJ Mar. 7, 1986), adopted (Sec'y May 29, 1986), the ALJ held that if an employer by subsequent action of responsible officials ratifies a discriminatory act of unauthorized employees taken "in the heat of passion", a discriminatory intent may be found. Where, however, at the first available opportunity, an employer rescinds, overrules or negates the actions of an unauthorized employee which may have been discriminatory, an intent of discrimination may usually not be imputed to the employer.

[STAA Digest IV A 2 c]
CAUSATION; INFERENCE DUE TO TEMPORAL PROXIMITY OVERCOME BY PREPONDERANCE OF EVIDENCE

In Scott v. Roadway Express, Inc. , ARB No. 99-013, ALJ No. 1998-STA-8 (ARB July 28, 1999), Complainant had registered internal complaints to Respondent protesting its sick leave policy, once six months before his discharge, and once eight days before his discharge. The ARB concluded that although the proximity between the second complaint and discharge entitled Complainant to an inference of causation, the preponderance of the evidence established that Respondent had ample reason to discharge Complainant for his poor work record, and therefore Complainant failed to establish that Respondent fired him for making protected safety complaints.

See also Schulman v. Clean Harbors Environmental Services, Inc. , ARB No. 99-015, ALJ No. 1998-STA-24 (ARB Oct. 18, 1999) (temporal proximity insufficient to satisfy Complainant's burden of proof by preponderance of the evidence, particularly in light of Respondent's presentation of evidence that the reason for termination from employment was insubordination).

[STAA Digest IV A 2 c]
CAUSATION; CUSTOMER COMPLAINTS

In Clean Harbors Environmental Services, Inc., v. Herman , __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the court declined to disturb the agency's findings that Complainant was fired, at least in part based on protected activity, even though Respondent claimed that Complainant was fired because of customer complaints. The court noted that Respondent did chose to rely only on the testimony of its customer service manager, and observed that "[a] company may reasonably choose not to impose on its customers to appear as witnesses at trial about complaints they have made, but it does so at its own risk where the customer complaints may give the appearance of being based on the employee's refusal to violate the law." 1998 WL 293060 *11. The court noted Respondent's argument that it was not logical for it to do what Complainant claimed it did. The court, however, observed that a failure to do what is ultimately in the company's interest (avoidance of a lawsuit for retaliatory discharge) may be explained by a divergence of objectives between a corporation and its employees, who might perceive the interest as satisfaction of a complaining customer.

[STAA Digest IV A 2 c]
CAUSATION

In Goggin v. Administrative Board , No. 97-4340 (6th Cir. Jan. 15, 1999)(unpublished) (available at 1999 WL 68694) (case below 1996-STA-25), the Sixth Circuit concurred with the ARB's observation that Respondent's evidence that Complainant's attitude had been a problem on the job was not sufficient to overcome the inference of a causal connection between Complainant's protected activity and his discharge because of the temporal proximity between the two, where evidence indicated that Respondent, prior to the protected activity was seeking to "salvage the employee".

IV A 2 c Failure to establish inference

The ALJ issued a Recommended Decision and Order to dismiss the complaint, and the Secretary agreed and so ordered. The Secretary noted, however, that the ALJ's decision did not derive from an analysis of the Complainant's claim in terms of the elements of a prima facie case with an inference of retaliation. Rather, the ALJ conducted his analysis as if a prima facie case had already been established.

The Secretary held that the Complainant failed to establish the inference that his protected activities motivated the adverse action. Complainant's activities were committed in his capacity as a safety committee representative, and were encouraged and willingly complied with.

The Secretary also held that even if a prima facie case had been established, the evidence supported Respondent's claim that Complainant was discharged for poor work performance. Hence, Complainant did not satisfy its ultimate burden of disproving the Respondent's proffered legitimate reason for the discharge.

Ake v. Ulrich Chemical, Inc., 93-STA-41 (Sec'y Mar. 21, 1994).

IV.A.2.c. Causation element not established where evidence supported legitimate reason for discharge

The fact that Respondent encouraged truck drivers to voice their safety complaints and the finding that the Complainant was discharged due to his failure to maintain accurate logs was supported by substantial evidence. The court held that the Complainant had failed to establish the causation element of a prima facie case under the STAA. Moon v. Transport Drivers, Inc. , 836 F.2d 226 (6th Cir. 1987).

