Richard Samson v. Federal Express Corporation , 746 F.3d 1196 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________
No. 12-14145
_________________________
D.C. Docket No. 2:11-cv-00006-UA-DNF
RICHARD SAMSON,
Plaintiff-Appellant,
versus
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 26, 2014)
Before MARTIN and HILL, Circuit Judges, and HUCK, * District Judge.
*
Honorable Paul C. Huck, Senior United States District Judge for the Southern District of
Florida, sitting by designation.
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HUCK, District Judge:
Appellant Richard Samson—a Type-1 insulin-dependent diabetic—appeals
summary judgment for Appellee Federal Express Corporation on his disability
discrimination claims under the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101, et seq., and its Florida counterpart, the Florida Civil Rights Act
(“FCRA”), Fla. Stat. § 760.01, et seq. In 2009, FedEx offered Samson, an
experienced vehicle mechanic, a job as a Senior Global Vehicle
Technician/DOT/CDL (“Technician”) at its airport facility in Fort Myers, Florida.
FedEx conditioned the offer on, among other things, Samson passing a Department
of Transportation (“DOT”) medical examination—which the Federal Motor
Carrier Safety Regulations (“FMCSRs”) require for commercial motor vehicle
drivers who transport property or passengers in interstate commerce. When
Samson failed his DOT medical examination due to his diabetes, FedEx withdrew
Samson’s job offer since he did not qualify for the Technician position. FedEx
claimed that the FMCSRs required it to do so.
Samson then sued FedEx for disability discrimination. The crux of
Samson’s claims was that “[i]n imposing a requirement that Samson must obtain a
DOT [medical] card even though he would be a mechanic and not a commercial
truck driver, FedEx violated the ADA [and the FCRA], which prohibit[] an
employer from using qualification standards that screen out people with
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disabilities.” After discovery closed, FedEx moved for summary judgment.
FedEx argued that Samson was not “qualified” for the Technician position because
he failed his DOT medical examination; consequently, Samson could not perform
the “essential function” of test-driving FedEx trucks “with or without reasonable
accommodation.” FedEx also contended that the FMCSRs provided a complete
defense to Samson’s claims because the regulations obliged FedEx to require a
successful DOT medical examination as a prerequisite of the job. The district
court agreed and granted summary judgment for FedEx on both grounds.
However, because our de novo review of the record shows that summary judgment
was improper, we reverse and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
FedEx provides package delivery services nationwide. FedEx’s aircraft
transport packages from locations throughout the United States into and out of
several Florida airports, including the Southwest Florida International Airport in
Fort Myers, Florida. The packages are then unloaded from the aircraft, sorted for
destination to various locations, and loaded onto FedEx tractor-trailers and straight
trucks. These trucks then transport the packages to other FedEx facilities within
Florida and, eventually, to recipients.
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FedEx employs Technicians at its airport facilities to maintain, troubleshoot,
and repair its trucks. On February 11, 2009, Samson—a vehicle mechanic with
about twenty-nine years of experience—applied online for FedEx’s sole
Technician position at its Fort Myers airport facility. According to FedEx’s online
job description, “[t]he successful candidate will provide timely, quality
maintenance for FedEx vehicle fleet and ground support equipment including
preventative maintenance, troubleshooting, repairs modifications and
documentation.” The job description also listed the following requirements:
High school diploma/GED. Four years recent fleet,
automotive, or truck vehicle maintenance experience.
Must possess applicable licenses or have vocational
training. Knowledge of the use and operation of all
automotive equipment and testing equipment gauges and
tools normally associated with the troubleshooting and
repair of hydraulic, gasoline and diesel automotive
equipment. Possession of a complete set of hand tools
including metric sizes. Must be able to lift and maneuver
heavy vehicle components. Ability to work without
supervision for extended time periods. Must possess a
valid driver’s license and be at least 21 years of age.
Must meet qualifications as outlined in section 391 of the
Federal Motor Carrier Safety Regulations. Requires
medical exam in accordance with FHWA or FAA
regulations. Must also have light to heavy truck
experience. Job offers are contingent upon successful
completion of required examinations/checks for the
particular position (e.g., drug screen, medical
examinations in accordance with FHWA regulations,
criminal record check, etc.).
