vs. ) CASE NO. 93-7089
) FIRST C.Y.T. CORPORATION d/b/a ) CHARLEY O. YOUNG & SONS TRUCKING, ) INC., CHARLEY O. YOUNG, PRESIDENT, )
Respondents. )
Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on April 15, 1994, in Venice, Florida.
For Petitioner: C. Stuart Young, Esquire
For Respondent: Mark A. Handley, Esquire
Whether the Respondents discriminated against the Petitioner, Dennis Bonville because of his handicap (monocular vision) in violation of the Human Rights Act of 1977, as amended, Sections 760.01 - 760.10., Florida Statutes.
Petitioner filed a Charge of Discrimination against the Respondents with the Florida Commission on Human Relations (Commission) dated July 24, 1991, alleging that Respondents had discriminated against him because of his handicap (monocular vision) in violation of Human Rights Act of 1977, as amended, Sections 760.01 - 760.10, Florida Statutes. After considering the Charge of Discrimination, the Commission on August 27, 1992 issued its Determination: Cause, finding that there was reasonable cause to believe that an unlawful employment practice had occurred. The Respondents filed a Request For Redeterminination of the Executive Director's Determination: Cause issued August 27, 1992, which was denied on November 1, 1993, and the Determination: Cause was affirmed. The Notice of Redetermination: Cause was issued on November 13, 1993. Resolution of the matter was not accomplished by conciliation, and the Petitioner filed a Petition For Relief with the Commission. By Transmittal of
Petition dated December 15, 1993, this matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer and conduct of a formal hearing.
At the hearing, the Petitioner testified on his own behalf and presented the testimony of Charley O. Young. Petitioner's exhibit 1 was received as evidence. Respondent did not present any witnesses. Respondents' composite exhibits 1, 2 & 3 and exhibit 4 were received as evidence. The U.S. Equal Employment Opportunity Commission's Technical Assistance Manual On The Employment Provisions (Title 1) of the Americans With Disabilities Act, Sections 4.6 and 7.10, 49 C.F.R. 390.1 - 390.5, and 49 C.F.R. 391.41, were officially recognized.
There was no transcript of this proceeding filed with the Division of Administrative Hearings. An Order Granting An Extension Of Time For Submission Of Proposed Recommended Order was entered on April 29, 1994, with the understanding that any time constraint for entry of a Recommended Order under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes.
Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years.
The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination.
Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida.
The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye).
Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes.
The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period.
At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period.
On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision.
The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce.
The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business.
It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts.
When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run.
When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce.
At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000.
At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991.
At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week.
Petitioner's job performance was not an issue in the Petitioner's termination.
The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired.
Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract.
After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
Section 760.10(1)(a), Florida Statutes (1991), makes it an unlawful employment practice or discharge or otherwise discriminate against any individual because of the individual's race, color, religion, sex, national origin, age, handicap, or marital status. The statute was substantially amended in 1992, for conduct occurring after October 1, 1992. See Chapter 92-177, Laws of Florida.
Petitioner is an individual within the meaning of Section 760.10(1)(a), Florida Statutes (1991), in that Petitioner suffers from a handicap (monocular vision).
Respondent Company is an employer as that term is defined in Section 760.02(6), Florida Statutes (1991).
Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So.2d 103 (1 DCA Fla. 1981).
In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by the preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.
To present a prima facie case, the Petitioner must present facts which "...'raise an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.'..." Furnco Construction Co. v. Waters, 438 U.S. 567 (1978), cited in Burdine, 450 U.S. 248. The prima facie case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44 (1977).
In order to establish a prima facie case, Petitioner must show that he: (1) is a member of a protected class; (2) was capable of performing his job satisfactorily; (3) was discharged; and (4) was replaced by a person outside the protected class. Cf. McDonnell Douglas, 411 U.S. 792; Johnson v. Yellow Freight Systems, Inc., 734 F. 2d 1304 (8th Cir. 1984). Considering the evidence here presented, the Petitioner has established a prima facie case of discriminatory discharge.
The USDOT contends, that Petitioner's monocular vision disqualifies him as a driver in that Petitioner did not meet the visual acuity standard established in 49 C.F.R. 391-41(b)(10). Consequently, Respondent contends that the threat of the USDOT to "shut down his business" is a legitimate nondiscriminatory reason for Petitioner's discharge and constitutes a valid defense to the charge of unlawful discrimination.
The Petitioner on the other hand contends that the Tampa to Ruskin run is not in interstate commerce but, instead, is intrastate commerce, USDOT's position notwithstanding, and that Petitioner has been granted a medical certification by the State of Florida which deems him qualified to drive such a vehicle in intrastate commerce. Petitioner further contends that Respondent's compliance with the USDOT's regulation is voluntary and does not constitute a defense to the charge of unlawful discrimination but is rather a pretext for the Respondent's discriminatory action.
