UPS employee gets second chance to prove one disability bias claim, not the other

By Joy Waltemath

By Kathleen Kapusta, J.D.

Reversing in part the grant of summary judgment against the ADA and state-law disability discrimination claims of a UPS employee whose medical restrictions prevented him from working more than eight hours a day, a divided Eighth Circuit found fact issues as to whether he was qualified to perform the essential functions of a feeder driver and whether he suffered an adverse action when the company effectively forced him to reduce his hours. Summary judgment was affirmed, however, on a second disability bias claim. Judges Kelly and Montgomery both wrote separate partial concurring and dissenting opinions (Faidley v. United Parcel Service of America, Inc., April 4, 2017, Murphy, D.).

After the package delivery driver hurt his back twice and had hip surgery, his doctor restricted his work day to eight hours. Because the delivery driver position required employees to work nine and a half hours a day, he went on unpaid leave and sought a disability accommodation. Although UPS considered a feeder driver position, which involved driving trailers between UPS locations, it did not offer him this job because it was unavailable at the time. It did, however, offer him a part-time job that would have reduced his seniority and which he declined to accept.

First lawsuit. The employee sued UPS in 2012 under the ADA and the Iowa Civil Rights Act. Several months later, his doctor-provided restrictions allowed him to work with no limit on his hours at any job other than delivery driver. He then found a job as a combined pre-loader and loader but it proved too physically demanding and resulted in medical restrictions of four hours per day for five weeks as a pre-loader rather than a loader. UPS refused to reduce his schedule, however, because he had previously used all his available time in its temporary alternative work program.

Second lawsuit. The employee later received another set of work restrictions and UPS reinitiated the accommodation process, but no full-time positions fitting his restrictions were available. It again offered him a part-time job and he again declined. He subsequently retired and sued in 2013 under the ICRA for disability discrimination and retaliation. The district court consolidated the actions and granted summary judgment to UPS.

2012 claim. As to the employee’s 2012 disability discrimination claim, the Eighth Circuit found that the district court correctly concluded as a matter of law that the employee was not qualified to perform the essential functions of the delivery driver positon as it required the ability to work more than eight hours per day. The lower court erred, however, in finding as a matter of law that he was unable to perform the essential functions of the feeder driver position.

While UPS asserted that this job also sometimes required working more than eight hours a day, the HR manager wrote on a 2012 accommodation worksheet that the employee “preliminarily appear[ed] capable of performing” the job’s essential functions. Although he also wrote that the employee could work no more than eight hours a day, this was sufficient to create a fact issue that he was qualified to perform the essential functions of the feeder driver position.

EEOC guidelines. As to UPS’s argument that the position was not available when the employee went through the accommodation process, the court noted that in accord with guidance from the EEOC, other circuits have considered as available “positions that the employer reasonably anticipates will become vacant in the fairly immediate future,” and here there was evidence UPS expected feeder driver positions to become open in the near future. Thus, the employee established a fact issue as to whether he was a qualified individual under the ADA.

Adverse action. The employee also established a fact issue as to whether he suffered an adverse action as he provided evidence that UPS rejected his bids for full-time positions and instead offered him only a part-time job that would have eliminated his seniority and reduced his benefits and pension. As a result, the lower court erred in granting summary judgment on this claim.

2013 claim. The appeals court agreed, however, that the 2013 claim failed as a matter of law, as there was no evidence the employee was qualified to perform the essential functions of any available job. Although he claimed he could work a combination loader and pre-loader job, his restrictions prevented him from performing the role of loader and even on a reduced schedule he would have been unable to perform half of the combination job.

Nor was there any evidence in support of his claim that UPS failed to engage in the interactive process as the record showed the company made a good-faith effort to assist him in seeking an accommodation.

Partial concurring and dissenting opinions. Judge Kelly, like the district court, would have treated this case as a single disability discrimination claim, rather than two discrete claims, and because the employee produced evidence he was qualified for the feeder driver position, would have reversed and remanded the entire matter to the lower court.

While Judge Montgomery agreed that the employee’s 2013 discrimination claim failed as a matter of law, she would have found that in regard to his 2012 claim, he failed to raise a fact issue as to whether he was qualified for the feeder driver position. It was undisputed, she asserted, that the job required the ability to work nine and a half hours a day, and he was medically restricted from doing so. In her opinion, the HR manager’s notation that the employee preliminarily appeared capable of performing the job’s essential functions did not create a fact question on this issue.

Source:: UPS employee gets second chance to prove one disability bias claim, not the other