07-003973 Kim C. Rhode vs. John Carlo, Inc. Status: Closed Recommended Order on Friday, April 4, 2008.

Summary: Petitioner failed to establish that his insulin-dependent diabetes is a disability under the Florida Civil Rights Act. Thus, the petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM C. RHODE, )

)

Petitioner, )

)

vs. ) Case No. 07-3973

)

JOHN CARLO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on January 28, 2008,

in New Port Richey, Florida, before Carolyn S. Holifield,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Kim C. Rhode, pro se

Post Office Box 1093

New Port Richey, Florida 34656

For Respondent: Alysa J. Ward, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

100 South Ashley Street, Suite 1300

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent, John

Carlo, Inc., discriminated against Petitioner, Kim C. Rhode, on

the basis of a handicap/disability within the meaning of Section

760.10, Florida Statutes (2006). 1/

PRELIMINARY STATEMENT

On September 18, 2006, Petitioner, Kim C. Rhode, filed an

Employment Complaint of Discrimination with the Florida

Commission on Human Relations ("FCHR"), which alleged that he

was denied reasonable accommodations for and terminated from his

job because of his disability by Respondent, John Carlo, Inc.

("JCI"). After completing an investigation, the FCHR issued a

"Notice of Determination: No Cause," finding no reasonable cause

to determine that the alleged discrimination took place and

notifying Petitioner of his right to a hearing. Petitioner

filed a Petition for Relief on August 24, 2007, and the matter

was referred to the Division of Administrative Hearings.

On October 10, 2007, Respondent filed a Motion for Summary

Final Order, which was denied in an Order issued on November 9,

2007.

At hearing, Petitioner testified on his own behalf and

offered and had one exhibit received into evidence. The record

was left open to allow Petitioner to late-file the exhibit. As

of this date, the exhibit has not been filed and, thus, is not a

part of the record. Respondent presented the testimony of Jon

Ford and Douglas Tyus, managers for JCI. Respondent's Exhibits

1, 2, 3, 6, 7, 8, 10, 11, 12, 14, 15, 16, 18, 19, 20, and 21

were received into evidence. At Respondent's request, the

undersigned took official recognition of 49 C.F.R. Section

391.41; Section 316.302, Florida Statutes; and the Florida

Department of Highway Safety and Motor Vehicles Medical

Examination Form.

A Transcript of the hearing was filed on February 15, 2008.

At the conclusion of the hearing, the time for filing proposed

recommended orders was set for ten days after the transcript was

filed. Petitioner did not file a proposed recommended order.

Respondent timely filed Proposed Findings of Fact and

Conclusions of Law, which have been considered in preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Kim C. Rhode ("Petitioner"), is an insulin-

dependent diabetic, whose condition was first diagnosed in 1961.

Since that time, Petitioner has been using insulin to control

the effects of diabetes.

2. Petitioner was employed by JCI from March 16, 2005,

through August 2, 2006, in the position of fuel driver.

3. During most of the time Petitioner was employed with

JCI, he resided at 16108 U.S. Highway 19, Hudson, Florida. The

last several months of his employment at JCI, Petitioner resided

on Rowan Avenue in New Port Richey, Florida.

4. During the term of his employment with JCI, Petitioner

reported to work at 813 East Sligh Avenue, Tampa, Florida ("the

Sligh Avenue work site"). The Sligh Avenue work site was about

39 miles from Petitioner's residence in Hudson, Florida, and

even fewer miles from his residence in New Port Richey, Florida.

5. Initially, Petitioner's duties at JCI required that he

drive a 2500-gallon fuel truck and/or a 300-gallon fuel truck

from the Sligh Avenue work site to the JCI construction project

at the Tampa International Airport and the JCI I-275

construction project. Petitioner fueled and maintained the

equipment at the two JCI construction project sites in Tampa,

Florida. After completing those job responsibilities,

Petitioner drove the fuel truck back to the Sligh Avenue work

site, where he also fueled and maintained equipment.

