10-009220 Edward Rhoades vs. Werner Enterprises, Inc. Status: Closed Recommended Order on Thursday, April 14, 2011.

Summary: Petitioner failed to establish discrimination in employment or failure to accomodate Petitioner's alleged disability.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDWARD RHOADES , )

)

Petitioner, )

)

vs. ) Case No. 10 - 9220

)

WERNER ENTERPRISES, INC. , )

)

Respondent. )

)

RECOMMENDED ORDER

A n administrative h earing was conducted in this case on

March 3, 2011 , by video teleconference in Tallahassee and

Gainesville , Florida , before James H. Peterson, III,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Edward Rhoades, pro se

7470 NW 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 S

I. Whether Respondent subjected Petitioner to employment

discrimination by refusing to hire Petitioner based upon

Petitioner Ó s disability .

II. Whether Respondent failed to make reasonable

accommodations for Petitioner Ó s physical disabilit ies .

PRELIMINARY STATEMENT

On June 11 , 2009, Petitioner filed a complaint (Complaint)

with the Florida Commission on Human Relations (the Commissio n

or FCHR) alleging employment discrimination by Respondent. The

Complaint was assigned FCHR No . 200902 077 (Complaint) .

The Commission investigated the Complaint and, o n April 16,

2010, issued a Determination, which found Ð No Cause. Ñ On th at

same day, the Commission issued a Notice of Determination of No

Cause (Notice) on the Complaint finding that the Commission Ð has

determined that there is no reasonable cause to believe that an

unlawful employment practi c e occurred. Ñ The Notice advised

Petitioner of h is right to file a P etition for Relief for an

administrative hearing on h is Complaint within 3 5 days.

Petitioner timely filed a Petition for Relief .

On September 17, 2010, t he Commission filed a Transmittal

of Petition with the Division of Administrative Hearings (DOAH)

for assignment of an administrative law judge to conduct a n

administrative hearing .

An administrative hearing for this case was originally

scheduled for December 29, 2010, but upon Respondent Ó s Unopposed

Motio n for Continuance, was continued and then rescheduled for

March 3, 2011 . At the administrative hearing, Petitioner

testified on his own behalf and offered one composite exhibit

which was received into evidence as Petitioner Ó s Exhibit P - 1,

without objectio n . Respondent presented the telephone testimony

of Respondent Ó s director of compliance, Scott Hollenbeck , and

offered thirteen exhibits which were received into evidence

without objection as Respondent Ó s Exhibits R - 1 through R - 13.

The evidentiary portion of the hearing concluded on

March 3, 2011 . T he parties were given 10 days from the filing

of the transcript within which to file their respective proposed

recommended orders. The one - volume Transcript of these

proceedings was file d March 24, 2011. Respondent requested

additional time for the parties to file their proposed

recommended orders, which request was granted , and the deadline

for filing proposed recommended orders was extended until

April 18, 2011. Petitioner filed a let ter with a Ð final

statement Ñ on March 29, 2011, and Respondent filed its Proposed

R ecommended O rder on April 4, 2011. Petitioner Ó s final

statement and Respondent Ó s Proposed Recommended Order have been

considered in preparing this Recommended Order.

FINDINGS OF FACT

1. Respondent is a trucking company that has over 7 , 000

trucks that carry payload throughout the country.

2. Petitioner alleges that Respondent did not hire him as

a truck driver because Petitioner is disabled , or because

Respondent perc eived that Petitioner had a disability.

Petitioner Ó s claimed disabilit ies are a skip of the heart and

lower back pain.

3. Petitioner completed his initial application for a

truck driving position with Respondent on November 6, 2008,

which Respondent rece ived on December 10, 2008.

4. In accordance with Respondent Ó s hiring process, once

Respondent receives an initial application for a driver

position, it conducts a preliminary review of the information

provided by the applicant. If an applicant provides s ufficient

information to pass preliminary review, Respondent then sends

the applicant a pre - approval letter with an attached Ð Pre -

Training Checklist , Ñ which sets forth a number of requirements

for hiring.

