10-002679 Edward Rhoades vs. Swift Transportation Status: Closed Recommended Order on Wednesday, December 29, 2010.

Summary: Petitioner failed to prove illegal discriminatory employment practice based on disability. Respondent had legitimate, non-discriminatory business reasons for not hiring Petitioner.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD RHOADES, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2679

)

SWIFT TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in this matter before W. David

Watkins , Administrative Law Judge with the Division of

Administrative Hearings, on October 5 , 2010, in Cross City ,

Florida.

APPEARANCES

For Petitioner: Edward Rhoades , pro se

7470 Northwest 167th Place

Trenton, Florida 32693

For Respondent: Ignacio J. Garcia, Esquire

Ogletree, Deakins, Nash, Smoak

& Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on Petitioner's disability .

PRELIMINARY STATEMENT

A formal administrative hearing in this matter was held on

Octobe r 5, 2010, in Cross City, Florida. At the hearing,

Petitioner testified on his own behalf. Petitioner's

E xhibits 1A, and 1 through 7 were received in evidence.

Respondent presented the telephonic testimony of Scott

Maldonado , and its E xhibit s 1 through 5 were received in

evidence.

At the conclusion of the hearing the parties stipulated

that proposed recommended orders would be due 21 days following

the filing of the final hearing transcript. The T ranscript was

filed with the Division on October 28, 20 10 . However, on

November 16, 2010, Respondent filed an Unopposed Motion for

Extension of Time, seeking an extension until November 30, 2010,

for the parties to submit their proposed orders. By Order dated

November 17, 2010 , the requested extension was gr anted. On

November 24, 2010 , Petit ioner filed a Post - Hearing Brief, and on

November 30, 2010 , Respondent filed its Proposed Recommended

Order. Both post - hearing filings have been given due

consideration in the preparation of this Recommended Order.

Ref erences to statutes are to Florida Statutes (2009) ,

unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Edward Rhoades , applied for employment as a

commercial truck driver with Respondent in early February 2009.

2. Respondent, Swift Transportat ion Co . of AZ, LLC.

("Swift") , is a nationwide truckload carrier, using over 14,000

trucks and employing approximately 18,000 drivers. Swift is an

equal employment opportunity employer and has adopted written

policies which prohibit discrimination based u pon, among other

things, disability.

3. In the section of the Swift application relating to

employment history, Petitioner wrote the following: "[H]aven't

worked since 1985 due to injuries. Have doctor releases for

injuries." Petitioner's injuries we re sustained in 1976 when a

log dropped on his back. Petitioner also ha s contracted

H epatiti s C, although there is no evidence of record as to what

disabilit ies, if any, have result ed from the disease.

4. Notwithstanding the " injuries " listed on his

app lication, at hearing Petitioner testified that the only

disability he had at the time of filing his application with

Swift was "a skip of the heart . " Petitioner further testified

that he did not have any physical limitations due to this

condition.

5 . In December 2008 , Petitioner successfully completed

training to become a semi - tractor - trailer driver at the Truck

Driver Institute, Inc. ("TDI") , located in Sanford, Florida.

TDI assisted Petitioner in his efforts to find employment as a

truck driver by f axing his application to Swift on or about

February 1 , 2009.

6 . Petitioner's faxed application was incomplete . O mitt ed

were Petitioner's social security number, date of birth,

employment declaration, references, and signature.

7. Swift internally trac ks the status of driver

applications by the use of Lotus Notes software. February 10,

2009 , entries made regarding Petitioner's application noted the

absence of the personal information listed above. In addition,

the notations "need proof of injury" and "faxed conditional pre -

hire to TDI, Sanford" were entered in the Swift record.

8. Although the exact date is not reflected in this

record, sometime soon after the faxed submittal of Petitioner's

paper application Petitioner decided to submit an on - line

application to Swift using the Swift website. A copy of that

application was not introduc ed into this record. However, when

asked on the application to identify his goals , Petitioner

testified that he wrote: "to get off disability and pay off my

family l oans."

9. As reflected in the Swift Lo tus Notes, on February 10,

2009 , Swift faxed its standard "conditional pre - hire letter" to

Petitioner via TDI. The letter declared in large bold font:

"Congratulations, the student/driver listed below has been

appr oved to join the Swift Team!" The letter further stated:

"Swift Transportation Co., Inc. agrees to hire the above

referenced student/driver subject to the following conditions:"

Thereafter followed a list of 11 conditions prerequisite to

hiring by Swift, one of which was "pass Swift Transportation's

road test . "

10. Scott Maldonado, Swift's National Director of

Recruiting and Training, testified that Swift had no record of

Petitioner's on - line application. He noted that during the four

to five months preceding the hearing Swift had received over

60,000 applications through its website.

11. Unfortunately, when Petitioner submitted his

application in early 2009 , the national economy was in the

throes of a serious recession, resulting in a significant

d ecline in the need for commercial truck drivers. For example,

in 2008 , Swift hired 18,957 drivers, while in 2009, only 9,713

drivers were hired by Swift. 1 / Consequently, Respondent was able

to be much more selective in the drivers it chose to hire.