6. The 2500-gallon fuel truck was equipped with air

conditioning; the 300-gallon fuel truck was not air conditioned.

7. Both the 2500-gallon fuel truck and the 300-gallon fuel

truck driven by Petitioner were required by law to display

"Hazardous Materials" placards. In order to drive such

vehicles, Petitioner was required to have a Class "A" Commercial

Driver's License.

8. At the time Petitioner was hired by JCI, he presented

an unexpired Minnesota Class "A" Commercial Driver's License.

That license showed an expiration date of May 12, 2005.

Insulin-dependent diabetes does not appear as a restriction on

Petitioner's Minnesota license.

9. Just prior to the expiration of his Minnesota Class "A"

Commercial Driver's License, Petitioner presented a current

Florida Class "A" Commercial Driver's License. Petitioner's

Florida Class "A" Commercial Driver's License did not include

any medical restrictions.

10. Applicable federal regulations and State law mandate

that a medical examination be performed as part of the

application process for a Florida Class "A" Commercial Driver's

License. 2/ Physicians performing such examinations are required

to use a standard form that requires taking a medical history

from the applicant, which includes any history of diabetes. 3/

The form also provides notice of the legal restriction to

licensing insulin-dependent diabetics.

11. On or about May 5, 2005, Petitioner had a medical

examination in connection with his application for a Florida

Class "A" Commercial Driver's License. At this proceeding,

Petitioner acknowledged that during the medical examination, he

did not expressly inform the medical examiner of his insulin-

dependent diabetes. Moreover, there is no indication that

Petitioner disclosed that he had insulin-dependent diabetes on

the required medical form that was to be completed in connection

with this medical examination. 4/

12. All drivers of commercial motor vehicles operated on

the public highways of Florida are subject to the rules and

regulations contained in 49 C.F.R., Parts 382, 385 and 390-397.

See § 316.302(1), Fla. Stat.

13. 49 C.F.R. Section 391.41 (a) and (b)(3) provides that

"a person shall not drive a commercial motor vehicle [5/] unless

he/she is physically qualified to do so" and that a person is

physically qualified to drive such a motor vehicle "if that

person has no established medical history of diabetes mellitus

currently requiring insulin for control." Because drivers of

commercial vehicles in Florida are subject to the above-

referenced federal regulations, a person with an established

history of insulin-dependent diabetes is not qualified to drive

a commercial vehicle with "Hazardous Material" placards in

intrastate commerce.

14. JCI is a multi-state construction company,

headquartered in Detroit, Michigan, that builds heavy highway

projects, civil project, and airport runways. The Central

Division is one of JCI's three regional divisions and includes

projects in Tampa and Orlando, Florida. Each individual

construction project within that particular division has its own

budget.

15. In addition to the three regional divisions, JCI has a

separate division, Florida Equipment and Maintenance Department

("Equipment and Maintenance Department"), which services

construction projects, using its own budget. The Equipment and

Maintenance Department provides fuel and maintenance services to

JCI construction projects. The individual construction project

receiving the services then pays the Equipment and Maintenance

Department for those services out of its allocation budget.

16. Expenses for the construction projects are initially

approved by project managers, then sent to the appropriate

regional manager for approval, and finally sent to Central

Accounting in Michigan for payment. At all times material to

this action, Jon Ford was the JCI Central Florida Regional

manager.

17. While Petitioner was employed by JCI, he was assigned

to and supervised by the Equipment Maintenance Department, which

was headquartered in Jacksonville, Florida. Petitioner reported

to JCI's fleet manager for Florida.

18. During the first nine months of Petitioner's

employment with JCI, from March 2005 through December 2005, the

fleet manager was Larry LeClair. For the remainder of

Petitioner's tenure with JCI, from January 2006 through

August 2, 2006, the fleet manager was Doug Tyus.

