ARB CASE NO. 00-061
ALJ CASE NO. 98-STA-28
DATE: December 31, 2002
In the Matter of:
LARRY E. EASH,
COMPLAINANT,
v.
ROADWAY EXPRESS, INC.,
RESPONDENT.
BEFORE: THE ADMINISTRATIVE REVIEW BOARD
Appearances:
For the Complainant: Paul O. Taylor, Esq., Truckers Justice Center, Eagan, Minnesota
For the Respondent: John T. Landwehr, Esq., Katharine M. Thomas, Esq., Eastman & Smith, Ltd., Toledo, Ohio
DECISION AND ORDER OF REMAND
This case arises under the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), as amended, 49 U.S.C.A. § 31105 (West 1997), and the regulations set forth at 29 C.F.R. Part 1978 (2002). Complainant Larry E. Eash, Sr., an operator of commercial motor vehicles, alleges that his employer, Respondent Roadway Express, Inc. (Roadway) retaliated against him for activity protected under the STAA when he refused work assignments because he was fatigued. The applicable Federal motor carrier safety administration regulation governing operator fatigue appears at 49 C.F.R. § 392.3 (2001). Procedural regulations involved in the case appear at 29 C.F.R. § 18.31(b) and § 18.40 (2002). In a [Recommended] Order Granting Motion for Summary Judgment (R. O.), the Administrative Law Judge (ALJ) determined that Roadway's motion for summary decision should be granted and the complaint should be dismissed. We disagree and remand the complaint for a hearing. We decline to order recusal of the ALJ as Eash has requested.
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Procedural History
Eash filed a complaint of unlawful discrimination against Roadway; the Assistant Secretary of the Occupational Safety and Health Administration investigated the complaint and found it to be without merit. Eash timely filed objections and a request for hearing. The ALJ assigned to hear the case determined that negotiations to settle the action had resulted in an enforceable settlement, namely that Eash either had accepted or had authorized acceptance of an offer to settle the complaint, that an agreement existed and that the agreement should be approved because it constituted a fair, adequate and reasonable settlement of the complaint. The ARB disagreed with the ALJ that the parties had entered into an enforceable settlement and remanded the case to the ALJ for a hearing on the merits of the complaint. On remand the ALJ granted Roadway's motion for summary decision.
Jurisdiction and Standard of Review
This Board has jurisdiction to review the ALJ's recommended decision under 49 U.S.C.A. § 31105(b)(2)(C) and 29 C.F.R. § 1978.109(c). See Secretary's Order No. 1-2002, 67 Fed. Reg. 64,272 (Oct. 17, 2002) (delegating to the ARB the Secretary's authority to review cases arising under, inter alia, the STAA).
We review a grant of summary decision de novo, i.e., under the same standard employed by ALJs. Set forth at 29 C.F.R. § 18.40(d) and derived from Rule 56 of the Federal Rules of Civil Procedure, that standard permits an ALJ to "enter summary judgment for either party [if] there is no genuine issue as to any material fact and [the] party is entitled to summary decision." "[I]n ruling on a motion for summary decision, we . . . do not weigh the evidence or determine the truth of the matters asserted . . . ." Stauffer v. Wal-Mart Stores, Inc., ARB No. 99-107, ALJ No. 99-STA-21, slip op. at 6-7 (ARB Nov. 30, 1999). Viewing the evidence in the light most favorable to, and drawing all inferences in favor of, the non-moving party, we must determine the existence of any genuine issues of material fact. We also must determine whether the ALJ applied the relevant law correctly. Cf. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith, 475 U.S. 574 (1986); Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Companies, Inc., 210 F.3d 1099 (9th Cir. 2000) (summary judgment under Rule 56, Fed. R. Civ. P.).
Background
Eash attested to the following in an affidavit dated March 8, 2000, and filed before the ALJ in opposition to Roadway's motion for summary decision. Eash attests that he has worked for Roadway as an over-the-road operator of commercial motor vehicles since 1988. Roadway dispatches Eash to operate 80,000-pound vehicles consisting of a truck tractor, two trailers and a converter dolly. Affidavit (Aff.) at 13, paragraph (par.) 69. In late 1997 and early 1998 Eash twice refused dispatches due to fatigue and received discipline in each instance.
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December 10, 1997 refusal
Eash attests that he logged off-duty at 3:15 p.m. on the afternoon of December 7, 1987, at which time he became eligible for 48 hours of earned time off. He slept from 11:00 p.m. on December 7 until 7:00 a.m. on December 8 and again from 11:00 p.m. on December 8 until 7:00 a.m. on December 9. On December 9 Eash became subject to dispatch at 3:15 p.m. and indeed received a work call at 5:30 p.m. Eash reported for duty two hours later at 7:30 p.m. On December 10 Eash logged two and a half hours of rest in the cab of the truck tractor – from 1:30 a.m. until 4:00 a.m. Eash attests that this sleep was not restful but sufficed for safe completion of his return. Aff. at 6, par. 30. Eash logged off-duty on December 10 at 7:15 a.m., arrived at his residence at 8:00 a.m. and slept from 8:30 a.m. until between noon and 1:00 p.m. which constituted between three and one-half to four and one-half hours of rest. Eash attempted to sleep longer but was unsuccessful. Aff. at 9, par. 44. On the evening of December 10 Eash believed that he required sleep and planned to "slide"1 when he reached the 16-hour threshold at about 11:15 p.m. but fell asleep before he could contact Roadway's dispatcher. Eash received a work call at 11:35 p.m., which he refused due to fatigue.
1 A "slide" is a local rule between the Company and the International Brotherhood of Teamsters, Local No. 24 which allows a driver to request additional time off, up to eight hours, for any reason, including fatigue. A driver's entitlement to slide is conditioned upon two factors: he must have been off-duty for at least sixteen hours and he must request to slide prior to receiving a work call. R. O. at 2.