(emphasis added).
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On March 10, 2009, after an interview, FedEx sent Samson—the best
candidate—a letter offering him the Technician position. The letter, signed by
Mahase Madoo, the District Fleet Manager, stated that “this job offer is contingent
upon your successful completion of a DOT medical examination . . . and upon your
receiving a Florida issued class A [commercial driver’s license] within 90 days of
your actual starting date in this position as required for this position.” Samson
signed the offer letter, accepting the position and its terms. At that time, Samson
already held a Florida-issued Class B commercial driver’s license. 1
On March 11, 2009, Samson appeared for his DOT medical examination.
During the examination, Samson disclosed to the medical examiner that he is a
Type-1 insulin-dependent diabetic. Because insulin-dependent diabetics are
automatically disqualified from being medically certified as physically qualified to
operate a commercial motor vehicle in interstate commerce under the FMCSRs,
absent an exemption, Samson failed his medical examination. See 49 C.F.R. §
391.41(b)(3) (“A person is physically qualified to drive a commercial motor
1
The difference between a Class A and a Class B commercial driver’s license under Florida law
is that Class A drivers can lawfully operate “motor vehicle combinations,” i.e. tractor-trailers,
whereas Class B drivers cannot. See Fla. Stat. § 322.54(2)(a) (“Any person who drives a motor
vehicle combination having a gross vehicle weight rating or gross vehicle weight of 26,001
pounds or more must possess a valid Class A driver license, if the gross vehicle weight rating or
gross vehicle weight of the vehicle being towed is more than 10,000 pounds. . . .”); id. §
322.54(2)(b) (“Any person, except a person who possesses a valid Class A driver license, who
drives a motor vehicle having a gross vehicle weight rating or gross vehicle weight of 26,001
pounds or more must possess a valid Class B driver license. . . .”).
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vehicle if that person . . . [h]as no established medical history or clinical diagnosis
of diabetes mellitus currently requiring insulin for control.”); see also id. §
391.43(f) (“If insulin is necessary to control a diabetic driver’s condition, the
driver is not qualified to operate a commercial motor vehicle in interstate
commerce.”).
On March 16, 2009, Janet Johnson, a FedEx recruiter, emailed Madoo and
others at FedEx asking whether they were legally obligated to inform Samson of
the Federal Diabetes Exemption Program, see U.S. DEPARTMENT OF
TRANSPORTATION FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
http://www.fmcsa.dot.gov/rules-regulations/topics/medical/exemptions.htm (last
visited Jan. 3, 2014):
As mentioned, [Samson] applied for a DOT Sr. Global
Vehicle Technician position in Fort Myers, Florida.
After his DOT physical exam was completed on 3/12/09
he called me to say that he is on insulin and wanted to
know if that was a problem. I said I would need to
contact Memphis and would call him back. You and
MRO mentioned a “Federal Diabetic Waiver”. . . . Are
we legally obligated to mention this waiver to him?
Two days later, FedEx sent Samson a letter withdrawing his job offer solely
because he had failed his DOT medical examination. The next day, Samson
emailed Madoo and John Durr, a FedEx Senior Manager, asking them to
reconsider their decision. Samson wrote that he felt “discriminated against for
being a diabetic” because he applied for a job as a Technician, not as an interstate
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truck driver. Samson also claims that he spoke with Madoo, who told him “we
don’t hire diabetics.” Madoo himself, however, is a Type-2 diabetic who treats his
condition with insulin.
On April 2, 2009, Durr replied to Samson’s email by explaining FedEx’s
belief that the FMCSRs required it to withdraw Samson’s job offer after he failed
his DOT medical examination:
Our vehicle mechanic positions are governed under
Federal DOT regulations since we operate in all 50 dates
[sic]. It was the company’s decision to be governed by
Federal Guidelines rather than the various state
regulations so we would not have to try and manage 50
sets of state regulations. Unfortunately, Federal DOT
Guidelines prohibit hiring anyone that is insulin
dependent.