19. Prior to being hired and after he was hired,

Petitioner never notified anyone at JCI, including the JCI Human

Resources Office, of his medical condition. Rather, JCI did not

become aware of Petitioner's insulin–dependent diabetes until

Petitioner suffered the first of three serious diabetic episodes

on the job. As a result of the first episode, Petitioner

"blacked out." During the second and third episodes, Petitioner

nearly blacked out. Petitioner described the two near-blackout

experiences as situations where he "just kind of lost what [he]

was doing" and "needed help."

20. The first diabetic episode occurred at the Sligh

Avenue work site in December 2005, about nine months after

Petitioner was hired at JCI. The second diabetic episode

occurred in or about February or March 2006, while Petitioner

was at the JCI construction project at the Tampa International

Airport.

21. Once JCI was on notice of Petitioner's

insulin-dependent diabetes, the company removed Petitioner's

duties insofar as those duties involved driving the 2500-gallon

fuel truck and the 300-gallon fuel truck to the Tampa

International Airport construction project and the I-275

construction project.

22. After Petitioner's first diabetic episode, JCI

refitted the smaller truck (the 300-gallon tank) with an

80-gallon tank, which was an amount below the level requiring a

"Hazardous Material" placard and limited Petitioner to driving

that truck.

23. After Petitioner's second diabetic episode, JCI

reasonably had safety concerns regarding Petitioner driving any

type of fuel truck over the public roads and at the Tampa

International Airport. Based on these concerns, JCI reassigned

Petitioner to a fixed location, the Sligh Avenue work site.

24. When Petitioner was reassigned to the fixed location,

Mr. LeClair told Petitioner the change was being made because of

the "issue of people getting hurt at the airport."

25. After Petitioner was reassigned to the fixed location,

his job duties remained the same--fueling and maintaining

equipment used at JCI construction sites. He simply was no

longer allowed to drive the refitted 80-gallon fuel truck to the

Tampa International Airport and the I-275 construction projects.

Nevertheless, after the reassignment, Petitioner's title,

compensation, and benefits remained the same.

26. Petitioner claims that he is disabled by virtue of his

having insulin-dependent diabetes. Petitioner alleges that as a

result of this disability, JCI discriminated against him by:

(1) reassigning him to a fixed location; (2) denying his request

for an accommodation; and (3) terminating his employment.

27. Petitioner asserts that in March 2006, he made a

request to his supervisor for an accommodation, namely air

conditioning for the 80-gallon fuel truck that he drove at work.

Notwithstanding this assertion, during his testimony Petitioner

conceded that Mr. Tyus, his supervisor, initiated a discussion

about getting air conditioning for the truck. Mr. Tyus brought

up the issue, in or about April 2006, after he discovered that

the 80-gallon fuel truck did not have air conditioning. In

response to this comment, Petitioner told Mr. Tyus that he would

appreciate it if Mr. Tyus was able to get the truck air

conditioned, but that it was not "a big deal." In fact,

Petitioner admitted "making a light joke" about getting the

truck air conditioning by telling Mr. Tyus that the "air

conditioning [in the truck] works great . . . with [the] windows

down and [going] 60 miles an hour."

28. During Petitioner's employment with JCI, at any one

time there may have been a maximum of 20 members of the Central

Division construction crew out of Orlando assigned to

construction projects in Tampa who lived more than 100 miles

from Tampa. Those employees were lodged at the Days Inn--Tampa

North ("Days Inn") in Tampa, Florida, at JCI's expense. The

lodging expenses for these employees were allocated to the

budget of the project on which they were employed.

29. As set forth in paragraph 4, during Petitioner's

employment with JCI, he lived approximately 39 miles or less

from his regular job site located on Sligh Avenue in Tampa,

Florida.

30. JCI never assigned Petitioner to a work location more

than 100 miles from his home.

31. From January 25, 2006, through June 23, 2006,

Petitioner stayed at the Days Inn, incurring $7,000.00 for

lodging expenses that were billed to JCI.

