05-002971 Tim A. Weaver vs. Swift Transportation Status: Closed Recommended Order on Monday, December 5, 2005.

Summary: Petitioner alleged that Respondent would not hire him because of his claimed disability in the form of obesity and sleep apnea. Held: Petitioner was not disabled.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TIM A. WEAVER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2971

)

SWIFT TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for for mal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearing, on October 20, 2005, in Ocala, Florida.

APPEARANCES

For Petitioner: Tim A. Weaver, pro se

15054 Northeast 150th Lane

Fort McCoy, Florid a 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner because he was disabled.

PRELIMINARY STATEMENT

In a Petition filed with the Florida Commission on Human

Relations (FCHR) o n February 10, 2005, Petitioner Tim A. Weaver

(Mr. Weaver) alleged that Respondent Swift Transportation

Corporation (Swift) refused to hire him because of an alleged

disability. The disability alleged was obesity, tremors, and

sleep apnea. On July 5, 200 5, FCHR issued its "Determination:

No Cause." Subsequently the case was forwarded to the Division

of Administrative Hearings on August 18, 2005.

At the hearing, Mr. Weaver testified on his own be half.

Swift presented the testimony of Scott Johnson (Mr. Johnson),

its Ocala terminal manager, and offered one E xhibit into

evidence , which was admitted.

No Transcript was filed . Neither Petitioner nor Respondent

filed p roposed r ecommended o rders.

References to statutes are to Florida Statutes (200 4 )

unless ot herwise noted.

FINDINGS OF FACT

1. Mr. Weaver is a person who worked as a long haul truck

driver for six months at Lester Coggins Trucking, Inc. He quit

that job because Coggins uses a team approach and he wished to

be a solo driver . Mr. Weaver is si x feet tall and currently

weighs about 296 pounds.

2. Swift is a corporation engaged in trucking operations

throughout the United States and in portions of Canada. It

employs approximately 15,000 truck drivers. The typical t ractor

and trailer combinati on operated by Swift weighs 80,000 pounds.

3. Mr. Johnson oversees the operation of 415 trucks at

Swift ' s Ocala terminal.

4 . Swift, like many motor carrier companies in early 2005,

was anxious to find additional qualified drivers. Accordingly,

applican ts were sought by Mr. Johnson. T he persons who

responded were given an orientation on January 17 and 18, 2005.

Mr. Weaver was one of the applicants that attended the

orientation.

5 . The U.S. Department of Transportation has by regulation

set medical standards for persons driving commercial vehicles.

In order to determine compliance with those standards,

prospective drivers are required to submit to a physical

examination. On January 18, 2005, Mr. Weaver was examined by

Kim A. Nordelo, a physician's assistant.

6 . At the time of the examination Mr. Weaver weighed 366

pounds and showed signs of excessive nasal breathing. The

physician's assistant was of the opinion that he might be

afflicted with sleep apnea and suggested he be evaluated to

rule - out sleep apnea.

7 . Sleep apnea is often associated with morbid obesity.

Mr. Weaver was found to be morbidly obese on the comment sheet

contained in the Medical Examination Report for Commercial

Driver Fitness Determination. Nevertheless, the physician's

assistant provided a Medical Examiner's Certificate authorizing

him to operate trucks for three months .

8 . A person who has sleep apnea may sleep for a normal

number of hours but the quality of the sleep is denigrated by

respiratory problems, often as a result of ob esity. Because the

quality of sleep is poor, a person with sleep apnea may fall

asleep while driving.

9 . When Swift's personnel reviewed the Medical Examination

Report, they decided that Mr. Weaver should be evaluated for the

purpose of rul ing out sleep apnea , and that he should not be

allowed to drive even though he had a medical clearance for

three months .

10 . This decision was made because Swift feared that

Mr. Weaver might lapse into sleep while driving an 80,000 - pound

tractor and tra iler rig at great speed on public roads.

Additionally, Swift determined that permitting him to drive for

them would conflict with federal regulations addressing driver

qualifications.

1 1 . Mr. Weaver was informed that after evaluation for

sleep apnea , if he was medically qualified, they would employ

him.

1 2 . Mr. Weaver did not have the money required for the

medical evaluation. Accordingly, he did not obtain the

evaluation and whether or not he is medically qualified to drive

a big truck remains in dou bt.

13 . No evidence was offered by Mr. Weaver that would

support his charge that he was not hired because he was obese.

No evidence was offered by Mr. Weaver that would tend to prove

that Swift found him to be disabled or regarded him as disabled.

1 4 . Swift has strict and widely disseminated policies

prohibiting discrimination in its work force. It is absolutely

clear, that as a matter of corporate policy, Swift has no

interest in the color, race, sex, or medical condition of a

driver, so long as he o r she can safely pilot their vehicles

upon the streets and highways of America.

CONCLUSIONS OF LAW

1 5 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.57(1) and 760.11 , Fla. Stat.

1 6 . Sections 760.01 - 760.11 and 509.092, comprise the

Florida Civil Rights Act. § 760.01, Fla. Stat.