FedEx eventually hired John Rotundo—the second best candidate—for the
Technician position. During his approximately three years on the job, Rotundo has
only test-driven FedEx trucks three times. He has never driven one across state
lines. Nor has he ever driven one carrying cargo. On one additional occasion,
another FedEx employee drove while Rotundo sat in the passenger seat diagnosing
the reported mechanical problem.
II. ANALYSIS
Before us, Samson challenges the district court’s grant of summary
judgment for FedEx. Samson first argues that the district court erred in concluding
as a matter of law that he was not “qualified” for the Technician position because
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he could not perform the alleged “essential function” of occasionally test-driving
empty FedEx trucks in the Fort Myers area “with or without reasonable
accommodation.”
A. Does a genuine factual dispute exist as to whether Samson was
“qualified” for the Technician position? 2
Under the ADA, no employer “shall discriminate against a qualified
individual on the basis of disability in regard to job application procedures, the
hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a) (emphasis added); see also 29 C.F.R. § 1630.2(m). To establish a prima
facie case of disability discrimination, a plaintiff must show that he (1) is
disabled,3 (2) is a “qualified” individual, and (3) was subjected to unlawful
discrimination because of his disability. Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1263 (11th Cir. 2007) (citation omitted). Turning to the second
element, a “qualified individual” is someone “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8) (emphasis added).
“Essential functions” are “the fundamental job duties of the employment position,”
2
Because “disability-discrimination claims under the FCRA are analyzed using the same
framework as ADA claims,” Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir.
2007) (citation omitted), we review both claims together.
3
The parties agree that Samson’s diabetes is a covered disability.
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but do “not include the marginal functions of the position.” 29 C.F.R. §
1630.2(n)(1).
In reviewing the district court’s summary judgment ruling de novo, the
threshold issue is whether a genuine factual dispute exists as to whether test-
driving FedEx trucks is an “essential function” of the Technician position.
Whether a particular job function is essential is “evaluated on a case-by-case basis
by examining a number of factors.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d
1220, 1230 (11th Cir. 2005) (internal quotation marks and citation omitted); see
also McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013) (“[A] court
must conduct ‘a fact-specific inquiry into both the employer’s description of a job
and how the job is actually performed in practice.’”) (citation omitted); Keith v.
Cnty. of Oakland, 703 F.3d 918, 926 (6th Cir. 2013) (“Whether a job function is
essential is a question of fact that is typically not suitable for resolution on a
motion for summary judgment.”) (citation omitted). Among the relevant factors is
“[t]he employer’s judgment as to which functions are essential.” 29 C.F.R. §
1630.2(n)(3)(i). Although the employer’s judgment is “entitled to substantial
weight in the calculus,” this factor alone is not conclusive. Holly, 492 F.3d at 1285
(internal quotation marks and citation omitted). Because if it were conclusive:
then an employer that did not wish to be inconvenienced
by making a reasonable accommodation could, simply by
asserting that the function is “essential,” avoid the clear
congressional mandate that employers “mak[e]
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reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual
with a disability who is an applicant or employee, unless
such covered entity can demonstrate that the
accommodation would impose an undue hardship on the
operation of the business of such covered entity.”
Id. (citing 42 U.S.C. § 12112(b)(5)(A)) (alteration in original).
Other relevant factors include: any written job description prepared before
advertising or interviewing applicants for the job; the amount of time spent on the
job performing the function; the consequences of not requiring the employee to
perform the function; the terms of any collective bargaining agreement; the work
experience of past employees in the job; and the current work experience of
employees in similar jobs. 29 C.F.R. § 1630.2(n)(3)(ii)–(vii). There are also three
non-exclusive bases on which a particular job function may be deemed essential:
(1) the position exists to perform that function; (2) a limited number of employees
are available among whom that job function can be distributed; and (3) the job
function is “highly specialized” so that the incumbent is hired for their expertise or
ability to perform that function. Id. § 1630.2(n)(2).
