DATE:   June 23, 1992
CASE NO. 91-STA-17



IN THE MATTER OF

WILLIAM E. CARROLL,

               COMPLAINANT,

     v.

J.B. HUNT TRANSPORTATION, 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 
March 12, 1992, in this case arising under Section 405 of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.
app. § 2305 (1988).  Neither party has filed any brief
before me as permitted.  29 C.F.R. § 1978.109(c)(2) (1991).
      Complainant, who was employed by Respondent in February
1985, as an over-the-road driver, alleges that he was discharged
on May 7, 1990, because he reported safety violations to the
Department of Transportation in 1987.  The ALJ found that
Complainant failed to establish a prima facie case of
discrimination under the STAA because there is no evidence that
Complainant's whistleblowing in any way led to his discharge. 
The ALJ also found that even if the evidence could be construed
to support a prima facie case, the evidence overwhelmingly proves
that Complainant was discharged not for a retaliatory reason but
for insubordination.  R.D. and O. at 7.
     Upon review of the record, I find substantial evidence to
support the ALJ's factual findings, including his credibility 
[PAGE 2]
determinations.  Furthermore, in analyzing the evidence, the 
ALJ correctly articulated and applied the appropriate burdens 
of proof and production.  R.D. and O. at 3, 6-7.  Consequently, 
I agree with and accept his decision, see 29 C.F.R. 
§ 1978.109(c)(3), with the following elaborations. 
     Section 405 of the STAA was enacted to encourage employees
in the transportation industry to report noncompliance with
applicable safety regulations governing commercial motor vehicles
and to protect these "whistle-blowers" by forbidding the employer
to discharge, or to take other adverse employment action, in
retaliation for their safety complaints.  Brock v. Roadway
Express, Inc., 481 U.S. 250, 258, 262 (1987); 49 U.S.C. app. 
§ 2305(a), (b).  The STAA does not, however, prohibit an
employer from discharging a whistleblower where the discharge is
not motivated by retaliatory animus.  See, e.g.,
Newkirk v. Cypress Trucking Lines, Inc., Case No. 88-STA-
17, Sec. Final Dec. and Order, Feb. 13, 1989, slip op. at 9;
cf. Lockert v. United States Dept. of Labor, 867
F.2d 513, 519 (9th Cir. 1989).  To prevail under the STAA, the
employee must establish that the employer discharged him because
of the protected whistleblowing  activity. [1]   Newkirk, slip op. 
at 8-9.
     Here, while it is undisputed that Complainant engaged in
protected activity and was subsequently discharged, I agree with 
the ALJ that Complainant has not established a causal link.  The
evidence does not prove that the supervisor who discharged
Complainant had any knowledge of the protected activity or,
otherwise, that the decision to discharge Complainant was
motivated in any part by Complainant's protected conduct. 
See, e.g., Transcript (T.) at 443, 451, 464;
Complainant's Exhibit 9; Gay v. Burlington Motor Carriers,
Case No. 92-STA-5, Sec. Final Dec. and Order, May 20, 1992, slip
op. at 5.  To the contrary, the record proves that Complainant
was discharged for a legitimate, nondiscriminatory reason,
i.e., for refusing to attend a counseling session
pertaining to his consistent problem of driving over Respondent's
established speed limit.  See T. at 446-50, 515;
Respondent's Exhibits 46, 68-4; cf. Kenneway v.
Matlack, Inc., Case No. 88-STA-20, Sec. Final Dec. and Order,
June 15, 1989, slip op. at 12-13. [2]   In sum, Complainant has
not exposed any discriminatory motive leading to his discharge
and has not met his burden of proof.  
     Accordingly, this claim IS DENIED.
     SO ORDERED.

                              

[PAGE 3]
                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  More specifically, to establish the initial prima facie
case, a complainant must present evidence sufficient to raise an
inference of causation.  Where he does so, and the employer
proffers a legitimate, nondiscriminatory reason for the
discharge, then the complainant must show either that his
protected conduct more likely motivated the employer or that the
employer's proffered explanation is incredible.

[2]  Complainant does not deny his problem with driving over
Respondent's speed limit, but he attempts to argue that the
problem was caused by the way in which Respondent dispatched him. 
The record does not support Complainant's argument nor does it
logically follow that Respondent would repeatedly counsel
Complainant on a problem it created.  Regardless, the relevant
inquiry is Respondent's perception of its justification for the
discharge.  Moon v. Transport Drivers, Inc., 836 F.2d 226,
230 (6th Cir. 1987).