5. Respondent Ó s Pre - Training Checklist requires ap plicants

to have three years of work history. Respondent uses work

histor ies for references from previous employers to check on the

background of its applicants as part of Respondent Ó s obligation

to the public to ensure that the drivers it hires will be safe.

6. R espondent Ó s pre - approval letter advises applicants

that Ð [t]his pre - approval is contingent upon further background

investigations, including motor vehicle reports and the

successful completion of the hiring process. Ñ

7 . Petitioner Ó s initial a pplication contained no work

history. Instead, Petitioner wrote in his application that he

had lost his job because the company he was working for had gone

out of business, and that he was a stay - at - home dad.

8 . Although Respondent sent Petitioner a pre - approval

letter, Respondent requested Petitioner to submit additional

information regarding his income and work history.

9 . Petitioner then submitted information demonstrating

that he had no work history in the three years prior to his

application . There after, R espondent declined to hire Petitioner

based upon his lack of work history.

1 0 . Although Petitioner claims that Responde nt failed to

hire him because Petitioner was disabled, the evidence submitted

by Petitioner was insufficient to show that Petiti oner ever

informed Respondent of his alleged disability during the

application process.

11 . Petitioner argued at the final hearing that tax

returns and Social Security Benefit Statements submitted to

Respondent as part of the application process to verify

Petitioner Ó s earnings should have alerted Respondent to the fact

that Petitioner was disabled. 1 / Those returns and statements ,

however, standing alone, do not demonstrate that Respondent was

made aware that Petitioner was claiming to be disabled ,

especially in light of the fact that Petitioner produced no

evidence that Respondent received any other information

whatsoever from Petitioner, Petitioner Ó s truck - driving school,

or any other entity about Petitioner Ó s claimed disability or

physical limita tions, prior to making the decision not to hire

Petitioner.

12 . Respondent denied receiving such information , and it

is found that Respondent did not receive information from any

person or entity regarding Petitioner Ó s alleged disability prior

to making the decision not to hire Petitioner.

13 . Regarding Respondent Ó s alleged failure to accommodate,

Petitioner testified that , in order to accommodate his

disability, he would not be able to load or unload trucks, and

would need to be given time to visit his doctor.

14. Petitioner, however, failed to show that he ever

requested an accommodation from Respondent.

15. Moreover, the ability to load and unload trucks is an

essential duty of the driver position for which Petitioner

applied.

16. At the final hearing, Respondent provided evidence

that it employs and provides accommodations for a number of

drivers with disabilities.

17. Respondent Ó s evidence that it hires disabled persons

is consistent with guidelines adopted by Respondent stating that

Respondent Ð provides equal employment opportunities to all

employees and applicants for employment without regard to race,

color, rel igion, sex, national origin, age, disability, marital

status or veteran status in accordance with applicable federal

and state laws. Ñ

18. In sum, Petitioner failed to demonstrate that

Respondent discriminated against him by refusing to hire him

because of his disability or that Respondent failed to make

reasonable accommodations for Petitioner Ó s disability. Rather,

based upon the evidence adduced at the final hearing, it is

found that Respondent decided not to hire Petitioner because he

failed to provid e three years of work experience required of all

applicants.

CONCLUSIONS OF LAW

19 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760. 11 , Fla. Stat.

(20 1 0) 2 / ; see also Fla. Admin. Code R. 60Y - 4.016 .

2 0 . The Florida Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, Florida Statutes.

Ð The Act, as amended, was patterned after Title VII of the Civil

Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well

as the Age Discrimination in Employment Act (ADEA), 29 U.S.C.

§ 623 . Federal case law interpreting Title VII and the ADEA is

applicable to cases arising under the Florida Act. Ñ F la. S tate

U niv. v. Sondel , 685 So. 2d 923 , 925 n.1 (Fla. 1st DCA 1996),

( citing Fl a. Dep Ó t of Com m. Aff . v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991) ) .