32. Mr. Tyus did not approve Petitioner staying at the

Days Inn in connection with his employment at JCI and until

June 2, 2006, was unaware Petitioner was staying there.

33. On June 2, 2006, Mr. Tyus first learned that

Petitioner was staying at the Days Inn at JCI's expense after

his [Mr. Tyus'] supervisor, Raymond Pace, notified him. Upon

inquiry, Mr. Tyus advised Mr. Pace that he had not authorized

Petitioner's stay at the Days Inn and was not aware that the

stay had been authorized.

34. Prior to taking disciplinary action against Petitioner

for incurring the lodging expenses, Mr. Tyus and Mr. Pace

conducted an investigation to determine if anyone in the JCI

organization had approved Petitioner's staying at the Days Inn.

As of June 23, 2006, neither Mr. Pace nor Mr. Tyus had been able

to ascertain who, if anyone, had authorized Petitioner's stay at

the Days Inn or the reason for his stay.

35. Initially, the $7,000.00 in lodging expenses was

erroneously allocated to JCI's I-275 project. After the error

was discovered and no determination could be made as to who

approved Petitioner's staying at the Days Inn, Mr. Pace and

Mr. Tyus decided that Petitioner's lodging expenses at the Days

Inn, incurred from January 25, 2006, through June 23, 2006,

should be reallocated to the Equipment and Maintenance

Department, the unit to which Petitioner was assigned.

36. On or about June 23, 2006, Mr. Pace and Mr. Tyus

decided that Mr. Tyus would direct Petitioner to vacate the room

at the Days Inn immediately and that no disciplinary action

would be taken with respect to the charges incurred through that

day.

37. On June 23, 2006, Mr. Tyus advised Petitioner by

telephone that Petitioner's stay at the Days Inn violated JCI's

travel policy and instructed him to vacate the room and check

out of the motel immediately.

38. Petitioner left the motel on June 23, 2006, but did

not check out at the front desk. As a result of his failure to

check out, the Days Inn continued to bill JCI for the room that

Petitioner had occupied.

39. On or about July 3, 2006, Mr. Pace notified Mr. Tyus

that Petitioner had incurred more than $400.00 in additional

motel expenses since June 23, 2006. Shortly thereafter,

Mr. Tyus contacted Petitioner to ask him how the charges had

arisen. Petitioner explained that he vacated the room at the

Days Inn on January 23, 2006, but did not check out or turn his

key in at the front desk.

40. Mr. Tyus viewed Petitioner's conduct (i.e., leaving

the motel without checking out) as unreasonable and a disregard

of company funds, an offense for which Petitioner's employment

could be terminated. Nonetheless, Mr. Tyus decided to give

Petitioner an opportunity to clear up the billing issue with the

Days Inn and get a credit for the days charged to JCI, as a

result of Petitioner's failure to check out.

41. Mr. Tyus gave Petitioner two weeks to clear up the

$400.00 bill at the Days Inn, during which time Mr. Tyus

authorized Petitioner to go to the Days Inn during working hours

to attend to the matter. During the two-week period, Petitioner

contacted the manager of the motel in an attempt to resolve the

$400.00 lodging costs. However, he was unable to persuade the

manager of the Days Inn to take the $400.00 charges off JCI's

bill.

42. Petitioner never resolved the $400.00 billing issue.

43. In light of Petitioner's conduct, Mr. Tyus, in

consultation with Mr. Pace, decided to terminate Petitioner's

employment. The termination process was conducted in

consultation with the JCI Human Resources Office.

44. On August 2, 2006, Mr. Tyus informed Petitioner of

JCI's decision to terminate his employment because of the

additional unauthorized expenses Petitioner incurred after

June 23, 2006, and for his failure to follow his supervisor's

instructions and disregard for company funds.