[Editor's note: The court did not address the Secretary's finding that even had the Complainant established a prima facie case, the Respondent had a legitimate, non-discriminatory reason for firing the Complainant.]

IV.A.2.c. Prima facie case; STAA

Complainant failed to establish a prima facie case of discriminatory discharge where -- although he was subjected to adverse employment action and had engaged in protected activity in complaining to respondent about, for example, bad tires -- he was discharged almost immediately upon failing to dispatch on time. Respondent's president was incredulous that complainant had sat and waited two hours for a particular service station to open so that he could refuel his truck. After relaying the president's message that complainant was fired, complainant's foreman chided complainant for exercising poor judgment in delaying the run. The Secretary found that this evidence indicated that the protected activity was not a motivating factor in the discharge. Nance v. Polycrest, Inc., 90- STA-43 (Sec'y Aug. 5, 1992).

[Editor's Note: The Secretary's decision does not state whether the protected conduct was contemporaneous with the delayed run.]

IV.A.2.c. Failure to establish causation

Complainant failed to carry his burden of showing that respondent's adverse action (allegedly withholding work) was in retaliation for protected activity in violation of the STAA where uncontroverted evidence showed that a plant closing had reduced respondent's work by eighty percent and, later, that respondent had not received complainant's physical fitness report. Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992).

IV.A.2.c. Causation not automatically established by transfer

The fact that a complainant was transferred from over-the-road driving to log truck driving because of complaints about the over-the-road driving does not automatically establish that his later discharge was motivated by these complaints. Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992). In Moravec , there was no evidence that the complainant's log truck supervisor was responsible for the transfer, nor that he harbored any animosity against the complainant because of his earlier complaints.

[STAA Whistleblower Digest IV A 2 d]
EMPLOYERS KNOWLEDGE OF PROTECTED ACTIVITY; SUMMARY DECISION NOT WARRANTED WHERE THERE WAS A GENUINE ISSUE OF MATERIAL FACT ABOUT WHETHER COMPLAINANT SPOKE TO RESPONDENT'S PRESIDENT AND CO-OWNER ABOUT SPEEDING

In White v. American Mobile Petroleum, Inc. , ARB No. 12-058, ALJ No. 2011-STA-32 (ARB May 31, 2013), the ALJ granted summary decision on the ground that the company president/co-owner was not aware of the Complainant's protected activity at the time that he fired the Complainant. The ARB reversed, finding that viewing the record in the Complainant's favor showed a genuine issue of material fact about whether the Complainant complained to the president/co-owner about being asked by his trainer to exceed the speed limit. Thus, the granting summary decision was error. One member of the Board concurred, finding that there was no admissible evidence in the record that the trainer spoke to the president/co-owner about any of the Complainant's alleged safety complaints, but stating that he would nonetheless remand because the Complainant should have been permitted to depose the trainer before the ALJ ruled on the Respondent's motion for summary decision.

[STAA Whistleblower Digest IV A 2 d]
PROTECTED ACTIVITY UNDER STAA; PLAINTIFF PRODUCED SUFFICIENT EVIDENCE THAT HE WAS "ABOUT TO REPORT" CONDUCT TO THE DEPARTMENT OF TRANSPORTATION TO AVERT SUMMARY JUDGMENT; UNDER CAT'S PAW THEORY, RETALIATORY ANIMUS OF IMMEDIATE SUPERVISOR MAY BE TRACED TO EXECUTIVE OFFICER THAT MADE THE DECISION TO TERMINATE THE PLAINTIFF

In Capalbo v. Kris-Way Truck Leasing, Inc. , 821 F.Supp.2d 397 (D.Me. Oct. 28, 2011), the plaintiff, a commercial truck driver by trade, worked for defendant, a company providing truck rentals and leasing and contract maintenance services, primarily as a "yard jockey," which generally required moving trailers between truck yards. The plaintiff often worked 14 hour days, and although he frequently notified his employer that he was likely to work more hours than permitted under federal regulations, his employer always told him to finish out his work for the day because it did not have other employees to relieve him. The plaintiff filed a complaint with the Maine Department of Labor (MDOL) concerning inadequate pay for overtime. The defendant was aware of this complaint, investigated the plaintiff's wage concerns, and determined that the plaintiff was being paid appropriately.