Applied here, some of these factors support a finding that test-driving is an
essential function of the Technician position. 4 First, FedEx’s judgment—which
4
Several of the factors have little or no bearing on this case. For instance, the record contains no
evidence of any collective bargaining agreement. A few other factors apply to some extent but
are not very helpful. The reason the position exists, for example, is not to test-drive FedEx
trucks, but rather to provide timely, quality maintenance of FedEx’s vehicle fleet. Although test-
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carries substantial weight—is that test-driving is an essential function of the job.
Second, according to FedEx’s written job description, Technicians maintain,
troubleshoot, and repair FedEx trucks—responsibilities that conceivably could
involve test-driving. The job description also requires Technicians to possess a
commercial driver’s license and “have light to heavy truck experience.” Third, if
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. This could lead FedEx to operating
unroadworthy trucks, thereby endangering the public. Fourth, the record suggests
that test-driving may be a “highly specialized” job function, given that FedEx
requires its Technicians to hold commercial driver’s licenses and both federal and
Florida law require commercial motor vehicle drivers to be licensed.
The remaining factors, however, weigh in favor of finding that test-driving is
not an essential function of the Technician position. First, 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. In fact, Rotundo—the Technician hired instead of Samson—testified
that, at least on one occasion, another employee test-drove while he sat in the
driving might be a part of that function, it does not follow that the Technician position “exists” to
test-drive FedEx trucks.
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passenger seat diagnosing the reported mechanical problem. Second, the amount
of time that the incumbent Technician at the Fort Myers facility actually spends
test-driving is miniscule. Indeed, Rotundo further testified that in the
approximately three years he has been on the job, he has only test-driven FedEx
trucks three times. If test-driving were such an essential function, as FedEx
contends, one would expect it to be performed with regularity. Third, with respect
to the current work experience of employees in similar jobs, the record shows 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. 5
In sum, viewing all the record evidence and reasonable inferences in the
light most favorable to Samson, as required, we conclude that reasonable jurors
could differ as to whether test-driving FedEx trucks is an essential function of the
Technician position. 6 See Henschel v. Clare Cnty. Road Comm’n, 737 F.3d 1017,
5
While FedEx makes much ado about the “staggering 766 hours” that its Technicians throughout
Florida test-drove commercial motor vehicles on Florida’s public roadways over an
approximately five year period, Samson undercuts this argument with basic math. To illustrate,
FedEx states that from January 2007 through November 2011 forty-two different Technicians
from thirty-nine different locations in Florida operated commercial motor vehicles on public
roadways for a total of 766 hours and 6 minutes. While this statistic does not describe the type
of vehicle driven, where it was driven, or why it was driven, it does show that each Technician
only test-drove about 3.71 hours per year.
6
FedEx urges us to adopt the district court’s nonbinding opinion in Murphy v. United Parcel
Serv., Inc., 946 F. Supp. 872 (D. Kan. 1996) and conclude—as a matter of law—that test-driving
is an essential function of every mechanic position with every package delivery company in the
United States. This we will not do. Although the Murphy court concluded that test-driving was
an essential function of the UPS mechanic position at issue there, it did so by relying on
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1024 (6th Cir. 2013) (reversing summary judgment because genuine factual
dispute existed as to whether hauling an excavator to the job site was an essential
function of the excavator operator position where the relevant factors were in
conflict). This issue, therefore, should not have been taken away from the jury and
resolved as a matter of law.
B. Do the FMCSRs afford FedEx a complete defense?
Assuming that test-driving is an essential function of the Technician
position, Samson next challenges the district court’s conclusion that the FMCSRs
afforded FedEx a complete defense to his claims. As relevant here, disability
discrimination includes when an employer uses “qualification standards . . . that
screen out or tend to screen out an individual with a disability . . . unless the
standard . . . is shown to be job-related for the position in question and is consistent
with business necessity.” 42 U.S.C. § 12112(b)(6). In addition, an employer may
speculation about how UPS mechanics in general could be “expected” to do their jobs, not on
how the specific mechanic in that case actually did his job:
It takes no stretch of the imagination to believe that a mechanic
would be expected to check the efficacy of his repairs. One would
generally expect a mechanic who has made repairs to the brakes of
a commercial vehicle would road test his work product before
returning the vehicle to the UPS delivery fleet. Similarly,
delivering working and retrieving disabled vehicles does not strike
the court as an aberrant expectation of an employer such as UPS.
