The opinion of the court was delivered by: JOY CONTI, District Judge
In this memorandum order, the court considers UPS's Motion for
Summary Judgment As to the Class Claims Alleged by Plaintiff Mark
Hohider on the Ground That Plaintiff Mark Hohider Failed to
Assert Such Claims in His Administrative Complaint (Doc. No. 52)
filed by defendant United Parcel Service, Inc. ("defendant" or
"UPS") with respect to all class claims asserted against UPS by
plaintiff Mark Hohider ("plaintiff" or "Hohider"). Defendant
argues that the class claims cannot be maintained because
plaintiff's administrative complaint did not include any class
allegations or class claims. Plaintiff asserts that the scope of
the investigation by the Equal Employment Opportunity Commission
(the "EEOC") or what can reasonably be expected to grow out of an
investigation of the charge of discrimination needs to be
considered in determining whether plaintiff can allege class
claims. Plaintiff argues that when facts relating to the scope of
the EEOC investigation are considered, genuine issues of material
fact exist which preclude the relief sought by defendant. The
EEOC moved to file an amicus curiae brief in support of plaintiff's position. The EEOC's motion was granted.
On May 20, 2005, counsel for defendant, plaintiff and the EEOC
participated before the court in oral argument concerning the
motion.*fn1 After considering defendant's statement of
material facts, plaintiff's response to that statement, the
motion filed by defendant, the briefs submitted by the parties
and the EEOC, as well as defendant's reply brief to the extent it
related to the issues raised in the motion, and the arguments of
the parties, the court will deny defendant's motion for summary
judgment because genuine issues of material fact exist regarding
the scope of the EEOC investigation.
Plaintiff has been employed by defendant in its Laurel Mountain
District. Defendant's Concise Statement of Material Facts
("Def.'s St.") ¶ 1; Plaintiff's Response in Opposition ("Pl.'s
St.) ¶ 1. He is currently classified as being on inactive status.
Id. On March 22, 2001, plaintiff filed an administrative
complaint against defendant with the Pennsylvania Human Resources
Commission ("PHRC"). Defendant's Appendix ("Def.'s App."), Ex. 1.
The administrative complaint was docketed as Mark P. Hohider v.
United Parcel Service at PHRC Docket No. E98867H. Id. ¶ 2. The administrative complaint was forwarded to defendant on
April 13, 2001. Id. Defendant was advised that plaintiff's
administrative complaint was also filed with the EEOC and
docketed at EEOC Charge Number 17FGA12049. Id. ¶¶ 2-3. Pursuant
to a work sharing agreement between the PHRA and the EEOC,
charges filed with one agency are deemed to be filed with the
other on the same date and will initiate proceedings at both
agencies. Plaintiff's Appendix ("Pl.'s App.") at 128.
The PHRC, in a letter dated September 6, 2002, informed
defendant that "the Pennsylvania Human Relations Commission has
investigated the above referenced complaint of unlawful
discrimination and has determined that the complaint should be
dismissed because the facts of the case do not establish that
probable cause exists to credit the allegations of unlawful
discrimination." Def.'s App., Ex. 3.
On July 18, 2003, the EEOC issued a determination in the matter
docketed at EEOC Charge No. 17FA102049. Def.'s St. ¶ 5; Pl.'s St.
¶ 5. The determination asserted reasonable cause to credit the
On March 10, 2004, plaintiff and Robert DiPaolo ("DiPaolo")
filed the complaint at issue here for themselves and all others
similarly situated, asserting class allegations against defendant
for violations of the Americans with Disabilities Act (the
"ADA"), 42 U.S.C. § 12101 et seq. Plaintiff and DiPaolo
described the nature of the class action as follows:
Plaintiffs bring this class action on behalf of
themselves and all others similarly situated against
United Parcel Service, Inc. ("UPS" or the "Company")
for discrimination in employment, by: (a) maintaining
a de facto policy, pattern and practice of requiring
employees to provide a "full" or "100%" medical
release, without restrictions, before permitting them
to return to duty following a medical leave of
absence; (b) failing and/or refusing to engage in the
required interactive process, and/or refusing to
engage in the interactive process in good faith, to
identify reasonable accommodations for those employees who
attempt to return to work following an absence due to
medical treatment or a medical condition, as required
under the Americans With Disabilities Act of 1990, as
amended, 42 U.S.C. § 12101 et seq. (ADA); (c)
failing and refusing to reinstate permanently
disabled employees in a position that will
effectively accommodate their medical restrictions
without imposing an undue hardship on UPS; and (d)
failing and refusing to permit employees who have
filed workers compensation and/or disability
discrimination claims from returning to work, in
retaliation for having exercised their rights to seek
workers compensation, and/or the protection of the
federal civil rights statutes.
Pl.'s Compl. ¶ 2 at 1-2.
The text of plaintiff's administrative complaint filed with the
PHRA as well as the charge of discrimination filed with the EEOC
contains no class claims; rather, the filings allege only an
individual claim of discrimination. The complaint filed with the
a. On or about February 6, 2001 the respondent
refused to reinstate me to the active workforce
because of my non-job related disability, herniated
(1) I was hired by the respondent in October 1986 as
(2) The respondent is aware of my disability.