The Federal Motor Carrier Safety Regulations (FMCSR) were originally promulgated by the Interstate Commerce Commission (ICC) under the Motors Carriers Act. When the USDOT was created, administrative and enforcement authority over the regulations was transferred to the Secretary of Transportation. 49 U.S.C. 1655(e)(6)(C) (1976); current version codified at 49
U.S.C. 3102(1994)(see historical and statutory notes following text).
ICC interpretations of "interstate commerce" define the scope of the FMCSR. By statute, the FMCSR safety standards only apply to transportation described by 49 U.S.C. 10521-10522, two of the provisions of Title 49 which delineate the jurisdiction of the ICC. 49 U.S.C. 3102. Section 10521, in pertinent part, describes transportation which is "between a place in a state and a place in another state; [and between] a state and another place in the same state through another state". Also see, 49 C.F.R. 390.5, Definitional Section, which defines "interstate commerce" in basically the same language. Under 49 C.F.R. 10521, individual states retain power to regulate intrastate transportation. 1/
The FMCSR prescribes minimal physical qualifications for drivers operating commercial motor vehicles in interstate commerce. 49 C.F.R. 391. The FMCSR pertaining to visual acuity mandates that every driver must possess visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses. 49 C.F.R. 391.41(b)(10).
Section 316.302(1), Florida Statutes, incorporates by reference virtually all the FMCSR contained in 49 C.F.R. 390-397, for drivers of commercial motor vehicles operating in the State of Florida. However, certain exceptions are noted within the text of the statute; one being the visual acuity requirement, Section 316.302(2)(j), Florida Statutes. While USDOT's visual acuity requirement, 49 C.F.R. 391.41(b)(10), is not subject to waiver, Section 316.302(2)(j), Florida Statutes, specifically exempts a driver from the visual acuity requirement of 49 C.F.R. 391.41(b)(10), if the driver operates a commercial motor vehicle in intrastate commerce only and if: (1) the driver was a regularly employed driver of a commercial motor vehicle on July 4, 1987; (2) the driver's driving record shows no traffic convictions, pursuant to s. 322.61, during the 2-year period immediately preceding the application of the commercial driver's license; and (3) the driver is otherwise qualified as a driver under 49
C.F.R. 391. Section 316.302, Florida Statutes, is a proper exercise of Florida's authority under the dual system set out by 49 U.S.C. 10521, whereby federal safety standards are to apply to interstate transportation, and state safety standards are to apply to intrastate transportation.
While it is clear that Petitioner meets three of the four requirements set out in Section 316.302(2)(j), Florida Statutes, for the exemption from the visual acuity requirement of 49 C.F.R. 391.41(b)(10), the question remains as to whether the Petitioner was operating in intrastate commerce only while employed by the Company and thereby exempt from the visual acuity requirement or whether he was operating in interstate commerce and thereby subject to the federal visual acuity requirement.
In some instances, whether a particular shipment constitutes interstate commerce is determined by factors other than whether transportation is between a place in a state and a place in another state, or between two places in the same state through another state. The ICC, the regulatory agency with primary jurisdiction to determine whether any transportation is interstate or intrastate, has consistently held that transportation between two points in a single state can be interstate, and these interpretations have been upheld by the courts. See, Merchants Fast Motor Lines, Inc. v. ICC, 5 F.3d 911, 916-19 (5th Cir. 1993); Foxworthy v. Hiland Dairy Co. 997 F.2d 670, 672-74 (10th Cir. 1993); Murray v. Briggs, 569 So.2d 476, 478 (5 DCA Fla. 1990), review denied, 581 So.2d 165 (Fla. 1991).
Where transportation is between two points in a single state, the determination of whether the shipment is interstate or interstate depends on the "essential character of the shipment involved". Texas & N.O.R. Co. v. Sabine Tram Co., 227 U.S. 111, 126 (1913); Central Freight Lines v. ICC, 899 F.2d 413,
419 (5th Cir. 1990). In discerning "essential character", the analysis centers on the shipper's "fixed and persisting intent at the time of shipment" as determined by all facts and circumstances attending the transportation. Merchants Fast Motor Lines, 5 F.3d at 917; Middlewest Motor Freight Bureau v. ICC, 867 F.2d 458, 460-61 (8th Cir. 1989).
Among the facts and circumstances that have been found germane are whether the transported material is stockpiled or is instead part of one continuous uninterrupted movement, whether specific orders are destined for known destinations, the shipper's expressed intent, and the presence or absence of particular indicia of motion, such as unbroken bulk and continuous possession by the carrier. See, e.g., Texas v. United States, 866 F.2d 1546, 1556 (5th Cir. 1989); Central Freight Lines, 899 F.2d at 420-21; Murray, 569 So.2d at 478, citing Pittsburgh-Johnstown-Altoona Express, Inc., MC-C-30129, (ICC slip op., Feb. 6, 1990). 2/
Based on these decisions, the Company is clearly operating in interstate commerce. The Company is in the business of hauling United States Mail between various United States Post Offices in the State of Florida. This mail has originated from locations throughout the United States and the world. 3/ Those jurisdictions which have faced a similar factual scenario before-- where a company has transported goods to distribution center from out of state, then has hired a trucking concern to carry the goods from the distribution center to customers in that same state--have approved the ICC's findings that the instate portion of the trip is interstate commerce. Texas, 866 F.2d at 1549-50; Middlewest Motor Freight Bureau, 867 F.2d at 460-61; Central Freight Lines, 899 F.2d 415-1. In addition, an examination of all the circumstances indicates that the essential character of the transportation provided by the Company is interstate; first, the transportation of mail does not involve stockpiling or the maintenance of an inventory, but rather is an activity conducted in one long continuous delivery sequence; and, second, the obvious intent behind a great deal of the mail transported by the Company is for information to reach specific persons or entities at known destinations in another state.