Id. at 882–83. Because we must look to the specifics of the Technician position in determining
whether—under the facts of this case—test-driving is an essential function of the job, the
Murphy court’s opinion about how UPS mechanics were generally expected to perform their jobs
in that case is uninformative.
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also have a defense to such a claim if it can show that the challenged qualification
standard was “required or necessitated by another Federal law or regulation.” 29
C.F.R. § 1630.15(e).
In this case, Samson claims that FedEx’s medical examination requirement
is an impermissible “qualification standard” because it screens out insulin-
dependent diabetics. FedEx, however, maintains that it did not choose to impose
the DOT medical examination requirement. Rather, FedEx insists that the
FMCSRs required it to make DOT medical certification a prerequisite to holding
the Technician position. This is so, according to FedEx, because: (a) the test-
driving at issue here constitutes driving commercial motor vehicles over 26,001
pounds in interstate commerce under the FMCSRs; (b) the FMCSRs 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; and (c) insulin-dependent diabetics are automatically
disqualified from obtaining DOT medical certification under the FMCSRs, absent
an exemption. Because FedEx justifies the DOT medical examination requirement
solely on the ground that the FMCSRs mandate it—not that it was job-related or
consistent with business necessity—we look to the FMCSRs to resolve this issue.
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The FMCSRs—including the DOT medical examination requirement 7—
apply to “employers, employees, and commercial motor vehicles, which transport
property or passengers in interstate commerce.”8 49 C.F.R. § 390.3(a) (emphasis
added). In concluding that the medical examination requirement applies to
Samson, both the district court and our dissenting colleague emphasize that FedEx
is an employer operating in interstate commerce. However, the Federal Highway
Administration’s guidelines interpreting § 390.3 make the important distinction
that “intrastate drivers of an interstate motor carrier” are not subject to the
FMCSRs except in one circumstance not applicable here. Regulatory Guidance for
the Federal Motor Carrier Safety Regulations, 58 Fed. Reg. 60,734, 60,743 (Nov.
7
The DOT medical examination requirement is contained in Part 391 of the FMCSRs, entitled
“Qualifications of Drivers and Longer Combination Vehicle (LCV) Driver Instructors.” Part 391
establishes, among other things, “minimum qualifications for persons who drive commercial
motor vehicles as, for, or on behalf of motor carriers.” 49 C.F.R. § 391.1(a). This includes being
“medically certified as physically qualified” to operate a commercial motor vehicle, i.e.,
obtaining DOT medical certification. Id. § 391.41(a)(1)(i). A person cannot obtain DOT
medical certification, however, if that person has an “established medical history or clinical
diagnosis of diabetes mellitus currently requiring insulin for control.” Id. § 391.41(b)(3).
8
“Interstate commerce” is defined as “trade, traffic, or transportation in the United States”:
(1) Between a place in a State and a place outside of such State
(including a place outside of the United States);
(2) Between two places in a State through another State or a place
outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or
transportation originating or terminating outside the State or the
United States.
Intrastate commerce means any trade, traffic, or transportation in
any State which is not described in the term “interstate commerce.”
49 C.F.R. § 390.5.
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17, 1993); see also Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467
U.S. 837, 844–45, 104 S. Ct. 2778, 2782–83 (1984) (noting that courts should
generally defer to an agency’s interpretations of the regulations it promulgates). In
other words, our focus in this analysis must be on the particular position for which
Samson applied, not on the nature of the employer’s whole business.