Prior to January 2008, the plaintiff performed only yard work, and therefore he was not required by his employer to keep driving logs. However, the plaintiff suffered injuries in an on-the-job accident, and when he returned to work three weeks later, he requested more "over-the-road work" to cut down on his time in the yard, to which the defendant agreed. Subsequently, the plaintiff kept driving logs for his "over the road work," but did not turn the logs in regularly. After auditing the defendant in May 2008, the Department of Transportation (DOT) audited a company that contracted with the defendant in August 2008, at which time the plaintiff's supervisor realized that he did not have driving logs for the plaintiff's August 2008 over-the-road work. When questioned by his supervisor, the plaintiff claimed that he already turned them in to the defendant's log drop box.

The plaintiff's supervisor reported to the Vice President of Operations (VPO) that the plaintiff was the only driver that was not regularly submitting driving logs, that he could not find any August 2008 logs for the plaintiff, and that the plaintiff had had problems accurately reporting his hours in the past (although the plaintiff's disciplinary record showed no evidence of this). When the plaintiff, his supervisor, and the VPO met to discuss the log issue, the plaintiff produced a complete logbook, which, after questioning, he admitted that he had recreated from memory. The plaintiff claimed that his supervisor had instructed him to recreate his driving logs to the best of his memory, but because recreating and falsifying logs violates federal law, the VPO terminated the plaintiff's employment for attempting to pass of the inaccurate logs as legitimate.

The plaintiff alleged retaliation in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. § 31105, alleging that he was fired because he was "about to report" violations to DOT and "about to cooperate" with DOT's pending audit; because he filed a complaint with MDOL; because he complained to his supervisor about working excessive hours; and because he refused his supervisor's instructions to recreate his log books.

As to the plaintiff's theory that he was "about to report" violations or "about to cooperate" with the DOT, the defendant argued in its summary judgment motion that STAA's "about to file" provision should be interpreted in the same way as the "nearly identical provision in the Seaman's Protection Act," and therefore asserted that the plaintiff must prove that he was "on the verge" of reporting a violation, and that the employer was aware that he was about to do so. Comparing the text of Seaman's Protect Act provision to the text of STAA, the Court disagreed, and found that the STAA provision "is devoid of language requiring that an employee actually have filed, or even have been on the verge of filing, a report or complaint." Instead, STAA protects employees when an employer "perceives that the employee has filed or is about to file a complaint or has begun or is about to begin a proceeding related to a violation[.]" 49 U.S.C. § 31105(a)(1)(A)(ii) (emphasis added). Given the evidence in the record, the Court then found that a reasonable trier of fact could find that the plaintiff's supervisor perceived that the plaintiff had complained, or was about to complain, to the DOT, and therefore denied summary judgment on the plaintiff's first theory.

The court swiftly rejected the plaintiff's second and third theories of protected activity under STAA filing a wage complaint with MDOL and complaining about excessive hours and granted summary judgment for the employer with regard to those two theories of liability. However, the court found that plaintiff's fourth theory that he was fired because he refused to illegally recreate his logbook and deceive DOT auditors was not "so inherently incredible as to present no triable issue as to whether he engaged in protected activity," and denied summary judgment as to the fourth theory of liability. In so doing, the court rejected the defendant's argument that the defendant was not liable because the VPO, not the plaintiff's supervisor, made the decision to terminate his employment. The court explained that the supervisor's retaliatory animus could be traced to the VPO via a "cat's paw" theory of liability, as [a]n employer may be held liable if the decision-maker who discharged the plaintiff merely acted as a rubber stamp, or the "cat's paw," for a subordinate employee's prejudice, even if the decision-maker lacked discriminatory intent."

[STAA Whistleblower Digest IV A 2 d]
CAUSATION; EMPLOYER'S KNOWLEDGE; "BUREAUCRATIC IGNORANCE" CANNOT SHIELD RESPONDENT FROM LIABILITY

In Warren v. Custom Organics , ARB No. 10-092, ALJ No. 2009-STA-30 (ARB Feb. 29, 2012), the Complainant testified that when he began verbally reporting problems with trucks to his manager, the manager requested that the complaints be in writing. The Complainant and other drivers filled out pre-trip checklists noting any problems with the assigned truck. The Complainant testified that when he tried to turn in the checklists, the manager told the Complainant to keep them. Thus, the Complainant left the checklists in the truck. The ARB found that these facts established that the manager had constructive knowledge of problems reported by the Complainant by virtue of the Complainant's initial complaints to the manager and other supervisors, and the checklists left in the truck in accordance with the manager's instructions. The ARB held that the Complainant was not required to prove "direct personal knowledge on the part of" the manager that he engaged in protected activity. The Board stated that "[i]ndeed, the law 'will not permit an employer to insulate itself from liability by creating layers of bureaucratic ignorance' between a whistleblower's direct line of management and the final decision-maker.'" Warren , ARB No. 10-092, USDOL/OALJ Reporter at 7-8 (citation omitted). The ARB remanded for the ALJ to make findings on whether the Complainant had engaged in protected activity of which the Respondent had constructive knowledge.