Since the instate mail transportation engaged in by the Company is properly characterized as interstate commerce, it is the federal visual acuity test, rather that the state standard, which applies to Petitioner. Since the federal law applies in this case, and the Company's compliance with federal law was coerced by the USDOT and prompted by the imposition of a fine by the USDOT, the instant case does not present a set of circumstances where adherence to the federal visual acuity requirements can be said to be "voluntary". See, Colorado Civil Rights Com'n v. ConAgra Flour Milling Co., 736 P.2d 842 (Col. App. 1987).
Because federal law applies, the Company's contract with the U. S. Postal Service, which contains a provision requiring compliance with the FMCSR, articulates legally binding duties. The Company's compliance with this provision does not require the Company to violate Florida law and thereby make the contract provision void as against public policy and unenforceable as contended by the Petitioner. There is no conflict between 49 C.F.R. 391.41(b)(10), and Section 316.302(2)(j), Florida Statutes. To the extent that a conflict between federal and state law exist, the conflict is between FMCSR and Chapter 760, Florida Statutes, the Florida Civil Rights Act of 1992. The Supreme Court of Nebraska dealt with this kind of disaccord in Ranger Div., Ryder Truck Lines v. Bayne, 333 N.W.2d 891 (Neb. 1983), by holding that the FMCSR in question constituted a per se bona fide occupational qualification and constituted a valid defense to the complaint filed against the appellant under Nebraska's civil rights law.
The U. S. Equal Employment Opportunity Commission (EEOC) has, in its Technical Assistance Manual On The Employment Provisions (Title I) Of The Americans With Disabilities Act, adopted a similar approach. According to the EEOC,
The ADA does not override health and safety requirements established under other Federal laws. If a standard is required by another Federal law, an employer must comply with it and does not have to show that the standard is job related and consistent with business necessity. (Technical Assistance Manual, Section 4.6, p. IV-16).
As an example of this policy, the EEOC states that the safety regulations of the USDOT are to take precedence over the ADA when a driver is hired to drive a vehicle in interstate commerce. However, the employer still has the obligation to consider whether there is a reasonable accommodation consistent with the standards of the Federal laws that will prevent exclusion of the individual. Since the federal visual acuity requirement is not subject to waiver, there was no accommodation that the Company could have made to prevent exclusion of the Petitioner other than offer him the opportunity to drive a vehicle over a route where the FMCSR did not apply. Such an offer was made once an opening was available but was turned down by the Petitioner.
The Petitioner has failed to carry his burden to show by a preponderance of the evidence that the reasons offered by the Company for his discharge were untrue and only a pretext for the Company's discriminatory action in discharging the Petitioner.
Based upon 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 filed by the Petitioner.
RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida.
WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1994.
1/ 49 U.S.C. 10522, not relevant in this action, limits ICC jurisdiction in some respects where motor carrier transportation is between a place in Alaska and a place in another state.
2/ The ICC has issued a policy statement covering the subject matter which articulates two highly specific lists of factors. The first of these lists describes circumstances tending to show when intrastate transportation is part of a larger continuing interstate movement; the second list recites conditions which, although inconsistent with interstate transportation, do not make the shipments intrastate in character. See Merchants Fast Motor Lines, 5 F.2d at 919 n. 12. These lists are more detailed expositions of the general principles cited above.
3/ The idea that even the most localized transportation of mail is effectively interstate in nature has been expressed before in a somewhat different context in older cases interpreting the applicability of the Fair Labor Standards Act. See Thompson v. Daugherty, 40 F. Supp. 279, 280-281 (D.Md. 1942) (the trucking of U.S. Mail from Cumberland, Maryland post office to rail stations in the same town constitutes interstate commerce); NLRB v. Carroll, 120 F.2d 457, 458 (1st Cir. 1941)(carriage of mail around the Lynn, Massachusetts, area is interstate commerce where much of the mail is interstate in character).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7089
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Petitioner's Proposed Findings of Fact.
1. The Petitioner's proposed findings of fact are contained in two unnumbered paragraphs and are adopted in substance as modified in Findings of Fact 4-8, 16-18, and 20, otherwise they are unnecessary, cumulative, or subordinate.
Respondent's Proposed Findings of Fact.
C. Stuart Young, Esquire Post Office Box 25487 Sarasota, Florida 34277
Mark A. Handley, Esquire
THOMPSON, SIZEMORE & GONZALEZ, P. A.
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