1 7 . Swift is subject to Section 760.10, because it

employs, " 15 or more employees for each working day in each of

20 or more calendar weeks in th e current or preceding calendar

year. . . ." § 760.02(7). Fla. Stat.

1 8 . Section 760.10, Florida Statutes, provides as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail to refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segre gate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, rel igion,

sex, national origin, age, handicap, or

marital status.

1 9 . D isabled , or handicapped, persons are protected by the

Florida Civil Rights Act. It is an unlawful employment practice

for an employer to refuse to hire or to refuse to provide an

accomm odation to a disabled person .

20 . FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10. See Brand v s . Florida

Power Corp , 633 So. 2d 504, 509 (Fla. 1st DCA 199 4); Florida

Department of Community Affairs v s . Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

2 1 . Mr. Weaver had the opportunity to provide either

direct or circumstantial evidence of discrimination. If he had

offered direct evidence of discrimination, an d if the fact

finder had accepted that evidence, then Mr. Weaver would have

proven discrimination. Civil Rights Act of 1964, § 701 et seq. ,

42 U.S.C.A. § 2000e, et seq . Mr. Weaver produced no competent

direct evidence of discrimination. Accordingly, pro of of

discrimination, if discrimination can be proved, must be

accomplished using circumstantial evidence.

22 . The Supreme Court of the United States established, in

McDonnell - Douglas Corporation v s . Green , 411 U.S. 792 (1973),

and Texas Department of Com munity Affairs v s . Burdine , 450 U.S.

248 (1981), the analysis to be used i n cases alleging

discrimination. This analysis was reiterated and refined in St.

Mary's Honor Center v s . Hicks , 509 U.S. 502 (1993).

2 3 . Pursuant to this analysis, Mr. Weaver has t he burden

of establishing a prima facie case of unlawful discrimination by

a preponderance of the evidence. If a prima facie case is

established, Swift must articulate some legitimate,

non - discriminatory reason for the action taken against

Mr. Weaver . Once this non - discriminatory reason is offered by

Swift , the burden then shifts back to Mr. Weaver to demonstrate

that the offered reason is merely a pretext for discrimination.

As the Supreme Court stated in Hicks , before finding

discrimination, "[t]he f act finder must believe the plaintiff's

explanation of intentional discrimination." 509 U.S. at 519.

24 . To prove a prima facie case, Petitioner must provide

evidence that: (1) he was handicapped; (2) that he was able to

perform the duties of a long - haul truck driver satisfactorily ,

with or without accommodation ; and (3) that he suffered an

adverse employment decision because of his disability . Retton

v. Department of Corrections , 9 F . A . L . R . 2423, FCHR Order No.

86 - 045, (FCHR December 18, 1986 ) , citing M cDonnell Douglas and

Wolfe v. Department of Agriculture and Consumer Services , 8

F . A . L . R . 426 (FCHR Sept. 27, 1985).

25. The FCHR has found that obesity and resultant sleep

apnea may be a handicap pursuant to Section 760.10. See Engleka

v. Sun Coast Hosp ital, Inc. , Case Number 92 - 6338 (DOAH June 11,

1994), Stewart v. Wackenhut Corporation , 10 F.A.L.R. 4624 (FCHR

1988), and Fenesy v. G.T. E. Data Services , Inc., 3 F.A.L.R.

1764A (FCHR 1981).

2 6 . Under the Americans with Disabilities Act (ADA) , t he

term "d isability" means, with respect to an individual :

(A) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impai rment.

See 29 C.F.R. § 1630.2(i)

2 7 . Major life activities include, "functions such as,

caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working." 29 CFR

§ 1630.2(i)

2 8 . Obesity may run the cont inuum from pleasantly plump,

to corpulent, to morbid obesity. Obesity is different from

being legless or sightless, for example, because one can end the

condition of obesity by eating less. Physiologically, however,

eating less seems to be impossible for some people and may

result in the inability to care for oneself, or the inability to

walk, or the inability to work. Under those circumstances,

obesity is a disability.

29 . Mr. Weaver, to his credit, is a person with the

discipline to combat his obesity though diet. Indeed, from

January 18, 2005, until the date of the hearing, October 20,

2005, he had shed 70 pounds and appeared at the hearing to be

robust rather than morbidly obese.

3 0 . In any event, Mr. Weaver did not demonstrate at the

hearing that on January 18, 2005, he was unable to care for

himself, walk, perform manual tasks, see, hear, or work. In

other words, he was not disabled by morbid obesity or by sleep

apnea in accordance with the guidance in Title 29 C.F.R. Section

1630.2(i) .

3 1 . More over, a person asserting disability must

demonstrate that he or she is unable to work in a broad range of

jobs. In Sutton v. United Airlines , 527 U.S. 471 ((1999) for

example, severely myopic twin sisters , who were pilots, sought

employment with a nationa l air carrier who rejected them because

their vision, correctible to 20/20, did not meet United's

standard for uncorrected vision. It was noted that there were

many jobs for which they were qualified, including jobs piloting

aircraft. In Toyota M anufactu ring v. Williams , 534 U.S. 184

(2002), a woman claiming to be disabled from performing her

automobile assembly line job b ecause of carpal tunnel syndrome

and related impairments , sued her former employer, for failing

to provide her with a reasonable accomm odation . The court held

that the central inquiry must be whether the claimant is unable

to perform the variety of tasks central to most people’s daily

lives .

