DATE:  April 30, 1992
CASE NO. 91-STA-0022



IN THE MATTER OF

MARY C. SMITH,

         COMPLAINANT,

     v.

SPECIALIZED TRANSPORTATION
SERVICES,

         RESPONDENT. [1] 


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER
     This case arises under the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988), and is
before me for review of the [Recommended] Decision and Order on
Remand of the Administrative Law Judge (ALJ), issued February 11,
1992.  See 29 C.F.R. § 1978.109 (1991).  In his
initial decision, the ALJ ruled that the Assistant Secretary's
preliminary finding, that Complainant was discharged by
Respondent in violation of the STAA, became final because neither
party filed a timely objection to the finding.  I disagreed
because it was not entirely clear from the record that Respondent
was afforded proper notice and opportunity to respond to the
preliminary finding, and I remanded the case to the ALJ for
further proceedings.  Decision and Order of Remand dated November
20, 1991.
     On remand, the parties agreed to forego a second evidentiary
hearing.  Instead, they chose to submit new briefs and to allow
the ALJ to decide the issue of whether a violation occurred based
solely on the record as developed from the first hearing. 
Neither party nor the Assistant Secretary has filed a brief
before me, but I have considered the arguments set forth in their

[PAGE 2]
briefs before the ALJ.
     Complainant contends that on July 19, 1990, Respondent
terminated her in violation of the "because" clause of Section
2305(b) of the STAA when she refused to drive her afternoon bus
route because she felt too "stressed out."  Complainant maintains
that she was incapable of operating the bus safely due to her
mental and physical condition, and she alleges that her
psychotherapist advised her not to drive.
     Respondent first argues that the "because" clause of the
STAA is inapplicable on these facts.  Alternatively, Respondent
argues: (1) that it had no reason to believe, nor does the record
prove, that Complainant was legitimately unable to drive safely
on July 19, 1990; (2) that Complainant voluntarily quit her job;
and (3) that she was discharged for her overall unreliability.
     The ALJ agreed with Respondent's argument that the "because"
clause of Section 2305(b) does not apply here because Complainant
did not allege an unsafe vehicle.  He found, on the other hand,
that Complainant's claim arises under the "when" clause of that
section. [2]   Although the ALJ identified the regulation at 49
C.F.R. § 391.41(b)(9) (1991) as a federal safety regulation
which might have been violated had Complainant driven her bus,
thereby invoking protection under the "when" clause, the ALJ
found that Complainant failed to prove a violation of this
regulation.  He noted that there is no expert evidence in the
record to prove that she suffers from any mental or nervous
disorder likely to interfere with her ability to drive safely. 
In conclusion, the ALJ found that Complainant failed to establish
a prima facie case of discriminatory discharge.
     Contrary to the ALJ's initial finding, the Secretary has
held that an employee's refusal to drive based on illness or her
physical condition may constitute protected conduct under both
the "when" clause and the "because" clause of Section 2305(b). 
Self v. Carolina Freight Carriers Corp., Case No. 89-STA-
9, Sec. Final Dec. and Order, Jan. 12. 1990, slip op. at 9;
see Mace v. ONA Delivery Systems, Inc., Case No.
91-STA-10, Sec. Final Dec. and Order, Jan. 27, 1992, slip op. at
7-8. [3]   I agree, however, that the evidence in this record is
insufficient to meet Complainant's burden to establish a prima
facie case of discriminatory discharge, under either clause of
Section 2305(b), and, therefore, agree that the claim must be
denied.
     The record shows that on the afternoon of July 19, 1990,
Complainant and Respondent's Assistant Manager, Marsha Menefee,
engaged in a telephone conversation which led to this dispute. 
The conversation focused primarily on Complainant's
dissatisfaction with Respondent's policy of requiring Complainant
to leave her bus at Respondent's terminal each night after work,
although the conversation also touched on other bus problems, as 
[PAGE 3]
well as Complainant's failure to receive a pay raise.  T. at 48-
49, 86-88.  Menefee testified that throughout the conversation
Complainant complained that Respondent's policy was an
inconvenience to her and pleaded that she be allowed to bring the
bus back to her home each night.  T. at 87. [4]   According to
Menefee, Complainant stated, "I've just gone through a divorce
and . . .  I don't need the extra stress to have to come back and
forth for the bus."  Id.  Eventually, Menefee requested
that Complainant come to the terminal to pick up her bus for the
afternoon route, and Complainant refused.  Menefee states that
Complainant responded, "you're just putting too much stress on me
to have to come back and forth for this bus."  T. at 88;
see Respondent's Exhibit 7.  Menefee also claims that
Complainant responded affirmatively to Menefee's question, "does
this mean you're quitting the job?"  T. at 88.  Complainant
testified that she specifically responded, "No . . . I'm too
stressed out to drive."  T. at 47-48. 
     According to Menefee, she talked to Respondent's owner,
Michael Jones, shortly after the conversation, "and he said,
'[w]ell, if that's the way she's going to be, if she's going to
be unreliable and not show up for work, call her back and tell
[her] that she does not need to come back to work.'  And I did." 
T. at 88.  Jones maintains that it was his understanding that
Complainant quit her employment, and he admits that he told
Menefee, "'let's see if we can find another driver . . . and
replace [Complainant] because she's refusing to work.'"  T. at
105-06.  He also maintains, however, that he never knew that
Complainant asserted that she was too "stressed out" to drive,  
T. at 105, although he knew generally that she was having some
personal problems and knew that she had an appointment to see her
psychotherapist on the morning of July 19.  T. at 103, 105.    
     In order to establish a protected refusal to drive under the
"because" clause, the unsafe condition must be of such a 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 condition.  49 U.S.C. app. §
2305(b).  In considering claims under the "when" clause, the
Secretary, in factual situations similar to these, has looked to
the federal regulation at 49 C.F.R. § 392.3 (1991), which
requires proof that the employee's ability or alertness was so
impaired as to make vehicle operation unsafe.  See
Mace, slip op. at 8; Self, slip op. at 11. 
Although I disagree with the ALJ's implication that Complainant
could not prevail in proving her claim without submitting expert
opinion evidence, I nonetheless am not convinced by the evidence
as a whole that Complainant was actually unable to drive safely
or without a bona fide danger of 
[PAGE 4]
an accident.  In this regard, I have considered Complainant's
subjective statement in the context of the other conversation and
in light of the description of the events and the circumstances,
including the fact that Complainant had a psychotherapy session
that day. [5]   
     More importantly, however, even if I accept Complainant's
claim that she was "too stressed out" to drive safely,
Complainant cannot prevail.  First, I do not find that
Complainant's remarks to Menefee were explicit enough to convey
to Menefee that the refusal to drive was because Complainant was
unable to do so safely or without danger of accident.  See
Perez v. Guthmiller Trucking Co., Inc., Case No. 87-STA-
00013, Sec. Final Dec. and Order, Dec. 7, 1988, slip op. at 33-
34.  It is more reasonable to infer that Menefee interpreted
Complainant's remarks simply as angry backlash to losing another
argument concerning their bone of contention.  Furthermore,
despite Complainant's claim that earlier in the day her
psychotherapist advised her not to drive, there is no testimony
that Complainant ever informed Menefee of this advice.      
     Complainant has not admitted or denied that she received the
final telephone call from Menefee relaying Jones' message, and I
have no reason not to accept Menefee's testimony on this point. 
Accordingly, I find that Jones made the decision to replace or
discharge Complainant because she refused to drive, and that
decision was communicated to Complainant by Menefee.  I also
accept Jones' uncontradicted testimony that he had no knowlege
that Complainant claimed to be "too stressed out" to drive.  That
Menefee would not have conveyed these remarks to Jones is
consistent with my finding as to Menefee's interpretation of the
remarks.  Moreover, Complainant did not testify that she
communicated or made any attempt to communicate directly with
Jones at the time of this incident.  Consequently, the evidence
shows that Jones had no knowledge of Complainant's remarks and,
therefore, his decision to replace Complainant could not have
been motivated by Complainant's alleged protected conduct.  
See Perez, slip op. at 33-34; Ertel v. Giroux
Brothers Transportation, Inc., Case No. 88-STA-24, Sec. Final
Dec. and Order, Feb. 16, 1989, slip op. at 23; see
generally Torbet v. Delta/McLean Trucking, Case No.
86-STA-12, Sec. Final Dec. and Order, May 24, 1991. 
     Accordingly, Complainant's complaint IS DENIED.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[END NOTES]