(3) As a result of an August 4, 1999 injury on the
job I was on disability leave.
(4) On October 19, 2000 the respondent's doctor
indicated that I could return to work in a limited
(5) By letter dated December 6, 2000 I requested a
return to work within the limits set by respondent's
(6) In refusing to return me to the active workforce
the respondent stated that there were no positions
that I was qualified for and capable of performing
the essential job functions with or without
(7) However, I have informed the respondent of
positions that I could perform the essential
functions of with a reasonable accommodation.
Def.'s App., Ex. 1.
DiPaolo's charge of discrimination filed with the EEOC stated: 1. I have worked for the Respondent since 1972. I
have been attempting to return to work with
restrictions since my doctor released me in May 1998.
The most recent denials were to bids in which I was
the senior bidder of the position Shifter &
Loader/Unloader a.m.p.m., which I was qualified to
fill and met my medical restrictions. The Respondent
has refused to enter into the interactive process of
providing me with a reasonable accommodation.
2. Respondent has refused to allow me to return to
work without a full medical release from my doctor.
They have ignored their requirement to enter into the
interactive process of providing me with a reasonable
accommodation and they have ignored by [sic]
seniority which by contract, the two most recent
vacancies should have been mine.
3. I believe the Respondent has discriminated against
me because of my disability in violation of the
Americans with Disabilities Act, (the ADA), in that
they have refused to provide me with or even enter
into the interactive process with me of providing me
with a reasonable accommodation which would allow me
reinstatement with my medical restrictions.
Def.'s App., Ex.6.
Perhaps what is most significant with respect to the motion for
summary judgment is that facts relating to the investigation by
the EEOC are disputed. In paragraph 6 of defendant's concise
statement of material facts, defendant asserted that plaintiff
based the class claims upon his administrative complaint dual
filed with the PHRC and the EEOC. Def.'s St. ¶ 6. UPS also
asserted that it did not have any notice from the EEOC concerning
an investigation of class claims. Id. Specifically defendant
asserted that between April 13, 2001, the date the charge of
discrimination was filed, and the July 18, 2003 determination,
"the EEOC did not provide any documents or information to UPS
concerning Plaintiff Hohider or his administrative complaint, did
not request any documents or information from UPS concerning
Plaintiff Hohider or his administrative complaint, and did not
otherwise communicate with UPS concerning Plaintiff Hohider or his administrative complaint." Id. Those facts, as
stated by defendant, are disputed by plaintiff and the EEOC.
Plaintiff asserts that the complaint, among other things,
encompasses class claims which were reported to the PHRC and the
EEOC and that those reports constituted amendments to his
original complaint. Pl.'s St. ¶ 6. The EEOC in its response to
defendant's statement of facts likewise disputed that assertion
and referred to evidence adduced by plaintiff in his response to
defendant's motion. First, plaintiff requested a substantial
weight review by the EEOC of the PHRC's no cause finding. Pl.'s
App. at 56. Plaintiff submitted an affidavit dated October 16,
2002, to the EEOC supplementing the allegations and stating that
defendant's actions in refusing to permit him to return to work
were "consistent with the company's policy of non-accommodation."
Id. at 58. Plaintiff's counsel, in a letter dated October 24,
2002, advised the EEOC that ". . . UPS continues to enforce the
same de facto policy of requiring a `full release' before it will
return an injured employee to work . . ." Id. at 59.
Plaintiff was not represented at the time of filing his charge.
Def.'s App., Ex.1. Plaintiff's counsel, who was retained after
the filing of the charge, in the October 24, 2002 letter sent to
the EEOC, stated that defendant's policy violated the ADA. Pl.'s
App. at 60. Plaintiff's counsel also described the filing by
DiPaolo with respect to the de facto full release policy and
advised that he would be able to provide the EEOC names of other
potential plaintiffs. Id. at 61. Plaintiff's counsel, among
other things, requested the EEOC to "investigate, issue a cause
finding, consolidate the cases, and file suit on behalf of Mr.
Hohider and the class of workers subject to this illegal
corporate policy." Id. Plaintiff's counsel subsequently
provided the EEOC the materials that DiPaolo had filed with the
EEOC, including a questionnaire dated July 2001 completed by
DiPaolo in which he alleged that "United Parcel Service has a
policy of nonaccomadition [sic] to people with disabilities which continues in effect to
this day." Id. at 75. Additionally in an affidavit submitted by
DiPaolo to the EEOC, which was included in plaintiffs'
submissions to the EEOC, DiPaolo referred to a discrimination
policy affecting "disabled employees as a group. . . ." Id. at
Plaintiff's counsel on February 28, 2003 wrote to UPS's counsel
complaining about UPS's policy of non-accommodation and refusal
to engage in the interactive process and stated:
Perhaps in time your client will abandon its unlawful
policies, although currently, it seems inevitable
that another class action lawsuit will be required to
convince UPS to treat Mr. Hohider, and others, with
the same respect and the opportunities to work as