502 F.3d 1176 (10th Cir. 2007), 06-3088, Jones v. U.P.S., Inc.

Docket Nº:06-3088, 06-3095.
Citation:502 F.3d 1176
Party Name:Keith JONES, Plaintiff-Appellant/Cross-Appellee, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee/Cross-Appellant. Equal Employment Opportunity Commission, Amicus Curiae.
Case Date:September 13, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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502 F.3d 1176 (10th Cir. 2007)

Keith JONES, Plaintiff-Appellant/Cross-Appellee,

v.

UNITED PARCEL SERVICE, INC., Defendant-Appellee/Cross-Appellant.

Equal Employment Opportunity Commission, Amicus Curiae.

Nos. 06-3088, 06-3095.

United States Court of Appeals, Tenth Circuit.

Sept. 13, 2007

APPEAL FROM THE UNITED STATES DISTRICT COURT, FOR THE DISTRICT OF. KANSAS, (D. Ct. No. 05-CV-2034-KHV).

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George A. Barton, Law Offices of George A. Barton, P.C., Kansas City, MO (Fredrick D. Deay, II, Law Offices of Fredrick D. Deay, II, Overland Park, KS, with him on the briefs), appearing for Plaintiff-Appellant.

Thomas B. Weaver, Armstrong Teasdale LLP, St. Louis, MO (Daniel K. O'Toole, Armstrong Teasdale LLP, St. Louis, Missouri; Laurence R. Tucker and Melody L. Nashan, Armstrong Teasdale LLP, Kansas City, MO, on the briefs), appearing for Defendant-Appellee.

Dori K. Bernstein, Attorney (James L. Lee, Deputy General Counsel, Lorraine C. Davis, Acting Associate General Counsel, and Carolyn L. Wheeler, Assistant General Counsel, with her on the brief), United States Equal Employment Opportunity Commission, Washington, DC, appearing for Amicus Curiae.

Before TACHA, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant Keith Jones appeals the District Court's grant of summary judgment in favor of Defendant-Appellee United Parcel Service, Inc. ("UPS") on his claims of disability discrimination and retaliation under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq. UPS cross-appeals the District Court's assertion of subject matter jurisdiction over the case, arguing that Mr. Jones failed to exhaust his administrative remedies prior to filing suit. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

Until December 2003, Mr. Jones worked at UPS as a package car driver. A package car driver delivers packages to UPS customers along a prescribed route, and one of the essential functions of the job is that the driver be able to lift packages weighing up to 70 pounds overhead. On October 6, 2003, Mr. Jones injured his shoulder at work. He filed a workers' compensation claim related to the injury that same day. Dr. Gary Legler, UPS's company doctor, examined Mr. Jones and released him to work modified duty on the condition that he limit his lifting to 20 pounds and that he not lift anything above shoulder level. Dr. Legler also referred Mr. Jones to an orthopedic specialist, Dr. Daniel Stechshulte, for further evaluation.1

Dr. Stechshulte examined Mr. Jones four times in October and November. During one of the meetings, Dr. Stechshulte recommended that Mr. Jones take a functional capacity exam ("FCE"),

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which is designed to test the actual ability of an employee to perform a desired job. A physical therapist interpreted the results of the test and concluded that Mr. Jones could not lift 70 pounds from his waist to his shoulder or overhead. Mr. Jones took another FCE on December 4, the results of which were similar to the first FCE. Based on the results of this test, Dr. Stechshulte released Mr. Jones to work with permanent lifting restrictions: his overhead lifting was limited to 20 pounds, and his chest-to-shoulder lifting was limited to 45 pounds. Because of the lifting restrictions, Don Lewick, a labor manager for UPS, told Mr. Jones that he could no longer work as a package car driver. According to Mr. Jones, Mr. Lewick also told him that he could not work in any job at UPS with permanent restrictions, and in response, Mr. Jones said that he "need[ed] to work a job." UPS did not, however, allow him to return to his job as a package car driver or reassign him to another position.

