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December 23, 2005.

PRESTON EUGENE BRANUM, On Behalf of Himself and All Others Similarly Situated, Plaintiffs,

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



Pending before the court is the motion filed pursuant to Federal Rule of Civil Procedure 12(b)(6) by defendant United Parcel Service, Inc. ("UPS" or "defendant") (Doc. No. 5) to dismiss with prejudice in their entirety the class action allegations and class claims asserted by Preston Eugene Branum ("Branum" or "plaintiff"). Plaintiff's complaint alleges a violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., against UPS for discrimination in employment on behalf of himself and all others similarly situated. After consideration of the parties' submissions, defendant's motion to dismiss the class action allegations and class claims is DENIED WITHOUT PREJUDICE to defendant's right to raise the issue, subject to a review of a fully developed record, in a motion for summary judgment filed pursuant to Federal Rule of Civil Procedure 56.

  Facts Accepted As True for Purposes of Deciding the Motion

  Plaintiff brings this action of behalf of himself and all others similarly situated. Complaint ("Compl.") ¶ 2. Defendant is one of the world's largest private mail carriers. Compl. at ¶ 19. Defendant employs hundreds of thousands of individuals worldwide, including 70,000 package drivers in the United States. Id. Plaintiff is a resident of the state of Louisiana. Id. at ¶ 7. Plaintiff has been diagnosed with major depression and post-traumatic stress disorder ("PTSD"), including delayed onset, chronic PTSD. Id. at ¶ 9. Plaintiff has been suffering the effects of PTSD since the completion of his service in the Vietnam War. Id. Due to his disability, plaintiff is sensitive to sudden, loud noises and shocking events. Id. Those type of occurrences cause plaintiff to become dizzy, confused, nauseous, and nervous. Id.

  In September of 1981 plaintiff was hired by UPS as a fleet mechanic in Lake Charles, Louisiana. Id. at ¶ 7. Plaintiff performed various duties at UPS including repair and maintenance work on UPS vehicles. Id. Plaintiff was employed in this capacity for twenty-three years, until 2004. Id.

  For several years, plaintiff was mistreated by supervisors and co-workers who were aware of his disability. Id. at ¶ 10. The mistreatment included, among other things, the use of firecrackers and static electricity to frighten plaintiff, jumping out from behind vehicles in which plaintiff was working to startle him, and grabbing plaintiff's shoulder from behind. Id. This kind of behavior caused plaintiff to experience extreme physical and mental duress, including one incident that required plaintiff to make an emergency hospital visit. Id. Plaintiff's supervisors not only refused to stop plaintiff's co-workers from engaging in that kind of conduct, but actively participated in the ridicule. Id. UPS supervisors ridiculed plaintiff when he complained of discriminatory treatment and retaliated against him when he called a company hotline to complain. Id.

  On July 21, 2003, plaintiff, acting pro se, filed a charge of discrimination with the EEOC.*fn1 In the charge plaintiff did not include any class allegations or class claims. His allegations related only to his own situation. Specifically he alleged:
I began employment with Respondent as a Mechanic in 1981. Beginning on or about December 5, 2001, and continuing, I have been harassed by my supervisors and co-workers who would sneak up on me and startle me intentionally; throw fire crackers or use static electricity to startle me; jump out from behind my truck, grab my shoulder, and shout loudly causing me to be rushed to the hospital because my blood pressure went up and my heart was racing; and make fun of my disability. On April 1, 2003, I was suspended without pay after I called the company's hotline to report the harassment. My doctor told me that Respondent had called her and told her that I had threatened to kill everyone in the building, and she took me off the service. Respondent also told employees to approach me with caution, use soft kit [sic] glove etc. My co-workers continue to harass me and would put their hands up when they see me saying "Don't hurt us."
Supervisor, Gerald Castille (about 28 years old) harassed me and stated that his father can work faster than me and that the younger mechanics can do work twice as fast as me. He also told me that there was nothing he could do to stop my co-workers from startling me. Supervisor, Alvin Vonadore, participated in the harassment. Center Manager, Clide Lawrence, failed to take any action to stop the harassment even after I complained.
I believe Respondent violated Title I of the Americans with Disabilities Act of 1990, by allowing the supervisors and co-workers to harass me based on my disability, and by retaliating against me for protesting the harassment. I also believe that Respondent violated the Age Discrimination in Employment Act of 1967 by discriminating against me based on my age (55 years old) in that comments relating to my age were made constantly.
Exhibit A to Def.'s Motion to Dismiss.