45. After being told that his employment with JCI was

terminated, Petitioner offered to write a check to cover the

$400.00 motel charges, but Mr. Tyus did not accept that offer as

a means of resolving the issue. Mr. Tyus believed that the

offer came too late and that Petitioner, in the prior two weeks,

had not appeared to take the matter of misusing the company's

funds seriously.

46. The Separation Notice issued to Petitioner stated that

Petitioner was discharged for the following reasons:

"[Petitioner] failed to check out of an unauthorized motel room

properly. Resulting in over $400.00 in charges to JCI. [sic] He

had very clear instructions and just left. He never checked

out."

47. JCI's company policies are included in a publication,

Carlo Companies Handbook (" Handbook "), which is distributed to

employees. Upon being employed by JCI, Petitioner received a

copy of the Handbook .

48. The Handbook requires JCI drivers to comply with all

applicable U.S. Department of Transportation ("DOT") regulations

and to notify the Human Resources Office of any medical

condition that might affect the employee's ability to safely

operate a company vehicle. Contrary to this policy, Petitioner

never notified the Human Resources Office staff or anyone at JCI

that he had insulin-dependent diabetes, a condition that might

affect his ability to drive a commercial vehicle.

49. The fleet manager of the Equipment and Maintenance

Department is required to administer JCI's safety policies,

which include compliance with applicable DOT regulations and

Florida law. In accordance with those provisions, had

Petitioner disclosed that he was an insulin-dependent diabetic,

he would not have qualified for the job of fuel truck driver. 6/

50. The Handbook includes the company's non-discrimination

policy which prohibits discrimination without regard to the

employees' "race, religion, sex, age, color, or national origin

or other factor prohibited by law." The Handbook also provides

the procedures for filing a complaint of discrimination with

JCI. Although he was aware of JCI's discrimination policy and

the procedures for filing a complaint, Petitioner never filed a

complaint regarding any disability.

51. The Handbook includes a policy whereby employees could

request reasonable accommodations for a disability. The policy

required that the employee notify appropriate JCI staff, in

writing, "as soon as possible, but within 182 days after the day

you know or reasonably should know that an accommodation is

needed."

52. During the time Petitioner was employed at JCI, he

never mentioned his diabetic condition to Mr. Tyus. Moreover,

Petitioner never made a written request or otherwise contacted

the JCI Human Resources Office or anyone else at JCI about air

conditioning for the truck as an accommodation for a disability.

53. During Petitioner's employment with JCI, the Handbook

included a travel policy which required that the executive

administrative assistant in the corporate office coordinate "all

travel over 100 miles outside the employee's normal work

location." The policy specified "any travel necessitating

airline travel, automobile rental, and/or hotel reservations."

54. While an employee of JCI, Petitioner was aware that

the travel policy allowed employees to be reimbursed for travel

expenses, only when they were required to travel over 100 miles

to work.

55. In order to minimize the negative side affects/impact

of his insulin-dependent diabetes, Petitioner must control and

monitor his blood sugar levels, take insulin when necessary, and

eat meals and snacks on a regular schedule. Petitioner has

successfully controlled his diabetes by doing the foregoing and

Petitioner considers those activities "minor inconvenience[s]."

56. Petitioner considers his diabetic condition to be a

"limited restriction." Petitioner testified that fluctuations

in his blood sugar level (either high or low) may affect his

eye-hand coordination and vision and weaken his legs. However,

Petitioner testified that these events/symptoms have happened

"zero" times in the last year and only three times in the year

and a half (March 2008 through August 2006) that he was working

for JCI.

57. Despite Petitioner's assertion to the contrary, his

diabetic condition does not limit his ability to work and care

for himself. For example, during the time Petitioner worked for

JCI, despite having insulin-dependent diabetes, he came to work

everyday and performed his job responsibilities. Moreover,

Petitioner lives independently, takes care of himself and his

household responsibilities, does his own grocery shopping, and

drives himself to and from work.