21. S ection 760.10 provides, in pertinent part:

(1) It 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

individual Ó s race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, 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 Ó s status as an employee, because

of such individual Ó s race, color, religion,

sex, national origin, age, handicap, or

marital status.

22 . The three - part Ð burden of proof Ñ pattern developed in

McDonnell Douglas Corp. v. Green , 4 11 U.S. 792 (1973), applies.

Under that test , f irs t, Petitioner has the burden of proving a

prima facie case of discrimination by a preponderance of the

evidence. Second, if Petitioner sufficiently establishes a

prima facie case, t he burden shifts to Respondent to Ð articulate

some legitimate, nondiscriminatory reason Ñ for its action.

Third, if Respondent satisfies this burden, Petitioner has the

opportunity to prove by a preponderance of the evidence that the

legitimate reasons asserted by Respondent are in fact mere

pretext. 411 U.S. at 802 - 04 .

23 . To establish a prima facie case of discrimination,

Petitioner must prove by a pre ponderance of the evidence:

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

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

and (3) that Re spondent discriminated against him on the basis

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

(11th Cir. 2000); Byrd v. BT Foods, Inc. , 948 So. 2d 921 , 925

(Fla. 4th DCA 2007).

24 . Petitioner failed to establish a prima facie case of

discr imination.

25. As to the first element, t he term Ð handicap Ñ in the

Florida Civil Rights Act is treated as equivalent to the term

Ð disability Ñ in the Americans with Disabilities Act. Byrd , 948

So. 2d at 926.

26 . Ð The ADA defines a Ò disabi lity Ó as Ò a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual, a record of such

impairment; or being regarde d as having such an impairment. Ñ

42 U.S.C. § 12102(2). Ò Major life activities Ó i nclude

Ò func tions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, b reathing, learning and

working. Ñ 948 So. 2d at 926 , ( citing Bragdon v. Abbott , 524

U.S. 624(1998); 45 C.F.R. § 84.3(j)(2)(ii); and 28 C.F.R.

4 1.31(b)(2)(1997) ) .

27. Other than his brief testimony on the issue and

evidence in the form of tax statements indicating that he has

receiv ed Social Security benefits, Petitioner did little to

support his claim that he is disabled . As noted by the Supreme

Court in Cleveland v. Policy Mgm t . Systems Corp. , 526 U.S. 795

(1999), made in the context of an employment discrimination

claim under the Americans with Disabilities Act , Ð the nature of

an individual Ó s disability may change over time, so that a

statement about tha t disability at the time of an individual Ó s

application for SSDI benefits may not reflect an individual Ó s

capacity at the time of the relevant employment decision. Ñ

5 26 U.S. at 80 5 .

28. W hether Petitioner sufficiently proved that he is

Ð handicapped Ñ o r Ð disabled Ñ within the meaning of the law,

however, need not be determined because Petitioner failed to

prove the other two elements required to prove discrimination by

failing to show 2) that he is a qualified individual , or

(3) that Respondent discrimin ated against him on the basis of

his disability .

29 . In order to show that he is Ð qualified, Ñ Petitioner

must show that he can perform the essential functions of the

job , either with or without reasonable accommodation . McCaw

Cellular Commc Ó ns of Fla. v . Kwiatek , 763 So. 2d 1063, 1065 (Fla

4th DCA 1999), ( citing 42 U.S.C.A. §1211(8) ) . An employer is

not required to reallocate job duties to change the functions of

a job. Earl , 207 F .3 d at 1367. Ð [ T ] he duty to accommodate does

not require an employer to lower its performance standards,

reallocate essential job functions, create new jobs, or reassign

disabled employees to positions that are already occupied. Ñ

Salmon v. Dade County Sch. Bd. , 4 F . Supp. 2d 1157, 1162 (S.D.

Fla. 1998), ( citing 29 C.F.R. § 1 630.2(0)(2); 42 U.S.C.

12111(9) ) .

