                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0985n.06
                            Filed: December 15, 2005

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



                                             :
David L. Blackann,                           :        Case No. 04-4026
                                             :
       Petitioner,                           :        Petition for Review of a Final Order of
                                             :        the United States Department of Labor
v.                                           :        Administrative Review Board
                                             :
Roadway Express, Inc. and the                :
Department of Labor,                         :
                                             :
       Respondents.                          :



Before: COLE and ROGERS, Circuit Judges; BECKWITH, District Judge.*

       Beckwith, District Judge. David L. Blackann seeks review of a decision of the

Administrative Review Board (“ARB”) adopting an ALJ’s summary decision in favor of

Blackann’s former employer, Roadway Express. The ARB held that, as a matter of law,

Roadway did not discriminate against Blackann in violation of the Surface Transportation

Assistance Act of 1982 (“STAA”). We affirm.

I.     Factual Background.

       Blackann worked as a truck driver for Roadway Express from 1990 through 1998. In

1998 Blackann was an “extra board” driver, which meant Blackann did not drive regularly


       *
        The Honorable Sandra S. Beckwith, Chief Judge, United States District Court for the
Southern District of Ohio, sitting by designation.

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scheduled routes, but only when Roadway needed extra drivers. An extra board driver can be

called to report for duty at any time while “on call.”

       Between December, 1997 and September, 1998, Blackann received eleven disciplinary

warning letters, five of which are at issue in this appeal. On January 12, 1998, Blackann was

driving a truck without a sleeper berth. While en route, he took a sleep break. While some of

that time was correctly logged as off duty (for permitted rest stops), he logged the excess thirty

minutes as “on duty/not driving.” Roadway issued a warning letter to Blackann for

inappropriately logging the 30 minutes as “on duty/not driving.”

       Blackann received three other warning letters between December 1997 and April 1998

which are not at issue here. He served a thirty day suspension starting in April 1998, and

returned to work on June 18, 1998. Between that date and September 15, 1998, Blackann

received seven warning letters, four of which are the crux of this appeal. Blackann was

dispatched on four different runs, on August 19, 20, 21 and 25. Each of these runs had an

established “run time” of five hours. (Roadway’s “run times” were established by agreement

between management and union representatives. Warning letters are issued to drivers who fail

to meet these run times.) On each of the four August trips, Blackann was late in delivering his

load of freight because he took extended sleep breaks. Blackann received warning letters for

each of the four August trips.

       After a union hearing, Roadway Express discharged Blackann on September 15, 1998

based upon his work record for the previous nine months, a decision that was upheld under his

collective bargaining grievance process. Blackann filed a complaint with the Occupational

Safety and Health Administration (“OSHA”), alleging that his discharge violated the STAA


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because Roadway fired him for taking fatigue breaks. The Secretary of Labor dismissed

Blackann’s complaint, noting that Roadway’s established running times “were specifically

negotiated between the respondent and the complainant’s union. The complainant did not

complete the runs in the allotted time frames and he was issued warning letters and subsequently

discharged due to his accumulated work record, which included the seven warning letters and

prior disciplinary suspensions.” (JA 45, Secretary’s Findings dated May 9, 2000.)

       Blackann then sought review of the Secretary’s findings. The ALJ granted Roadway’s

motion for summary decision on the four warning letters issued in August 1998, for failure to

meet scheduled running times, finding that Blackann had not shown that his activity was

protected by the STAA. (JA 34) After a hearing on the remaining warnings, the ALJ found in

favor of Roadway and recommended that Blackann’s complaint be dismissed. (JA 30)

       The ARB affirmed both of the ALJ’s orders. With respect to the summary decision on

the four running time warnings, the ARB held that an employer does not violate the STAA when

it takes adverse action against a driver who is unable to meet the physical demands of the job on

a sustained basis. It found that Blackann was unable to adapt to the physical requirement of

driving at night and getting adequate sleep during his off-duty daytime hours. With respect to

the improper logging of time on January 12, 1998, the ARB held that the STAA did not apply to

protect Blackann’s conduct. Blackann appeals both of these findings.

II.    Standard of Review.

       We review the Secretary's decision under the STAA applying the substantial evidence

test. Moon v. Transport Drivers, Inc., 836 F.2d 226, 229 (6th Cir. 1987). We must uphold the

Secretary's legal conclusions "unless they are arbitrary, capricious, involve an abuse of


                                                 3
discretion, or otherwise are not in accordance with law." Yellow Freight System, Inc. v. Martin,

954 F.2d 353, 357 (6th Cir. 1992). And we accord deference to the Secretary's interpretations of

the STAA, and will uphold such interpretations if they are "reasonable, consistent with the

statutory mandate, and persuasive." Id. (citations omitted).

