DATE: May 17, 1990
CASE NO. 90-STA-15

IN THE MATTER OF

JOSEPH MORIN,
   COMPLAINANT,

v.

TRANSPORT SOUTH, INC.,
   RESPONDENT.

BEFORE: THE SECRETARY OF LABOR

   Before me for review is the Recommended Decision and Order (R.D. and O.) of Administrative Law Judge (ALJ) Joel R. Williams, issued on February 28, 1990, in the above captioned case which arises under the employee protection provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. app. § 2305 (1982).

   Complainant, a truck driver, alleges that his employment with Respondent was terminated in violation of Section 2305(a) because he made safety complaints to Respondent.

   After a hearing on the merits of the complaint, at which hearing Complainant appeared pro se, the ALJ concluded that Complainant failed to establish that Respondent had violated the STAA, and, consequently recommended that the complaint be dismissed. Specifically, the ALJ found that Complainant had failed to make a prima facie case of retaliatory discharge because he had failed to establish that he had engaged in a protected activity and because he did not present evidence sufficient to raise an inference of a causal connection between the alleged protected activity and his discharge. Moreover, the ALJ found, that, even if Complainant had made a prima facie case of retaliatory discharge, Respondent had rebutted the prima facie case by establishing that it had a legitimate management reason for Complainant's discharge. Finally, the ALJ also found that, while Respondent may have had a dual motive for Complainant's discharge, neither of the motives involved activity protected by the STAA.

   In determining whether to accept the ALJ's recommendation that the complaint be dismissed, I have limited my review, as required by 29 C.F.R. §1978.109(c),

to the record made before the ALJ and to his R.D. and O.¹ Furthermore, my review is restricted to an examination of whether the case record contains substantial evidence to support the ALJ's findings of fact and

whether the ALJ's decision is in accordance with law. 29 C.F.R. § 1978.109(c)(3); Palmer v. Western Truck Manpower, Case No. 85-STA-6, Sec. Dec. and Order on Remand, January 16, 1987.

   Upon thorough review of the record, I conclude that the ALJ's factual findings and conclusions are supported by substantial evidence and are in accordance with law. In making his factual findings, the ALJ credited the testimony of Respondent's witnesses over that of Complainant. As is noted in Palmer v. Western Truck Manpower,

[w]here the standard of review of an AW decision is whether the findings of fact are supported by substantial evidence in the record as a whole, the ALJ's credibility determinations will not be disturbed by the reviewing authority unless they "conflict with a clear preponderance of the evidence" or "are 'inherently incredible and patently unreasonable'." Cordero v. Triple A Machine Shop, 580 F.2d 1331, 1335 (9th Cir. 1978).

slip op. at 7. This record does not afford any basis for disturbing the ALJ's credibility determinations.

   Accordingly, I accept the ALJ's recommendations and adopt and append hereto his R.D. and O. of February 28, 1990. The complaint in this case is DISMISSED.

SO ORDERED.

         Elizabeth Dole
         Secretary of Labor

Washington, D.C.

¹Accordingly, I have not considered the documents submitted to the ALJ subsequent to the issuance of his R.D. and O. These documents consist of a letter of March 19, 1990 (resubmitted and redated March 21) with attachments from Respondent's counsel requesting that the ALJ transmit this case to the Atlanta, Georgia, office of the Federal Bureau of Investigation (FBI) and the United States (U.S.) Attorney for the purpose of investigating Complainant for perjury under 18 U.S.C. § 1621(1), and a letter of March 27, 1990, with attachments from Complainant denying that he perjured himself. Respondent seeks to invoke criminal action against the Complainant which is outside of the scope of my jurisdiction under the STAA. I am not aware of any reason why Respondent cannot refer its perjury allegations directly to the appropriate Federal office. The record in this case is a public record and thus is available to the parties in its entirety. 5 U.S.C. § 556(d).