              Case: 12-14145      Date Filed: 03/26/2014    Page: 1 of 22


                                                                            [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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       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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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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      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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