CASE NUMBER 95-STA-7

In the Matter of

DAVID W. WIGNALL,
     COMPLAINANT,

     v.

GOLDEN STATE CARRIERS, INC.,
     RESPONDENT.


Appearances

David W. Wignall, Pro Se
2819 East 11th Street
National City, California  91950
     For the Complainant

Brian J. White, Esquire
707 Broadway, 17th Floor
San Diego, California  92101-5311
     For the Respondent

                   RECOMMENDED DECISION AND ORDER

     This proceeding arises under the provisions of Section 405
of the Surface Transportation Assistance Act, 49 U.S.C.
§31105 (hereinafter referred to as "the Act" or "the
STAA").[1]   A formal hearing was held in San Diego, California,
on April 13, 1995.  During the hearing testimony was received
from two witnesses and the following exhibits were admitted into
evidence:  Complainant's Exhibits ("EX") 1, 2, and 6; 
Respondent's Exhibits ("RX") 3-13, 22, 23, 25, and 26.

     Prior to the hearing the Complainant filed a motion which
sought to have the United States Postal Service ("USPS") joined
as a respondent.  That motion was denied in an order issued on
December 20, 1994, on the grounds that the STAA does not apply to
agencies of the United States Government.[2]   As well, three
days prior to the hearing the Complainant filed a motion to
"Vacate Hearing Date" which asserted that the hearing should be
continued until such time as the Complainant was given an
opportunity to use Department of Labor subpoenas to help prepare
his case.  Since the Secretary of Labor has held that there is no

[PAGE 2]
legislative authorization to issue subpoenas in STAA cases, that
motion was denied.[3]   See Malpass v. General Electric
Co., 85-ERA-38 (Secretary's Final Decision and Order, March
1, 1994) at 21-22;  Holden v. Gulf States Utilities, 92-
ERA-44 (Secretary's Decision and Order, April 14, 1995) at 9 n.
6.

                                BACKGROUND

     The Complainant, David W. Wignall, was born in 1944 and has
a B.A. degree in "chaplaincy/counseling."  RX 4.  He has worked
full time as a truck driver since 1991.  Tr. at 83.  The
Respondent, Golden State Carriers, Inc. ("Golden State"), is a
small trucking company that is based in Santa Ana, California. 
CX 2.  At the time of the hearing, Golden State employed 11
drivers and operated 13 tractors.  Tr. at 191, CX 2.  The company
is managed primarily by Jose Jimenez, who also works as a driver
and does repairs on the company's vehicles.  Tr. at 168.

     In late June of 1992, the Complainant was hired by Golden
State to drive a tractor-trailer that was being used to transport
United States mail between Pasadena and San Diego, California,
pursuant to an "emergency contract" between Golden State and the
USPS.  Tr. at 84, RX 5.  Both the tractors and the trailers that
the Complainant drove on this route were owned by Golden State. 
Tr. at 85, 122.  The Complainant continued working on this
contract until September of 1993, at which time he was assigned
to a route running between Los Angeles and San Diego.  Tr. at 85,
90, 124-25.  Although the Complainant also hauled mail on this
route, the work was under a separate contract between the USPS
and Golden State.  Tr. at 90.  Under that contract, the USPS
provided the trailers and Golden State furnished the drivers and
tractors.  Tr. at 90, 125.  The contract continued in effect
until May 28, 1994, at which time another trucking company
underbid Golden State and began providing the service in its
stead.  RX 9, Tr. at 176-77.  As soon as the other trucking
company took over the contract, seven of the drivers who had been
working on the contract left Golden State and began working for
the new contractor.  Tr. at 177, 188.  At approximately the same
time Jose Jimenez told the Complainant that there were no other
jobs for him at Golden State and terminated his employment.  Tr.
at 113-14.  Thus, of the ten Golden State drivers who had been
hauling mail between Los Angeles and San Diego, only two, Jose
Jimenez and his son Robert, remained in the company's employment.
Tr. at 177.

     According to the Complainant's uncontradicted testimony,
almost as soon as he began working for Golden State in 1992 he 
[PAGE 3]
began reporting various safety-related equipment problems to Jose
Jimenez and other members of the Jimenez family.  Tr. at 86-89,
122, CX 1.  These reports concerned such things as worn steering
bushings, balding tires, defective trailer door latches, and
"grabby" brakes.  Id.  Typically, the problems were noted
in handwriting in a logbook that the Complainant submitted each
month, but they were sometimes also communicated verbally.  Tr.
at 88-89.  According to the Complainant, Jose Jimenez had on
occasion described the written safety complaints as being "like
an encyclopedia" and had once asked him if he had shown the
complaints to a highway patrol officer who had taken his vehicle
out of service.  Tr. at 114-15.  The Complainant also testified
that on a couple of other occasions Robert Jimenez accused him of
"always complaining."  Tr. at 115.