One member of the Board wrote separately to note his disagreement that the "bureaucratic ignorance" legal proposition applied to the facts of this case. This member noted that the caselaw on which the proposition was based involved creating layers between direct line management and the final decision-maker. In the instant case, the immediate supervisor and the final decision maker were one in the same. Moreover, whether the manager was on constructive notice was immaterial as the Complainant already engaged in protected activity by making oral complaints. Thus, there was no need for a remand on the issue of protected activity (albeit there did need to be a remand on the issue of causation).

[STAA Digest IV A 2 d]
CAUSATION; MANAGER'S ERRONEOUS BELIEF THAT COMPLAINANT HAD NOT MADE A CREDIBLE SAFETY COMPLAINT

In Elbert v. True Value Co. , ARB No. 07-031, ALJ No. 2005-STA-36 (ARB Dec. 18, 2009), the ARB found that substantial evidence supported the ALJ's finding that the Complainant failed to prove by a preponderance of the evidence that his employment was terminated because he had complained that the trailer brakes were not working. When the Complainant was terminated by the Respondent's manager, the manager did not know that the brakes had not been working, but had been told that a mechanic had found nothing wrong with the brakes, and believed that the Complainant had fabricated the brake complaint as an excuse to confront a co-worker with whom he had prior encounters. The ARB rejected the Complainant's argument that an employer could always defeat a STAA claim merely by claiming that it did not believe that its employee had engaged in protected activity, because substantial evidence supported a finding that the manager had not known that the brakes were a problem when he fired the Complainant. Moreover, when the Complainant challenged the manager's statement that there had been nothing wrong with the brakes, the manager made it clear that he was firing the Complainant only because of insubordination and "failure to operate in a team environment." The record showed that the Complainant had a history of misconduct similar to way he had acted on the date of the trailer brake incident, that he had been given previous warnings about his conduct, and that other drivers had never been disciplined for reporting similar safety problems.

[STAA Digest IV A 2 d]
EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY AT TIME OF DECISION TO TERMINATE EMPLOYMENT

In Baughman v. J.P. Donmoyer, Inc. , ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007, and reissued with corrections on Oct. 31, 2007), the ARB affirmed the ALJ's holding that the Complainant did not prove by a preponderance of the evidence that the officials who decided to terminate his employment knew about his protected activity.

[STAA Digest IV A 2 d]
EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY AT TIME OF DECISION TO TERMINATE EMPLOYMENT

In Baughman v. J.P. Donmoyer, Inc. , ARB No. 05-105, ALJ No. 2005-STA-5 (ARB Sept. 28, 2007), the ARB affirmed the ALJ's holding that the Complainant did not prove by a preponderance of the evidence that the officials who decided to terminate his employment knew about his protected activity.

[STAA Whistleblower Digest IV A 2 d]
CAUSATION; RESPONDENT'S AWARENESS OF PROTECTED COMPLAINT; COMPLAINANT DID NOT RAISE HOURS OF SERVICE ALLEGATION UNTIL AFTER DISCHARGE

Where the Complainant admitted that he did not provide any reason for declining a dispatch prior to his discharge, he failed to demonstrate that he made the Respondent aware of a protected complaint, and his STAA whistleblower complaint therefore failed as a matter of law. On appeal the Complainant argued that even if he did not make a protected complaint to the Respondent on the day of his termination, he had made hours of service and similar complaints in the past, and the ALJ should not have granted summary decision because that protected activity could have factored into the Respondent's decision to discharge him. The ARB declined to address this argument because it had not been raised below. Harris v. Allstates Freight Systems , ARB No. 05-146, ALJ No. 2004-STA-17 (ARB Dec. 29, 2005).

