DATE:  September 24, 1993
CASE NO. 92-STA-34


IN THE MATTER OF

MORGAN STILES,

          COMPLAINANT,

     v.

J.B. HUNT TRANSPORTATION, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER

     Before me for review is the April 9, 1993, Recommended
Decision and Order 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).  The ALJ found that
Complainant did not establish a prima facie case of a violation
of the STAA and recommended dismissal.  With the corrections
noted below, [1]  the ALJ's findings of fact, R. D. and O. at 2-
7, are supported by substantial evidence on the record taken as a
whole, and therefore are conclusive.  See 29 C.F.R. 
§ 1978.109(c).  Although I agree with the ALJ that the
complaint should be dismissed, I reach that conclusion by a
different legal analysis that I explain below. [2] 
     Complainant argued that he established a violation of both
sections of the STAA's employee protection provision.  Under the
STAA, it is unlawful to discharge an employee because he 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, or has testified or
is about to testify in any such proceeding."  49 U.S.C. app. 
§ 2305(a) [the "complaint" section].
[PAGE 2]
     Section 2305(b) prohibits discrimination against employees
for refusing to drive in either of two circumstances.  An
employee may not be disciplined 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. . . " ["when clause"]. 
Discipline also is prohibited when an employee refuses to operate
a vehicle "because of the employee's reasonable apprehension of
serious injury to himself or the public due to the unsafe
condition of [the] equipment" ["because clause"].  The second
ground for refusal further requires that the unsafe condition
must be such that a reasonable person, under the circumstances,
would perceive a bona fide hazard, and that the employee must
have sought from his employer, and have been unable to obtain,
correction of the unsafe condition.  49 U.S.C. § 2305(b).
     I. Prima facie case
     To establish a prima facie case in a STAA proceeding, a
complainant must show that he engaged in protected activity, that
he was subjected to adverse action, and that the respondent was
aware of the protected activity when it took the adverse action. 
Complainant must also present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action.  Roadway Express, Inc. v. Brock, 830
F.2d 170, 181 n.6 (11th Cir. 1987); Auman v. Inter Coastal
Trucking, Case No. 91-STA-00032, Final Dec. and Order, July
24, 1992, slip op. at 2.  
     On February 14 and 15, 1992, Complainant Stiles informed
responsible persons within Respondent Hunt's organization that
his assigned truck had an air leak in the brake line, noise in
the clutch, and bald tires.  R. D. and O. at 5.  Stiles contends
that he was discharged because he raised these internal safety
complaints.
     Hunt argues that Stiles did not engage in an activity
protected under the STAA because he complained only to other Hunt
employees, an "internal" complaint.  Resp. Mem. Brief in Support
of ALJ's Decision at 16-17.  Citing a case under the Energy
Reorganization Act (ERA), Brown & Root v. Donovan, 747
F.2d 1029 (5th Cir. 1984), Hunt contends that to have protection
under the STAA's complaint section, an employee must "file a
formal complaint with an appropriate government agency."  Resp.
Mem. Brief at 16.
     Internal complaints to superiors are protected under the
STAA's complaint section.  Smith v. Yellow Freight System,
Case No. 91-STA-45, Dec. and Order, Mar. 10, 1993, slip op. at
12, appeal docketed, No. 93-33488 (6th Cir. May 7,
1993); Asst. Secretary and Killcrease v. S & S Sand and
Gravel, Inc., Case No. 92-STA-30, Final Dec. and Order, Feb.
5, 1993, slip op. at 8; 
[PAGE 3]
Asst. Sec. and Lajoie v. Environmental Management Systems,
Inc., Case No. 90-STA-31, Final Dec. and Order, Oct. 27,
1992, slip op. at 5, appeal docketed, No. 92-2472
(1st Cir. Dec. 28, 1992); Davis v. H.R. Hill, Inc., Case
No. 86-STA-18, Dec. and Order of Rem., Mar. 19, 1987, slip op. at
3-4.  I am unaware of any decision in the United States Court of
Appeals for the Fifth Circuit, whose decisions are controlling in
this case, extending the Brown & Root decision to cases
under the STAA's complaint section, and I decline to do so for
the reasons stated in Davis.     Discharge clearly
constituted adverse action against Stiles.  Jay Johnson, the
manager who made the decision to fire Stiles, 
T. 436, testified that he was aware that Stiles had been assigned
a truck that had problems.  T. 440-441.  I find it likely that
Johnson had reason to suspect that Stiles' complaints had caused
the truck to be placed in the shop for repairs.  A manager's
suspicion that an employee has made protected complaints is
sufficient to establish the knowledge element of a prima facie
case.  See Williams v. TIW
Fabrication Machining, Inc., Case No. 88-SWD-3, Sec. Dec.,
June 24, 1992, slip op. at 6 (under analogous provision of the
Solid Waste Disposal Act, managers' suspicions that complainant
had filed complaints sufficient to show respondent's knowledge).
     In establishing a prima facie case a complainant need only
raise the inference that his engaging in protected activities
caused the adverse action.  The proximity in time between
protected conduct and adverse action alone may be sufficient to