12. Due to the location from which he applied, Peti tioner

would have been assigned to Respondent's Ocala facility. In

February of 2009 , Respondent hired only eleven drivers for

placement in its Ocala terminal , and all of those drivers were

graduates of Swif t's driving academy located in Millington,

Tennessee. 2 /

13. Swift's historical data has shown that drivers hired

from one of its academies are safer drivers and have more of a

long - term commitment to Swift. Because of this, Swift has a

company - wide goal of hiring graduates strictly from one of its

driving academies if at all possible . Unfortunately for

graduates of other academies, such as TDI, Swift was in a

position to selectively hire only Swift academy graduates in

early 2009.

14. When Petitioner attempted to arrange to take the Swift

driving test (through his contacts at TDI) he was i nformed of

the Swift hiring freeze on all non - Swift academy graduates.

Accordingly, Petitioner was never offered an appointment to take

the Swift driving test.

CONC LUSIONS OF LAW

1 5 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat (2010).

1 6 . Section 760.10, Florida Statutes (2010), provides

that:

(1) I t is an unlawful employment practice

for an employer:

(a) To discharge or to fail or 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

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

1 7 . To establish a prima facie case of discrimination,

Petitioner must prove by a preponder ance of the evidence:

(1) that he is a handicapped person wit hin the meaning of

Subsection 760.10(1)(a); (2) that he is a qualified individual;

and (3) that Resp ondent discriminated against him on the basis

of his disability . See Earl v. Mervyns , 207 F.3d 1361, 1365

(11th Cir. 2000); Pritchard v. S. Co. Servs. , 92 F.3d 1130 (11th

Cir.1996); and Byrd v. BT Foods, Inc. , 948 So. 2d 921 (Fla. 4th

DCA 2007).

1 8 . The term "handicap" in the Florida Civil Rights Act is

treated as equivalent to the term "disability" in the Americans

w ith Disabilities Act. See Ross v. Jim Adams Ford, Inc. , 871

So. 2d 312 (Fla. 2d DCA 2004).

1 9 . The ADA defines a "disability" as " (A) a physical or

mental impairment that substantially limits one or more of the

major lif e activities of such individual; (B) a record of such

impairment; or ( C) being regarded as having such an impa irment."

42 U.S.C. § 12102(1 ). "Major life activities" include , but are

not limited to, caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading, concentrating,

thinking, communicating, and working. 42 U.S.C. § 12102(2)(A);

Bragdon v. Abbott , 524 U.S. 624, 118 S. Ct. 2196, 141 L. Ed . 2d

540 (1998) .

20 . In Sutton v. United Air Lines, Inc. , 527 U . S . 471,

119 S. Ct. 2 139, 144 L . Ed. 450 (1999) the Supreme Court declared

that whether a person is disabled under the ADA is an

"individualized inquiry." It stated:

The definition of disability . . . requires

that disabilities be evaluated 'with respect

to an individual' and be determined based on

whether an impairment substantially limits

the major life activities of such

individual.' Thus, whether a person has a

disability under the ADA is an

individualized inquiry.

Id . at 484.

21 . Federal discrimination law may prop erly be used for

guidance in evaluating the merits of claims arising under

Section 760.10, Florida Statutes. See Brand v. Fla. Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Fla. Dep't of

Cmty. Affairs v. Bryant , 586 So. 2d 1205, 1209 (Fla. 1st DCA

1991).

2 2 . In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 03 (1973), the Supreme Court articulated a burden of proof

scheme for cases involving allegations of discrimination under

Title VII, where the plaintiff relies upon circumstantial

eviden ce. The McDonnell Douglas decision is persuasive in this

case, as is St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 506 - 07

(1993), in which the Court reiterated and refined the McDonnell

Douglas analysis .

2 3 . Pursuant to this analysis, the plaintiff (Pe titioner

herein) has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1 012 n. 6 (Fla. 1st DCA), aff'd , 679 So. 2d 1183 ( Fla.

1996) (citing Arnold v. Burger Queen Sys. , 509 So. 2d 958 (Fla.

2d DCA 1987).

2 4 . If, however, the plaintiff succeeds in making a prima

facie case, then the burden shifts to the defendant (Respondent

herein) to articulate some legitimate, nondiscriminatory reason

for its complained - of conduct. If the defendant carries this

burden of rebutting the plaintiff's prima facie case, then the

plaintiff must demonstrate that the proffered reason was not the

t rue reason, but merely a pretext for discrimination. McDonnell

Douglas , 411 U.S. at 802 - 03; Hicks , 509 U.S. at 506 - 07.

2 5 . In Hicks , the Court stressed that even if the trier -

of - fact were to reject as incredible the reason put forward by

the defendant to justify its actions, the burden nevertheless

would remain with the plaintiff to prove the ultimate question

of whether the defendant intentionally discriminated against

him. Hicks , 509 U.S. at 511. "It is not enough, in other

words, to disbelieve the employer; the fact finder must believe

the plaintiff's explanation of intentional discrimination." Id .

at 519.

