DATE:  March 20, 1995
CASE NO. 92-STA-12


IN THE MATTER OF

CLYDE ETCHASON,

          COMPLAINANT,

     v.

CARRY COMPANIES OF ILLINOIS, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     On October 31, 1994, the Administrative Law Judge (ALJ)
issued a Recommended Decision and Order (R.D. and O.) 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 principally alleges that
he was terminated on March 15, 1991, because he complained to
Respondent on numerous occasions about having to drive in
violation of Department of Transportation (DOT) regulations and
because he reported and threatened to report Respondent to the
DOT and the Occupational Safety and Health Administration.  The
ALJ found that Complainant made a prima facie showing of
retaliatory discharge, that Respondent articulated legitimate,
nondiscriminatory grounds for its discharge decision, and that
Complainant failed to establish that retaliation played any part
in his discharge.  After reviewing the record, I accept the ALJ's
recommendation to dismiss this complaint. [1] 
                             DISCUSSION
     The ALJ's decision is thorough and reflects careful 
[PAGE 2]
attention to the significant details of the case.  His relevant
findings of fact, including credibility determinations, are
supported by substantial evidence, except where noted, and are,
therefore, conclusive.  R.D. and O. at 3-21; 29 C.F.R.
§ 1978.109(c)(3) (1994).  The ALJ also correctly recognized
the applicable burdens of proof and persuasion under the STAA. 
R.D. and O. at 22; Roadway Express, Inc. v. Brock,
830 F.2d 179, 181 n.6 (11th Cir. 1987); McGavock v. Elbar,
Inc., Case No. 86-STA-5, Sec. Dec., Jul. 9, 1986, slip op. at
10-11.  Although he erred in analyzing the prima facie
case, R.D. and O. at 22, 25-26, the error does not change the
outcome of the case.  The ALJ correctly concluded that
Complainant did not carry his ultimate burden of proof.
Contrary to the ALJ's statements, the Secretary has not held that a 
respondent's mere knowledge of the complainant's protected activity 
satisfies the causal element in a prima facie showing.  
The authority cited by the ALJ indicates only that temporal proximity
between the employer's awareness of the protected activity and
the adverse action may be sufficient.  Asst. Sec. and
Zessin v. ASAP Express, Inc., Case No. 92-STA-0033, Sec.
Dec., Jan. 19, 1993, slip op. at 13.  A complainant is required
to present some additional evidence, either circumstantial or
direct, beyond the respondent's mere knowledge of the
complainant's protected activity, that raises an inference that
protected activity was the likely reason for the adverse action. 
Clay v. Castle Coal and Oil Co., Inc., Case No. 90-STA-37,
Sec. Dec., Nov. 12, 1991, slip op. at 6.
     Since the ALJ relied on an erroneous standard in determining
the causal element, his ruling that Complainant made a prima
facie showing is suspect.  Once a respondent has
presented rebuttal evidence, however, the answer to the question
whether the complainant has made a prima facie showing is
not particularly useful.  See Carroll v. Bechtel Power
Corp., Case No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip
op. at 11 (restating and clarifying legal principles applicable
in whistleblower proceedings).  At that point, "the real
battleground revolves around whether the reasons articulated by
respondent Carry . . . are pretextual," and whether Complainant
met his ultimate burden of proof.  Complainant's Brief at 4;
Carroll, slip op. at 12.
 Respondent's termination form, dated March 17,
1991, lists "customer complaint" and "failure to complete
probation period" as the explanation for Complainant's discharge. 
Complainant's Exhibit (CX) 15.  Michael Tallaksen, who made the
decision to fire Complainant, elaborated on these reasons and
added another reason as the "final straw" -- Complainant's
disruptive behavior during their final meeting on March 15.  CX
14 at 57-59.

[PAGE 3]
     I have carefully considered Complainant's arguments but none
convince me that the ALJ was wrong in crediting Tallaksen's
explanation. [2]   During only nine and one-half months of
employment with Respondent, Complainant was involved in at least
seven "incidents" relevant to his job performance.  Nancy
Rachford, an employee of one of Respondent's customers, Pepsi-
Cola Company (Pepsi), testified concerning the last incident. 
Rachford testified that on March 14, Complainant repeatedly
disregarded her unloading instructions and acted "odd," so she
called and reported his behavior to Respondent.  Transcript (T.)
at 439, 441-44, see T. at 203-204.  Rachford told
Respondent that she did not want Complainant to return to Pepsi. 
T. at 444.
     Even if some of the prior incidents were minor or involved
"bad luck," Complainant's Brief at 14, the record documents a
checkered employment history at best, spanning a brief period and
ending in a customer complaint and a confrontation with
Tallaksen.  R.D. and O. at 29. [3]   Complainant acknowledged
that Rachford was annoyed with him on March 14, and he admitted
that he acted belligerently when Tallaksen confronted him about
the incident on March 15.  T. at 203-204.  Although Complainant
engaged in protected activities during his employment, including
threatening to file a complaint with the DOT in February, neither
the Pepsi incident nor Complainant's confrontation with
Tallaksen, which occurred on the two days immediately before he
was fired, involved protected activity.  T. at 214.  Considering
the entire sequence of events in this case, Respondent's
explanation is completely believable, and Complainant failed to
prove his allegation that Respondent seized upon the incidents to
disguise retaliatory conduct.  Cf. Monteer v. Milky Way
Transp. Co., Inc., Case No. 90-STA-9, Sec. Dec., Jul. 31,
1990, slip op. at 4 (evidence of wholly unprotected conduct
immediately preceding adverse action may militate against
inference of causation).
     Accordingly, the complaint IS DISMISSED.
     SO ORDERED.




                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.





[ENDNOTES]
           
[1] 
  Both parties submitted briefs in response to the ALJ's
decision.  I do not accept Respondent's brief because it was
filed beyond the thirty-day time frame provided in the
regulations and without leave.  29 C.F.R. § 1978.109(c)(2)
(1994).

[2] 
  The ALJ did not err in assigning no weight to evidence of
Respondent's misconduct in an entirely different case brought
before the National Labor Relations Board.  See 29 C.F.R.
§ 18.404(b) (1994) (evidence of other wrongs not admissible
to prove character in order to show action in conformity
therewith).  The ALJ independently found most of Respondent's
managers not credible and specifically noted the unflattering
picture of Respondent's operation.  R.D. and O. at 30.  In the
end, he credited Tallaksen and that credibility finding is well
explained.

[3] 
  The ALJ's misstatement concerning a second incident,
i.e., that Complainant "admitted that he was banned from
returning to Grey and Company at the customer's request,"
R.D. and O. at 29 (emphasis supplied), is harmless.  Complainant
admits that after an August 10 incident at Grey and Company,
Respondent never allowed him to service that customer again.  T.
at 175-77.  Complainant's removal from the customer's route
immediately after the controversial August 10 incident, which
followed on the heels of a prior incident with that same
customer, is significant evidence even with the appropriate
correction in Complainant's admission.