[STAA Digest IV A 2 d]
EMPLOYER'S KNOWLEDGE OF PROTECTED ACTIVITY; RELEVANT AWARENESS IS OF THOSE RESPONSIBLE FOR THE ADVERSE ACTION

In Luckie v. United Parcel Service, Inc. , ARB Nos. 05-026, 05-054, ALJ No. 2003-STA-39 (ARB June 29, 2007), the Complainant was the security manager for one of the Respondent's districts, who complained to district manager about the lack of adequate investigation of a fire in a sorting facility. Two days after making this complaint, the Complainant was offered a promotion which required him to relocate. The promotion offer was allegedly adverse because it was ill-timed for the Complainant. The ARB noted that the Complainant must prove by a preponderance of the evidence that those responsible for the adverse action were aware of the alleged protected activity. The ARB found that the ALJ's finding of fact that the Complainant's supervisors were aware of the Complainant's alleged protected activity was supported by substantial evidence, but that the ALJ did not make findings of fact or conclude that the Respondent's corporate security executives at headquarters were aware of the alleged protected activity. It was these executives who made the decision to offer the Complainant a promotion.

[STAA Digest IV A 2 d]
PROTECTED ACTIVITY; KNOWLEDGE OF RESPONDENT; COMPLAINANT'S REQUEST FOR TIME OFF

In Herrick v. Swift Transportation Co., Inc. , ARB No. 05-082, ALJ No. 2004-STA-56 (ARB June 29, 2007), the ARB affirmed the ALJ's finding that the Complainant's request for time off did not alert the Respondent's management that the Complainant was too tired to drive safely or that he was out of hours under the DOT regulations. The request, therefore, did not constitute protected activity under the STAA.

IV.A.2.d. Requirement that respondent be aware of protected activity

In Greathouse v. Greyhound Lines, Inc., 92-STA-18 (Sec'y Dec. 15, 1992), the complainant alleged protected activity when he testified that he refused to drive a bus purportedly because making the assigned run would place in him in violation of the federal regulation governing driver's hours of service. 49 C.F.R. Part 395. Where, however, the ALJ made rational credibility determinations crediting the respondent's witnesses who testified that the complainant had sufficient hours to make the run, and that the complainant refused the run because he wanted to go elsewhere to take care of pressing personal business, the Secretary held that the complainant "did not establish by a preponderance of the evidence that he engaged in protected activity or that Respondent was aware of the protected activity. Complainant therefore did not make a prima facie case of discriminatory discharge."

[STAA Whistleblower Digest IV A 2 d]
REFUSAL TO WORK; MERE NOTIFICATION TO DISPATCHER OF ILLNESS DOES NOT CONSTITUTE NOTICE OF PROTECTED ACTIVITY

The mere facts that Complainant notified the dispatcher that he was sick, without any further elaboration, and that he presented a vague note from his chiropractor upon his return to work which made no mention of any condition which made it unsafe for Complainant to drive are insufficient to show that Respondent had knowledge of Complainant's protected activity (refusal to drive because illness or fatigue made it unsafe for him to begin or continue to operate a commercial motor vehicle) and thus do not support a STAA whistleblower complaint. Wrobel v. Roadway Express, Inc. , ARB No. 01 091, ALJ No. 2000 STA 48 (ARB July 31, 2003).

[STAA Digest IV A 2 d]
RESPONDENT'S KNOWLEDGE OF PROTECTED ACTIVITY

Where Complainant did not establish by a preponderance of the evidence that Respondent was aware of his complaints to the DOT about hours of service violations at the time Respondent sued him in small claims court for unauthorized use of a vehicle, the ARB dismissed Complainant's STAA complaint. Respondent had presented evidence that other employees had been charged for unauthorized use of a company vehicle, and OSHA had found that another employee had been sued to collect such a charge. Anderson v. Eagle Carriers, Ltd. , 1997-STA-33 (ARB Apr. 16, 1999).

[STAA Digest IV A 2 d]
PROTECTED ACTIVITY; GATHERING OF EVIDENCE; RESPONDENT'S KNOWLEDGE OF REASON

In BSP Trans, Inc. v. USDOL , 1998 WL 754697 (1st Cir. Nov. 3, 1998)(case below 1995-STA-29), the First Circuit recognized that "the STAA protects some acts of evidence-gathering to be used to support a protected complaint...." The court, however, indicated that the ARB erred in finding that the mere copying of time cards and manifests by Complainant was protected activity under the STAA because the ALJ had made a conclusive factual finding that Complainant never actually complained to his supervisors about DOT hours of service violations. Thus, Complainant's supervisors would have had little reason to think that Complainant's copying of time cards and manifests was an attempt to document violations. Rather, the testimony indicated that the supervisors thought Complainant was copying information that was potentially valuable to competitors. The court held that "in the absence of [Complainant's] actual complaint to management, he cannot invoke the protections of the STAA based merely on his copying of company papers for the undisclosed purpose of documenting the company's perceived regulatory violations."