       Section 405 of the STAA “protects employees in the commercial motor transportation

industry from being discharged in retaliation for refusing to operate a motor vehicle that does not

comply with applicable state and federal safety regulations or for filing complaints alleging such

noncompliance.” Brock v. Roadway Express, Inc., 481 U.S. 252, 255 (1987). STAA protection

also extends to a driver’s refusal to drive when fatigue or illness would make driving unsafe.

The pertinent federal regulation states that a driver shall not drive “while the driver’s ability or

alertness is so impaired, or so likely to become impaired, through fatigue, illness, or any other

cause, as to make it unsafe. . .” to drive. 49 C.F.R. §392.3.

       In Moon v. Transport Drivers, this Court described a prima facie case of a Section 405

violation as "one which raises an inference that protected activity was the likely reason for the

adverse action . . .". Id. at 229. An employee establishes a prima facie case by proving three

elements: (1) that his employment engages him in protected activity; (2) that his employer took

adverse employment action against him; and (3) that a causal link exists between his protected

activity and the employer's adverse action. Id. Once an employee establishes a prima facie case,

the familiar burden-shifting rules of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)

apply. The employer must articulate a legitimate, nondiscriminatory reason for its decision. If

the employer is successful in rebutting the inference of retaliation, the plaintiff bears the ultimate

burden of proving that the proffered legitimate reason was simply a pretext.


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III.   Discussion.

       Blackann’s “Fatigue Breaks.”

       The ARB correctly noted that the material facts concerning the four warning letters were

not in dispute. Blackann exceeded the scheduled five-hour run time for each of the four August

trips by at least 2.68 hours. On the fourth trip, on August 25, Blackann exceeded the five-hour

run time by 3.5 hours. It is noteworthy that the August 25 trip began almost immediately after

Blackann had enjoyed a 72-hour time off period. Blackann admitted that no special

circumstances prevented him from getting sufficient rest between his work shifts; he admitted

that he slept better at night than he did during the day, resulting in frequent sleepiness in the

early morning hours. And he admitted that his own difficulty sleeping during his off hours was

the reason he did not complete his trips in a timely manner.

       Given these facts, the ARB affirmed the ALJ’s summary decision (finding that Blackann

had not engaged in any STAA-protected activity) on what the ARB described as a “modified

basis.” The ARB noted its prior decisions that an employer does not violate the STAA by taking

adverse action against a driver “who is unable to meet the physical demands of the job on a

sustained basis.” The ARB concluded that the undisputed facts established that Blackann could

not conform to the clear physical requirement of his job as an extra-board driver - that he be able

to get adequate sleep during the day in order to drive at night within scheduled run times. While

the ARB did not explicitly state that Blackann failed to establish a prima facie case of

discrimination under the STAA, we affirm the ARB’s legal conclusion under that rubric.

Even if Blackann’s “fatigue breaks” on each of the four August trips was protected activity


                                                  5
under the STAA, Blackann failed to establish the causal link between his protected activity and

his discharge. Not getting an adequate amount of sleep before his shifts, and reporting to his

work shifts tired, caused Blackann’s inability to meet the scheduled run times and the resultant

warnings. The ARB expressly found that Roadway did not violate the STAA by issuing the

warning letters. Clearly, the ARB concluded that Blackann was discharged due to his repeated

reporting for duty when he was simply too tired to perform that duty, and not because of taking

STAA-protected fatigue breaks.

       The Fourth Circuit has articulated a common sense test concerning “fatigue breaks” and

whether they are STAA protected: “An employer obviously remains free to sanction an

employee for chronically tardy conduct or indeed for any action not protected by the STAA. The

STAA protects only a driver who may unexpectedly encounter fatigue on the course of a

journey; it obviously does not protect delays unrelated to the statutory purposes of public and

personal safety.” Yellow Freight v. Reich, 8 F.3d 980, 988 (4th Cir. 1993). We agree that the

purposes of the STAA would not be well served by permitting an employee to chronically report

for duty aware of the strong probability that he would not be able to finish a driving shift in a

timely fashion, and then claim STAA protection when his employer takes adverse action.

       Moreover, as noted above, the Secretary’s interpretations of the STAA are entitled to

deference from this court when they are reasonable, consistent with the statute, and persuasive.

We find that the Secretary’s interpretation and application of the STAA in this instance is both

reasonable and persuasive.

