DATE:  June 15, 1992
CASE NO. 91-STA-0047


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND
HEALTH,

          PROSECUTING PARTY,

     AND

HELEN M. PARK,

          COMPLAINANT,

     v.

MCLEAN TRANSPORTATION SERVICES,
INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Recommended Decision and Order
(R.D. and O.) of the Administrative Law Judge (ALJ) issued on
March 26, 1992, in this case arising under the employee
protection provision of the Surface Transportation Assistance Act
of 1982, (STAA) 49 U.S.C. § 2305 (1988). [1]   The ALJ found
that Complainant established retaliatory adverse action in
violation of the STAA, and recommended the award of back pay with
interest, and that Respondent expunge Complainant's records and
post a 
[PAGE 2]
notice to all its employees acknowledging its obligations under
the STAA.  As permitted under the regulations implementing the
STAA, the Assistant Secretary has filed a brief in support of the
ALJ's recommended decision.  29 C.F.R. § 1978.109(c)(2)
(1991).  
     Upon review of the entire record, I find that the ALJ's
factual findings are fully supported by substantial evidence on
the record as a whole.  R.D. and O. at 1-14.  These findings are,
therefore, accepted as conclusive and adopted herein.  See
29 C.F.R. § 1978.109(c)(3).  While I do not agree totally
with the ALJ's legal analysis, I agree with his conclusion that
Respondent violated the STAA by demoting and discharging
Complainant.   Accordingly, I adopt and append the ALJ's R.D. 
and O. and O.C. as supplemented and modified in this order.
     The ALJ's conclusion that Complainant established a prima
facie case of retaliatory demotion and discharge under the STAA
is wholly consistent with applicable law.  See Moon v.
Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987);
McGavock v. Elbar, Inc., Case No. 86-STA-5, Sec. Final
Dec. and Order, July 9, 1986, slip op. at 10-11.  Respondent concedes 
that Complainant was engaged in protected activity on November 13,
1989, when she reported to a Quality Assurance Evaluator that her
assigned bus had an expired inspection sticker.  Respondent
further concedes that adverse action was taken against
Complainant when she was demoted to a substitute bus driver on
November 14, 1989, and later discharged on December 1, 1989.  The
causal link between Complainant's protected activity and the
adverse action is established by Respondent's November 14
memorandum reprimanding and demoting Complainant for "divulging
company information" by asking the Quality Assurance Evaluator
about the expired inspection sticker.  Govt. Ex. G-2. 
Additionally, Respondent's own testimony at the hearing indicated
that Complainant was primarily discharged for this incident of
divulging company information.  Tr. at 280-281; R.D. and O. at
10.  
     Next, the ALJ considered whether Respondent articulated
legitimate, nondiscriminatory reasons for Complainant's
discharge.  I agree with the ALJ's findings that Respondent
offered several nondiscriminatory reasons for the decision to
terminate Complainant, [2]  i.e. Complainant's conduct
towards a gas station owner while filling the bus with gasoline;
Complainant's conduct toward Mr. Green (Vice-President of
Respondent, McLean Transportation) during a payroll dispute on
October 31, 1989; an alleged negative reference obtained from
Complainant's previous employer.  The ALJ then proceeded to
analyze this as a pretext case, where the burden shifts to
Complainant to prove that the reasons proffered by Respondent are
pretextual.  R.D. and O. at 12-14.  Because Respondent 
[PAGE 3]
acknowledges that Complainant's protected activity was a
motivating factor in the decision to discharge her, the dual
motive analysis should be applied. [3] 
     The dual motive doctrine is implicated when it is found that
the employer's adverse action against the employee was motivated
by both prohibited and legitimate reasons, i.e., that the
employer had dual motives.  See generally Wilson
v. Bolin Associates, Inc., 91-STA-4, Final Dec. and Order,
Dec. 30, 1991, slip op. at 4; Palmer v. Western Truck
Manpower, Case No. 85-STA-6, Sec. Dec. and Order on Remand,
Jan. 16, 1987, slip op. at 9-10; McGavock at 12.  In such
a case, in order to avoid liability, the employer has the burden
of showing by a preponderance of the evidence that it would have
made the same decision as to the employee's discharge even in the
absence of the protected conduct.  See Price Waterhouse
v. Hopkins, 490 U.S. 228, 250-58 (1989); Wilson at 4. 
Respondent, here, did not meet that burden.
     There is no evidence in the record to support a finding that
Respondent would have demoted and/or discharged Complainant
absent her reporting the expired inspection sticker to the
Quality Assurance Evaluator.   To the contrary, the evidence
indicates that Respondent admittedly discharged Complainant 
primarily for violating the company policy on "Divulging Company
Information," which was her protected activity.  Tr. at 280-281. 
The evidence shows that prior to this protected activity
Complainant was not given any verbal or written warning
concerning the other alleged legitimate reasons for her
termination, and that Complainant was not informed of these
company policies until after the alleged violations occurred. 
Tr. at 269-271.  Moreover, the evidence establishes that the
reference check which revealed unfavorable comment about
Complainant was initiated after and as a result of her protected
activity.  See Govt. Ex. G-2.  Accordingly, I conclude
that under the dual motive doctrine, Respondent has failed to
avoid liability.       
     Finally, I accept the ALJ's recommended relief, R.D. and O.
at 14, with the exception that prejudgment interest on the back
pay award should be calculated in accordance with 26 U.S.C. 
§ 6621 (1988). [4]   See Spinner v. Yellow Freight
System, inc., Case No. 90-STA-17, Sec. Dec. and Order, May 6,
1992, slip op. at 28; Nidy v. Benton Enterprises, Case No.
90-STA-11, Sec. Dec. and Order, Nov. 19, 1991, slip op. at 17-18.
     Accordingly, I adopt and append the ALJ's recommended
decision as supplemented and modified herein.  
     SO ORDERED.

                              LYNN MARTIN
                              Secretary of Labor
[PAGE 4]
                             

Washington, D.C.


[ENDNOTES]
           
[1]  The ALJ also issued an Order Correcting Recommended Decision
and Order (O.C.), dated April 2, 1992. 

[2]  It is undisputed that Complainant's demotion was based
solely on her protected activity.  Govt. Ex. G-2.

[3]  I note, however, that even under the pretext analysis,
Complainant has established that Respondent's proffered reasons
for her dismissal are pretextual.  R.D. and O. at 12-14.  Thus,
on this particular record, Complainant would prevail under either
the dual motive or the pretext analysis.  

[4]  Complainant does not seek reinstatement.