On March 21, 2001, the Respondent notified the Complainant, and ten other drivers that they were incorrectly logging breaks as on-duty time, when in fact they should have been logged as off-duty time. Id. at 4. The Respondent cautioned the Complainant that his failure to log off-duty breaks correctly had caused him to exceed company guidelines for his bid runs. Id. Of the ten drivers so notified, only the Complainant refused to adhere to the Respondent's directions. Id. The Complainant received a Final Warning in Lieu of Suspension notice for claiming on-duty time while waiting for a substitute tractor to arrive from Atlanta to replace his disabled vehicle on the Clinton run. Pursuant to the Respondent's system of progressive discipline, the Complainant was subsequently discharged for remaining on-duty during scheduled off-duty breaks on the Birmingham run. R. D. & O. at 2-5.

   We review a recommended decision granting summary decision de novo. That is, the standard the ALJ applies, which is prescribed in 29 C.F.R. § 18.40 (2002), also governs our review. The standard for granting summary decision under § 18.40 is essentially the same as that found in Fed R. Civ. P. 56, the rule governing summary judgment in the federal courts. Summary decision is appropriate under § 18.40(d) if there is no genuine issue of material fact. The determination of whether facts are material is based on the substantive law upon which each claim is based. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact is one, the resolution of which, "could establish an element of a claim or defense and, therefore, affect the outcome of the action". Bobreski v. United States EPA, 284 F. Supp. 2d 67, 72-73, (D.D.C. 2003).

   We view the evidence in the light most favorable to the non-moving party and then determine whether there are any genuine issues of material fact and whether the ALJ correctly applied the relevant law. Lee v. Schneider Nat'l, Inc., ARB No. 02-102, ALJ No. 2002- STA-25, slip op. at 2 (ARB Aug. 28, 2003); Bushway v. Yellow Freight, Inc., ARB No. 01-018, ALJ No. 00-STA-52, slip op. at 2 (Dec. 13, 2002). "To prevail on a motion for summary judgment, the moving party must show that the nonmoving party ‘fail[ed] to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.'" Bobreski, 284 F. Supp. 2d at 73 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Accordingly, a moving party may prevail by pointing to the "absence of evidence proffered by the nonmoving party." Id.

   Furthermore, a party opposing a motion for summary decision "may not rest upon the mere allegations or denials of [a] pleading. [The response] must set forth specific facts showing that there is a genuine issue of fact for the hearing." 29 C.F.R. § 18.40(c). See Webb v. Carolina Power & Light Co., No. 93-ERA-42, slip op. at 4-6 (Sec'y July 17, 1995).

   We agree with the ALJ that the Complainant has failed to demonstrate that there are any issues of material fact in dispute and that as a matter of law the Complainant has not shown that his discharge for claiming on-duty time during the aforementioned mail runs violated regulations for computing on-duty time for drivers under the federal motor carrier hours of service regulations at 49 C.F.R. § 395.2 (2001). Accordingly, he was not fired in contravention of 49 U.S.C.A. § 31105(a)(l)(B)(i).

   As the ALJ explained with regard to the Clinton run, the Complainant was specifically told that he was relieved from duty and was not responsible for the truck trailer or its contents until a replacement truck arrived. He was not required to remain with his truck and was free to walk to nearby restaurants or spend time at the postal facility break room. He knew that it would take at least four hours for the replacement truck to arrive, and he was free to spend his off-duty time in any way that he chose. R. D.

& O. at 7-8.

   Similarly, we agree with the ALJ that the Complainant's refusal to take his off-duty break during the Birmingham run did not comport with the definition of on-duty time at 49 C.F.R. § 395.2 because he knew that he was supposed to take the off-duty break and it was for a finite period of time. He had been told that he was not responsible for the truck during the break and he was free to leave the premises and spend the break time elsewhere. R. D. & O. at 8-9.

   Thus, we concur in the ALJ's finding that as a matter of law, the Respondent's off-duty logging policy did not violate "a regulation, standard, or order of the United States related to commercial motor vehicle safety or health" and that accordingly, the Complainant was not engaged in protected activity when he refused to comply with the Respondent's clearly articulated policy concerning the logging of off-duty time. Because the Respondent has shown that the Complainant has failed to establish the existence of an element essential to his case, i.e., that he engaged in protected activity, the ALJ properly granted summary judgment. We find the ALJ's decision to be thorough, well-reasoned and fully supported by the record. Accordingly, we adopt the attached ALJ's R. D. & O. Accord Hasan v. Stone and Webster Engineers and Constructors, Inc., ARB No. 03-058, ALJ No. 00-ERA-10, slip op. at 2 (ARB June 27, 2003); Williams v. Baltimore City Public Schools System, ARB No. 01-021, ALJ No. 00-CAA-15, slip op. at 3 (ARB May 30, 2003).

   Therefore, we AFFIRM the ALJ's recommended grant of summary judgment to Respondent and DISMISS the complaint. Chapman v. AI Transport, 229 F.3d 1021 (11th Cir. 2000); Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112 F.3d 9, 13-14 (1st Cir. 1997).

   SO ORDERED.

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

      WAYNE C. BEYER
      Administrative Appeals Judge