DATE:  October 1, 1993
CASE NO. 92-STA-41


IN THE MATTER OF

ASSISTANT SECRETARY OF LABOR
FOR OCCUPATIONAL SAFETY AND HEALTH,

          PROSECUTING PARTY,

     and

FRANK R. KOVAS,

          COMPLAINANT,

     v.

MORIN TRANSPORT, 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 June 2, 1993, issued by the Administrative Law
Judge (ALJ) in this case arising under the employee protection
provision of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988), and the implementing
regulations at 29 C.F.R. Part 1978 (1991).  See 29 C.F.R. 
§ 1978.109(a).  The ALJ recommended dismissal of the
complaint, finding that Respondent established legitimate,
nondiscriminatory reasons for Complainant's discharge on August
28, 1991, which Complainant failed to show were pretextual.
     The Acting Assistant Secretary for Occupational Safety and
Health has filed a brief before me arguing that the ALJ erred in 
[PAGE 2]
concluding that Respondent did not violate Section 405(a) of the
STAA.  Respondent filed a Motion to Strike the Brief, and the
Acting Assistant Secretary filed an Opposition to Respondent's
Motion.  I have reviewed all filings submitted before me and I
reject Respondent's motion to strike the Acting Assistant
Secretary's brief.  The brief was timely filed pursuant to 
the applicable regulations at 29 C.F.R. § 1978.109(c)(2) and
29 C.F.R. § 18.4(c), which provides that 5 days should be
added to the prescribed filing period when the triggering
document is served by mail, such as the ALJ's decision here. 
See 29 C.F.R. § 18.3(c).  Neither has Respondent 
indicated sufficient grounds to strike the brief based on its contents.  
It appears that Respondent's motion to strike on substantive grounds 
may be a convenient vehicle to respond to the Acting Assistant
Secretary's Brief, since Respondent did not file a brief within
the time allowed under 29 C.F.R. § 1978.109(c)(2).  
     Based on my review of the ALJ's R.D. and O., the complete
record in this case and the parties' submissions before me, I
conclude that I cannot accept the ALJ's recommendation to dismiss
the complaint.  Although I accept the ALJ's factual findings and
credibility determinations, I disagree with the ALJ's
consideration of this case under the pretext analysis.  Under the
dual motive analysis, I find that Complainant has established
that Respondent violated Section 405(a) of the STAA.
FACTS 
     Upon review of the record, I accept the ALJ's factual
findings and credibility determinations as fully supported by the
record, and therefore conclusive.  29 C.F.R. §
1978.109(c)(3). See R.D. and O. at 2-10.  For purposes of
the discussion herein, I briefly review the pertinent facts.  
     Complainant filed a telephone complaint with the
Occupational Safety and Health Administration (OSHA) pursuant to
Section 405(a) of the STAA, alleging that he was discharged from
his job with Respondent, Morin Transport, Inc. (MTI) for
complaining to Mr. Larry Morin (Morin), the company owner, about
the safety and maintenance of his truck.  JX 1.  MTI is a lumber
hauling company and employed Complainant during three separate
periods, the last period beginning on July 8, 1991.  Complainant
was discharged from his job as a log hauler for MTI on August 28,
1991, by Mr. Joe Holman (Holman), the shop foreman, at the
instruction of Mr. Denny Combess (Combess), the general manager.
     It was established that Complainant was approached by and
had a conversation with Morin at the lumber yard, within the hour
preceding his termination.  During this conversation, Complainant
complained about problems with lack of maintenance and repairs
and the safety of MTI trucks.  Morin immediately telephoned
Combess and inquired about Complainant's allegations of problems. 
[PAGE 3]
Following this telephone conversation, Combess directed Holman to
fire Complainant, which Holman did as soon as Complainant
returned from the lumber yard.  
     Testimony of Holman and Combess concerning the events and
conversations on the day of Complainant's discharge indicated
that Complainant's discharge was for complaining a lot, and the
decision on August 28 was made as a direct result of, and within
minutes of, Morin's questioning Combess about the complaints of
maintenance and truck safety.  Combess admitted that although
Morin was not angry during their telephone conversation and did
not instruct him to fire Complainant, he had discharged
Complainant because "this was the straw that broke the camel's
back."  Tr. at 258.  The testimony on Complainant and the reasons
for his discharge in more general terms also indicated that he
was discharged because he was generally complaining a lot, never
satisfied, and this bad attitude and insubordination was
detrimental to management and the company.  There is no evidence
of any disciplinary action for Complainant's poor attitude,
constant complaining or insubordination prior to his discharge.
ANALYSIS
     Respondent initially raised procedural issues in this case
including lack of due process notice of the complaint, and
improper filing of the complaint because it was received by
telephone.  I agree with the ALJ's findings that Respondent
received sufficient notice to adequately investigate the STAA
complaint against it, and that the complaint was appropriately
and timely filed with OSHA.  With respect to the additional issue
of whether Morin, as the owner and President of MTI, should be
held individually liable, I conclude that based on the ALJ's
credibility determinations and the uncertainty which could have
resulted from the unclear designation of a singular Respondent,
that Morin should not be held individually liable in these
