18-005953 Howard B. Williams vs. Crst Trucking Co.-Crst Expedited Status: Closed Recommended Order on Tuesday, February 26, 2019.

Summary: Petitioner failed to establish a prima facie case of age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOWARD B. WILLIAMS,

Petitioner,

vs. Case No. 18 - 5953

CRST TRUCKING CO. - CRST

EXPEDITED,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a forma l administrative hearing was

conducted before Administrative Law Judge Garnett W. Chisenhall

of the Division of Administrative Hearings (ÐDOAHÑ), via webcast

and tele phone conference call between Morganton, North Carolina,

and Tallahassee, Florida, on Janu ary 17, 2019.

APPEARANCES

For Petitioner: Howard Williams , pro se

2471 Watering Place

Morganton, North Carolina 28655

For Respondent: Elizabeth B. Burgess, Esquire

Carr Allison PA

305 South Gadsden Street

Tallahassee, Florida 32301

STATEMENT OF THE I SSUE

The issue is whether Respondent committed an unlawful

employment practice by discriminating against Petitioner based on

his age.

PRELIMINARY STATEMENT

Petitioner, Howard B. Williams, filed a complaint on

October 6, 2017, with the Florida Commission o n Human Relations

(Ðthe CommissionÑ) , alleging that CRST Trucking Co. Î CRST

Expedited (ÐCRST TruckingÑ), committed an unlawful employment

practice by discriminating against him based on his age.

Mr. Williams described the alleged discriminatory act as

fol lows:

In May 2017 I took CRSTÓs Medical

Examination. The medical examiner, Jayne

Kwiakowsky, who is not an MD but a

chiropractor, failed me on my medical

examination. Jayne based the determination

on my blood pressure. She did not take into

consideratio n that I had not taken my blood

pressure medicine, or that I was required by

the staff at Jacksonville, Fl, to walk on

asphalt before the medical examination.

Cameron Holzer, President of CRST Expedited,

did nothing to reverse this determination

based on age. I am [90]. Others in class

were younger than I & they passed.

The Commission conducted an investigation and issued a

determination on July 5, 2018, that there was no reasonable cause

to conclude that an unlawful employment practice had oc curred:

[Mr. Williams] applied to be re - hired as a

truck driver with RespondentÓs trucking

company. He alleged that Respondent failed

to hire him based on his age. [Mr. Williams]

fails to prove a prima facie case. As a

prerequisite to being hired, all applican ts

must pass a medical exam administered by one

of the Department of TransportationÓs medical

examiners. [Mr. Williams] provided a copy of

ComplainantÓs medical exam which states that

Complainant was unsafe to drive because he

had hypertension, walked wit h a forward

posture, had labored breathing, and had

tremors in his hands. Therefore, the

evidence did not reveal that [Mr. Williams]

was qualified for the position he sought.

Mr. Williams responded by filing a Petition for Relief with

the Commission on J uly 16, 2018. In addition to reasserting that

he had not taken his blood pressure medication on the day of the

medical examination, Mr. Williams denied that he walked with a

forward posture and had labored breathing. Mr. Williams also

asserted that hand tremors do not cause unsafe driving.

The Commission transmitted the Petition for Relief to DOAH

on November 14, 2018, in order for DOAH to conduct a formal

administrative hearing.

The undersigned scheduled the final hearing to occur in

Tallahassee, Flor ida, on January 17, 2019. During the final

hearing, neither Mr. Williams nor CRST Trucking offered any

exhibits into evidence. Mr. Williams testified on his own behalf

but called no other witnesses. CRST Trucking presented no

witness testimony.

Mr. Wi lliams filed his Proposed Recommended Order on

January 24, 2019. The Transcript from the final hearing was

filed on January 31, 2019. CRST Trucking filed its Proposed

Recommended Order on February 8, 2019. Each post - hearing

submittal was considered in the preparation of this Recommended

Order.

FINDING S OF FACT

The following Findings of Fact are based on the testimony

adduced at the final hearing, matters subject to official

recognition, and the entire record in this proceeding.

1. Title 49 C . F . R . § 391 .1(a) provides that Ð[t]he rules in

this part establish minimum qualifications for persons who drive

commercial motor vehicles as, for, or on behalf of motor

carriers.Ñ During the time relevant to the instant case,

49 C . F . R . § 391.41(a)(1)(i) mandat ed that Ð[a] person subject to

this part must not operate a commercial motor vehicle unless he

or she is medically certified a s physically qualified to do so . .

. .Ñ Title 4 9 C . F . R . § 391 .41(b)(6) specifies that a person is

qualified to operate a commerci al motor vehicle if he Ð[h]as no

current clinical diagnosis of high blood pressure likely to

interfere with his ability to operate a commercial motor vehicle

safely . . . .Ñ

2. A driver of commercial motor vehicles must obtain the

aforementioned certi fication every two years. See 49 C . F . R .

