Eleventh Circuit Undercuts FedEx's Defense, Disputes if Test Driving is ‘Essential Function'

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By Anna Kwidzinski  

March 26 --Federal regulations automatically disqualifying insulin-dependent diabetics from obtaining licenses to operate commercial vehicles in interstate commerce don't justify Federal Express Corp.'s decision to rescind a job offer to an otherwise qualified diabetic applicant, a federal appeals court ruled March 26.

In a 2-1 opinion, the U.S. Court of Appeals for the Eleventh Circuit decided that a federal district court in Florida erred in granting summary judgment to FedEx based on its argument that Federal Motor Carrier Safety Administration regulations, including the diabetic disqualification outlined in 49 C.F.R. § 391.41(b)(3), obligated the company to mandate a successful medical examination as a prerequisite for a truck maintenance mechanic position. The appeals court reversed and remanded.

Although the appeals court found that these regulations applied to employers transporting passengers or cargo in interstate commerce, and that FedEx was such an employer, the focus of the inquiry remained on the particular job for which Richard Samson applied. Samson has Type 1 diabetes. The case also “hinges on whether the test-driving at issue constitutes transporting property or passengers in interstate commerce,” the court said.

Judge Paul C. Huck, writing for the majority and joined by Judge Beverly B. Martin, found that “occasional test-driving of empty FedEx trucks in the Fort Myers area does not constitute transporting property or passengers in interstate commerce.” Thus the regulations didn't mandate FedEx to require Samson to pass the medical examination to be “qualified” for the technician position; nor did they serve as a defense, Huck wrote.

In his dissent, Judge James C. Hill said “[t]he majority is misplaced when it bases its analysis on the individual employee, who may or may not operate commercial motor vehicles in interstate commerce.”

“The pertinent regulations apply to employers who operate commercial motor vehicles in interstate commerce,” Hill wrote. “[I]f FedEx were to allow a technician to operate one of its commercial motor vehicles without a commercial driver's license and without a valid DOT medical certification, FedEx could be subject to both criminal and civil liabilities.”

Impermissible Qualification Standard?

The Eleventh Circuit additionally found questions regarding if FedEx's medical examination prerequisite was an impermissible qualification standard under state and federal discrimination laws, where “reasonable jurors could differ as to whether test-driving FedEx trucks is an essential function of the Technician position.”

Under the Americans with Disabilities Act and Florida Civil Rights Act, which are analyzed using the same framework, employers are prohibited from discriminating against qualified individuals on the basis of disability in hiring and application procedures, the court said.

Samson, who had 29 years of experience in maintaining vehicles and was described in the opinion as “the best candidate,” argued that imposing the medical examination as a requirement for the mechanic position amounted to an impermissible qualification standard that screened out people with disabilities.

Writing for the panel majority, Judge Huck said “occasional test-driving of empty FedEx trucks in the Fort Myers area does not constitute transporting property or passengers in interstate commerce.”  

FedEx contended that because federal regulations automatically disqualified Samson from obtaining a Class A commercial driver's license, he was incapable of performing an “essential” job function, namely, test-driving its trucks with or without reasonable accommodation. Samson was asking that FedEx hire him for the technician job and for monetary compensation.

Court Questions 'Essential Function.'

Reversing summary judgment granted to FedEx by the U.S. District Court for the Middle District of Florida, the appeals court decided that this issue “should not have been taken away from the jury.”

The Eleventh Circuit applied a multi-factor, case-by-case analysis of whether the disputed job function was essential, giving substantial weight to FedEx's judgment that test-driving trucks is essential. The court also pointed out that the job description includes “responsibilities that conceivably could involve test-driving.”

“[I]f Technicians did not conduct test-drives, it is reasonable to infer that there may be adverse consequences, such as failing to correctly diagnose a problem or assuming a problem was fixed when it was not,” the majority wrote. “This could lead FedEx to operating unroadworthy trucks, thereby endangering the public.”

But the court disputed the key role of test-driving trucks when it found that “although FedEx employs only one Technician at its airport facility in Fort Myers, there are nine other licensed truck drivers at that facility among whom the test-driving could be distributed.”

Finding that test-driving was a “miniscule” part of the mechanic position, the court said evidence showed that “other FedEx Technicians throughout Florida generally test-drive an average of about 3.71 hours per year--an insignificant portion of their total time on the job.” In fact, John Rotundo, the applicant that was eventually hired for the mechanic position, testified that he only test-drove trucks three times in the past three years, the court wrote.

No Cargo Crossed State Lines

FedEx asserted that the medical examination requirement wasn't its choice, but rather was thrust upon it by the federal Department of Transportation through regulations.

The company argued that FMCSA regulations require “employees who drive in interstate commerce, or who drive commercial motor vehicles over 26,001 pounds in either interstate or intrastate commerce, to obtain DOT medical certification.”

The Eleventh Circuit disagreed, finding weight restrictions irrelevant. The majority said “if the employee's test-driving constitutes transporting property or passengers in interstate commerce, the DOT medical examination requirement applies.”

Here, however, Rotundo testified that he never test-drove any FedEx truck carrying cargo, much less so across state lines--“not surprising given that the Fort Myers facility is located near the Florida Gulf Coast far from any state line,” the court wrote.

It added that “the Chief Counsel for the Federal Motor Carrier Safety Administration issued an opinion letter based on virtually identical hypothetical facts, opining that '[a] package vehicle carrying no cargo that is test driven by a mechanic for a few miles within the State of New York is operating in intrastate, not interstate commerce.' ”

In his dissent, Hill asked, “But tell me, how far north must we go in the State of Florida for this line to start to blur and the possibility of interstate commercial travel to become more real?”

Ephraim R. Hess in Davie, Fla., and Craig L. Berman in St. Petersburg, Fla., represented Samson. Corporate counsel Frederick L. Douglas in Memphis, Tenn., and Carol A. Dwyer Defreitas in Irvine, Calif., and Jeffrey B. Jones of Littler Mendelson in Orlando, Fla., represented FedEx.


To contact the reporter on this story: Anna Kwidzinski in Washington at akwidzinski@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Samson_v_Fed_Express_Corp_No_211cv00006UADNF_2014_BL_82588_11th_C.