DATE:   June 4, 1992
CASE NO. 91-STA-38

IN THE MATTER OF 

BRENDA L. BERGERON,

          COMPLAINANT,

     v.

AULENBACK TRANSPORTATION INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the Administrative Law Judge's (ALJ)
[Recommended] Decision and Order (R.D. and O.) issued March 2,
1992, in this case arising under Section 405 (employee protection
provision) of the Surface Transportation Assistance Act of 1982
(STAA), 49 U.S.C. app. § 2305 (1988).  Complainant Brenda L.
Bergeron alleges that she was discharged by Respondent Aulenback
Transportation, Inc., because she engaged in statutorily-
protected activity.  The ALJ has recommended that the complaint
should be dismissed.  I agree generally with the ALJ's
recommendation as clarified below.
     Under the burdens of proof in STAA proceedings, Complainant
must show that she engaged in protected activity, that she was
subjected to adverse action, and that Respondent was aware of the
protected activity when it took adverse action.  Complainant also
must present evidence sufficient to raise the inference that the
protected activity was the likely reason for the adverse action. 
Roadway Exp., Inc. v. Brock, 830 F.2d 179, 181 n.6 (11th
Cir. 1987).  An employee is protected under STAA Section 405(a)
if she "has filed any complaint or instituted or caused to be
instituted any proceeding relating to a violation of a commercial
motor vehicle safety rule, regulation, standard, or order . . .
."  49 U.S.C. app. § 2305(a).  See Davis v. H.R.
Hill, Inc., Case No. 86-STA-18, Sec. Dec., Mar. 18, 1987,
slip op. at 3-4 (both internal and external safety complaints
protected).  Cf. Bivens v. Louisiana Power and
Light, Case No. 89-ERA-30, Sec. Remand 
[PAGE 2]
Dec., June 4, 1991, slip op. at 4-5 (citing cases) (internal
safety complaints to employer protected under environmental
whistleblower laws).  Section 405(b) of the STAA prohibits
discriminatory treatment of employees for refusing to operate a
vehicle "when such operation constitutes a violation of any
Federal rules, regulations, standards, or orders applicable to
commercial motor vehicle safety or health . . . ."  49 U.S.C.
app. § 2305(b).
     Respondent may rebut Complainant's "prima facie" showing
described above by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason.  Complainant
then must establish that the reason proffered by Respondent is
not the true reason for the action.  She may persuade either
directly by showing that the unlawful reason more likely
motivated Respondent or indirectly by showing that Respondent's
proffered reason is unworthy of credence.  McGavock v. Elbar,
Inc., Case No. 86-STA-5, Sec. Dec., July 9, 1986, slip op. at
10-11.
     Complainant was employed by Respondent as an over-the-road
driver of tractor trailers for the three-week period between
August 6 and August 28, 1990.  She contends that she was
discharged on August 28 in retaliation for complaining about
commercial motor vehicle safety defects.  These defects included
faulty engine ignition; inadequate acceleration; excessive fuel
consumption; an oil gauge deficiency; an inoperable lighting
system, including headlights; missing reflector lights; defective
emergency flashers; and an inoperable driver's side door. 
Complainant also complained about driving, and refused to drive
hours in excess of Department of Transportation limitations. 
See 49 C.F.R. § 395.3 (1991).  For example, on August
26, shortly before her discharge, she complained to Maine State
Police about an imminent hours violation and requested that they
place her "out of service" for eight hours, which they did.
     Complainant thus made complaints "related to" commercial
motor vehicle safety standards and refused to operate a vehicle
when continued operation would have violated Federal regulations. 
Complainant's discharge constituted adverse action.  Causation is
shown in that her discharge closely followed her protected
activity.  Couty v. Dole, 886 F.2d 147, 148 (8th Cir.
1989).  It is uncontroverted that Respondent knew about many of
Complainant's complaints because she was required to telephone
Respondent's dispatch on the numerous occasions when the
mechanical and electrical problems resulted in vehicle breakdowns
and when hours limitations necessitated scheduling alterations. 
Complainant also reported the defects on her vehicle inspection
reports, many of which she submitted to Respondent.
     Respondent cites the following legitimate, nondiscriminatory

[PAGE 3]
reasons as motivating its discharge decision:  Complainant's
demonstrated inexperience in operating commercial motor vehicles
and in scheduling assigned deliveries and pickups; her inability
to complete her driving logs correctly; and her husband's
reportedly having driven her assigned vehicle, an unauthorized
practice.  The ALJ credited Respondent's reliance on these
reasons as its sole motivation for discharging Complainant. 
See R.D. and O. at 2-3 (paragraphs 9 and 10), 25-32.  This
finding is supported by "substantial evidence on the record
considered as a whole," 29 C.F.R. § 1978.109(c)(3) (1991),
and I adopt it.  Complainant has introduced no evidence to prove
that Respondent's proffered reasons were pretextual. [1]  
Accordingly, Complainant's complaint IS DISMISSED. 
     SO ORDERED.


                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1] 
  I reject the ALJ's finding that Complainant failed to make a
prima facie showing of unlawful discrimination.  R.D. and O. at
29-30.  As discussed above, all elements of such a showing were
met.  Complainant failed, however, to meet her ultimate burden of
persuading that Respondent was not motivated by its proffered
reasons in discharging her.