circumstances.  The letters from OSHA do not clearly indicate
that Morin and MTI were both named Respondents in this case. 
Moreover, there is no direct evidence that Morin discharged or
ordered that Complainant should be discharged.  To the contrary
the testimony credited by the ALJ indicates that Morin was not
involved in the discharge decision or its execution.  Tr. at 57-
58, 213-218, 292, 329-330, 341, 366-370.  There is no assertion
by any witness that anyone was instructed by Morin to discharge
Complainant, or that Morin in his conversation with Complainant
threatened discharge.  I do not believe that a remand is
necessary for further evidence on this issue.
     The ALJ correctly found that Complainant established the
elements of a prima facie case of retaliatory discharge under
Section 405(a) of the STAA.  Complainant engaged in protected
activity by complaining to Morin about truck maintenance and 
[PAGE 4]
safety.  Respondent was aware of Complainant's protected activity
and took adverse action against Complainant when he was
discharged.  An inference that the protected activity was the
likely reason for the adverse action is established by the
testimony of Respondent's witnesses concerning the events leading
up to the discharge, and by the close proximity in time between
the protected activity and the adverse action.  See
Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th
Cir. 1987); McGavock v. Elbar, Inc., Case No. 86-STA-5,
Sec. Fin. Dec. and Ord, July 9, 1986, slip op. at 10-11. 
   Once a prima facie case is established the burden of
production shifts to Respondent.  In the present case, the ALJ
considered whether Respondent articulated legitimate,
nondiscriminatory reasons for Complainant's discharge, and
credited Respondent's testimony that Complainant's poor attitude,
constant complaining and insubordination were disruptive to
management's operation of the company and were legitimate grounds
for discharge.  The ALJ then proceeded to analyze this as a
pretext case, wherein the burden shifts to Complainant to show
that the proffered by Respondent are pretextual.  In the present
case, however, because there is direct evidence that Respondent's
adverse action was motivated, at least in part, by Complainant's
protected activity, this case falls within the dual motive
framework.  
     The dual motive analysis is appropriate 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
Park v. McLean Transportation Services, Inc., Case No. 91-
STA-47, Sec. Fin. Dec. and Ord., June 15, 1992, slip op. at 3-4;
Wilson v. Bolin Associates, Inc., Case No. 91-STA-4, Sec.
Fin. Dec. and Ord., Dec. 30, 1991, slip op. at 4; McGavock
at 12.  Here, Respondent admitted that complaints about
maintenance and safety conditions of trucks were included in the
reason for discharge and stated that the Complainant's comments
to Morin were "the straw that broke the camel's back" when he
actually instructed that Complainant be fired.  
     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); Spearman v. Roadway Express, Inc., Case No. 92-
STA-1, Sec. Fin. Dec. and Ord., June 30, 1993, slip op. 7;
Smith v. Yellow Freight System, Inc., Case No. 91-STA-45,
Sec. Dec. and Ord., March 10, 1993, slip op. at 11.  The evidence
in this case is insufficient to establish that Complainant would
have been discharged even 
[PAGE 5]
absent his protected complaints about lack of maintenance and
safety of MTI trucks.  There is no evidence that Respondent was
displeased with Complainant's job performance or that Complainant
was disciplined about his attitude or insubordination at any time
prior to his discharge.  The record here establishes that the
protected safety complaint to Morin was the immediate cause of
Complainant's discharge on August 28.  Although Combess testified
that he had contemplated Complainant's discharge prior to this
occasion, there is no evidence to support that this action was
going to occur absent Complainant's protected activity of
complaining about maintenance of MTI trucks and safety. The
record establishes that Complainant frequently made safety
related complaints about truck maintenance and repairs and 
that Combess was displeased with Complainant for making too many
complaints as opposed to his not adequately performing his job
duties.  
     Accordingly, I conclude that under the dual motive analysis,
Respondent has failed to avoid liability and Complainant has
established retaliatory discharge in violation of the STAA.  As 
a result, Complainant is entitled to backpay with interest. 
See 49 U.S.C. app. § 2305(c)(2)(B); 29 C.F.R. §
1978.109(a).  The Assistant Secretary has provided an appropriate
basis for calculating the amount of back pay owed, along with
ample supporting evidence.  Respondent has not submitted any
evidence to support an alternative calculation.  I note that
uncertainties in calculating back pay are resolved against the
discriminating party.  See Hamilton v. Sharp Air
Freight Service, Inc., Case No. 91-STA-49, Sec. Fin. Dec. and
Ord., Nov. 25, 1992, slip op. at 4.
                                 ORDER
 Respondent is hereby ordered (1) to purge Complainant's
employment file of any reference to his protected activity and
discharge, and (2) compensate Complainant for back pay as
calculated by the prosecuting party, with interest to be
calculated in accordance with 26 U.S.C. § 6621 (1988). 
Counsel for Complainant is granted a period of 20 days from
receipt of this Decision and Order to submit any petition for
costs and expenses, including attorney's fees.  49 U.S.C. app.
§ 2305(c)(2)(B).  Respondent thereafter may respond to any
petition within 20 days of its receipt.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.