VAL L. NIELSON,
vs.
Respondent.
) Case No. 03-0135
A hearing was held pursuant to notice, on April 1, 2003, in Pensacola, Florida, before the Division of Administrative Hearings by its designated Administrative Law Judge, Barbara J. Staros.
For Petitioner: Val L. Nielson, pro se
For Respondent: Karl W. Boyles, Esquire
Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on April 22, 2002.
On April 22, 2002, Petitioner, Val L. Nielson, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) which alleged that Escambia County Area Transit violated Section 760.10, Florida Statutes, by discriminating against her on the basis of age and disability.1
The allegations were investigated and on November 27, 2002, FCHR issued its determination of "no cause" and Notice of Determination: No Cause.
A Petition for Relief was filed by Petitioner on January 13, 2003. FCHR transmitted the case to the Division of Administrative Hearings (Division) on or about January 16, 2003. A Notice of Hearing was issued on February 12, 2003, setting the case for formal hearing on April 1, 2003.
At hearing, Petitioner testified on her own behalf.
Respondent presented the testimony of Nedra Woodyatt, Ramona Cavasos, and Richard Deibler. Respondent offered into evidence Exhibits 1 through 8. Exhibits numbered one through five, seven and eight were admitted into evidence. Official recognition was taken of the Federal Motor Carrier Safety Regulations which was Respondent's Exhibit numbered 6.
At the conclusion of the testimony, Petitioner requested that the hearing be continued or reopened. On April 2, 2003, a Post-Hearing Order was issued denying that request.
A Transcript consisting of one volume was filed on May 5, 2003. Respondent timely filed a Proposed Recommended Order which has been considered in the preparation of this Recommended Order. Petitioner did not file any post-hearing submission.
Petitioner, Val L. Nielson, was employed as a bus driver with Respondent, Escambia County Area Transit (ECAT) for approximately 26 years. She was terminated effective March 14, 2002. At the time of her termination, she was 69 years old.
Besides having a license to operate a commercial vehicle, a bus driver is required to have a Department of Transportation (DOT) card that states that the driver meets all physical requirements set out in pertinent federal regulations.
Respondent is a motor carrier. As a motor carrier, Respondent and its employees are covered by and subject to the Federal Motor Carrier Safety Regulations (FMCSR). Among other things, the FMCSR require that commercial drivers must be physically qualified. To be physically qualified, the driver must pass a physical examination performed by a qualified medical examiner who issues a medical certificate.
During the time she was employed by ECAT, Petitioner often missed work because of illness. Richard Deibler, director of transportation and safety for ECAT, estimated that Petitioner was unable to work approximately 50 percent of the time during
the last five years of her employment. Petitioner acknowledges that she has been sick "quite a bit."
At times when Petitioner was absent due to illness for
30 days or more, she would undergo a return-to-work physical and obtain a medical examiner's certificate. After she obtained the certificate, she would return to the job. It is ECTA's policy for all employees who are absent due to illness more than 30 days to undergo a return-to-work physical and obtain a medical examiner's certificate before returning to work. Petitioner acknowledged that she was not aware of any instances where this policy was not followed by ECTA.
On February 4, 2002, Petitioner took a return-to-work physical from Dr. Michael Rappa. At the time she took this physical, she had been on medical leave for more than 30 days.
Dr. Rappa gave Petitioner a medical examiner's certificate that read, "Temporary 1 month card." Generally, temporary certificates are for at least three months. A one- month certificate is extremely unusual.
Regarding his examination results of Petitioner, Dr. Rappa wrote the following:
TREATMENT /PLAN:
Will clear her to drive a commercial bus for one month. Ms. Nielson appears to be functionally able to operate a bus and secure a wheelchair within the bus, but she does not appear to be physically fit for any
significant walking/standing or lifting. If there are any additional functional work activities that Ms. Nielson needs to perform, it is suggested that those functional activities be outlined and provided to me to discern her ability to perform such activities.
To return to this clinic for follow-up DOT exam at that time.
In response to Dr. Rappa's request, Richard Diebler furnished a job analysis as well as a training video that shows how to use the passenger wheelchair tie-down system to
Dr. Rappa.
Petitioner did not receive a copy of the training video that ECTA supplied to Dr. Rappa.
Following a review of the job analysis and video,
Dr. Rappa signed a physician review form and checked the following: "I feel this patient cannot perform this job." His physician's notes also reflect that Petitioner could not safely and effectively perform the duties of the job. The physician review form is dated February 19, 2002; the physician's notes are dated February 20, 2002.