[1]  The caption is modified in conformance with 29 C.F.R.
§ 1978.107(b) (1991).

[2]  Section 2305(b) of the STAA protects an employee from
unlawful discharge if she refuses to operate a motor vehicle
"when such operation constitutes a violation of any Federal
rules, regulations, standards or orders applicable to commercial
motor vehicle safety" [the "when" clause] or "because of the
employee's reasonable apprehension of serious injury to herself
or the public due to the unsafe condition of such equipment" [the
"because" clause].  

[3]  The ALJ also erroneously stated that the concept of
"protected activity" is not a legal issue under Section 2305(b)
of the STAA.  See e.g., McGavock v. Elbar,
Inc., Case No. 86-STA-5, Sec. Final Dec. and Order, Jul. 9,
1986, slip op. at 7.

[4]   This policy had been a serious issue of contention between
Complainant and Respondent since its implementation in February
or March 1990.  T. at 83.  At the beginning of Complainant's
employment, she had been allowed to keep the bus at her home
overnight, however, her inability or unwillingness to bring the
bus into the terminal for needed repairs and maintenance as
requested by Respondent had caused Respondent to implement the
policy.  T. at 79-83.  In fact, on the morning of July 19, the
bus needed repairs, and because Complainant was unable to bring
it in herself, Respondent picked the bus up from Complainant's
home and brought it to the terminal for the repairs.  T. at 86-
87.

[5]  Although Complainant points out in her brief that her
psychotherapist advised her not to drive, the therapist did not
testify or submit any documentary evidence into the record, nor
did Complainant testify concerning the therapist's advice. 
See generally Peoples v. Brigadier Homes,
Inc., Case No. 87-STA-30, Sec. Dec. and Order, June 16, 1988,
slip op. at 5.  While the Assistant Secretary's preliminary
findings refer to the therapist's opinion, those findings, as I
emphasized in my first decision, are entitled to no weight. 
Smith v. Specialized Transportation Services, Case No. 91-
STA-0022, Sec. Dec. and Order of Remand, Nov. 20, 1991, slip op.
at 4 n.3, citing Stack v. Preston Trucking Co., Case No.
89-STA-15, Sec. Final Dec. and Order, Jan. 4, 1991, slip op. at 2
n.3.  In any event, even those findings did not indicate a
conclusive, independent medical opinion on the issue.  According
to those findings, "[t]he psychotherapist asked [Complainant] if
she felt okay about driving that afternoon."