     After the Complainant was reassigned to drive on the Los
Angeles-San Diego route he also began making complaints to USPS
employees about the condition of the trailers provided by the
USPS.  For example, the Complainant testified that approximately
one to four times a week he would complain to USPS employees
about holes in the floors of the trailers, flat tires,
malfunctioning lights, missing mud flaps, and brake problems. 
Tr. at 91-92.  Overall, he estimates, he reported such problems
to postal employees over 60 times verbally and almost as many
times in writing.  Tr. at 96-98.  Among the written complaints,
the Complainant testified, were 47 "red tags" which in effect put
a trailer out of service until it was repaired.  Tr. at 98-99. 
As well, he testified, there were an additional 19 times that he
simply refused to hook up a USPS trailer without even "red
tagging" it.  Tr. at 98.   The Complainant further testified that
he also provided written notations about the problems with the
USPS trailers to Golden State and may have even made one or two
verbal complaints to Golden State, as well.  Tr. at 95.

     According to the Complainant, the USPS employees to whom he
complained about the trailers accused him of "busting their
budget,"  and, on one occasion, one of these employees told him
to stop "red tagging" the trailers.  Tr. at 103-04.  In addition,
he testified that he believes that two USPS employees with the
last names of Tanazi and Cisneros were so disturbed by his
practice of "red tagging" the USPS trailers that they conspired
to get him fired by Golden State.  In explaining this belief, he
testified that about two or three months before he was fired, a
USPS employee named Lamar Patton and another USPS employee whose
name he cannot remember told him that they had overheard Mr.
Tanazi and Mr. Cisneros discussing plans to get him fired by
telling Golden State that he had been speeding in the USPS 
[PAGE 4]
terminal area.  Tr. at 159-64.  In this regard, the Complainant
further testified that both Mr. Patton and the unnamed employee
also told him that Mr. Tanazi and Mr. Cisneros had indicated that
their true motive for such an action would be retaliation for the
Complainant's safety complaints and for job problems that the
Complainant had allegedly caused for a friend of theirs.[4]   Tr.
at 159, 162.

     The Complainant admits, however, that although Mr. Tanazi
and Mr. Cisneros had on several occasions explicitly threatened
to complain to Golden State about his alleged speeding in the
USPS's Los Angeles terminal area, neither man ever expressly
mentioned his safety complaints when making such threats. 
Likewise, he also concedes that he has no direct knowledge that
either man ever contacted Golden State about his safety
complaints.  Tr. at 106-10, 113, 128-29.  The Complainant further
acknowledges that Jose Jimenez never told him not to make safety
complaints and never threatened to fire him for making such
complaints.  Tr. at 122, 132.  Moreover, the Complainant admits
that his verbal complaints to Golden State did not occur in
acrimonious circumstances and could be accurately described as
mere discussions.  Tr. at 132.

     The only witness to testify for the Respondent was Jose
Jimenez.  According to his testimony, no one at the USPS or any
other entity ever informed him that the Complainant was making
safety complaints about USPS trailers or in any way put any
pressure upon him to fire the Complainant.  Tr. at 172-73. 
Moreover, Mr. Jimenez testified, his sole reason for terminating
the Complainant's employment was the substantial loss of business
that occurred when the USPS awarded the Los Angeles-San Diego
contract to another company.  Tr. at 191-92.  Mr. Jimenez also
expressly denied any causal connection between the Complainant's
safety complaints and his termination.  Tr. at 173.

                                 ANALYSIS

     It is clear that the Complainant was an "employee" as that
term is defined in the STAA, i.e., that the Complainant was a
driver of a commercial motor vehicle whose work duties directly
affected commercial motor vehicle safety.  See 49 U.S.C.
§31101.  Likewise, it is also clear that the Complainant was
employed by Golden State to operate a "commercial motor vehicle"
as that term is defined in the Act.  Id.  Hence, the only
issue in dispute is whether the Complainant was discharged or
otherwise discriminated against because he made safety-related
complaints or refused to drive for safety-related reasons. 
See 49 U.S.C. §31105.


[PAGE 5]
     The legal standard for determining if a there has been a
violation of the STAA is well established.  In particular, a
complainant must initially present a prima facie case consisting
of a showing that he or she engaged in protected conduct, that
the employer was aware of that conduct, and that the employer
took some adverse action against the complainant.  In addition,
as part of the prima facie case the complainant must present
evidence sufficient to raise the inference that the complainant's
protected activity was the likely reason for the adverse action. 
If the complainant establishes a prima facie case, the employer
then has the burden of producing evidence to rebut the
presumption of disparate treatment by presenting evidence that
the alleged disparate treatment was motivated by legitimate, non-
discriminatory reasons.  At this point, however, the employer
bears only a burden of producing evidence, and the ultimate
burden of persuasion of the existence of intentional
discrimination rests with the employee.  If the respondent
successfully rebuts the employee's prima facie case, the employee
still has the opportunity to demonstrate that the proferred
reason was not the true reason for the employment decision.  This
may be accomplished either directly, by persuading the factfinder
that a discriminatory reason more likely motivated the employer,
or indirectly, by showing that the employer's proferred
explanation is unworthy of credence.  In either case, the
factfinder may then conclude that the employer's proferred reason
is a pretext and rule that the complainant has proved actionable
retaliation for the protected activity.  Conversely, the trier of
fact may conclude that the respondent was not motivated in whole
or in part by the employee's protected activity and rule that the
employee has failed to establish his or her case by a
preponderance of the evidence.  Finally, the factfinder may
decide that the employer was motivated by both prohibited and
legitimate reasons, i.e., that the employer had dual or mixed
motives.  In such a case, the burden of proof shifts to the
respondent to show by a preponderance of the evidence that it
would have taken the same action with respect to the complainant,
even in the absence of the employee's protected conduct. 
See Darty v. Zack Company, 80-ERA-2 (April 25,
1983);  McGavock v. Elbar, Inc., 86-STA-5 (July 9, 1986);
Nix v. Nehi-RC Bottling Co., Inc, 84-STA-1 (July 13,
1984).  See also Roadway Express, Inc. v.
Brock, 830 F.2d 179, 181 n. 6 (11th Cir. 1987).