§ 391.45(b)(1)(mandating that any driver who has not been

medically examined and certified during the preceding 24 months

must be medically examined an d certified in accordance with

§ 391.43 of this subpart as phy sically qualified to operate a

commercial motor vehicle). 1/

3. CRST Trucking initially hired Mr. Williams approximately

15 years ago as a commercial truck driver. At that time,

Mr. Williams was 75 or 76 years old.

4. Mr. Williams regularly performe d drives for CRST

Trucking that exceeded 1,000 miles. On one occasion, he drove an

18 - wheeler from Florida to California and back.

5. According to Mr. Williams, CRST Trucking wrongfully

terminated him in 2010 because he supposedly was unable to safely

ge t in and out of his truck.

6. After he passed the required medica l examination, CRST

Trucking re hired Mr. Williams in 2015 when he was 88 years old. 2/

7. At some point thereafter, Mr. WilliamsÓ employment with

CRST Trucking ended again.

8. Mr. Wi lliams reapplied with CRST Trucking in 2017 when

he was 90 years old. After he failed the 2017 examination

because his blood pressure exceeded the allowable limit, CRST

Trucking did not rehire him.

9. Mr. Williams does not dispute that his blood pressu re

was high during the examination , but he attributes that to his

failure to take his blood pressure medication beforehand.

10. While Mr. Williams testified that CRST Trucking hired

younger drivers, he presented no evidence that CRST Trucking

hired younge r drivers who failed to obtain the required

certification.

11. Mr. Williams was a very compelling and articulate

witness and should be commended for his strong desire to continue

being a productive member of society. Even though Mr. Williams

failed to present a prima facie case of age discrimination, the

undersigned is convinced that he is capable of performing

meaningful work as an employee or a volunteer.

CONCLUSIONS OF LAW

12. DOAH has jurisdiction over the parties and the

subject matter of this pr oceeding pursuant to sections 120.569

and 120.57, Florida Statutes (2016), 3/ and Florida Administrative

Code Rule 60Y - 4.016(1).

13. The legislative sche me contained in sections 760.01

through 760.11, Florida Statutes, is known as the Florida Civil

Right s Act of 1992 (Ðthe FCRAÑ).

14. Section 760.10 (1)(a) prohibits discrimination Ðagainst

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.Ñ

15. The FCRA incorporates and adopts the legal principles

and precedents established in the federal anti - discrimination

laws specifically set forth under Title VII of the Civil Rights

Act of 1964, as amended , 42 U.S.C . § 2000e, et. seq.

16. Florida courts have determined that federal

discrimination law should be used as guidance when construing the

FCRA. See Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17,

21 (Fla. 3d DCA 2009); Brand v. Fla. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994).

17. In the instant case, Mr. Williams has the burden of

proving by a preponderance of the evidence that CRST Trucking

committed an unlawful employment practice. See EEOC v. JoeÓs

Stone Crabs, Inc. , 296 F.3d 1265, 1273 (11th Cir. 2002)(noting

that a claimant bears the ultimate burden of persuading the trier

of fact that the employer intentionally discriminated against the

employee); § 120.57(1)(j), Fla. Stat.

18. A party may prove unlawful discrimination by direct or

ci rcumstantial evidence. Smith v. Fla. DepÓt of Corr. , Case

No. 2:07 - cv - 631 (M.D. Fla. May 27, 2009), 2009 U.S. Dist. LEXIS

44885 (M.D. Fla. 2009). Direct evidence is evidence that, Ðif

believed, proves [the] existence of [a] fact in issue without

inferen ce or presumption.Ñ Burrell v. Bd. of Trs. of Ga. Mil.

Coll. , 125 F.3d 1390, 1393 (11th Cir. 1997). Direct evidence

consists of Ðonly the most blatant remarks, whose intent could be

nothing other than to discriminateÑ on the basis of an

impermissible fac tor. Carter v. City of Miami , 870 F.2d 578, 582

(11th Cir. 1989).

19. There is no direct evidence that CRST TruckingÓs

decision not to rehire Mr. Williams resulted from unlawful

discrimination based on his age. That is not uncommon because

Ðdirect evi dence of intent is often unavailable.Ñ Shealy v. City

of Albany , 89 F.3d 804, 806 (11th Cir. 1996). Accordingly, those

who claim to be victims of intentional discrimination Ðare

permitted to establish their cases through inferential and

circumstantial pr oof.Ñ Kline v. Tenn. Valley Auth. , 128 F.3d

337, 348 (6th Cir. 1997).

20. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence.

If success ful, this creates a presumption of discrimination.

Then the burden shifts to the empl oyer to offer a legitimate,

non discriminatory reason for the adverse employment action.