  During the pendency of plaintiff's charge with the Equal Employment Opportunity Commission ("EEOC"), in 2004, plaintiff's supervisor snuck up on plaintiff and punched him in the arm. Compl. at ¶ 11. Reacting with surprise to the blow, plaintiff whirled around suddenly and injured his neck. Id. As a result, plaintiff was diagnosed with a ruptured disk in his neck and several bulging disks in his back. Id.

  After the diagnosis, plaintiff was permitted by UPS to return to work for a short time, prior to his vacation. Id. Upon attempting to return to work after vacation, however, UPS, through plaintiff's managers, informed plaintiff that he was being placed on worker's compensation and that he could not return to work under he received a 100% medical release. Id. 11, 18. Defendant treated plaintiff less favorably than other employees because of his disability status. Id. at 11. Defendant's behavior created a hostile work environment for plaintiff. Id. at ¶ 12.

  On August 5, 2004, the EEOC dismissed the charge and issued a Dismissal and Notice of Rights. Compl, Ex. A. On November 4, 2004, plaintiff filed the complaint commencing this lawsuit and included the following class allegations:
UPS does not provide accommodations, including light duty work, to those that are disabled, those who UPS regards as disabled, or those that have a history of disability. Id. at ¶ 13. UPS provides light duty work only to employees that UPS believes are temporarily injured or disabled through UPS' temporary alternative work ("TAW") program. Id. at 13, 19. Employees that are unlikely to make a full recovery within a short period of time are deemed ineligible to perform work through the TAW program. Id. at ¶ 19. UPS denies effective accommodations to those who disabilities are chronic or long-term or those that UPS believes have disabilities that are chronic or long-term. Id. at 13.
By policy, when UPS determines that an employee has a chronic or long-term disability, UPS does not engage the employee in the required interactive process. Id. Rather, UPS requires the disabled employee to have a physician complete a written report and submit the report directly to UPS. Upon receipt, UPS reviews the form and make a determination whether it believes the individual requesting the accommodation is a "qualified individual with a disability" as a matter of law. Id. UPS does not question the content of the form nor do they communicate directly with the individual seeking the accommodation. Id. The only communications from UPS to an employee seeking an accommodation are UPS' request for a letter from the employee's physician and UPS' letter to the employee denying an accommodation. Id. at ¶ 14. UPS fails to seek information directly from the employee regarding his or her relevant education, skills, abilities, and limitations or restrictions and does not inquire into whether the disabled employee's major life activities are substantially limited by their disability. Id.
UPS' written policy, the ADA Compliance Program ("Compliance program"), provides for a multi-step process that UPS managers are directed to apply to employees seeking to return to work following medical leave or an injury. Id. at ¶ 16. Under the Compliance program, upon notification by an employee of a disability and a request for an accommodation, UPS' medical officer gathers information from the employee's doctor on a form provided by UPS. Id. After a review of this form, UPS makes a legal judgment whether the employee making a request is a "qualified individual with a disability" within the ADA. Id. UPS engages in the interactive process only when UPS decides that the employee has a legally qualifying disability. Id. UPS then determines whether the accommodation is "warranted or feasible." Id.
With few exceptions, UPS' job descriptions falsely state that the ability to lift seventy pounds is an essential function of every job. Id. at ¶ 17. It is the policy of UPS to include as essential duties in job descriptions duties which are rarely, if ever, necessary to perform that job. Id. UPS has a policy of refusing to reinstate individuals, regardless of their disability status, in retaliation for exercising their rights under the ADA. Id. at ¶ 18.
  Defendant argues that plaintiff's failure to include class allegations or class claims in his EEOC charge of discrimination is fatal to his attempt to assert class claims in this case.

  Standard of Review

  A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss the court is not opining on whether the plaintiff will be likely to prevail on the merits. Rather, the court accepts as true all factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. V. Higgins, 281 F.3d 383, 388 (3d Cir. 2002); Angelino v. The New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999) (exhaustion and timeliness defenses raised in a motion to dismiss are not considered under Rule 12(b)(1), but rather are considered under Rule 12(b)(6), "where the court is required to accept as true all the allegations of the complaint and all inferences arising from them"). The pleader is required to "set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist." Kost, 1 F.3d at 183. A motion to dismiss will only be granted if it appears that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Id.


  Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant moves to dismiss with prejudice in their entirety the class action allegations and class claims asserted by plaintiff in his complaint (Doc. No. 5). Specifically, defendant argues that because plaintiff did not make any class allegations or assert any class claims in his EEOC charge of discrimination, those claims must be dismissed from this action. Branum argues that a complaint asserting claims under the ADA may allege any claim of discrimination, such as the class allegations and class claims in his complaint, that could reasonably have been expected to grow out of an EEOC investigation.

  In deciding a motion to dismiss, the court must accept all of the factual allegations in the complaint and all reasonable inferences therefrom as true and viewed in light most favorable to the plaintiff. U.S. Express Lines, 281 F.3d at 388; Oshiver v. Levin, 38 F.3d 1380, 1391-92 (3d Cir. 1994); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1367 (3d Cir. 1992). A court may dismiss a complaint only if it is beyond doubt that the plaintiff can prove no set of facts which would entitle him to prevail. Walsh v. United Parcel Service, Inc., No. 94-757, 1994 U.S. Dist. LEXIS 21289, at *3-4 (W.D. Pa. December 5, 1994) (Ambrose, J.) (citing Conley v. Gibson, 335 U.S. 41, 45 (1957)). With that framework in mind, the court will address whether the class action allegations and class claims should be dismissed for failure to allege class allegations or class claims in plaintiff's charge filed with the EEOC.*fn2

  a. Standard for determining scope of ADA civil action

  In Hicks v. ABT Associates, Inc., 572 F.2d 960 (3d Cir. 1978), the United States Court of Appeals for the Third Circuit addressed the applicable standard for determining the scope of a civil action asserting claims arising under Title VII.*fn3 Id. The court recognized: "Once a charge has been filed with the EEOC, this court has held that 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.'" Id. at 966 (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir. 1976)). In Hicks, the court of appeals considered several issues which arose in an action brought under Title VII. The plaintiff was Caucasian and after being terminated from his employment as a supervisor filed pro se a charge of discrimination with the EEOC. In the charge he checked the box for the type of discrimination as being "race or color," but did not mark the box labeled "sex." In his statement in the charge he referred only to discrimination based upon his race. A few months later he filed pro se a second charge and again marked only the box for racial discrimination. The EEOC later issued its determination that no reasonable cause existed and notified the plaintiff of the right to sue. The plaintiff in Hicks filed a pro se complaint against the defendant alleging acts of discrimination based upon race and sex. The defendant filed a motion for summary judgment to which the plaintiff, who was pro se, responded, but set forth no evidence in the record. The district court granted the motion for summary judgment finding, among other things, that the sex discrimination charge was jurisdictionally barred because the plaintiff had not filed a charge of discrimination based upon sex with the EEOC. On appeal the court of appeals noted: "The filing of a charge with the Commission by an aggrieved party and the receipt of a notice of the right to sue are jurisdictional prerequisites to a civil action under Title VII." Id. at 963. The purpose of the jurisdictional prerequisites are so that the EEOC may "give notice to the employer and to make an investigation to determine whether there is reasonable cause to believe that the charge is true." Id. This process enables the EEOC to seek informally to conciliate the dispute between a former employee and the employer.

  In Hicks, the record reflected that the plaintiff had attempted to amend his charge with the EEOC to include sex discrimination. The court determined that, by failing to accept the amendment, the EEOC in effect failed to comply with its statutory obligations and that failure would not bar a civil suit by the charging party. In Hicks the court commented that when applying a regulation permitting amendments of a charge "we keep in mind that charges are most often drafted by one who is not well versed in the act of legal description. Accordingly, the scope of the original charge should be liberally construed." Id. at 965.

  Even if the plaintiff had not attempted to amend the complaint, the court found that summary judgment would still not be appropriate because "the district court did not apply the correct standard in holding that it did not have jurisdiction over the sex discrimination claim." Id. at 965. In Hicks the court noted that there was a timely charge filed involving race discrimination "in rather broad terms." Id. at 967. Thus, the EEOC could have commenced an investigation and in those circumstances "the scope of a resulting private civil action in the district court is `defined by the scope of the EEOC investigation which can ...

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