[STAA Digest IV A 2 d]
INTERNAL COMPLAINTS; ADEQUATE NOTICE TO EMPLOYER

In Clean Harbors Environmental Services, Inc., v. Herman , __ F.3d __, No. 97-2083, 1998 WL 293060 (1st Cir. June 10, 1998) (case below 95-STA-34), the court stated that it recognized Respondent's

legitimate due process concerns that the internal communications to the employer must be sufficient to give notice that a complaint is being filed and thus that the activity is protected. In the absence of such notice, the beneficial purposes of the act cannot be accomplished. Clearly there is a point at which an employee's concerns and comments are too generalized and informal to constitute "complaints" that are "filed" with an employer within the meaning of the STAA. The risk of inadequate notice to an employer that the employee has engaged in protected activity is greater when the alleged protected complaints are purely oral.

1998 WL 293060 * 10. In the instant case, however, the record established that Complainant's "superiors were well-aware of his fastidious compliance with safety regulations and his oral and written refusals to accommodate this practice for the sake of customer satisfaction." Id.

[STAA Digest IV A 2 d]
MOTIVE; GATHERING OF EVIDENCE MUST HAVE PROMPTED SUSPICION

Where Complainant was fired for photocopying both his own and other drivers' time cards and his own manifest, but several of Respondent's employees knew that Complainant had raised the issue of drivers being forced to speed or violate the hours of service regulation, and Complainant would have no reason to copy other driver's time cards other than to document hours of service violations, the Board concluded that Respondent suspected at the time of the firing that Complainant was about to file a complaint to a government entity such as the DOT. Michaud & Ass't Sec'y v. BSP Transport , 95-STA-29 (ARB Jan. 6, 1997).

PROTECTED ACTIVITY; VAGUE OR TENUOUS STATEMENTS
[STAA Digest IV A 2 d]

From White v. Maverick Transportation, Inc. , 94-STA-11 (Sec'y Feb. 21, 1996):

Internal complaints to management are protected under the STAA. ... There are many ways an employee can communicate such internal complaints to an employer....
However, some statements made by employees are too vague or tenuous to be perceived as complaints or do not represent the type of communication that qualifies as a complaint under the STAA.

Slip op. at 5-6 (citations omitted).

IV A 2 d Respondent's knowledge; small shop doctrine

In Ass't Sec'y & Mulanax & Andersen v. Red Label Express, 95-STA-14 and 15 (ALJ July 7, 1995), the ALJ noted that the fact that the Respondent was a small, informally managed family enterprise may be sufficient evidence by itself to warrant a finding that the Complainant's protected activities were made known to the official who actually informed the complainant that he was being fired. See D & D Distribution Co. v. NLRB, 801 F.2d 636, 641 (discussing the "small shop doctrine"); Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989).

IV.A.2.d. Emphasis should be placed on knowledge of Complainant's protected activity on the part of party with authority to hire and fire

In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), Complainant refused to drive a truck back to Respondent's truck yard after it had been placed out of service for safety violations. Respondents picked up Complainant and took him back to the truck yard. There, Complainant requested another driving assignment but was told by Respondent's dispatcher to wait for a while. After a half hour (during which Respondent's dispatcher criticized Complainant for Complainant's prior mechanical breakdowns) Complainant requested that Respondent's dispatcher either work him or fire him. At that time Respondent's dispatcher fired Complainant. Subsequently, Complainant's discharge was ratified by Respondent, who had the authority to discharge Complainant while the dispatcher did not.

The Secretary held that the ALJ erred by focusing on the perceived lack of evidence that the dispatcher knew about Complainant's protected activity. The relevant inquiry centers on Respondent's ratification of the dispatcher's discharge of Complainant since only Respondent was empowered to discharge Complainant and the dispatcher's pronouncement that Complainant was fired had no effect.

IV.A.2.d. Suspicion that employee made protected complaints sufficient to establish knowledge

A manager's suspicion that an employee has made protected complaints is sufficient to establish the knowledge element of a prima facie case. See Williams v. TIW Fabrication Machining, Inc., 88-SWD-3 (Sec'y June 24, 1992) (analogous SWDA case).

