DATE:   July 24, 1992
CASE NO. 91-STA-00032


IN THE MATTER OF

ROBERT A. AUMAN,

          COMPLAINANT,

     v.

INTER COASTAL TRUCKING,

          RESPONDENT.


BEFORE:   THE SECRETARY OF LABOR


                         FINAL DECISION AND ORDER

     Before me for review is the June 3, 1992, 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).  Neither
party has filed any brief before me as permitted.  29 C.F.R. 
§ 1978.109(c)(2) (1991).
     Complainant alleges that Respondent fired him because he
engaged in statutorily protected activity.  The ALJ recommended
dismissal of the complaint for failure to establish a prima facie
case of retaliatory discharge in violation of the STAA.  Although
as explained below, I do not fully agree with the ALJ's legal
analysis, I agree with his recommendation to dismiss the
complaint.
     Based on a thorough review of the entire record, I find that
with the exceptions noted, the ALJ's factual findings are fully
supported by the evidence.  The ALJ mistakenly referred to
Respondent's witness, Robert Lewis, Jr., as the owner of Inter
Coastal Trucking, R.D. and O. at 2, whereas Lewis testified that 
[PAGE 2]
he was the manager.  Tr. 5.  In addition, the ALJ misstated, R.D.
and O. at 5, that Complainant did not address whether he
requested a pay advance from Mr. Lewis.  Rather, in response to a
question from the ALJ, Complainant denied that he ever asked for
a pay advance.  Tr. 92.
     Under the burdens of proof in STAA proceedings, Complainant,
in order to establish a prima facie case, must show that he
engaged in protected activity, that he was subjected to adverse
action, and that 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. 
See Roadway Express, Inc. v. Brock, 830 F.2d 179,
181, n.6 (11th Cir. 1987).
     The STAA prohibits discriminatory treatment of employees 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 . . . ." 
49 U.S.C. app. § 2305(b).  Complainant testified that he
refused to drive the assigned tractor without a trailer because
of a flat steering tire with a bolt stuck in it and his fear that
a blowout would cause the tractor to roll over.  Tr. 17-18.  Such
a refusal would constitute protected activity because a
commercial vehicle safety regulation prohibits driving vehicles
with a flat tire.  See 49 C.F.R. § 393.759(a) (1991). 
Complainant also testified that he told Respondent's manager that
he would turn in the tractor at a police barracks if forced to
drive the tractor, Tr. 18-19, thus affording Respondent notice of
the protected activity when it took the adverse action against
Complainant.  Causation is shown in that Complainant's discharge
closely followed his protected activity.  Couty v. Dole,
886 F.2d 147, 148 (8th Cir. 1989).  Based on this testimony and
the ALJ's factual determinations as corrected here, I find that
Complainant made a prima facie case of retaliatory discharge. [1] 
     Once a prima facie case is established, the burden of
production shifts to Respondent to present evidence of
legitimate, nondiscriminatory reasons for firing Complainant.
Hernandez v. Guardian Purchasing Co., (hereafter
Hernandez), Case No. 91-STA-31, Sec. Final Dec. and Order,
June 4, 1992, slip op. at 4.  Respondent's manager testified that
he fired Complainant because of Complainant's expressed distrust
of the company and its personnel, his refusal to transport cash
between truck terminals according to the company's usual
practice, and his repeated requests for pay advances.  Tr. 55. 
Therefore, Respondent met its burden of producing non-
discriminatory job related reasons for the discharge.
     Complainant had the ultimate burden of persuading that the 
[PAGE 3]
reasons proffered by Respondent were not the true reason for the
adverse action, but a pretext.  Hernandez, slip op. at 4. 
The ALJ's determination, R.D. and O. at 4, that during trips,
Complainant habitually listed any vehicle defects in his daily
log, and that Complainant's failure to list the tire defect when
he first noticed it undercut his testimony that his refusal to
drive was based solely on the safety of the vehicle, is supported
by substantial evidence on the record considered as a whole.  So
too are his assessment of the credibility of the witnesses and
his finding that the real reason the manager fired Complainant
was his refusal to transport the company's cash after the manager
denied Complainant a pay advance.  R.D. and O. at 5.  These
supported findings are "conclusive," 29 C.F.R. §
1978.109(c)(3), and I adopt them.  Thus Complainant has failed to
establish that Respondent's proffered reasons were pretextual. 
Accordingly, the complaint is DISMISSED.
     SO ORDERED.



                              LYNN MARTIN
                              Secretary of Labor

Washington, D.C.


[ENDNOTES]
           
[1]  In considering whether Complainant established the elements
of a prima facie case, the ALJ incorrectly considered
Respondent's reasons for firing Complainant.  See
Moravec v. HC & M Transportation, Inc., Case No. 90-STA-
44, Sec. Final Dec. and Order, Jan. 6, 1992, slip op. at 11,
appeal docketed, No. 92-70102 (9th Cir. Feb. 18, 1992). 
The ALJ apparently combined his analysis of Complainant's initial
burden of presenting sufficient evidence to give rise to an
inference that his protected activity motivated the adverse
action, with his ultimate burden to establish that Respondent's
proffered reason for the adverse action is a pretext for
retaliation.  R.D. nd O. at 4-5.