DATE:  March 16, 1995
CASE NO. 94-STA-42


IN THE MATTER OF

RICHARD R. PEACOCK,
          COMPLAINANT,

     v.

TRIAD TRANS, INC.,
          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Complainant Richard Peacock brings the captioned complaint
of unlawful discrimination against his former employer, Triad
Trans, Inc., under the employee protection provision of the
Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C.A.
§ 31105 (West 1994).  In his October 18, 1994, Recommended
Decision and Order (R.D. and O.), the Administrative Law Judge
(ALJ) found that Complainant failed to prove unlawful
discrimination.  The ALJ's factual findings are supported by
substantial evidence, and I adopt them.  29 C.F.R. 
§ 1978.109(c)(3)(1994).  I also agree with the ALJ that
Complainant failed to carry his burden of proof.  Accordingly,
the ALJ's decision, copy appended, is adopted as explained below.                            
BACKGROUND
     Complainant was employed by Respondent as a truck driver
from May 1993 until his discharge nine months later in February
1994.  Complainant alleges that Respondent discharged him because
he complained about driving excessive hours.  Department of
Transportation (DOT) regulations prohibit drivers from driving
more than ten hours following eight consecutive hours off duty.  
[PAGE 2]
49 C.F.R. § 395.3 (1993).  Complainant's assigned route from
Canton, New York, to either North Rose, New York, or Sodus, New
York, and return required a minimum driving time of six hours. 
On days when Complainant hauled two loads, his driving time
totaled at least 12 hours.  Complainant generally departed Canton
at 4:00 a.m. and eventually completed his second return trip by
about 6:00 p.m.
     In order to drive this two-load schedule legally,
Complainant needed to interrupt his final return trip when about
one third completed at a truck stop in Mexico, New York, and
spend eight hours in the sleeper berth before resuming the trip
shortly after midnight and arriving in Canton by 3:00 a.m. the
following morning.  Complainant testified that stopping in Mexico
was unacceptable to Respondent.  According to Complainant,
Respondent required both trips to be completed during the same
day so that loading for the following day's trips could occur
between 5:00 p.m. and 3:00 a.m.
                             DISCUSSION
     To prevail on a whistleblower complaint, a complainant must
establish that the respondent took adverse employment action
against him because he engaged in an activity protected under the
STAA.  A complainant initially must show that it was likely that
the adverse action was motivated by a protected activity (prima
facie showing). [1]   Roadway Exp., Inc. v. Brock, 830
F.2d 179, 181 n.6 (11th Cir. 1987).  The respondent may rebut
such a showing by producing evidence that the adverse action was
motivated by a legitimate, nondiscriminatory reason.  The
complainant then must prove that the proffered reason was not the
true reason for the adverse action and that the complainant's
protected activity was the reason for the action.  St. Mary's
Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
     Here, Complainant succeeded in showing that he complained to
Respondent about violating DOT regulations and that he was
discharged shortly thereafter. [2]   Respondent rebutted,
however, by articulating legitimate, nondiscriminatory reasons
for the discharge -- Complainant's (1) unauthorized use of
equipment and (2) failure to maintain regular contact with
Respondent's dispatch.  Hearing Transcript (T.) 33-34, 76 and 95-
96.  Although Complainant offered evidence tending to prove that
Respondent's first reason was not a true reason for his
discharge, T. 19-20, 67-71 and 92-94, he can point to no evidence
proving that his protected activity was the primary reason for
the discharge, [3]  as is required under Hicks. [4]  
Moreover, the record is devoid of any evidence that Respondent's
second reason for discharging him was pretextual. [5]  
Complainant consequently failed to carry his ultimate burden of
proving that his protected complaints motivated Respondent's
employment decision.
[PAGE 3]
                             CONCLUSION
     Because Complainant has failed to prove unlawful
discrimination, his complaint is dismissed.
     SO ORDERED.

                              ROBERT B. REICH
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]   In order to make this "prima facie" showing, a complainant
must show that he engaged in protected activity, that he was
subjected to adverse action, and that the respondent knew about
the protected activity when it took the adverse action.  A
complainant also must present evidence sufficient to raise the
inference that the protected activity was the likely reason for
the adverse action.  Causation may be established by showing that
the respondent was aware of the protected activity and that
adverse action followed closely thereafter.  Couty v.
Dole, 886 F.2d 147, 148 (8th Cir. 1989).

[2]   An internal complaint to management relating to safe
vehicle operation constitutes protected activity under the STAA,
discharge constitutes adverse employment action, and proximity in
time between the protected activity and adverse action supports
an inference of causation.  Complainant thus made a prima facie
showing.

[3]   Complainant testified that when he complained, Respondent's
president stated:  "[T]hese trucks will run whether you're
driving them or not."  R.D. and O. at 3.  Although Complainant
took this rejoinder to mean that he would be discharged if he
refused to drive illegally, Respondent's president explained that
he was referring to using a spare driver if Complainant ran out
of hours.  T. 98.  The evidence suggests that it may have been
Complainant's desire to drive straight through the second run and
be home by 6:00 p.m., as opposed to stopping for eight hours in
Mexico, New York, and not making it back until 3:00 a.m. the
following morning.  I agree with the ALJ that the evidence does
not support a finding that Respondent was opposed to an eight-
hour stop in Mexico, because the stop could be made and the truck
returned to Canton in time for the next day's pick-up.  R.D. and
O. at 4-5; T. 113.

[4]   Once Respondent produced evidence of legitimate,
nondiscriminatory reasons for its adverse employment decision,
the presumption of unlawful discrimination raised by
Complainant's prima facie showing was rebutted and dropped from
the case.  Complainant then had the opportunity to demonstrate
that Respondent intentionally discriminated against him because
of his protected activity.  113 S.Ct. at 2747-2749.

[5]   Respondent's president testified that he required drivers
to call in twice a day at designated times and that Complainant's
"calling in became erratic and we began to have trouble . . .
tracking him down and knowing where he was . . . ."  T. 34. 
See T. 76, 95-96, 102.  Complainant admitted that at most
he called in once a day.  T. 75, 104.