Second obese trucker files suit

Court - A Gresham man says his suspension was kept secret while a firm unsuccessfully fought a discrimination claim

Thursday, December 01, 2005

ANNE SAKER The Oregonian

A second obese truck driver has filed a discrimination suit against a Tacoma company claiming he was unfairly suspended without pay because of his weight. He also accuses the company of keeping his case secret while it unsuccessfully contested the first discrimination suit.

A Multnomah County jury ruled Oct. 5 for the trucker in that case, giving him $9,000 in back pay and $100,000 in damages in what appears to be one of the first verdicts in the nation awarded for obesity discrimination.

The second trucker, David Mankey, 50, of Gresham, filed his $1.1 million claim against Interstate Distributor Co. in U.S. District Court on Tuesday. Mankey, who is 5-foot-6 and about 450 pounds, said that in early September he complained about a truck's seat belt being too tight, and the company immediately suspended him.

According to the suit, the company took its action against Mankey three weeks before going to trial in Multnomah County Circuit Court against driver John McDuffy of Mollala. The 6-foot, 550-pound McDuffy said that in June 2004 Interstate suspended him without pay when he complained about a truck's broken steering wheel.

About the same time, Interstate had just suspended another obese trucker, Jack McCracken.

Mankey's lawsuit says that during preparation for McDuffy's trial, Interstate fought efforts to produce documents about McDuffy and McCracken and never mentioned Mankey's suspension. The lawsuit said that at the six-day trial, Interstate's human resources director, Lani Dalich, said under oath that McDuffy and McCracken were the only employees suspended for "safety issues."

Interstate has not said whether it will appeal the outcome in McDuffy's case, and its lawyer did not return calls Wednesday seeking comment on Mankey's lawsuit. But in a pretrial e-mail to McDuffy's lawyers, the company's Portland lawyer, Alan Lee, said: "In the event of an unfavorable verdict at trial, the case will be aggressively appealed to the extent necessary and possible."

In court papers filed Tuesday seeking $141,120 in attorney's fees from Interstate, McDuffy's lawyers wrote that company officials "intentionally concealed evidence regarding Mankey from the jury at trial. (Interstate's) conduct during discovery and during trial was a blatant attempt to obstruct the judicial process, resulting in the concealment of a material witness."

McDuffy's lawyers learned about Mankey when he called them after reading a Nov. 7 story in The Oregonian about McDuffy's case. Two legal-information services have since told McDuffy's lawyers, Christopher Slater and Michael Ross, that the verdict appears to be among the first in the nation awarded for obesity discrimination.

In a sworn statement with his lawsuit, Mankey said he has driven for Interstate out of Portland across 11 Western states since June 2004. He had no significant accidents and never took a sick day.

On Sept. 3, he was transferred from his usual truck to a smaller truck, where he found the seat belt did not fit. He asked his dispatcher whether adjustments could be made. Later that day, Mankey said Dalich called him and suspended him without pay until a doctor examined him and found him fit for duty.

Mankey's suit said Interstate "engaged in a deliberate scheme to eliminate morbidly obese truck drivers from Interstate's employment." The company never investigated Mankey, McDuffy or McCracken before suspending them, the suit said, and "purposely prolonged the suspension process to encourage the suspended morbidly obese truck drivers to obtain employment elsewhere."

Mankey's sworn statement said he remains on unpaid suspension from Interstate.

The lawsuit asks for $10,500 in back pay, $100,000 in non-economic damages and $1,000,000 in punitive damages.

Anne Saker: 503-294-7656; annesaker@news.oregonian.com