     As noted above, in order to establish a prima facie case a
complainant must establish: (1) that he engaged in protected
activity, (2) that the respondent knew of the protected activity,
(3) that the respondent took adverse action against him, and (4)
that the protected activity was the likely reason for the adverse

[PAGE 6]
action.  In this case, it is clear that the Complainant has
successfully made the first three of these showings.  The
evidence clearly shows that he made complaints to Golden State
and the USPS about safety-related matters, that the management of
Golden State knew of many of these complaints, and that he was
terminated from Golden State's employment.  However, it is
questionable whether the Complainant has provided enough evidence
to raise an inference that his protected activities were the
likely reason for his termination.  For example, other than
establishing that he was terminated from his employment, all the
Complainant has shown is that he made occasional internal reports
about safety-related problems and that he frequently confronted
USPS employees about alleged safety deficiencies in USPS
equipment.  He has not, however, shown that anyone at Golden
State was particularly disturbed by his reports concerning the
Golden State equipment or even that Golden State had any more
than a casual interest in his disputes with the USPS.[5]   Nor
has the Complainant shown that the timing of his termination was
in any way suspicious.  Hence, although it is well established
that an inference of discriminatory motives can be based on
solely circumstantial evidence, I find that in this case the
circumstantial evidence of unlawful motivation is so weak as to
be insufficient to support a finding that the Complainant's
protected activities were a likely reason for his termination.

     Moreover, even if it could be concluded that the
circumstantial evidence is sufficient to support an initial
inference of illegal conduct, it is clear that the Respondent has
presented enough evidence to rebut any such inference.  In
particular, Mr. Jimenez has credibly testified that his
termination of the Complainant was not influenced by the
Complainant's safety complaints and that the decision to
terminate the Complainant was solely motivated by the fact that
Golden State lost the USPS contract on which the Complainant had
been working.  It is also significant that this testimony is
fully corroborated by documentary evidence and that there is no
convincing evidence suggesting that the reason Mr. Jimenez has
given for the Complainant's termination is in any way a pretext. 
Accordingly, I find that the Complainant's termination was not
motivated, even in part, by his protected activities and that
Golden State did not violate any provisions of the STAA.

                             RECOMMENDED ORDER

     It is recommended that the complaint of David W. Wignall
against Golden State Carriers, Inc., under Section 405 of the
Surface Transportation Assistance Act be dismissed.

[PAGE 7]


                              _____________________________
                              Paul A. Mapes
                              Administrative Law Judge


Date: May 12, 1995
San Francisco, California



[ENDNOTES]
           
[1] 
The STAA was enacted for the purpose of promoting safety on the
nation's highways, and, among other things, prohibits trucking
companies from discharging or otherwise discriminating against
employees who have engaged in certain safety-related activities. 
The Department of Labor regulations implementing the STAA are set
forth at 29 C.F.R. §1978.


[2] 
Subsequently, the Complainant moved for reconsideration of that
decision.  That motion is hereby denied.


[3] 
It is noted, however, that on February 2, 1995, the Complainant
was granted a continuance for the purpose of finding legal
representation and gathering further evidence.  That continuance
was granted even though it appeared that the Complainant had been
less than diligent in seeking legal representation during the two
and one-half months since he had formally requested an
evidentiary hearing.


[4] 
In this regard, the Complainant was asked if he had made any
effort to have Mr. Patton testify at the hearing.  He replied
that he had not made any such effort because he had assumed that
government employees have to be given a subpoena before they can
testify in judicial proceedings.  Tr. at 164-65.


[5] 
It is recognized, of course, that the Complainant has testified
that he was told that two USPS employees were conspiring to have
him fired by Golden State.  For two reasons, however, this
testimony has no evidentiary significance.  First, this testimony
consists of double hearsay that is inadmissible in proceedings
under the STAA.  See Hadley v. Southeast Coop. Service
Co., 86-STA-24 (June 28, 1991);  29 C.F.R. §1978.106; 
29 C.F.R. §18.101, §18.801-06.  Second, at most this
evidence only supports an inference that Golden State was tricked
into firing the Complainant for allegedly speeding at a USPS
terminal facility, a conclusion that, by itself, hardly provides
any justification for finding that Golden State violated the
STAA.