Collado v. United Parcel Service, Co.

• Decision Date: 02 August 2005
• Docket Number: No. 04-11297.,04-11297.
• Citation: 419 F.3d 1143
• Parties: William COLLADO, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, CO., a foreign corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1143

419 F.3d 1143

William COLLADO, Plaintiff-Appellant, v. UNITED PARCEL SERVICE, CO., a foreign corporation, Defendant-Appellee.

No. 04-11297.

United States Court of Appeals, Eleventh Circuit.

August 2, 2005.

Maria Kate Boehringer, Boca Raton, FL, for Collado.

Lucinda A. Hofmann, Kelly-Ann Gibbs Cartwright, Edward Diaz, Holland & Knight, LLP, Miami, FL, for United Parcel Serv., Co.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES and COX, Circuit Judges, and STROM^*, District Judge.

CARNES, Circuit Judge:

Willie Collado appeals the district court's order setting aside the jury verdict in his favor and granting judgment as a matter of law for his employer, United Parcel Service, on his discrimination and retaliation claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. Most of Collado's arguments revolve around the McDonnell Douglas Corp. v Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), framework for proving a discrimination case based on circumstantial evidence.

One issue Collado has brought us is particularly interesting because it arises at the intersection — some might say collision — of two rules of law. It is a well-established rule in job discrimination cases involving circumstantial evidence that the existence of a prima facie case should not be revisited after the defendant's Fed. R.Civ.P. 50(a) motion has been denied. It is an equally well-established and even more fundamental rule that judgment should be entered for the defendant where the plaintiff has failed to prove a necessary element of his case. What happens when the district court decides at the end of the trial, even after judgment, that the plaintiff has not proven his claim because he has failed to establish a necessary element, which also is a component of the prima facie case?

That occurred in this case. The district court entered under Fed.R.Civ.P. 50(b) a post-verdict judgment for the defendant on the ground that Collado had failed to prove he was disabled, and the court explained its decision in terms of the plaintiff's failure to make out a prima facie case. Collado complains that the court's Rule 50(b) post-verdict action amounts to revisiting the prima facie case question after it was settled at the Rule 50(a) stage.

There are other issues, as well, but before getting to any of the issues we will set out the historical and procedural facts that frame them all.

I.

Collado, who has been an insulin-dependent diabetic since he was fourteen years old, was hired by UPS in 1991 as a part-time truck reloader in one of its south Florida facilities. He proved to be a well-liked and hard-working employee, and he was promoted to other positions at UPS, including driving trucks.

In order to drive most of UPS's trucks Collado had to be certified by the federal Department of Transportation. The DOT regulates all vehicles used in interstate commerce that weigh more than 10,000 pounds and imposes minimum qualifications for the people who drive those vehicles. 49 C.F.R. §§ 390.3(a), 390.5, 391.1(a). Ninety-five to ninety-eight percent of UPS's truck fleet in south Florida is DOT regulated. UPS gives its trucks number designations depending on the size of the vehicle, ranging from the P-20 (the smallest) to the P-1200 (the largest). All trucks larger than the P-500s weigh more than 10,000 pounds and are DOT regulated. Any P-500 truck manufactured after 1984 is also DOT regulated because it weighs more than 10,000 pounds.

Because UPS does not assign any of its lighter unregulated trucks to regular full-time routes, it requires all of its full-time truck drivers to be DOT certified. To become DOT certified, a driver must undergo a physical exam and obtain a medical examiner's certificate verifying that he is physically qualified, as defined by the DOT's regulations. Id. § 391.41(a).

In 1993 Collado went to a physician chosen by UPS to get his DOT certification. He told the doctor about his diabetes and medications. Although the DOT regulations specifically state that insulin-dependent diabetics are not physically qualified to drive regulated vehicles, id. § 391.41(b)(3), the doctor nevertheless certified Collado as physically qualified and gave him a DOT card.

Based on that mistaken certification, UPS promoted Collado to full-time driver in October 1994. He held that position for four years, driving several different routes during that time. Depending on the route he was assigned, Collado drove trucks that varied in size, ranging from P-500s, some of which are regulated, through P-1000s, all of which are regulated. As a full-time driver, Collado was eligible for, and regularly earned, "productivity bonuses" for completing his deliveries on schedule.