Upon receiving the information from Dr. Rappa and learning that Dr. Rappa had not certified Petitioner, ECTA terminated Petitioner from employment.
Nedra Woodyatt was employed by ECTA as a general manager. According to Ms. Woodyatt, ECTA did not allow Petitioner to drive the bus after receiving the one-month certificate until more information was received from Dr. Rappa. Petitioner filed a grievance under the applicable collective bargaining agreement regarding whether or not she would be paid for that one-month period of time. Ms. Woodyatt attended the grievance proceeding. The collective bargaining agreement provides a procedure for an additional medical examination at the employee's expense if the employee does not agree with the findings of the doctor. While the outcome of the grievance is not material to this proceeding,2 the subject of whether or not Petitioner would seek and obtain a second medical opinion was discussed during the grievance hearing. Petitioner did not seek a second medical opinion and did not request consideration for any job other than a bus operator.
In any event, Respondent's action of sending Petitioner a letter of termination was based on the fact that Petitioner did not have a certificate of medical examination as required by federal regulations. There is nothing in the record to show that any subsequent medical examination took place or, if one did, that it resulted in any different determination.
There are employees of ECTA, including bus drivers, who are older than Petitioner. At least one bus driver was older on the date of hire than Petitioner was on the date of her termination.
There is no evidence in the record that Petitioner was replaced in her job by a younger employee or that age had anything to do with her termination.
The employees of ECTA were consistent in their testimony that Petitioner did not identify herself as a person with a disability or that anyone employed by ECTA referred to Petitioner as having a disability. Management at ECTA did not perceive Petitioner to be disabled, despite her frequent illnesses.
Petitioner alleged in her charge of discrimination that Respondent should have provided her with an assistant on the bus. However, having an assistant, if that were even possible, would not negate the requirement that a bus driver must have a valid medical certificate in order to drive a bus.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.569 and 120.57, Florida Statutes.
Pertinent provisions of 49 C.F.R. Section 391, read as follows:
Section 391.1 Scope of the rules in this part; additional qualifications; duties of carrier-drivers.
The rules in this part establish minimum qualifications for persons who drive commercial motor vehicles as, for, or on behalf of motor carriers. The rules in this part also establish minimum duties of motor carriers with respect to the qualifications of their drivers.
A motor carrier who employs himself/herself as a driver must comply with both the rules in this part that apply to motor carriers and the rules in this part that apply to drivers.
Section 391.11 General qualifications of drivers.
A person shall not drive a commercial motor vehicle unless he/she is qualified to drive a commercial motor vehicle. Except as provided in §391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a motor vehicle.
Except as provided in Subpart G of this part, a person is qualified to drive a commercial motor vehicle if he/she--
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Is physically qualified to drive a commercial motor vehicle in accordance with Subpart E--Physical Qualifications and Examinations of this part; . . . .
Section 391.41 Physical qualifications for drivers.
A person shall not drive a commercial motor vehicle unless he/she is physically qualified to do so and, except as provided in §391.67, has on his/her person the
original, or a photographic copy, of a medical examiner's certificate that he/she is physically qualified to drive a commercial motor vehicle. . . .
Section 391.43 Medical examination; certificate of physical examination.
(a) Except as provided by paragraph (b) of this section, the medical examination shall be performed by a licensed medical examiner as defined in §390.5 of this subchapter.
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(g) If the medical examiner finds that the person he/she examined is physically qualified to drive a commercial motor vehicle in accordance with Sec. 391.41(b), the medical examiner shall complete a certificate in the form prescribed in paragraph (h) of this section . . . .
Section 391.45 Persons who must be medically examined and certified.
Except as provided in §391.67, the following persons must be medically examined and certified in accordance with §391.43 as physically qualified to operate a commercial motor vehicle:
(a) Any person who has not been medically examined and certified as physically qualified to operate a commercial motor vehicle;
(b)(1) Any driver who has not been medically examined and certified as qualified to operate a commercial motor vehicle during the preceding 24 months; or
(2) Any driver authorized to operate a commercial motor vehicle only with an exempt intracity zone pursuant to §391.62, or only by operation of the exemption in §391.64, if such driver has not been medically examined
and certified as qualified to drive in such zone during the preceding 12 months; and
(c) Any driver whose ability to perform his/her normal duties has been impaired by a physical or mental injury or disease.
Section 391.47 Resolution of conflicts of medical evaluation.
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(f) Status of driver. Once an application is submitted to the Director, Office of Bus and Truck Standards and Operations (MC-PSD), the driver shall be deemed disqualified until such time as the Director, Office of Motor Carrier Research and Standards makes a determination, or until the Director, Office of Motor Carrier Research and Standards orders otherwise.