3 2 . As noted before, Mr. Weaver is able to perform the

variety of tasks central to most pe ople’s daily lives and can

perform a variety of jobs and for that reason is not disabled .

33. It is unclear whether he currently has sleep apnea , or

whether he had sleep apnea on January 18, 2005, because he has

not been evaluated. B ut because sleep apnea can cause fatigue

during the waking hours, and because it is possible Mr. Weaver

could go to sleep while propelling a huge truck down the

highway, it is reasonable for Swift to refuse him that

opportunity.

34. The second factor Mr. Weaver must prov e , if he is to

make out a prima facie case, is that he was able to perform the

duties of a long - haul truck driver satisfactorily . A person who

might go to sleep while driving a tractor and trailer rig cannot

perform the duties of driver.

35. The third fa ctor Mr. Weaver must prove , if he is to

make out a prima facie case, is that he suffered an adverse

employment decision because of his disability. Since he wasn't

disabled, he couldn't prove this factor , although being refused

employment is an adverse emp loyment decision .

36. Assuming arguendo that Mr. Weaver is disabled, Title

29 C.F.R. Section 1630 (b)(1)(c) and (e) provide affirmative

defenses to an allegation of discrimination as follows:

§ 1630.15 Defenses.

Defenses to an allegation of discrimination

under this part may include, but are not

limited to, the following:

* * *

(b) Charges of discriminatory application

of selection criteria --

(1) In general. It may be a defense to a

charge of discrimination, as described in

§ 1630.10, that an alleged application of

qualification standards, tests, or selection

criteria that screens out or tends to screen

out or otherwise denies a job or benefit to

an individual with a disability has been

shown to be job - related and consistent with

business necessity, an d such performance

cannot be accomplished with reasonable

accommodation, as required in this part.

* * *

(c) Other disparate impact charges. It may

be a defense to a charge of discrimination

brought under this part that a uniformly

applied standard, cr iterion, or policy has a

disparate impact on an individual with a

disability or a class of individuals with

disabilities that the challenged standard,

criterion or policy has been shown to be

job - related and consistent with business

necessity, and such per formance cannot be

accomplished with reasonable accommodation,

as required in this part.

* * *

(e) Conflict with other federal laws.

It may be a defense to a charge of

discrimination under this part that a

challenged action is required or

necessitated b y another Federal law or

regulation, or that another Federal law or

regulation prohibits an action (including

the provision of a particular reasonable

accommodation) that would otherwise be

required by this part.

* * *

37. With regard to Title 29 C.F.R . Section 1630(b)(1), the

standard used by Swift to screen out Mr. Weaver, possibility of

sleep apnea, is job related and permissible.

38. With regard to Title 29 C.F.R. Section 1630(b)(1)(c),

because sleep apnea causes sleepiness during waking hours, and

thus can present a danger to Mr. Weaver and others, the policy

is job - related and cannot be cured with reasonable

accommodation.

39. With regard to Title 29 C.F.R. Section 1630(b)(1)(e),

to permit Mr. Weaver to drive a commercial vehicle when he has

or m ay have sleep apnea would conflict with another federal

regulation. In this case permitting Mr. Weaver to drive a Swift

truck would conflict with regulations promulgated by the Federal

Motor Carrier Safety Administration. T hose regulations , found

at Titl e 49 C.F.R. Section 391.42 , state that a driver should

have, "no established medical history or clinical diagnosis of a

respiratory dysfunction likely to interfere with his ability to

control and drive a commercial motor vehicle safely .

40. Insofar as the record currently stands, sleep apnea, a

respiratory dysfunction has not been ruled out and until it is,

the requirements of motor carrier safety trump the ADA. It is

not in the best interest of Swift, Mr. Weaver, or the driving

public to have a sleeping driver at the wheel of a large truck.

41. Mr. Weaver intimated that perhaps it was the duty of

Swift to provide an evaluation to rule out sleep apnea since he

did not have the funds for it . However, Mr. Weaver provided no

law that required Swift to provi de an evaluation to a job

applicant and none has been found.

42. Assuming arguendo that Mr. Weaver proved a prima facie

case, Swift provided nondiscriminatory reasons for its actions.

Mr. Weaver did not prove that these reasons were pretextual.

43. Mr. Weaver was give n the keys to employment when Swift

told him to get an evaluation for sleep apnea. He did not avail

himself of this opportunity and therefore Swift is absolved of

all responsibility with regard to his employment.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Mr. Weaver's Petition be dismissed.

DONE AND ENTERED this 5th day of December , 200 5 , in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Ad ministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of December , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Tim A. Weaver

15054 Northeast 150th Lane

Fort McCoy, Florida 32154

Stephen J. Beaver, Esqui re

Swift Transportation

Post Office Box 29243

Phoenix, Arizona 85038

Cecil Howard, General Counsel

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the r ight to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.