In 1998 UPS district safety manager Herman Radish discovered that Collado was an insulin-dependent diabetic and, therefore, not physically qualified to hold a DOT certificate. After learning that, Radish ordered Collado's manager, Ralph Terrell, to remove Collado from his full-time driving position.

Following his removal from the full-time driving job in May of 1998, Collado was moved through a series of positions at UPS. One of them was a split-shift position in which Collado worked a partial morning shift inside the UPS facility and then returned to work another partial shift doing the same thing in the evening. Later Collado had a non-split, hybrid job where he pre-loaded trucks each morning and drove a P-500 truck in the afternoon.¹ He stayed in that hybrid position until February or March 1999, when Collado's new supervisor, Bob Story, returned him to a full-time driving position and permitted Collado to drive a DOT-regulated P-1000 truck all day. (It is not clear from the record why Collado was permitted to return to driving a P-1000 truck in spite of DOT regulations.)

When safety manager Radish learned that Collado was once more driving regulated trucks in violation of DOT regulations, Radish had Ralph Terrell, the center manager, remove Collado from that position. Terrell told Collado that he had been removed because UPS thought he "couldn't drive" due to his diabetes. Collado was briefly returned to his old split-shift position. Then, at Collado's request, UPS returned him to the non-split, hybrid position, where he spent his time pre-loading in the morning and driving a non-regulated P-500 truck in the afternoon.

On June 9, 1999, after he had twice been removed from his position as a full-time driver, Collado filed an EEOC charge. He claimed that he was removed from his position as a full-time driver even though he was "qualified for the position of Driver," and he complained about the split-shift and other positions UPS had given him. Collado also alleged in his EEOC charge that UPS had failed to put him back in his full-time driver position because he had "complained about [UPS's] discriminatory act of removing [him] and insisted on reinstatement."

That same month, in investigating Collado's complaint, Radish learned that UPS required all diabetic employees to complete a "Diabetes Protocol" before they could drive any trucks. The protocol is a medical questionnaire used by UPS to confirm that a diabetic employee is under a physician's care and successfully controlling his diabetes. Under its policy, UPS should have required Collado to complete the protocol before he was ever permitted to drive an unregulated P-500, but it had not done so because Radish had not been aware of the protocol. Once Radish learned of the protocol, he insisted that Collado complete it before he could continue to drive the nonregulated P-500 trucks.

Thus, in June 1999, Collado was removed from his hybrid position, which involved driving unregulated P-500 trucks in the afternoon, and he was given the protocol paperwork to have his doctor fill out. While the completion and approval of Collado's protocol was pending, UPS moved him to an inside split-shift position where he would work a total of eight hours divided in two parts stretching over eighteen or nineteen hours. Collado opted to work only the morning part of that split-shift due to the difficulty of working both parts of it.

Collado's doctor signed his completed protocol on June 25, 1999. After Collado returned from a two-week paid vacation, he was informed by Terrell that because his protocol had been completed by his doctor and approved by UPS he could return to the hybrid pre-load/P-500 driving job. Terrell also asked Collado if he was going to drop the EEOC charge. Collado responded that he would not.

Collado returned to the hybrid position, driving what he terms a "junk" route in the afternoons. Collado found the route undesirable because it required him to deliver the packages that had been left behind by the other drivers — usually the heaviest packages. The route also required him to make deliveries within a large geographic area and to return to the facility to reload his truck during the day, which made it difficult to complete the deliveries on time. During July, Terrell asked him two or three more times whether he was going to drop the EEOC charge and said he couldn't believe Collado would not drop the charges.

On July 28, 1999, Collado amended his EEOC discrimination charge to include allegations of further retaliation that had occurred since he filed his first EEOC charge. He alleged that UPS had retaliated against him for filing the initial charge by putting him in its smallest truck, denying him a regular route, pressuring him to withdraw his charge, and subjecting him to adverse working conditions for proceeding with that charge. After this amendment, Collado continued to drive the hybrid route, although Terrell allowed him to drive a full eight-hour day whenever a route and a suitable, non-regulated truck became available.

Subsequently, Collado injured his back and went on worker's compensation leave for about one year. When...