Whether the FMCSRs obliged FedEx to require Samson to obtain DOT
medical certification, therefore, hinges on whether the test-driving at issue
constitutes transporting property or passengers in interstate commerce. Because if
it does constitute driving in interstate commerce, as FedEx contends, then the
FMCSRs would oblige FedEx to require Samson to obtain DOT medical
certification to be “qualified” for the Technician position. If, however, the test-
driving does not constitute driving in interstate commerce, as Samson contends,
then the FMCSRs would not require FedEx to make DOT medical certification a
prerequisite of the job; and, consequently, the FMCSRs would afford no defense to
FedEx.9 See Cleary v. Fed. Exp. Corp., 313 F. Supp. 2d 930, 939 (E.D. Wis. 2004)
9
Below, FedEx misled the district court to mistakenly conclude that the FMCSRs afforded
FedEx a complete defense as a result of FedEx’s confusion over the proper applicability of the
regulations. As noted above, the DOT medical examination requirement contained in Part 391 of
the FMCSRs applies to employees who “transport property or passengers in interstate
commerce.” 49 C.F.R. § 390.3(a) (emphasis added). The commercial driver’s license
requirements in Part 383 of the FMCSRs, however, apply “to every person who operates a
commercial motor vehicle . . . in interstate or intrastate commerce and to all employers of such
persons.” Id. § 390.3(b) (emphasis added). Yet, FedEx contended and the district court found
that the FMCSRs obliged FedEx to require Samson to first obtain DOT medical certification
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(“If plaintiff’s duties did not include driving in interstate commerce, the FMCSRs
did not require [FedEx] to make DOT certification a prerequisite of his position.”).
Instead, FedEx’s medical examination requirement would amount to an
impermissible “qualification standard” that screens out insulin-dependent diabetics
since FedEx has made no attempt to show that its medical examination
requirement was job-related or consistent with business necessity.
Based on the record before us, we conclude that the test-driving at issue does
not constitute transporting property or passengers in interstate commerce. Indeed,
Rotundo—the incumbent Technician—has never test-driven any FedEx truck
across state lines (not surprising given that the Fort Myers facility is located near
before he could obtain a commercial’s driver license—regardless of whether Samson would be
driving in interstate or intrastate commerce—because the position required operating commercial
motor vehicles in excess of 26,001 pounds. See Samson v. Fed. Exp. Corp., 874 F. Supp. 2d
1360, 1364 (M.D. Fla. 2012) (“In order to obtain a commercial driver’s license, an operator must
obtain a DOT Medical Certification, and must carry a current medical examiner’s certificate that
he or she is physically qualified to drive a commercial motor vehicle.”) (citations omitted). But
this is not necessarily so because, as Samson points out, Florida law expressly permits insulin-
dependent diabetics to obtain commercial driver’s licenses from the State—limited to driving in
intrastate commerce—without having to obtain DOT medical certification:
A person who is otherwise qualified as a driver under 49 C.F.R.
part 391, who operates a commercial motor vehicle in intrastate
commerce only, and who does not transport hazardous materials in
amounts that require placarding pursuant to 49 C.F.R. part 172, is
exempt from the requirements of 49 C.F.R. part 391, subpart E, ss.
391.41(b)(3) and 391.43(e), relating to diabetes.
Fla. Stat. § 316.302(2)(j) (emphasis added). This explains how Samson qualified for his Florida-
issued Class B commercial driver’s license, which he held at the time that he applied for the
Technician position. And there is no support in the FMCSRs for FedEx’s argument that the
weight of the vehicle triggers the DOT medical examination requirement in Part 391 regardless
of whether the vehicle is operated in interstate or intrastate commerce.
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the Florida Gulf Coast far from any state line). Nor has he ever test-driven any
FedEx truck carrying cargo. What’s more, 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.” Letter from Alais L. M. Griffin,
Chief Counsel for the Federal Motor Carrier Safety Administration, to Ronald G.
Dunn, Partner at Gleason, Dunn, Walsh & O’Shea (July 29, 2011). The Chief
Counsel’s opinion is also consistent with the district court’s conclusion in Cleary v.
