Eash attests to concerns about fatigue and unsafe vehicle operation and to his communication of these concerns to Roadway. Aff. at 11-13, pars. 57, 58, 61, 64, 68, 69.

    Eash argues that genuine issues of material fact exist with regard to (i) whether Eash's ability or alertness was so impaired or so likely to become impaired due to fatigue as to render it unsafe to begin or continue to operate a commercial motor vehicle, (ii) whether Eash's refusal of dispatch assignments was based on a reasonable apprehension of serious injury to himself or the public and (iii) whether Eash deliberately made himself unavailable for work.

    Roadway concedes the existence of adverse action and causation and identifies the issue as whether Eash engaged in protected activity. Roadway argues that "genuine fatigue and/or apprehension will not prevent summary decision from being granted where a driver deliberately makes himself unavailable for work." Citing Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines, ARB No. 98-116, ALJ No. 96-STA-23 (ARB June 12, 1998), Roadway contends, "The Act does not protect an employee who through no fault of the employer, has made himself unavailable for work."

   Roadway argues that nothing prevented Eash from getting sufficient rest except Eash himself. Roadway pointed to the facts that Eash refused dispatches on two occasions after having been off-duty for 16 and 48 hours, concluding that Eash's refusals were not protected because, through no fault attributable to Roadway, Eash made himself unavailable for work. Thus, Roadway argues that Roadway's decision to discipline him did not violate the STAA.

    The ALJ formulated the issue as follows: "[I]f Eash's allegations of current and future fatigue on the two occasions are true, and if he was genuinely apprehensive of his ability to operate his vehicle safely, would [Roadway] still be entitled to prevail as a matter of law?" R. O. at 4. The ALJ answered the query in the affirmative, holding that summary dismissal was appropriate in that Eash's "fatigue level is not a material fact at issue in this instance because [Eash] deliberately made himself unavailable for work." Citing Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines, the ALJ stated: "The Board has consistently held that the STAA does not protect an employee who, through no fault of the employer, has made himself unavailable for work." R. O. at 4. The ALJ assumed that the 16 and 48-hour off-duty periods per se afforded Eash the opportunity for adequate rest without considering Eash's particular circumstances. The ALJ distinguished Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21 (ARB Nov. 30, 1999), on its facts, namely that complainant Stauffer "had worked all day and had minimal rest in the middle of the night[,] [a] material fact [being] the amount of fatigue the claimant had." R. O. at 5.

    First, whether the ALJ in recommending that Roadway's motion for summary judgment be granted, properly found that this case presents no issue of material fact regarding the issue whether Eash deliberately made himself unavailable for work.

    Second, if remanded, whether the ARB should reassign the case to a different ALJ.

Eash's Availability for Work

    The STAA protects an employee who refuses to operate a commercial motor vehicle because "(i) the operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety or health; or (ii) the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle's unsafe condition." 49 U.S.C.A. § 31105(a)(1)(B). Under the latter criterion, "an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances confronting the employee would conclude that the unsafe condition establishes a real danger of accident, injury, or serious impairment to health." 49 U.S.C.A. § 31105(a)(2).

    The moving party assumes both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure § 2727, at 455-516 (3d ed. 1998). To meet its burden of production to make a prima facie showing that it is entitled to summary judgment, the moving party must either (i) produce affirmative evidence which negates an essential element of the nonmovant's complaint, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-158 (1970), or show (point out) that the nonmovant has no evidence to support an element of the complaint. Celetex Corp. v. Catrett, 477 U.S. at 325. See id. at 331-334 (Brennan, J., dissenting). In the event that the moving party carries its burden of production, the nonmoving party must produce evidence to support its claim. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies., Inc., 210 F.3d at 1103. The nonmoving party defeats the motion for summary judgment if it produces enough evidence to create a genuine issue of material fact. Celetex Corp. v. Catrett, 477 U.S. at 322.

    Here Roadway, the party moving for summary decision without the burden of persuasion at hearing, must produce evidence negating an element of Eash's complaint or show that Eash has no evidence to support an element of his complaint. Roadway attempted to meet this burden by showing, under Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines, that Eash could not prove that he engaged in protected activity under the STAA, i.e., Eash could not prove that some fault of Roadway's caused him to refuse work at the conclusions of 16- and 48-hour off-duty periods. According to Roadway STAA protection did not extend to Eash because he "made himself unavailable for work" by not using his time off to adequately rest in preparation for his next road assignment. In response, Eash produced an affidavit attesting to his activities during the relevant 16 hours and 48 hours off duty and his apprehension that accepting the dispatches would threaten his safety and the safety of the public.

