DATE:  November 16, 1993
CASE NO. 93-STA-22


IN THE MATTER OF

DWIGHT E. TOLAND,

          COMPLAINANT,

     v.

WERNER ENTERPRISES,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                            DECISION AND ORDER
     Before me for review is the August 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).  The ALJ
found that Complainant (Toland) did not establish a prima facie
case of a violation of the STAA and recommended dismissal.  The
ALJ also found that, even if Toland established a prima facie
case, Respondent Werner Enterprises (Werner) discharged him for a
legitimate reason.
     The parties did not file briefs before me.  I have
considered the entire record, including both parties' post-
hearing submissions to the ALJ.
     The ALJ's findings of fact, R.D. and O. 3-5, par. 1 through
13, are supported by substantial evidence on the record taken as
a whole, and therefore are conclusive.  See 29 C.F.R. 
§ 1978.109(c).  The evidence also supports the ALJ's
determination of witness credibility.  R.D. and O. at 5-6, par.
14. [1]   Although I agree with the ALJ's dismissal
recommendation, 
[PAGE 2]
I reach that determination through a slightly different legal
analysis that I explain below.
     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.
     Werner stipulated that it was a covered employer, that
Toland was a covered employee, and that on the day he was
discharged, Toland made protected safety complaints of which
Werner was aware.  T. 15, 20; ALJX 6.  Among Toland's complaints
was the charge that his driver trainer, Byron Chavis, submitted 
false logs of driving hours and also asked Toland to falsify his
log.  T. 80-81. 
     The remaining element of a prima facie case is raising the
inference that Werner fired Toland because he engaged in
protected activity.  The ALJ found that Toland did not present
sufficient evidence to raise that inference.  R.D. and O. at 7
par. 9.  The proximity in time between protected conduct and
adverse action may itself be sufficient to establish causation
for purposes of a prima facie case.  Stiles v. J.B. Hunt
Transportation, Case No. 92-STA-34, Dec. and Ord., Sept. 24,
1993, slip op. at 5; Moravec v. HC & M Transportation,
Inc., Case No. 90-STAA-44, Final Dec. and Order, Jan. 6,
1992, slip op. at 10; Ertel v. Giroux Brothers Transportation,
Inc., Case No. 88-STA-24, Sec. Dec., Feb. 16, 1989.  Toland
was discharged the same day that he raised safety complaints
concerning his driver trainer and log falsification.  Based on
temporal proximity, I find that Toland raised the inference of
causation.  Therefore I also find that he established a prima
facie case of a violation of the STAA.
     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.  Asst. Sec. and
Killcrease v. S & S Sand and Gravel, Inc., Case No.
92-STA-30, Final Dec. and Order, Feb. 5, 1993, slip op. at 7.  
Werner articulated a 
[PAGE 3]
legitimate reason, Toland's insubordination and aggressive
behavior, including use of foul language.  
     Toland had the burden of proving that the reasons Werner
gave for his discharge were not credible, and that the real
reason was retaliation for his safety complaints.  I agree with
the ALJ that Toland did not meet this burden.  R.D. and O. at 7. 
The evidence shows that Toland was uncooperative with his driver
trainer, Chavis.  See T. 106 (refusal to drive when
trainer out of hours) and T. 74 (refusal to help place tarp over
load).  In addition, when Werner employee Douglas Cloyed asked
Toland's explanation for not vacating Chavis' bunk while the two
men were resting at the Omaha terminal, Toland exploded in such a
tirade of verbal abuse and profanity that Cloyed felt threatened. 
T. 40-41, 122-123, 128.  R.D. and O. 5 at par. 10.  When Toland
rejected Cloyed's suggestions for resolving the bunk issue,
Cloyed escorted Toland out of the terminal yard.  T. 123.  The
record clearly demonstrates that Toland's behavior was so outside
the bounds of normal work place demeanor that Werner reasonably
deemed it unacceptable.  See, e.g., 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
though the employee had also engaged in protected activity).
     Werner did not react hostilely to Toland's safety
complaints.  Werner asked Toland to submit his complaints in
writing, investigated them, and determined that Chavis had
falsified his log and that a different student driver trained
under Chavis also had falsified a log.  As a consequence of his
infractions, Chavis was disciplined.  T. 137-138, 141-142; RX 8,
9.   In view of Toland's unacceptable behavior and Werner's
positive response to his safety complaints, I find that Toland
did not persuade either that the reasons Werner gave for firing
him were a pretext or that the real reason he was discharged was
for his engaging in protected activity.  Accordingly, the
complaint is DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.



[ENDNOTES]
           
[1]  The ALJ cited numerous instances of Complainant's poor
recollection.  R.D. and O. at 6, par. B.  While I agree that
Complainant's memory was poor in many of the cited examples, I
would not find fault with Complainant's failing to remember the
name of an employee with whom he worked for one month, about six
months prior to the hearing.