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
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."
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.
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 ...