30 . Petitioner was not qualified to be a truck driver for

Respondent for two reasons. First, he did not have the three

years of work history required for all applicants. This

requirement is for adequate background chec ks to help assure

public safety. Second, Petitioner was not able to loa d and

unload truck trailers as required of all of Respondent Ó s

drivers. Both requirements were essential elements of the

position sought by Petitioner and, as noted above, Respondent

need not waive essential elements of a position to accommodate

Petitioner.

31 . Finally, Petitioner failed to show that Respondent

discriminated against him because of his disability . In fact,

the evidence was insufficient to show that Respondent was even

aware that Petitioner claimed to be disabled at the time of his

application.

32 . In addition to Respondent Ó s denial that it was aware

of Petitioner Ó s alleged disability at the time of Petitioner Ó s

application, 3 / Petitioner himself testified that he never told

Respondent of his disability and had no knowledge whether

Respondent received information regarding his disability from

other sources while his application was pending .

3 3 . In sum, Petitioner failed to present a prima facie

case. Failure to es tablish a prima facie case of discrimination

ends the inquiry. Cf. Ratliff v. State , 666 So. 2d, 1008, 1013

n.6 ( Fla. 1st DCA ) , aff Ó d , 679 So. 2d 1183 (Fla. 1996)( same

rationale in case regarding racial discrimination).

3 4 . Even if Petitioner had established a prima facie case,

Respondent Ó s evidence presented at the final hearing refuted

Petitioner Ó s argument that Respondent Ó s actions were

discriminatory. Respondent provided persuasive evidence that

the reason it did not hir e Petitioner is that he did not have

three years of work experience required of all applicants in

order to conduct an adequate background check. At the final

hearing, Petitioner agreed that Respondent needs to obtain work

histories from applicants so that it can check references from

previous employers.

35 . Petitioner otherwise failed to demonstrate, as he must

to prevail in his claim, that Respondent Ó s proffered reason for

not hiring Petitioner was not the true reason, but merely a

pretext for discrimina tion. McDonnell Douglas , 411 U.S. at 802 -

03.

3 6 . N o discriminatory intent or effect was shown and

Petitioner failed to establish that Respondent discriminated

against Petitioner based upon Petitioner Ó s alleged disability .

37 . Petitioner also did not to establish that Respondent

failed to reasonably accommodate Petitioner Ó s alleged

disability . The undisputed evidence demonstrated that

Petitioner never asked Respondent for an accommodation for a

disability. Cf. Gaston v. Bellingrath Gardens and Home, Inc. ,

167 F.3d 1361, 1363 - 64 (11th Cir. 1999) ( must request an

accommodation and be denied such prior to bringing a reasonable

accommodation claim under the ADA ) .

48 . In sum, Petitioner failed to prove that Respondent

discriminated against Petitioner because he is disabled , or that

Respondent failed to make reasonable accommodations for

Petitioner Ó s alleged physical disabilit ies .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Com mission on Human Relations

enter a final order dismissing the Complaint and Petition for

Relief.

DONE AND ENTERED this 14th day of April , 201 1 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 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 14th day of April, 2011 .

1 / The tax statements consist of forms 1040EZ for 2006 and 2007

signed by Petitioner and his wife. On both forms, the lines for

Ð occupation Ñ next to Petitioner's wife's signature state,

Ð Disable/Cas h ier. Ñ The occupation lines on both forms next to

Petitioner's signature state, Ð Disable. Ñ The Social Security

Benefit Statements consist of five Form SSA - 1099 Social Security

Benefit Statements for years 2005 through 2007, including

P etitioner's wife's 2005 statement for benefits totaling

$9,494.40, Petitioner's 2006 statement for benefits totaling

$7,542.00, Petitioner's wife's 2006 statement for benefits

totaling $9,882.00, Petitioner's 2007 statement for benefits

totaling $7,794.00, and Petitioner's wife's 2007 statement for

benefits totaling $10,206.00.

2 / Unless otherwise indicated, all references to statutes or

rules are to the current, 2010, versions, which have not been

substantively revised since the relevant hiring decision in this

case.

3 / See Finding of Fact 13, supra .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Edward Rhoades

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, Florida 33602

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Ta llahassee, 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.