DATE:   August 31, 1992
CASE NO. 91-STA-39


IN THE MATTER OF

SHARON LYNN HARRIS, 

          COMPLAINANT,

     v.

APACA VAN LINES,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the June 17, 1992, Recommended
Decision and Order (R.D. and O.) of the Administrative Law Judge
(ALJ) in this case arising under Section 405, the employee
protection provision, of the Surface Transportation Assistance
Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1988). 
Complainant has filed a brief pursuant to 29 C.F.R. §
1978.109(c)(2).  
     The ALJ found that Complainant made a prima facie case of
retaliatory discharge in violation of the STAA, R.D. and O. at
11, and that Respondent had both legitimate and unlawful reasons
for firing Complainant.  Id. at 15.  Applying the dual
motive analysis, the ALJ found that Respondent showed by a
preponderance of the evidence that, in the absence of
Complainant's engaging in protected activities, it would have
discharged Complainant because of her job performance. 
Id. at 17.
     Noting that Respondent had the burden of separating the
lawful and unlawful motives for the discharge, Complainant
contends that separation of motives was impossible in this case. 
Complainant argues that the asserted reason for firing her, delay
in delivering a shipment of household goods, was caused by her
protected activities of making safety complaints to Respondent 
[PAGE 2]
and to state vehicle inspectors.  
     Contrary to Complainant's contention, Respondent's witnesses
did not state that Complainant was discharged for failing to
deliver a shipment on time.  Rather, Respondent's Operations
Manager Matthews testified that he fired Complainant for not
following instructions, T. 123, and for stalling in departing
Denver with a shipment of household goods, which contributed to
the late delivery.  T. 138.  Respondent's owner Smith
corroborated that he authorized Complainant's discharge because
of her repeated delays in leaving Denver [1]  and her failure to
obey instructions on the correct route to take.  T. 154, 165.  I
find that Respondent presented legitimate reasons for firing
Complainant that were not safety related, and that Respondent met
its burden of establishing by a preponderance of the evidence
that it would have fired Complainant absent her protected
activities.
     I adopt the ALJ's factual findings, R.D. and O. at 3-5,
which are supported by substantial evidence on the record
considered as a whole and therefore are conclusive.  See
29 C.F.R. § 1978.109(c)(3).  The ALJ's credibility
determinations also are well supported, and he applied the
correct burdens of production and proof.  Therefore, I adopt the
ALJ's R.D. and O., which is appended.  Accordingly, the complaint
is DISMISSED.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C. 


[ENDNOTES]
           
[1] 
  Smith cited the following stalling tactics that delayed
Complainant's departure:  not showing up for work on Monday
morning to load the truck, taking off Monday afternoon to do her
wash, and returning to Respondent's office so late on Monday
evening that the office was locked and Complainant could not
obtain the necessary bills of lading.  T. 165.  None of these
asserted delaying tactics involved safety.