Stiles v. J.B. Hunt Transportation, Inc., 92-STA-34 (Sec'y Sept. 24, 1993) (manager that fired Complainant testified that he was aware that Complainant had been assigned to a truck that had problems and Secretary found it likely that the manager suspected Complainant's complaints had caused the truck to be placed in the shop for repairs).

IV A 2 d Respondent's knowledge of protected activity alone does not establish causation element of prima facie case

A respondent's mere knowledge of the complainant's protected activity does not satisfy the causal element in a prima facie showing; a complainant is required to present some additional evidence, either circumstantial or direct, beyond the respondent's mere knowledge of the complainant's protected activity, that raises an inference that the protected activity was the likely reason for the adverse action. Etchason v. Carry Companies of Illinois, Inc., 92-STA-12 (Sec'y Mar. 20, 1995) (ALJ had cited cases that indicate only that temporal proximity may be sufficient).

IV.A.2.d. Awareness of protected activity

In an STAA whistleblower proceeding, in order to establish a prima facie case a complainant must establish that the Respondent was aware of the protected activity when the adverse employment action was taken. In Melton v. Morgan Drive-Away, Inc., 90-STA-41 (Sec'y Apr. 26, 1991), a dispatcher was not aware when she offered two runs to the Complainant that he was approaching his maximum hours or that she had a responsibility to enforce the hours regulation. Thus, actions barring the complainant from a certain terminal, a later refusal to rescind the bar, and a termination of the Complainant's lease to drive were not taken in retaliation for the protected conduct -- refusal to drive when to do so would violate a federal regulation.

IV.A.2.d. Respondent not aware of protected activity at time of discharge

Homen v. Nationwide Trucking, Inc. ,
93-STA-45 (Sec'y Feb. 10, 1994)

The Secretary approved the ALJ's recommended decision to dismiss the complaint based on Complainant's failure to establish a prima facie case. To establish a prima facie case under the employee protection provision of the STAA. (49 U.S.C. app. § 2305), the complainant must show that he engaged in protected activity, that he was subject to adverse action, and that the respondent was aware of the protected activity when it took the adverse action. The complainant was found to have engaged in the protected activity only after he was fired for insubordination and thus the Respondent was not aware of any protected activities engaged in by the complainant when they discharged him.

Even assuming that the complainant established a prima facie case, the Respondents demonstrated a legitimate reason for discharging him, which successfully rebuts the inference that the adverse action was motivated by the protected activity. The evidence showed that after the complainant refused to drive the truck for safety reasons, the Respondent assigned him to alternative, non-driving duties only; the Complainant refused the assignment and became disruptive and uncooperative. Hence, the complainant's insubordination was a legitimate reason for his discharge.

IV.A.2.d. "Small Shop Doctrine"

In Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989), the Secretary noted, but did not apply, the "small shop doctrine." This doctrine enables the NLRB to "infer employer knowledge of union or pre-union activities where the number of employees in the work place is small." D&D Distribution Co. v. NLRB, 801 F.2d 636 (3rd Cir. 1986). In the context of STAA cases, this doctrine would allow the Secretary to infer that the person who carried out the discharge of a complainant was aware of the complainant's protected activity in cases where a respondent's business is small.

IV.A.2.d. Knowledge of protected activity; state OSH investigation does not prove awareness

In Roach v. Felts Enterprises, 93-STA-12 (ALJ Mar. 31, 1993), aff'd (Sec'y June 17, 1993), the ALJ found that the Complainant failed to establish a prima facie case where the evidence indicated that the Respondent had no knowledge of the protected activity at the time it took adverse action against the Complainant. Although the Respondent had been subject to an inspection by the state's Division of Occupational Safety and Health shortly after the Complainant filed an allegation of safety violations, the ALJ noted that the state agency maintained confidentiality, and found credible the testimony of the Respondent's general manager and its controller that government inspections were not unusual and they were not aware that the inspection had been prompted by the Complainant's allegation.

IV.A.2.d. Causation element not established where person taking adverse action had no knowledge of protected activity

Where complaints about shop safety were raised in a shop meeting by the mechanics as a group, the complainant was not instrumental in raising the complaint, and the person who discharged complainant did not know that complainant had complained internally or that he had filed a complaint with OSHA, complainant failed to establish the causation element of a prima facie case under the STAA. Gay v. Burlington Motor Carriers, 92-STA-5 (Sec'y May 20, 1992).