2 6 . Here, Petitioner failed to establish a prima facie

case of unlawful discrimination using circumstantial evidence.

He produced no credibl e evidence that similarly situated

applicants for employment outside his classification were

treated more favorably than he, as was his burden under

McDonnell Douglas . See Campbell v. Dominick's Finer Foods,

Inc. , 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000) ("To establish

this element, [the claimant] must point to similarly situated

non - [ disabled ] employees who engaged in similar conduct, but

were neither disciplined nor terminated."). Petitioner did not

establish that at the time of his application he suffe red from a

disability , n or did he present credible evidence that Sw ift

perceived him to be disabled and discriminated against him on

that basis. Rather, the evidence established that no graduates

of non - Swift driving schools, whether or not they were disa bled,

were hired during the period at issue .

27. Assuming, for the sake of argument, that Petitioner

could establish a prima facie case of failure to hire, he

nevertheless did not prove that Respondent's legitimate business

reasons for not hiring him ar e a pretext for unlawful

discrimination. See Issenbergh v. Knight - Ridder Newspaper

Sales, Inc. , 97 F.3d 436, 444 (11th Cir. 1996) ("Conclusory

allegations of discrimination, without more, are not sufficient

to raise an inference of pretext or intentional discrimination

where [a defendant] has offered extensive evidence of

legitimate, non - discriminatory reasons for its actions.")

( quoting Young v. General Food Corp. , 840 F.2d 825, 830 ( 11th

Cir. 1988) ("Once a legitimate, non - discriminatory reason for

dismi ssal is put forth by the employer, the burden returns to

the plaintiff to prove by significant probative evidence that

the proffered reason is a pretext for discrimination."). The

unrebutted evidence of record established that Respondent had

legitimate, n on - discriminatory rea sons for not hiring

Petitioner, or for that matter, any other graduates of non - Swift

driving academies. Indeed, t he evidence established that

graduates of the Swift academies tended to be safer drivers, and

were more likely to become long - term Swift employees, than

graduates of other schools. 3 /

28. Moreover, it is not the role of the courts to second -

guess an employer's business judgment. In Chapman v. AI

Transport , 229 F.3d 1012, 1031 (11th Cir. 2000), the Eleventh

Circuit rei terated that:

[f]ederal courts do not sit as a

superpersonnel department that reexamines an

entity's business decisions. No matter how

medieval a firm's practices, no matter how

high - handed its decisional process, no

matter how mistaken the firm's manage rs, the

ADEA does not interfere. Rather our inquiry

is limited to whether the employer gave an

honest explanation of its behavior. See

also Elrod v. Sears, Roebuck & Co. , 939 F.2d

1466, 1470 (11th Cir. 1991); Nix v. WLCY

Radio - Rahall Communications , 738 F.2d 1181,

1187 (11th Cir. 1984) (An "employer may fire

an employee for a good reason, a bad reason,

a reason based on erroneous facts, or for no

reason at all, as long as its action is not

for a discriminatory reason.")

29. Accordingly, Petitioner fai led to meet his ultimate

burden of proving that Respondent engaged in unlawful

discrimination by denying him employment. At most, Petitioner

has produced nothing more than his own belief and speculation

concerning the motives for Respondent's actions. Th is alone is

not sufficient to satisfy Petitioner's burden of proving

intentional discrimination. Avril v. Village S., Inc. , 934 F.

Supp. 412, 417 (S.D. Fla. 1996) ("[a] plaintiff's mere belief,

conjecture, or speculation that he or she was discriminated

a gainst is not sufficient to support an inference of

discrimination or to satisfy the plaintiff's burden").

Respondent had legitimate, non - discriminatory reasons for not

hiring Petitioner. The greater weight of the evidence clearly

indicates that Responden t did not engage in an unlawful

employment practice.

RECOMMENDATION

Based upon the 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 2 9 th day of December , 2010, in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, F lorida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of December , 2010 .

ENDNOTES

1 / Illustrative of the economic slowdown, during 2009 over 200

S wift drivers were idled while awaiting trucking assignments.

2/ Swift operates five driver academies nationally.

3/ It is unfortunate that Petitioner was sent a congratulatory

"pre - hire letter" at a time when Swift had adopted a hiring

freeze on applic ants that had not graduated from one of the

Swift driving academies.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee parkway, Suite 100

Tallahassee, Florida 32301

Stephen J. Beaver, Esquire

Swift Tr ansportation

Post Office Box 29243

Phoenix, Arizona 85038

Edward Rhoades, pro se

7470 Northwest 167th Place

Trenton, Florida 32693

Ignacio J. Garcia, Esquire

Ogletree, Deakins, Nash, Smoak

& Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, F lorida 33602

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee parkway, Suite 100

Tallahassee, Florida 32301

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.