If the employer meets that burden, the presumption disappears and

the employe e must prove that the legitimate reasons were a

pretext. Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 25

(Fla. 3d DCA 2009). Facts that are sufficient to establish a

prima facie case must be adequate to permit an inference of

discrimination. Id.

21. In order to establish a prima facie case of age

discrimination, a petitioner must prove that: (a) he is a member

of a protected group; (b) he was qualified for the position;

(c) he was subjected to an adverse employment action; and (d) he

was trea ted differently tha n similarly situated individuals of a

different age, as opposed to a younger age. Clark v. Univ . of

Fla. Jacksonville Phys . , Inc. , Case No. 17 - 3272 (Fla. DOAH

Nov. 30, 2017), rejected in part , Case No. 17 - 01005 (Fla. FCHR

Sept. 14, 201 8).

22. As for the final element of a prima facie case, the

Commission has explained that:

With regard to the need to establish that

Petitioner lost the position to a ÐyoungerÑ

person, we note that it has been stated,

ÐCommission panels have long c oncluded that

the Florida Civil Rights Act of 1992 and its

predecessor law the Human Rights Act of 1977,

as amended, prohibited age discrimination in

employment on the basis of any age Ðbirth to

death.Ñ See Green v. ATC/VANCOM Management,

Inc. , 20 F.A.L.R . 314 (1997), and Simms v.

Niagra Lockport Industries, Inc. , 8 F.A.L.R.

3588 (FCHR 1986). A Commission panel has

indicated that one of the elements in

determining a prima facie case of age

discrimination is that Petitioner is treated

differently than simi larly situated

individuals of a ÐdifferentÑ age, as opposed

to a ÐyoungerÑ age. See Musgrove v. Gator

Human Services, c/o Tiger Success Center, et

al. , 22 F.A.L.R. 355, at 356 (FCHR 1999).

The Commission has concluded that, unlike the

federal Age Discrim ination in Employment Act

(ADEA), the age of 40 has no significance in

the interpretation of the Florida Civil

Rights Act of 1992. See Green , at 315.

Williams v. Sailorman, Inc., d/b/a PopeyeÓs

Chicken and Biscuits , FCHR Order

No. 04 - 037 (June 2, 2004). Accord, Coffy v.

PorkyÓs Barbecue Restaurant , FCHR Order

No. 05 - 053 (May 18, 2005), Johnson vee of

Life, Inc. , FCHR Order No. 05 - 087 (July 12,

2005), and Bean v. Department of

Transportation , FCHR Order No. 05 - 107

(September 23, 2005).

Marchin ko v. The Wittemann Co . , LLC , Case No. 05 - 2062 (Fla. DOAH

Nov. 1, 2005), rejected in part , Case No. 2005 - 00251 (Fla. FCHR

Jan. 10, 2006).

23. While Mr. Williams testified that CRST Trucking hired

younger drivers, he presented no evidence that CRST Truckin g

hired other drivers who also failed to obtain the certification

required by 49 C . F . R . § 391.45(b)(1). As a result, Mr. Williams

did not present a prima facie case of age discrimination.

24. In addition, Mr. Williams did not prove by a

preponderance o f the evidence that he was qualified to be a

commercial truck driver. As noted above, Mr. Williams testified

that he takes medication for high blood pressure, and 49 C . F . R

§ 391.41(b)(6) specifies that a person is qualified to operate a

commercial mot or vehicle if he Ð[h]as no current clinical

diagnosis of high blood pressure likely to interfere with his

ability to operate a commercial motor vehicle safely . . . .Ñ

25. Even if it were to be concluded that Mr. Williams

established a prima facie ca se of age discrimination, his failure

to obtain the required certification was a legitimate, non -

discriminatory reason for CRST Trucking not hiring him.

See 49 C . F . R . § 391.41(a)(1)(i)(mandating that Ð[a] person

subject to this part must not operat e a commercial motor vehicle

unless he or she is medically certified a s physically qualified

to do so . . . .Ñ).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing Howard B. WilliamsÓs

Petition for Relief from an unlawful employment practice.

DONE AND ENTERED this 2 6 th day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Admi nistrative 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 Heari ngs

this 26 th day of February , 2019 .

ENDNOTE S

1/ Title 49 C . F . R . § 391.47 provides a means by which a driver

can dispute a determination that he or she is not physically

qualified to operate a commercial motor vehicle.

2/ Mr. Williams was 91 years old at the time of the final

hearing.

3/ All statutory references will be to the 2016 version of the

Florida Statutes.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, F lorida 32399 - 7020

(eServed)

Howard Williams

2471 Watering Place

Morganton, North Carolina 28655

Elizabeth B. Burgess, Esquire

Carr Allison PA

305 South Gadsden Street

Tallahassee, Florida 32301

(eServed)

Kayla M. Scarpone, Esquire

Carr Allison

205 So uth Gadsden Street

Tallahassee, Florida 32301

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

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.