   Consistent with principles of summary decision, we view the evidence in the light most favorable to the non-moving party – Eash. The question accordingly becomes: If we assume that Eash's attestations of current and prospective fatigue are true, and if we assume that Eash reasonably believed that he would be unable to operate his vehicle safely; would Roadway nonetheless prevail as a matter of law.

    The ALJ's grant of summary decision was based on a finding that there were no genuine issues of material fact as to whether Eash made himself unavailable for work and that the law requires summary judgment for Roadway. The ALJ relies on Ass't Sec'y of Labor and Porter v. Greyhound Bus Lines and finds the facts in the Eash case similar and the law on point.

    The Board does not agree with the ALJ's reliance on the Porter case. In Porter the ARB granted summary judgment deferring to the outcome of an arbitrator's decision issued after a full hearing on a grievance filed under a collective bargaining agreement. The arbitrator found that "Complainant was unavailable for work when called on six occasions before the final incident which led to his discharge" and "that Complainant had no reasonable basis to claim he was fatigued . . . because he had not worked for three days by dropping down to the bottom of the extra board and had ample time to be rested and available for work." Porter, slip op. at 2. The complaint also failed because complainant's "[s]imply claiming that he was 'sleepy' when called by Greyhound is not enough to show that Complainant reasonably believed he was too fatigued to take the assignment. [Nor was it] sufficient to show that an actual violation of the fatigue rule would have occurred if Complainant had accepted the assignment." Id. at 3.

    In the Eash case no hearing has been held. It may appear on the surface that Eash made himself "unavailable for work" by not getting the necessary rest to enable him to drive when called for duty, but we do not agree that there is no issue of material fact regarding the circumstances surrounding Eash's attempts to be rested and available for work. It is possible that a hearing will provide further information on the circumstances surrounding Eash's fatigue. Eash states that he attempted to get the necessary rest but could not sleep. We are not prepared to find, without a hearing, that Eash deliberately made himself available for work.

    Furthermore, we note that the ALJ, relying on Porter, found, "[Eash's fatigue is not a material issue because as stated above even if his testimony about "being tired" is taken for the truth, the STAA does not protect drivers who deliberately make themselves unavailable for work…" R. O. at 5. See also R. O. at 4. However, the ALJ's reliance on Porter for this proposition is questionable because in Porter, the Board specifically found that the complainant failed to establish that "an actual violation of the fatigue rule would have occurred if complainant had accepted the assignment." Porter, slip. op. at 3. Therefore whether Eash was too fatigued to drive safely may in fact be a material issue.

    We therefore remand the case for an evidentiary hearing.

Reassignment of ALJ

    Eash requests that on remand we order recusal of the current ALJ and reassignment to a different ALJ. Although the procedural rules provide that parties having reason to request disqualification of an ALJ file a motion to recuse with the ALJ, 29 C.F.R. § 18.31(b), parties have raised recusal on review of an ALJ decision. E.g., Spearman v. Roadway Express, Inc., No. 92-STA-1 (Sec'y Order Vacating Procedural Orders and Directing Reassignment Aug. 5, 1992), aff'd sub nom. Roadway Express, Inc. v. Reich, No. 93-3787, 1994 WL 454871 (6th Cir. Aug. 22, 1994). In Spearman, however, the Secretary ordered recusal for a reason, namely that the ALJ consistently engaged in procedural irregularities that inured to the benefit of the respondent, thus failing to conduct the proceedings in an appropriate manner. See Aaacon Auto Transport, Inc. v. Interstate Commerce Comm'n, 792 F.2d 1156, 1163 (D.C. Cir. 1986), cert. denied, 481 U.S. 1048 (1987). Here, the ALJ twice has recommended dispositions contrary to Eash's interests, which is insufficient to show personal bias. E.g., Roach v. National Transp. Safety Bd., 804 F.2d 1147, 1160 (10th Cir. 1986), cert. denied, 486 U.S. 1006 (1988); City of Charlottesville, VA v. FERC, 774 F.2d 1205, 1212 (D.C. Cir. 1985), cert. denied, 475 U.S. 1108 (1986). We can discern no reason to depart in this instance from the Administrative Procedure Act provision that ALJ's be assigned to cases in rotation so far as practicable. 5 U.S.C.A. § 3105 (West 1996). See Roadway Express, Inc. v. Reich, No. 93-3787, 1994 WL 454871, **3.

   SO ORDERED.

      M. CYNTHIA DOUGLASS
      Chief Administrative Appeals Judge

      OLIVER M. TRANSUE
      Administrative Appeals Judge