Section 760.10(1), Florida Statutes, states that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of age or handicap.3
In order to make out a prima facie case of age discrimination under Section 760.10(1)(a), Florida Statutes, Petitioner must show that she was a member of a protected age group, that she was subject to adverse employment action, and that she lost the position to a younger person. Benson v. Tocco, Inc., 113 F.3d 1203, 1207 (11th Cir. 1997), citing McDonald Douglass Corp. v. Green, 411 U.S. 792 (1973).
Petitioner has not established a prima facie case of age discrimination. While she is a member of a protected class and suffered an adverse employment action, there is no evidence in the record that she was replaced by a younger person. Moreover, the record established that ECTA has employees, including bus drivers, who are her age or older.
Even if Petitioner had established a prima facie case, the burden to go forward would shift to the employer to articulate a legitimate, non-discriminatory explanation for the employment action. See Department of Corrections v. Chandler,
582 So. 2d 1183 (Fla. 1st DCA 1991) (court discusses shifting burdens of proof in discrimination cases). The employer has the burden of production, not persuasion, and need only persuade the finder of fact that the decision was non-discriminatory. Department of Corrections v. Chandler, supra; Alexander v. Fulton County, GA, 207 F.3d 1303 (11th Cir. 2000).
Respondent has met its burden of production.
Respondent has adequately articulated a legitimate, non- discriminatory explanation for terminating Petitioner.
Respondent established that Petitioner was terminated solely because she did not obtain the required medical examination certificate. The decision to terminate her was based upon legitimate means that was not based upon Petitioner's age.
Once the employer articulates a legitimate non- discriminatory explanation for its actions, the burden shifts back to the charging party to show that the explanation given by the employer was a pretext for intentional discrimination.
"The employee must satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief." Department of Corrections v. Chandler, 582 So. 2d 1183 at 1186; Alexander v.
Fulton County, GA, supra. Petitioner has not met this burden. Other than Petitioner's assertions that Respondent discriminated against her, Petitioner presented no evidence establishing that Respondent's reasons were pretextual.
Courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age to constitute direct evidence of age discrimination. See, e.g., Barnes v. Southwest Forest Industries, 814 F.2d 607 at 610 (11th Cir. 1987) (remark by personnel manager to terminated security guard that in order to transfer "you would have to take another physical examination at your age, I don't believe you could pass it" was not considered direct evidence of age discrimination by the court); Williams v. General Motors
Corp., 656 F.2d 120 at 130 (5th Cir. Unit B 1981) cert. denied,
455 U.S. 943 (1982) (scrap of paper on which was written
"Too old--Lay Off" would constitute direct evidence of discriminatory intent).
Similarly, in order to establish a prima facie case of disability discrimination, Petitioner must show that she is disabled, is able to perform the essential elements of the job she seeks, and that she was discriminated against by the employer because of her disability. Reed v. Heil Co., 206 F.3d 1055 (11th Cir. 2000).
Florida courts have recognized that actions for discrimination on the basis of disability are analyzed under the same framework as Americans with Disabilities Act (ADA) claims. Chanda v. Engelhard/ICC, 234 F.3d 1219 (11th Cir. 2000). The ADA defines a disability as a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Chanda, supra at 1221. At no time has Petitioner alleged or presented evidence that she is restricted in the manner in which she can perform any major life activity.
Even if it is assumed that Petitioner meets the definition of a person with a disability as contemplated by the ADA, she did not meet the second prong of the test. That is, the doctor performing her medical examination stated that she could not perform the job. Accordingly, Petitioner has not established a prima facie case of handicap discrimination and that part of her charge of discrimination fails.
Petitioner asserts that she did not see the video that was provided to Dr. Rappa. Whether or not Petitioner had the opportunity to watch that video does not affect the reason that Respondent terminated her. That is, Respondent has no discretion under the pertinent federal regulations to allow Petitioner to continue to drive a bus if she does not possess the required medical certificate.
Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is
That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 9th day of July, 2003, in Tallahassee, Leon County, Florida.
BARBARA J. STAROS
Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2003.
1/ The Charge of Discrimination alleges that she was terminated due to her age "and my employer's perception that I am handicapped."
2/ Whether or not the procedure used was in compliance with the collective bargaining agreement is beyond the scope of this proceeding.
3/ FCHR and Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994).
Val L. Nielson
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Karl W. Boyles, Jr., Esquire Post Office Box 13464 Pensacola, Florida 32591-3464
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
