DATE:  October 25, 1995
CASE NO:  94-STA-00005


IN THE MATTER OF

BOBBY J. WILLIAMS 

          COMPLAINANT,

     v.

CMS TRANSPORTATION SERVICES, INC.,

          RESPONDENT.


BEFORE:  THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     This case arises under the employee protection provisions 
of the Surface Transportation Assistance Act of 1982 (STAA), 
49 U.S.C.A. § 31105 (West 1994).  The findings of fact in
the June 27, 1995 Administrative Law Judge's (ALJ's) Recommended
Decision and Order (R. D. and O.), at 2-5, are supported by
substantial evidence in the record as a whole and therefore are
conclusive.  29 C.F.R.  § 1978.109(c)(3)(1994).  Although I
have clarified the ALJ's legal analysis as explained below, I
accept his recommended decision, and dismiss this complaint.  
                             BACKGROUND
     Complainant, Bobby J. Williams (Williams), was employed by
Respondent, CMS Transportation Services, Inc. (CMS), as a
commercial motor vehicle driver, from September 1992 until his
discharge in December 1992.  Williams alleged that Respondent
discharged him because he raised concerns with management about
being required to drive in violation of the Department of
Transportation's (DOT) hours-of-service regulations.[1]   CMS
denied this allegation and stated that Williams was discharged
for being 
[PAGE 2]
late on a number of deliveries, being dishonest about his
location when calling in to dispatch, being rude to a
Pennsylvania State Trooper, and being an unprofessional driver.
     Williams filed a complaint with the U. S. Department of
Labor (DOL) alleging that CMS fired him in violation of the Act,
and in retaliation for complaining about and refusing to drive on
trips that could not be driven legally within DOT regulations.  
After an evidentiary hearing on the merits, the ALJ issued an 
R. D. and O. concluding that Williams failed to establish by a
preponderance of the evidence that was engaged in protected
activity and recommending that the complaint be dismissed. 
                         DISCUSSION 
     The ALJ weighed all the evidence and concluded that Williams
did not present a prima facie case of a violation of the
employee protection provisions of the STAA.  R. D. and O. at 14. 
Since "this case was fully tried on the merits," it is not
necessary to engage in an analysis of the elements of a prima
facie case.  USPS Board of Governors v. Aikens, 460
U.S. 711, 713 (1983); Carroll v. Bechtal Power Corp., Case
No. 91-ERA-0046, Sec. Dec., Feb. 15, 1995, slip op. at 11 n. 9,
petition for review docketed, No. 95-1729 (8th Cir. Mar.
27, 1995) (under the Energy Reorganization Act).  Once CMS
produced evidence that Williams was subjected to an adverse
action for a legitimate, nondiscriminatory reason, the answer to
the question whether a prima facie case was presented is
no longer useful.  If Williams has not prevailed by a
preponderance of the evidence on the ultimate question of
liability it matters not at all whether he presented a prima
facie case.
     The relevant portion of the STAA, states:
     [a] person may not discharge an employee or discipline or 
     discriminate against an employee regarding pay, terms, or
     privileges of employment, because-

          (A) the employee, or another person at the employee's
     request has filed a complaint or begun a proceeding related
     to a violation of a commercial motor vehicle safety
     regulation, standard, or order, or had testified or will
     testify in such a proceeding; 

49 U.S.C.A. § 31105(a)(1)(A) (West 1994) (complaint
provision)

     Williams claims that he made between seven and nine internal
complaints regarding the scheduling and operation of runs in
violation of DOT hours of service regulations.  R. D. and O 
at 12.  Internal complaints so management, as alleged by
Williams, are protected under the STAA.   Reed v. National
Minerals Corp., Case No. 91-STA-34, Sec. Dec. and Order, slip
op. 
[PAGE 3]
at     , July 24, 1992.  However, Williams must prove by a
preponderance of the evidence that he actually made such internal
safety complaints.  Here, the record is devoid of any evidence or
written documentation from any source supporting Williams'
allegations and CMS management officials testified that Williams
never made any such complaint to them.  Id.  I find that Williams
has not established by a preponderance of the evidence that he
engaged in activity protected by the complaint provisions of the
STAA.  
     Williams also made a claim under the "refusal to drive"
section of the STAA.  R. D. and O. at 2; 49 U.S.C. 
§ 31105(a)(1)(B).  I agree with the ALJ that Williams
produced no evidence at the hearing of any refusal to drive.  R. D. 
and O. at 13.  In fact, Williams testified that he did not refuse a load
at CMS because "you may not get another load for a couple of
days."  T. 233.  An employee must actually refuse to operate 
a vehicle to be protected under (--?-- --?--) 49 U.S.C. 
§ 31105(a)(1)(B).  Since Williams refused to drive a vehicle
the "refusal to drive" section of the STAA is not applicable.
                             CONCLUSION
     Williams failed to prove that he engaged in protected
activity and the complaint is therefore DISMISSED.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D. C.


[ENDNOTES]
           
[1]  Department of Transportation regulations state that "no 
motor carrier shall permit a driver of a commercial motor vehicle
to drive . . . for any period after . . . having been on duty 70
hours in any period of eight consecutive days".  49 C.F.R. 
§ 395.3(b)(2) (1994).