United States District Court, W.D. Pennsylvania
December 23, 2005.
MARK HOHIDER, et. al, Plaintiffs,
UNITED PARCEL SERVICE, INC., Defendant.
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.
Facts in Dispute
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
those enjoyed by persons without disabilities. The
case file is currently under review by the EEOC.
Id. at 21B (emphasis added).
The PHRC sent plaintiff's file to the EEOC in June 2003. Pl.'s
App. at 73. On July 18, 2003, the EEOC sent a determination
letter to plaintiff and defendant. Id. at 15-16. On that same
date, the EEOC sent an identical letter to defendant and DiPaolo.
Id. at 17-18. In the determination letter sent to Hohider and
UPS the EEOC advised: "Creditable Testimony has determined that
[the defendant] has a 100% full medical release practice, which
it has been determined is a per se violation of the ADA." Id.
at 15. The EEOC advised that it would attempt "to eliminate the
alleged unlawful practices by informal methods of conciliation,"
id. at 16, and invited the parties to conciliate. By letter
dated September 4, 2003, from the EEOC to defendant's counsel
regarding both Hohider and DiPaolo, the EEOC proposed, among
other things, with respect to conciliation that defendant:
. . . eliminate their practice of requiring 100%
full medical releases.
implement a policy regarding reasonable
accommodation which clearly demonstrates that
[defendant] will enter into the interactive process
in the future. [defendant] assures that all their policies and
practices do not discriminate against any person
identified as disabled or violates provisions of the
. . . provide copies to all employees regarding the
changes made above.
Id. at 20. With respect to the conciliation, there were
individual proposals made with respect to payments to DiPaolo and
Hohider. Id. at 21.
By letter dated September 24, 2003, defendant's counsel advised
the EEOC that there were "two mistaken beliefs: (i) `that UPS
`has a 100% full medical release practice' and (ii) that UPS's
light duty program excludes `[person's] who [are] qualif[ied]
under the ADA'." Id. at 23. Defendant's counsel advised that
those matters were "wrong." Id. In the letter, defendant
asserted that plaintiff was not a qualified individual with a
disability, that there was no violation of the ADA, and that its
ADA compliance program and various policies "are compliant with
the law and there is no basis for suggesting that UPS maintains a
policy that violates the ADA." Id. at 27.
On December 10, 2003, the EEOC sent plaintiff a notice of right
to sue noting that conciliation was not successful. Pl.'s Compl.,
Ex. A. "The EEOC found reasonable cause to believe that
violations of the statute[s] occurred with respect to some or all
of the matters alleged in the charge but could not obtain a
settlement with the [defendant] that would provide relief for
you." Id. The EEOC stated that it would not bring suit itself,
but was not certifying that "the [defendant] is in compliance
with the law, or that the EEOC will not sue the [defendant] later
or intervene later in your lawsuit if you decide to sue on your
own behalf." Id. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary
judgment may be granted if, drawing all inferences in favor of
the non-moving party, "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." FED.R.CIV.P. 56(c). A motion for summary
judgment will not be defeated by the mere existence of some
disputed facts, but will be defeated when there is a genuine
issue of material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-248 (1986). In determining whether the dispute is
genuine, the court's function is not to weigh the evidence or to
determine the truth of the matter, but only to determine whether
the evidence of record is such that a reasonable jury could
return a verdict for the non-moving party. Id. at 249.
The court may consider any material or evidence that would be
admissible or usable at trial in deciding the merits of a motion
for summary judgment. Horta v. Sullivan, 4 F.3d 2, 8 (1st
Cir. 1993) (citing WRIGHT AND MILLER, FEDERAL PRACTICE § 2721);
Pollack v. City of Newark, 147 F.Supp. 35, 39 (D.N.J. 1956),
aff'd, 248 F.2d 543 (3d Cir. 1956), cert.denied, 355 U.S. 964
(1956) ("in considering a motion for summary judgment, the court
is entitled to consider exhibits and other papers that have been
identified by affidavit or otherwise made admissible in
evidence") (emphasis added). Inferences are to be drawn in the
light most favorable to the non-moving party. Pa. Prot. &
Advocacy, Inc. v. Pa. Dept. of Welfare, 402 F.3d 374, 379 (3d
Cir. 2005) ("We are required to review the record and draw
inferences in a light most favorable to the non-moving party, . . .
yet the non-moving party must provide admissible evidence
containing `specific facts showing that there is a genuine issue
for trial'.") (quoting FED. R. CIV. P. 56(e)). Analysis
In this court's memorandum opinion entered in Branum v. United
Parcel Service, Inc., No. 04-1686 (W.D. PA. Dec. 23, 2005), this
court reviewed the same issue that defendant raises in this case
whether the failure to include ADA class claims or class
allegations in an administrative charge will bar any ADA class
claims from being asserted in a subsequent lawsuit. This court
determined that the applicable standard in the context where an
ADA class claim is raised, like in the context for a Title VII
class claim, is "the scope of a resulting private civil action in
the district court is `defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination. . . .'" Hicks v. ABT Associates,
Inc., 572 F.2d 960, 966 (3d Cir. 1978) (quoting Ostapowicz v.
Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). Also,
of import is that the plaintiff in this case, like in Branum,
was not represented at the time his charge was drafted and in
those circumstances "the scope of the original charge should be
liberally construed." Id. at 965. The analysis set forth in
Branum is incorporated by reference into this opinion.*fn2
Hicks applied the standard set forth in Ostapowicz and
examined two factors: a) whether the claim of discrimination in
issue would have been discovered by the EEOC in the course of a
reasonable investigation and b) whether the claims in issue
"which would have been uncovered were reasonably within the scope
of the charge filed with the EEOC." Hicks, 572 F.2d at 967. In
this case, plaintiff adduced sufficient evidence with respect to
those two factors. Specifically, plaintiff presented evidence
that the class claims in issue were discovered by the EEOC and
plaintiff, in his administrative charge, implicated the alleged
de facto 100% full medical release policy at issue in the class claims. The policy was implicated
when plaintiff in his charge stated he had a medical release to
return to work in a limited capacity and was told he could not
return because "there are no positions that [he] was qualified
for and capable of performing the essential job functions with or
without reasonable accommodations." Def.'s App., Ex. 1.
In this case there were documents and materials provided to the
EEOC during the administrative process relating to plaintiff's
charge of discrimination, which included class issues.
Specifically, information was provided to the EEOC regarding a
policy of 100% medical release for return to work and DiPaolo in
his questionnaire, which was furnished to the EEOC during its
investigation of plaintiff's charge, raised class claims. Perhaps
most significant is that, in this case, like in Ostapowicz,
there were other claims of which UPS and the EEOC had notice,
i.e., the charge of DiPaolo which included the class
allegations. Like the court in Ostapowicz, this court would be
hard pressed to find that defendant was prejudiced by the
expansion from plaintiff's administrative complaint because
defendant had actual notice during the EEOC investigation of the
potential for a class action. Plaintiff's attorney several months
prior to the EEOC determination and the attempted conciliation
warned UPS that "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 those enjoyed by persons without disabilities." Pl.'s App. at
Additionally, one of the purposes for the EEOC to conduct an
investigation is for the EEOC to be able to conciliate the
dispute. Hicks, 572 F.2d at 963; Ostapowicz, 541 F.2d at 398.
Here, the EEOC raised the class issues in the conciliation
process by, among other things, requesting defendant to revise
its policies. Defendant rejected the conciliation, asserting that
the EEOC was wrong and that the actual UPS policies did not violate
the law. Plaintiff's evidence indicates that there was an attempt
to conciliate on the class claims during the EEOC process.
The EEOC investigation and determination with respect to
plaintiff's charge of discrimination reflected the potential for
existence of class claims and defendant's counsel had notice of
the potential for class claims during the investigative process.
Under those circumstances this court finds that summary judgment
would be improper. Genuine issues of material fact remain. Facts
relating to the scope of the investigation and what reasonably
can be expected to grow out of the EEOC investigation of the
administrative charge are in dispute and, at this stage,
inferences from the record must be drawn favorably to plaintiff.
Pa. Prot., 402 F.3d at 379. Defendant's argument that, as a
matter of law, class claims have to be raised in an
administrative charge in order for a civil action to include
class claims was rejected in Branum, where this court held the
applicable standard was set forth in Ostapowicz. The
application of that standard in this case warrants the denial of
defendant's motion for summary judgment.
Here, the court, under the Ostapowicz standard, needs to
consider whether the scope of the EEOC investigation or what can
reasonably be expected to grow out of the EEOC investigation of
plaintiff's administrative charge would encompass class claims.
Certainly there is enough evidence adduced by plaintiff, which
must be favorably viewed by the court, for this court to conclude
that the scope of the EEOC investigation encompassed class claims
and to conclude that the scope of this civil action may properly
include the class claims raised in plaintiff's complaint. The
lack of prejudice to defendant also weighs in favor of
plaintiff's ability to bring the class claims in issue. ORDER
Now, this 23rd day of December, 2005, upon consideration of
the parties' submissions and argument it is ordered that 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. 52) filed by defendant, United Parcel Service, Inc., is
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