establish the element of causation for purposes of a prima facie
case.  Moravec v. HC & M Transportation, Inc., Case No.
90-STAA-44, Sec. Dec., Jan. 6, 1992, slip op. at 10; Ertel v.
Giroux Brothers Transportation, Inc., Case No. 88-STA-24,
Sec. Dec., Feb. 16, 1989.  Since Stiles was discharged within a
week of raising safety complaints about a truck, I find that he
raised the inference of causation.  I therefore find that
Stiles established a prima facie case of a violation of the
complaint section, 49 U.S.C. app. § 2305(a).
     Stiles refused to drive a truck because of serious safety
defects.  Bald tires and defective brakes would violate the
Federal safety regulations at 49 C.F.R. § 393.75 (tires) and
393.50 and 393.51 (air brakes).  Johnson was aware that Stiles
had caused repairs to be made on a truck when he discharged
Stiles less than a week later.  I therefore find that Stiles also
has established a prima facie case of a violation of the "when"
clause of 49 U.S.C. app. § 2305(b). 
     Concerning the "because" clause, I find that a person in the
same circumstances as Stiles would have a reasonable apprehension
of serious injury because of defective brakes and bald tires. 
Stiles twice sought correction of the defects, and Hunt 
[PAGE 4]
ultimately made the necessary repairs while Stiles was assigned
to a different truck.  Therefore, Stiles did not establish a
prima facie case of a violation of the "because" clause since he
succeeded in getting the defects corrected.  Cf. Brame
v. Consolidated Freightways, Case No. 90-STA-20, Final Dec.
and Order, June 17, 1992, slip op. at 4 (complainant did not
establish prima facie case under "because" clause where
apprehension of injury was unreasonable).
     II. Respondent's Burden of Production and
Complainant's            Ultimate Burden of Persuasion
     If the complainant succeeds in establishing a prima facie
case, the respondent has the burden of articulating a legitimate
reason for taking the adverse action.  Killcrease, slip
op. at 7.  Hunt articulated a legitimate reason for the discharge
on February 21, 1992, that Stiles violated the terms of his
"conditions of reinstatement."  Hunt had been discharged earlier
in February 1992 for uncooperative behavior.  T. 131-132.  An
employee Board of Review reinstated Stiles on the condition that
he would be discharged immediately if he refused to work, damaged
company property, or used abusive or vulgar language with his
coworkers.  RX 1, p. 2.  Witnesses for Hunt testified that Stiles
was fired the second time for insubordination and using vulgar
language with the safety manager of the East Brunswick, New
Jersey terminal.  T. 214, 436; RX 1, p. 5.  
     Stiles had the burden of proving that the reasons Hunt
stated for his discharge were not credible, and that the real
reason was retaliation for his safety complaints.  See
Killcrease, slip op. at 7.  I find that Stiles did not
meet this burden.  Stiles used extremely vulgar language while
speaking with an East Brunswick terminal employee who had no
knowledge of Stiles' earlier complaints about the condition of a
truck at the Dallas terminal or of Stiles' reinstatement and its
terms.  The employee was offended and telephoned Stiles'
superiors to report the vulgar language.  As a result of the
violation of the conditions of reinstatement, manager Johnson
decided to fire Stiles.  I agree with the ALJ that the evidence
establishes convincingly that Stiles legitimately was fired for
insubordination and for using extremely vulgar language.  R. D.
and O. at 10.  See Dunham v. Brock, 794 F.2d 1037,
1041 (5th Cir. 1986) ("[a]busive and profane language coupled
with defiant conduct or demeanor justify an employee's discharge
on the grounds of insubordination" even through the employee had
also engaged in activity protected under an analogous employee
protection provision); Couty v. Arkansas Power & Light
Co., Case No. 87-ERA-10, Final Dec. and Order on Remand, Feb.
13, 1992, slip op. at 2 (no statutory violation where Complainant
[PAGE 5]
discharged for engaging in abusive, disruptive, profane, and
threatening behavior towards supervisors).
     Stiles did not sustain his burden of establishing that the
reasons given for his discharge were a pretext for discrimination
or that he was discharged for engaging in protected activity. 
Accordingly, the complaint is DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  On p. 3, carryover paragraph, line 2, the reference to p. 95
of RX 1 is deleted.  On line 4, the reference to RX 1 is deleted.
     On p. 5, second paragraph, line 4, the reference to p. 282
of the transcript is deleted.  
     On p. 6, second paragraph, last line, the reference to Tr.
p. 38 is replaced with Tr. p. 239.  In the third paragraph, last
line, the reference to Tr. pp. 281-283 is replaced with Tr. p.
83.  
     On p. 7, carryover paragraph, last line, the reference to
Tr. pp. 40-41 is replaced with Tr. pp. 440-441.

[2]  Respondent timely filed a brief before me.  Complainant was
granted an extension of time for filing his brief, but he did not
file one.  By requesting the extension, Complainant waived the
120-day decisional deadline at 29 C.F.R. § 1978.109(c)(1). 
See Order Granting Extension of Time, May 21, 1993, at 2. 
In reaching this decision, I have considered the entire record,
including the post-hearing briefs filed by both parties before
the ALJ.