DATE:  April 1, 1994
CASE NO. 93-STA-17


IN THE MATTER OF

JOSEPHINE DOYLE,

          COMPLAINANT,

     v.

RICH TRANSPORT, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Before me for review is the December 2, 1993, 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). [1]   The
ALJ found that Respondent Rich Transport, Inc. violated the STAA
when it discharged Complainant Josephine Doyle.
     In reaching this decision, I have considered the entire
record before the ALJ and the briefs submitted before me. [2]   
     The ALJ's findings of fact, R.D. and O. at 2-4, are
supported by substantial evidence on the record taken as a whole,
and therefore are conclusive.  See  29 C.F.R. §
1978.109(c).  I agree with the ALJ's conclusion that Rich
Transport violated the STAA.  With the clarifications set forth
below, [3]  I adopt the appended R.D. and O. and the Recommended
Order Awarding Attorney's Fee.
     As the ALJ observed, in cases under the whistleblower
provisions of the Energy Reorganization Act of 1974, the United 
[PAGE 2]
States Court of Appeals for the Fifth Circuit has held that
internal complaints to management are not protected activities. 
R.D. and O. at 6-7.  Brown & Root v. Donovan, 747 F.2d
1029 (5th Cir. 1984).  I am unaware of any decision of the Fifth
Circuit extending the Brown & Root decision to cases under
the STAA.  Thus, in all of the Federal circuits, internal
complaints to managers are protected activities under the STAA.  
     Citing Yellow Freight System, Inc. v. Martin, 983
F.2d 1195 (2d Cir. 1993), Rich Transport argues that Doyle did
not establish a STAA violation in this case because she did not
prove conclusively that the condition of the trailer about which
she complained violated a federal safety regulation.  (Resp. Br. 
at 2).  In the Second Circuit, such a showing is required in
refusal to drive cases under STAA section 405(b), 49 C.F.R. app.
§ 2305(b) (1988), as Yellow Freight makes clear, 983
F.2d at 1199 (emphasis added):
          Spinner's setion 405(b) claim alleges he was
          terminated for refusing to operate a vehicle
          when such operation would have constituted a
          violation of federal regulations.  To be
          meritorious on a 405(b) claim, a
          driver must show that the operation would
          have been a genuine violation of a federal
          safety regulation at the time he refused to
          drive--a mere good-faith belief in a
          violation does not suffice.
     
     But Doyle did not refuse to operate the vehicle when the
purportedly unsafe trailer was attached, as Rich Transport
acknowledges.  Resp. Br. at 2.  Rather, Doyle repeatedly
complained to the trailer's owner, PacLease, and to various Rich
Transport officials, that the trailer's door latch was unsafe.
     Doyle alleged that her complaints were protected under
section 405(a), which prohibits discrimination against an
employee who "has filed any complaint or instituted or caused to
be instituted any proceeding relating to a violation of a
commercial motor vehicle safety regulation, standard, or order,
or has testified or is about to testify in any such proceeding." 
In 405(a) cases, the employee need not establish an actual
violation of a safety regulation.  Yellow Freight System, Inc.
v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) (agreeing with
Secretary's interpretation that § 405(a) protection not
dependent upon actual success in proving a violation of a federal
safety provision).  
     I agree with the ALJ that to establish activities protected
under § 405(a), it was sufficient that Doyle reasonably
believed 
[PAGE 3]
the failure of the trailer doors to close properly was a safety
hazard.  R.D. and O. at 6.  Doyle established that her belief was
reasonable in this case, and thus established that she engaged in
protected activity when she complained about the doors. 
Id.
     The fourth element of a complainant's prima facie case of a
violation of the STAA is to present evidence sufficient to raise
the inference that the protected activity was the likely reason
for the adverse action.  Homen v. Nationwide Trucking,
Inc., Case No. 93-STA-45, Dec. and Order, Feb. 10, 1994, slip
op. at 3.  I agree with the ALJ that Doyle raised the inference
in this case because of the proximity in time between her
protected activities and her discharge.  R.D. and O. at 7.  
     I agree with and affirm the ALJ's findings that Doyle
established a prima facie case and that Rich Transport
articulated both legitimate and nonlawful reasons for discharging
her.  I further agree that under the dual motive analysis, Rich
Transport did not convince that it would have fired Doyle even if
she had not made any safety complaints.  R.D. and O. at 10-11.  I
therefore affirm the ultimate finding that Rich Transport
violated the STAA when it discharged Doyle.  Finally, I agree
with and adopt the ALJ's Recommended Order Awarding Attorney's
Fee. 
     It is ORDERED that:
     1. Respondent reinstate Complainant to the same or a similar
position.
     2. Respondent pay back wages to Complainant at the rate of
$378.28 per week from September 28, 1992, until Complainant is
reinstated.  Respondent shall receive credit in the amount of
$4,741.54, which represents the amount Complainant earned in
other employment between September 28, 1992, and August 19, 1993. 
Respondent also is entitled to additional credit if complainant
earned additional wages from August 20, 1993, until the date of
her reinstatement.  Respondent shall pay prejudgment interest on
the net sum owed, calculated pursuant to 26 U.S.C. § 6621.
     3. Respondent shall pay Complainant's counsel, Charles J.
Doerpinghaus, $3437.50.  
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C. 




[ENDNOTES]
           
[1]   The ALJ's Recommended Order Awarding Attorney's Fee, issued
on March 8, 1994, also is before me for review.

[2]   In view of the fact that the ALJ's March 8, 1994,
Recommended Order Awarding Attorney's Fee predated the submission
of the parties' briefs before the Secretary, I will not afford an
additional briefing period concerning the March 8 decision.

[3]   The R.D. and O. is amended as follows.  On page 2, last
paragraph, line 12, change the transcript reference following the
words "close the door" to "TR 24."   On page 4, second
full paragraph, last line, change the transcript reference to "TR
55."  On page 4, third full paragraph, line 11, change the
transcript reference to "TR 118-119."