IV.A.2.d. Communication requirement STAA; Existence of legitimate, nondiscriminatory reason for adverse action

Complainant did not establish a causal link between his protected activity and his subsequent discharge where the record did not prove that the supervisor who discharged him had any knowledge of the protected activity or, otherwise, that the decision to discharge complainant was motivated in any part by complainant's protected conduct. Instead, the record proved that complainant was discharged for a legitimate, nondiscriminatory reason -- for refusing to attend a counseling session pertaining to his consistent problem of driving over Respondent's established speed limit. Although the complainant contended that the speeding resulted from the way he was dispatched, the Secretary concluded that the record did not support that contention; she also noted that the relevant inquiry is Respondent's perception of its justification for the discharge. Moon v. Transport Drivers, Inc., 836 F.2d 226, 230 (6th Cir. 1987).

Carroll v. J.B. Hunt Transportation, 91-STA-17 (Sec'y June 23, 1992).

IV.A.3. Error to consider respondent's reasons for discharge at prima facie phase

In considering whether the complainant established the elements of a prima facie case, it is error to consider the respondent's reasons for firing the complainant. Auman v. Inter Coastal Trucking, 91-STA-32 (Sec'y July 24, 1992).

IV.A.3. Proximity of protected conduct and adverse action

The ALJ erred in considering respondent's reason for discharging the complainant in determining whether the complainant had established a prima facie case. An employer's legitimate reason for the adverse action "goes not to the prima facie case of causation but to the ultimate question of whether respondent retaliated against complainants because they engaged in a protected activity." Long v. Roadway Express, Inc., 88-STA-31 (Sec'y Sept. 15, 1989), slip op. at 17-18, aff'd sub nom., Roadway Express, Inc. v. Dole, 929 F.2d 1060 (5th Cir. 1991).

Moravec v. HC & M Transportation, Inc., 90-STA- 44 (Sec'y Jan. 6, 1992).

IV.A.3. Prima facie case - STAA; improper to consider Respondent's reasons for adverse action at this stage of analysis

When considering whether complainant established the elements of a prima facie case in a STAA case, it is improper to consider Respondent's reasons for laying off complainant. To do so combines the analysis of the complainant's initial burden with the complainant's ultimate burden to establish that Respondent's proffered reason for the adverse action is a pretext for retaliation. See Moravec v. HC & M Transportation, Inc., 90-STA-44 (Sec'y Jan. 6, 1992), appeal docketed, No. 92-70102 (9th Cir. Feb. 18, 1992).

Hernandez v. Guardian Purchasing Co., 91-STA-31 (Sec'y June 4, 1992).

To the same effect, see Barr v. ACW Truck Lines, Inc., 91-STA-42 (Sec'y Apr. 22, 1992) (ALJ improperly considered Respondent's reasons for not assigning complainant any runs after a certain date in determining whether a prima facie case had been established).

IV.A.4. Derivative complaint

In Hollis v. Double DD Truck Lines, Inc., 84-STA-13 (Sec'y Mar. 18, 1985), Complainant overheard another driver and Respondent's president talking about mechanical problems with a truck. Later that day he was assigned to that truck, and after driving it a short distance became concerned about its safety. He later spoke to the president about his safety concern with the truck. Several weeks later Complainant was asked to drive another truck about which he was also aware of safety problems (and also knew that his stepson was going to have inspected by the state later that day). Complainant did not make any statement to the president about problems with the truck but simply told him he had other things to do. Complainant never got another driving assignment from Respondent.

The Secretary held that by refusing a driving assignment, Complainant committed an act tantamount to resignation. Having never been directly involved in the history of the second truck, and never having sought to have it repaired, neither a constructive discharge nor a violation of section 2305(b) was present. The Secretary found illogical the ALJ's conclusion that Complainant's discharge was derivative of another Complainant.

[Editor's note: The facts of the case are not perfectly clear, but it appears that this Complainant was involved in a plan to assist another Complainant (his son-in-law) in having the truck inspected by a state inspector, which explains why he did not tell Respondent's president why he was refusing the assignment. Complainant waited at the rest stop where the inspection had been arranged so that he could give his son-in-law a ride home after the inspection. Complainant's son-in-law's complaint was found meritorious by the Secretary based on constructive discharge. It doesn't seem to me that the ALJ was being illogical, although there may not technically have been the elements of an STAA complaint directly performed by this Complainant.]