58. Petitioner presented no evidence of specific conduct,

documents, or statements to establish the alleged

discrimination. Moreover, no one at JCI ever told Petitioner

that he was reassigned to the Sligh Avenue work site and/or

terminated from his position with JCI because of a disability.

In fact, at this proceeding, Petitioner acknowledged that he has

no factual basis for his allegations and stated, "At this point,

it's all theory."

59. Petitioner testified that he believes JCI terminated

his employment because of his disability and not for the reasons

JCI gave him. Petitioner bases this belief on the fact that,

although Petitioner was initially denied unemployment

compensation, JCI did not contest his claim at the appellate

level.

60. Despite his allegation that he is disabled, no

physician has placed any restrictions on his working conditions.

Furthermore, Petitioner has never been pronounced disabled by a

medical care provider, a government agency (i.e., Social

Security Administration) or court.

61. Two months after JCI terminated his employment,

Petitioner began working at a business that assembles shower

doors. Petitioner voluntarily left that job for a higher paying

job. In the former job, Petitioner verbally advised the

employer that he was a diabetic, but did not indicate that the

condition was a disability and that he required an

accommodation. On his current job, Petitioner has not reported

that he has insulin-dependent diabetes and has not requested any

type of accommodation.

CONCLUSIONS OF LAW

62. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.565, 120.57(1), and Chap. 760.01, et . seq .,

Fla. Stat. (2007).

63. The Florida Civil Rights Act of 1992 (FCRA), Sections

760.01 through 760.11, Florida Statutes, make it unlawful for an

employer to commit an unlawful employment practice.

64. Subsection 760.10(1), Florida Statutes, makes it an

unlawful employment practice for an employer to take adverse

employment action against any individual because of such

individual's "race, color, religion, sex, national origin, age,

handicap, or marital status."

65. Petitioner alleges that JCI terminated his employment

because of his handicap/disability and, thus, violated the FCRA.

66. Federal discrimination laws may be used for guidance

in evaluating the merits of claims arising under Chapter 760,

Florida Statutes.

67. Florida courts construe handicap discrimination

actions under the FCRA in conformity with the Americans with

Disabilities Act of 1990 (ADA), 42 U.S.C. Section 12111(8), as

interpreted by federal courts. Wimberly v. Securities

Technology Group, Inc. , 866 So. 2d 146 (Fla. 4th DCA 2000);

Tourville v. Securex, Inc. , 769 So. 2d 491 n.1 (Fla. 4th DCA

2000); Greene v. Seminole Electric Co-op., Inc. , 701 So. 2d 646

(Fla. 5th DCA 1997).

68. The burden of proof in discrimination cases involving

circumstantial evidence is set forth in McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 802-803 (1973). Where, as in this case,

there is no direct evidence of discrimination, a claimant must

meet his burden of proof by establishing a prima facie case of

discrimination. If a prima facie case is established, the

burden shifts to the employer to articulate a non-discriminatory

reason for the adverse employment action. If the employer

offers a non-discriminatory reason for its actions, the burden

then shifts back to the claimant/petitioner that the reasons

articulated by the employer were pretextual.

69. In order to establish a prima facie case of

discrimination based on a disability/handicap under the ADA,

Petitioner must establish that: (1) he has a disability; (2) he

is a "qualified" individual at all material times; and (3) he was

discriminated against because of his disability. Gordon v. E.L.

Hamm & Associates , 100 F.3d 907, 910 (11th Cir. 1996); Brand v.

Florida Power Corp. , 633 So. 2d 504, 510 (Fla. 1st DCA 1994).

70. The ADA and the FCRA define "disability" and

"handicap," respectively, as a physical or mental impairment

that substantially limits one or more of the major life

activities of such an individual; a record of such an

impairment; or being regarded as having such an impairment.

See 42 U.S.C. 12102(2); 29 C.F.R. § 1630.2(g)(1)-(3); and

§ 760.22(7), Fla. Stat.

