DATE:   June 4, 1992
CASE NO. 91-STA-31



IN THE MATTER OF

ELVIS LUIS HERNANDEZ,

          COMPLAINANT,

     v.

GUARDIAN PURCHASING CO.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the [Recommended] Decision and Order
(R.D. and O.) issued February 27, 1992, by the Administrative Law
Judge (ALJ) in this case arising under the Surface Transportation
Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988).
The ALJ recommended dismissal of the complaint for failure to
establish a prima facie case of retaliatory discharge in
violation of the STAA.  As discussed herein, I cannot accept the
ALJ's legal analysis, but I agree with his recommendation to
dismiss the complaint.  
     The ALJ's factual findings and credibility determinations
are fully supported by the record.  R.D. and O. at 3-12. 
Briefly, the pertinent facts are as follows.  Complainant worked
as a truck driver for Respondent from June 19, 1989, until he was
laid off on May 21, 1990.  It is undisputed that he was an
inexperienced driver and that during this employment, he was
involved in three vehicular accidents, two of which were reported
to Respondent's insurance company, and required Respondent to pay
a ,000 deductible for the damage incurred.  Complainant 
[PAGE 2]
testified that he made numerous safety complaints to his
immediate supervisor concerning the excessive work hours
required, overweight and/or unbalanced truck loads, and condition
of Complainant's assigned trailer, during the course of his
employment.  
     Respondent's general manager and Complainant's immediate
supervisor called a meeting on May 21, 1990, to inform
Complainant of his lay-off.  At this meeting, the reason provided
for Complainant's termination was that he and Respondent were
"uncomfortable" with each other.  Complainant testified that he
believed the statement about "uncomfortableness" was a reference
to his safety complaints.  Respondent testified that this
statement was in reference to the accumulation of work
performance factors which led to termination, including personal
use of business equipment, storing personal property on company
premises, poor work attitude, and vehicular accidents.
     Under the burdens of proof in STAA proceedings, Complainant
must establish a prima facie case, showing 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.  Roadway Express,
Inc. v. Brock, 830 F.2d 179, 181, n.6 (11th Cir. 1987).  
     An employee is protected under STAA Section 405(a) 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., Case No. 86-STA-18, Sec. Dec., Mar. 18, 1987, slip op.
at 3-4 (both internal and external safety complaints protected);
cf. Bivens v. Louisiana Power and Light, Case No.
89-ERA-30, Sec. Remand Dec., June 4, 1991, slip op. at 4-5
(citing cases) (internal safety complaints to employer protected
under environmental whistleblower laws).  The record here
indicates that Complainant made complaints to his immediate
supervisor "relating to" alleged violations of Department of
Transportation (DOT) regulations, i.e. excessive driving
hours, driving while fatigued, overweight loads, and condition of
his assigned trailer.  Tr. at 23-24, 26, 33, 52-53.  These
complaints constitute protected activity under the STAA. [1]  
See Bivens at 4-5, and cases cited therein. 
     It is undisputed that Respondent took adverse action against
Complainant in laying him off.  Further, contrary to the ALJ's
conclusions, Complainant's testimonial evidence concerning the
circumstances of his dismissal, including the vague reasons
proffered by Respondent during the May 21 meeting is sufficient
to raise an inference that the protected activity was the likely 
[PAGE 3]
motive for the adverse action. [2]   See generally
McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final
Dec. and Order, July 9, 1986, slip op. at 10-12.  Based on
the evidence of record and the ALJ's factual findings and
credibility determinations, I find that Complainant established a
prima facie case of retaliatory discharge.
     Once a prima facie case is established, the burden of
production shifts to respondent to present evidence that the
alleged adverse action was motivated by legitimate,
nondiscriminatory reasons.  If so produced, then complainant, as
the party bearing the ultimate burden of persuasion of
retaliation, has the opportunity to show that respondent's
proffered reason was not the true reason for the adverse action,
but a pretext.  The record here establishes that Respondent
demonstrated legitimate, nondiscriminatory business reasons for
Complainant's lay off, which Complainant failed to show were
pretextual. [3]  Moravec v. HC & M Transportation,
Inc., Case No. 90-STA-44, Sec. Final Dec. and Order, Jan. 6,
1991, slip op. at 11-12.  Respondent has shown, without
controversion, that shortly before he was laid off, Complainant
was involved in three vehicular accidents which raised legitimate
insurance concerns, and resulted in costs for damages. 
Additionally, Respondent offered credible testimony concerning
Complainant's unauthorized use of company equipment for personal
use, and the deterioration of his job performance and attitude. 
Complainant admitted that prior to the May 21 meeting, he
believed Respondent was upset about his storing his personal
trailer on or near company property for an extended period of
time, and also acknowledged that his part-time work at an
adjacent garage had posed conflicts with working for Respondent.
[4]   
     Complainant has failed to show that Respondent's legitimate,
nondiscriminatory reasons for his lay off are a pretext for a
discriminatory discharge in violation of the STAA.  At the
hearing, Complainant admitted that another driver was fired after
being involved in two accidents in one month.

     Accordingly, this complaint is dismissed for failure to
establish retaliatory discharge in violation of the STAA. 

     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]

[1]   Although the ALJ's R.D. and O. devoted significant
attention to whether Complainant established that actual
violations of the relevant regulations occurred, a complaint is
protected under Section 405(a) even if the alleged violation
complained about  ultimately is determined to be meritless. 
Allen v. Revco D.S., Inc., Case No. 91-STA-9, Sec. Final
Dec. and Order, Sept. 24, 1991, slip op. at 6, n.3, and cases
cited therein.

[2]  In considering whether Complainant established the elements
of a prima facie case, the ALJ incorrectly considered
Respondent's reasons for laying off Complainant.  See
Moravec v.. HC & M Transportation, Inc., Case No. 90-STA-
44, Sec. Final Dec. and Order, Jan. 6, 1992, slip op. at 11,
appeal docketed, No. 92-70102 (9th Cir. Feb. 18,
1992).  The ALJ apparently combined his analysis of Complainant's
initial burden of presenting sufficient evidence to give rise to
an inference that his protected activity motivated the
Respondent's adverse action, with his ultimate burden to
establish that Respondent's proffered reason for the adverse
action is a pretext for retaliation.  R.D. and O. at 18-20.

[3]  Complainant did not show that discriminatory motive played
any part in Respondent's adverse action decision, consequently,
the dual motive analysis is not applicable.  See
generally Pogue v. United States Department of
Labor, 940 F.2d 1287, 1289-91 (9th Cir. 1991). 

[4]  The parties' explanations differ as to how the two jobs were
in conflict.  Respondent claims that Complainant would be found
working at the garage when his duties for Respondent had not been
completed, or that Complainant would fail to follow company
policy about checking in with his supervisor upon returning from
a delivery, and would be found at the garage.  Complainant
contends that his supervisor would approach him at the garage
after work hours and request that he perform additional work for
Respondent.  The ALJ apparently credits both versions of these
incidents.  Regardless of the specifics the testimony indicates
work schedule conflicts over Complainant's respective
responsibilities at each job.