Federal Express Corporation, a similar case on which Samson relies. There, the
district court concluded that since the plaintiff mechanic “never drove across state
lines and never drove a vehicle that carried cargo,” a reasonable juror “could not
conclude that plaintiff drove in interstate commerce.” 10 Cleary, 313 F. Supp. 2d at
10
The district court below attempted to distinguish Cleary in a footnote because it “involved
commercial motor vehicles weighing 10,001 pounds, but less than 26,001 pounds” and, thus,
“the regulations governing commercial driver’s licenses were not at issue at Cleary.” Samson,
874 F. Supp. 2d at 1370 n.10. This, however, is a distinction without a difference. The issue in
Cleary was whether the DOT medical examination requirement applied to a mechanic position
with FedEx in Wisconsin, similar to here. While it is true that the regulations requiring
commercial driver’s licenses in Part 383 of the FMCSRs only apply to trucks weighing 26,001
pounds or more, the regulations requiring the DOT medical examination in Part 391 of the
FMCSRs apply to any truck weighing 10,001 pounds or more that is driven in interstate
commerce. See 49 C.F.R. § 383.5 (defining “commercial motor vehicle” as used in Part 383 to
mean “a motor vehicle or combination of motor vehicles used in commerce to transport
passengers or property if the motor vehicle . . . [h]as a gross combination weight rating or gross
combination weight of 11,794 kilograms or more (26,001 pounds or more)”); id. § 390.5
(defining “commercial motor vehicle” for purposes of the FMCSRs as “any self-propelled or
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939; cf. Thoms v. ABF Freight Sys., Inc., 31 F. Supp. 2d 1119, 1125 (E.D. Wis.
1998) (concluding that driver/dock laborer position did involve driving in interstate
commerce because the job included delivering freight originating from out-of-
state).
At bottom, we conclude that the occasional test-driving of empty FedEx
trucks in the Fort Myers area does not constitute transporting property or
passengers in interstate commerce. The FMCSRs, therefore, did not oblige FedEx
to require Samson to obtain DOT medical certification to be “qualified” for the
Technician position. By the same token, the FMCSRs do not afford FedEx a
defense to Samson’s disability discrimination claims. For these reasons, we
reverse and remand this case to the district court for further proceedings consistent
with this opinion, including determining whether summary judgment should be
entered for Samson on his claims that FedEx’s medical examination requirement is
an impermissible qualification standard.11
towed motor vehicle used on a highway in interstate commerce to transport passengers or
property when the vehicle . . . [h]as a gross vehicle weight rating or gross combination weight
rating . . . of 4,536 kg (10,001 pounds) or more”). Therefore, it is irrelevant that Cleary involved
trucks weighing between 10,001 and 26,001 pounds, while this case involves trucks weighing
26,001 pounds or more. In both situations, if the employee’s test-driving constitutes transporting
property or passengers in interstate commerce, the DOT medical examination requirement
applies.
11
Although Samson argues that a genuine factual dispute exists as to whether the test-driving at
issue constitutes driving in interstate commerce, based on the record on appeal, it may be
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Case: 12-14145 Date Filed: 03/26/2014 Page: 20 of 22
REVERSED AND REMANDED.
appropriate for the district court to resolve this issue as a matter of law. See Cleary, 313 F. Supp.
2d at 939.
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Case: 12-14145 Date Filed: 03/26/2014 Page: 21 of 22
HILL, Circuit Judge, dissenting:
Under our de novo review, the district court correctly granted FedEx=s
motion for summary judgment as a matter of law.
The undisputed evidence establishes that, as a matter of law, appellant must
hold a commercial driver=s license (in order to test drive commercial motor
vehicles), and pass a DOT medical examination, as both are essential functions of
the technician position for which he applied.
The 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. 1
The majority errs when it relies on the fact that the technician position
applied for was in Ft. Myers, far from the Georgia-Florida state line. Therefore, in
all probability, no test drive would ever approach interstate commerce. 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?
1
Indeed, if 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.
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Case: 12-14145 Date Filed: 03/26/2014 Page: 22 of 22
If a technician Ararely or ever@ drove across state lines, would that mean the
regulation would Ararely or ever@ be violated? Would the fact that a Ft. Myers
technician Awould likely never be@ required to cross state lines, mean the regulation
Awould likely never be violated?@
For these reasons, the majority approach is flawed. The appellant here
cannot drive because he did not pass the physical exam. FedEx correctly rescinded
his conditional offer of employment.
The district court should be affirmed.
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