71. Petitioner does not allege and the record does not

support a finding that he has a record of a physical impairment

or is regarded as having such an impairment. Rather, Petitioner

claims that he has a disability by virtue of being an insulin-

dependent diabetic. Accordingly, the analysis related to

Petitioner's disability is limited to whether the alleged

disability is a physical impairment that substantially limits

one or more of Petitioner's major life activities. 42 C.F.R.

§ 12102(2)(A).

72. The only physical impairment that Petitioner has

alleged, his insulin-dependent diabetes, is not a disability

per se . See Arrington v. Southwestern Bell Telephone Co.,

93 Fed. Appx. 593 (5th Cir. 2004). In order to constitute a

disability under the ADA, Petitioner's impairment must be a

"substantial limitation" on his major life activities. Toyota

Motor Mfg., Ky., Inc. v. Williams , 534 U.S. 184, 194-195 (2002).

73. The pertinent federal regulation defines "major life

activities" to include functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working. 29 C.F.R. § 1630.2(i).

74. To be "substantially limited" from performing manual

tasks, an individual must have an impairment that prevents or

severely restricts the individual from doing activities that are

of central importance to most people's daily lives. Moreover,

the impairment's impact must also be permanent or long-term.

Toyota , 534 U.S. at 197.

75. 29 C.F.R. Section 1630.2(j)(3) provides that with

respect to the major life activity of working, "substantially

limits" means significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in various

classes as compared to the average person having comparable

training, skills, and abilities. See Toyota , 534 U.S. at 198.

According to that provision, the inability to perform a single,

particular job does not constitute a substantial limitation in

the major life activity of working.

76. In Sutton v. United Airlines, Inc. , 527 U.S. at

482-483, the U.S. Supreme court determined that "[a] person

whose physical or mental impairment is corrected by medication

or other measures does not have an impairment that presently

'substantially limits' a major life activity." Therefore,

whether a person has a disability under the ADA "depends on

whether the limitations an individual with an impairment

actually faces are in fact limiting." Id. at 488.

78. In order to prevail in a disability discrimination

case, Petitioner must establish all three elements listed in

paragraph 69 above.

79. Here, Petitioner did not establish the first element

of the prima facie test in that he failed to show that he is

disabled/handicapped within the meaning of the law. While it is

undisputed that Petitioner has insulin-dependent diabetes,

Petitioner failed to present evidence to show that this physical

impairment "substantially limited" any of his "major life

activities." To the contrary, the clear evidence showed that

despite Petitioner's diabetes, he remained able to care for

himself and carry out all major life activities.

80. Because Petitioner did not establish that he is

"disabled" or "handicapped" within the meaning of the ADA and

the FCRA, his disability discrimination claim must fail.

81. Even if it were assumed, for argument's sake, that

Petitioner had a disability under the ADA and FCRA, to establish

a case of discrimination, he would have to prove the second

element of the prima facie test--that he is qualified for the

job of fuel truck driver. The clear and undisputed evidence

established that federal regulations and Florida law prohibit

insulin-dependent diabetics from driving the type of commercial

vehicles Petitioner drove when he was initially hired by JCI.

Therefore, as a matter of law, Petitioner was not qualified to

drive the 2500-gallon fuel truck and the 300-gallon fuel truck.

However, the evidence established that after JCI reassigned

Petitioner to a fixed location and transferred him to a truck

with a smaller fuel tank, he was qualified for the position in

that he could perform, without reasonable accommodation, the

essential functions of the position. See 42 U.S.C. § 12111(8).

82. Again, assuming, for the sake of argument, that

Petitioner established the first two elements of the prima facie

test for discrimination, in order to prevail, he must then

establish that he was discriminated against because of his

disability. Petitioner asserts that JCI discriminated against

him by: (1) reassigning him to a fixed location; (2) refusing

his request for an accommodation; and (3) terminating his

employment.