       B.      Logging as “Off-Duty” on January 12, 1998.

       Blackann also appeals the ARB’s affirmance of his January 12, 1998 warning for


                                                  6
improper logging of time. The ARB held that this dispute involved company policy, and not any

conduct that is protected by the STAA. We agree. Roadway policy plainly requires that drivers

record time sleeping as “off duty” even when the truck does not have a sleeper berth. Blackann

cites a regulation promulgated by the Federal Motor Carrier Agency, 49 C.F.R. §395.2(4), which

broadly defines on duty time as “all time, other than driving time, in or upon any commercial

motor vehicle except time spent resting in a sleeper berth.” But the ARB correctly noted that the

regulations explicitly leave it to the employer to determine the manner of recording tour of duty

time. See 62 Fed. Reg. 16370, 16422. Roadway’s time log policies did not “force” Blackann to

violate any Federal regulation. And Blackann’s improper time log does not involve any refusal

to drive or any safety consideration. The ARB did not err in finding that Blackann did not

establish that his logging of time as “off duty” was an STAA- protected activity. Therefore, we

affirm the ARB’s finding concerning the January 12, 1998 warning letter.

       Finding no error in the ARB’s decision upholding Blackann’s discharge from his

employment, we affirm.




                                                7
       R. GUY COLE, JR., Circuit Judge, concurring.

       I agree that the Administrative Review Board did not err in upholding Blackann’s

discharge from his employment. However, because a close reading of the ARB opinion makes it

clear that its holding was based on Roadway’s legitimate, nondiscriminatory reason for

discharging Blackann, I write separately.

       The majority affirms the ARB’s decision granting summary judgment on the grounds that

Blackann did not establish causation, and thus failed to make out a prima facie case. In holding

that Blackann’s discharge did not violate the STAA, however, the ARB did not find that

Blackann failed to establish causation. It is undisputed that Blackann was unable to make his

running time because he took fatigue breaks. It is further undisputed that he received

disciplinary letters as a result of his inability to make his running times. Finally, the ALJ

explicitly held that “[Blackann] was discharged on the basis of his entire employment record.”

       To establish causation, a plaintiff must produce sufficient evidence from which an

inference could be drawn that the adverse action would not have been taken had the plaintiff not

engaged in a protected activity. EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.

1997). Evidence that the adverse action was taken shortly after the plaintiff’s exercise of a

protected right is relevant to the determination of causation. See Moon v. Transport Drivers,

Inc., 836 F.2d 226, 230 (6th Cir. 1987). This Court has emphasized that a plaintiff’s burden in

proving a prima facie case is not onerous; Blackann need not prove he was discharged because

of his fatigue breaks, but must only “proffer evidence sufficient to raise the inference that [his]

protected activity was the likely reason for the adverse action.” Avery Dennison Corp., 104

F.3d at 861 (citations omitted).


                                                  8
       In holding that Blackann’s discharge did not violate the STAA, the ARB did not hold that

Blackann failed to establish causation, but rather held that Roadway did not violate the STAA

because it articulated a legitimate, nondiscriminatory reason for Blackann’s discharge. Under

the familiar burden-shifting framework, once an employee has established a prima facie case, the

employer must articulate a legitimate, nondiscriminatory reason for its decision. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). The employee then bears the ultimate

burden of proving that the proffered reason was a pretext. Id. at 793. A plaintiff may prove that

the proffered reason was pretextual by providing evidence that the reason should be disbelieved.

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000). In this circuit, an

employee who does not factually challenge the reason offered by the employer must provide

some additional evidence of retaliatory discharge, other than that evidence that supports the

prima face case. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1085 (6th Cir. 1995).



       The ARB correctly concluded that Blackann’s inability to obtain an adequate amount of

sleep before his shifts began was a legitimate, nondiscriminatory reason for his discharge. In

holding that Blackann’s discharge did not amount to a violation of the STAA, the ARB

referenced its previous holdings that an employer did not violate the STAA “when it discharged

[an employee] for the legitimate business reasons that he could not perform the job.” Blackann

does not challenge the fact that he had trouble sleeping during the day throughout the nine-

month period in question. In fact, in granting summary judgment, the ARB relied on Blackann’s

statements that he was only able to get about five hours of sleep when he was required to sleep

during the day. Blackann’s physical inability to obtain sleep is a legitimate, nondiscriminatory


                                                9
justification for his discharge.

        Because Blackann does not challenge the fact that he was unable to obtain adequate

sleep, he is required to submit evidence of pretext beyond that which establishes his prima facie

case in order to survive summary judgment. Manzer, at 1085. Blackann does not provide any

evidence that he was discharged impermissibly, besides that which established his prima facie

case. Therefore, summary judgment is appropriate here.

        According, I concur in the judgment that this Court should AFFIRM the ARB’s grant of

summary judgment.




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