UNITED STATES
DEPARTMENT OF LABOR

USDOL/OALJ Reporter
Olson v. issoula Ready Mix, 95-STA-21 (Sec'y Mar. 15, 1996)

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                        U.S. DEPARTMENT OF LABOR

                           SECRETARY OF LABOR
                            WASHINGTON, D.C.


DATE:   March 15, 1996
CASE NO. 95-STA-21


IN THE MATTER OF

RON OLSON,
          COMPLAINANT,

     v.

ISSOULA READY MIX,
          RESPONDENT.

BEFORE:   THE SECRETARY OF LABOR


FINAL DECISION AND ORDER

     In this case arising under the employee protection provision
of the Surface Transportation Assistance Act of 1982 (STAA), 49
U.S.C.A. § 31105 (West 1994), Complainant, Ron Olson
(Olson), alleged that Respondent, Missoula Ready Mix (MRM),
violated the STAA when it discharged him from his position as a
cement truck driver.  In a Recommended Decision and Order (R.  D.
and O.), the Administrative Law Judge (ALJ) recommended dismissal
of the complaint because Olson did not establish that his
discharge violated the STAA.

     The ALJ's factual findings are supported by substantial
evidence in the record and accordingly are conclusive. 29 C.F.R.
§ 1978.109(c)(3). I accept the ALJ's R. D. and O. and
dismiss the complaint.


BACKGROUND

     Olson received two warning letters concerning his work
performance in April 1994.  RX 2, 3. Under the union contract, an

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RM driver could be discharged for receiving three warning
letters in one year.  RX 1 at 8.

     Olson complained to the company dispatcher in October 1994
about a safety defect in the truck he was assigned to drive.  T.
17. A company representative told Olson there were no other
trucks available and he should either drive the truck or go home. 
T. 18. Olson drove the truck to a nearby highway weigh station
and requested a safety inspection.  T. 19.  The inspector found
the safety defect and took the truck out of service, requiring a
tow truck to retrieve the out-of-service cement truck.  CX 5 at
1, 10.

     The next day, Olson was assigned to drive the same cement
truck and he refused to do so when he determined that the defect
had not been repaired.  T. 85.  Olson informed MRM's insurance
carrier that the company was forcing him to drive unsafe trucks. 
T. 42; CX 5 at 9. He also advised the Montana Department of
Transportation and the federal Occupational Safety and Health
Administration that the company required him to drive unsafe
vehicles.  T. 75-76.
 
     A few weeks after Olson caused his truck to be removed from
service, the sole female employee at MRM's Missoula plant, Pam
Wagner, complained to her supervisor that Olson had harassed her
on several occasions by jiggling the locked doorknob when she was
in the restroom.  T. 351-352, 362-5.  She wrote a written
complaint, CX 6 p. 2A, that was corroborated by a male employee
who had twice heard Olson jiggling the knob and Wagner shouting
that Olson should keep out.  T. 417-420.

     MRM issued Olson a warning letter about harassing Wagner and
suspended him for ten days.  RX 4. The company advised that Olson
would be discharged unless he could provide evidence indicating
that he should not be fired.  Id. MRM discharged Olson
upon the expiration of the suspension.
    
                               DISCUSSION
                                    
     Where a respondent has introduced evidence to rebut a
prima facie case of a violation of an employee
protection provision, it is unnecessary to examine the question
of whether the complainant established a prima facie case. 
Carroll v. Bechtel Power Corp., Case No. 91-ERA-0046,
Final Dec. and Order, Feb. 15, 1995, slip op. at 11 and n.9
(under employee protection provision of Energy 
[PAGE 3]
Reorganization Act), petition for review docketed, No. 95-1729
(8th Cir.  Mar. 27, 1995); White v. Maverick Trans.  Inc.,
Case No. 94-STA-11, Final Dec. and Order, Feb. 21, 1996, slip
op. at 3. "The [trier of fact] has before it all the evidence it
needs to determine whether 'the defendant intentionally
discriminated against the plaintiff.'" USPS Bd. of Governors
v. Aikens, 460 U.S. 711, 715 (1983), quoting Texas Dep't
of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981).

     MRM produced evidence of a legitimate, nondiscriminatory
reason for the discharge: Olson's deficiencies as an employee and
the three written warnings he received.  The relevant question is
whether the Complainant showed by a preponderance of the evidence
that one of the real reasons he was discharged was his safety
complaints and refusal to drive a truck he deemed unsafe.

     I agree with the ALJ that the first two warning letters,
which predated Olson's safety complaints, were legitimate.  R. D.
and O. at 6. Concerning the third letter, Olson argues that it
was a pretext for retaliation because of his protected
activities.  He flatly denies that he harassed Pam Wagner in any
way.  The ALJ, however, found that Olson's denial "appeared half-
hearted," and did not credit him.  R. D. and O. at 8.

     Wagner testified credibly that she felt uncomfortable and
threatened by Olson's behavior, particularly the three occasions
on which he jiggled the restroom doorknob.  T. 366-367, 369Dennis
Emens, who worked in close proximity to the restroom door,
confirmed that Olson jiggled the doorknob, that Wagner was upset
about it, and that after Wagner vacated the rest room Olson did
not use it.  T. 418-422, 428; ALJX 1.

     MRM's owner, Frank Thomas, explained that he considered the
restroom incident serious because the conduct could be construed
as sexual harassment and he believed the company could be liable
if it did not rectify the situation.  T. 241-242, 277-278. 
Although I recognize that the incident did not result in any
great harm to Wagner, I agree with the ALJ that the testimony was
convincing that MRM viewed Olson's actions seriously and that the
warning letter was appropriate in this case.  R. D. and O. at 9.

     In light of the company's authority to discharge employees
who receive three warning letters in one year and the substantial
evidence of Olson's deficiencies as an employee, I find that
Olson did not establish that his protected activities motivated
the decision to discharge him.  Even if Olson's safety complaints
also motivated the decision to discharge him, MRM prevails under
the dual motive analysis because the company established that it 
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would have fired Olson solely for his work performance
deficiencies, most of which predated his protected activities.
See R. D. and O. at 10.  Accordingly, I accept the ALJ's
recommendation and dismiss the complaint.

     SO ORDERED.

                                   ROBERT B. REICH
                                   Secretary of Labor

Washington, D.C.