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HOHIDER v. UNITED PARCEL SERVICE

December 23, 2005.

MARK HOHIDER, et. al, Plaintiffs,
v.
UNITED PARCEL SERVICE, INC., Defendant.



The opinion of the court was delivered by: JOY CONTI, District Judge

MEMORANDUM ORDER

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.

Undisputed Facts

  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 charge. Id.

  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 PHRA stated:
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 discs.
(1) I was hired by the respondent in October 1986 as a Driver.
(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 capacity.
(5) By letter dated December 6, 2000 I requested a return to work within the limits set by respondent's doctor.
(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 reasonable accommodations.
(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 93.

  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 ...

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