83. With regard to Petitioner's alleged request for an

accommodation (i.e., air conditioning for the 80-gallon fuel

truck), assuming he was a "qualified person with a disability,"

the evidence did not establish that Petitioner needed an

accommodation to perform the essential functions of the job or

that he requested such an accommodation. See Stewart v. Happy

Herman's Cheshire Bridge , 117 F.3d 1278, 1286 (11th Cir. 1997).

84. Again, assuming, for the sake of argument, that

Petitioner established the first two elements of the prima facie

test for disability discrimination, he must then show that JCI

reassigned him to a fixed location because of his disability.

Petitioner presented no evidence that JCI had a discriminatory

reason for the reassignment. Rather, JCI presented clear and

undisputed evidence that Petitioner was reassigned to a fixed

location due to safety reasons, after he had two diabetic

episodes, one in which he blacked out and a second one in which

he nearly blacked out. It is not discriminatory for an employer

to reassign an employee when it discovers that an employee has

an impairment that poses a safety threat. Rather, it is a

legitimate non-discriminatory reason.

85. Finally, assuming, for the sake of argument, that

Petitioner met the first two elements of the prima facie test

for disability discrimination, there is no evidence that JCI

terminated Petitioner's employment because he was disabled. The

clear and undisputed evidence established that JCI terminated

Petitioner's employment because of his failure to follow his

supervisor's instructions and disregard for company funds.

While Petitioner may disagree with JCI's decision, it had a

legitimate non-discriminatory reason for its action.

86. For the reasons set forth above, Petitioner failed to

establish a prima facie case of disability discrimination and,

therefore, failed to meet his burden of proof. Accordingly, his

FCRA claim must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 4th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of April, 2008.

ENDNOTES

1/ All references are to 2006 Florida Statutes, unless

otherwise indicated.

2/ 49 C.F.R. § 391.41(a); and § 322.59(1), Fla. Stat.

3/ 49 C.F.R. § 391.43(f).

4/ The medical form required by the Florida Department of

Highway Safety and Motor vehicles has a section in which the

"driver" is instructed to check the appropriate "yes" or "no"

box to indicate whether he has one or more of the conditions

listed on the form. The form expressly lists "diabetes or

elevated blood sugar." If the applicant answered yes to the

inquiry about diabetes, he then was required to check the

appropriate box to indicate whether the diabetes or elevated

blood sugar was "controlled by diet, pills, [or] insulin."

5/ 49 C.F.R. Section 390.5 defines a commercial motor vehicle

to include a "self-propelled . . . vehicle used on the highway

. . . to transport passengers or property when the vehicle . . .

is used in transporting material found by the Secretary of

Transportation to be hazardous . . . and transport[ing] in a

quantity requiring placarding under regulations prescribed by

the Secretary under 49 C.F.R., subtitle B, chapter I,

subchapter C."

6/ 49 C.F.R. Section 391.64(a)(1) provides a limited exemption

from disqualification for persons who have insulin-dependent

diabetes. However, there is no evidence that Petitioner is

eligible for such exemption. This section exempts from the

provisions of 49 C.F.R. Section 391.41(b)(3) a driver who was a

participant in good standing on March 31, 1996, in a waiver

study program concerning the operation of commercial motor

vehicles by insulin-controlled diabetic drivers if the driver is

physically examined every year by a board-certified/eligible

endocrinologist attesting to the fact that the driver is:

(1) otherwise qualified under 49 C.F.R. Section 391.41; (2) free

of insulin reactions; (3) able to and has demonstrated

willingness to properly monitor and manage his/her diabetes; and

(4) not likely to suffer any diminution in driving ability due

to his/her diabetic condition.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Alysa J. Ward, Esquire

Glenn, Rasmussen, Fogarty

& Hooker, P.A.

100 South Ashley Drive, Suite 1300

Tampa, Florida 33602

Kim C. Rhode

Post Office Box 1093

New Port Richey, Florida 34656

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right 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.