Mr. Jones subsequently contacted his union representative, who suggested that Mr. Jones be examined by another doctor. On February 3, 2004, Dr. Michael Poppa examined Mr. Jones and concluded that, as of that date, Mr. Jones was able to return to work as a package car driver without restrictions. Pursuant to the collective bargaining agreement ("CBA") between UPS and the union, once Mr. Jones was cleared to work by his own doctor, he had to be examined by UPS's company physician, Dr. Legler. Consequently, on February 9, 2004, Dr. Legler examined Mr. Jones. During the examination, Mr. Jones provided Dr. Legler with a copy of his February 3 work release from Dr. Poppa, but did not disclose the results of the FCEs or the fact that Dr. Stechshulte had imposed permanent lifting restrictions in December 2003. Dr. Legler had Mr. Jones perform a lift test, which required Mr. Jones to demonstrate that he could lift 70 pounds. Following the examination, Dr. Legler released Mr. Jones to work without restrictions, sending the work release to Monica Sloan, a district occupational health manager for UPS.

According to Dr. Legler's testimony, later that same day, Ms. Sloan contacted Dr. Legler to inquire about the work release. She asked whether Dr. Legler was aware, when he released Mr. Jones to work, that Dr. Stechshulte had imposed a permanent 20-pound overhead lifting restriction. When Dr. Legler responded that he did not know about Dr. Stechshulte's recommendation, Ms. Sloan asked, "How do you feel about changing the restriction?" Dr. Legler indicated that he would change the restriction, which he did, to reflect the permanent 20-pound overhead lifting restriction in accordance with Dr. Stechshulte's recommendation. UPS subsequently continued to refuse to return Mr. Jones to work.

The following day, February 10, 2004, Mr. Jones filed a grievance with the union regarding UPS's refusal to return him to work. The panel that heard the grievance directed UPS and Mr. Jones to follow the CBA's third-doctor procedure. Under the CBA, if UPS's doctor and an employee's doctor disagree, UPS and the union select a third doctor, "whose decision shall be final and binding on the Employer, the Union, and the employee." Following this procedure, the doctor selected, Dr. Frederick Buck, examined Mr. Jones on May 21, 2004. Based on his examination, Dr. Buck thought another FCE would help him better evaluate Mr. Jones's abilities and limitations. Dr. Buck called Ms. Sloan seeking permission to perform another FCE. Ms. Sloan implied that UPS would not pay for an FCE because Mr. Jones already had one the previous December. She also indicated that Dr. Buck's evaluation of Mr. Jones was supposed to be

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based on prior medical records, rather than a current physical examination of Mr. Jones. Dr. Buck thought this was unusual because generally his opinions are rendered based on both past medical records and a current examination of the patient. According to Dr. Buck, Ms. Sloan told him that the union and UPS had mutually agreed that he was to base his opinion only on Mr. Jones's medical records. Using only Mr. Jones's medical records, Dr. Buck subsequently opined that Mr. Jones could not perform the essential functions of the package-car-driver position.

On June 1, 2004, Mr. Jones filed a second grievance with the union concerning Dr. Buck's evaluation. After a hearing on the matter, Mr. Jones was instructed to see Dr. Buck again in August 2004. Although Mr. Jones went to see Dr. Buck for an examination, Dr. Buck understood that he was to base his opinion on the medical records as they existed prior to May 2004. In addition, Dr. Buck testified that, even if he had ordered another FCE, the results would not be sufficient to alter Dr. Stechschulte's prior lifting restrictions because, given Dr. Stechschulte's expertise and credentials, his evaluation would supercede Dr. Buck's opinion. Dr. Buck ultimately opined that the essential functions of the package-car-driver position "are beyond the scope of this patient's permanent restrictions." He noted, however, that Mr. Jones "appeared to be strong" and that his opinion was not based on an examination of Mr. Jones's physical condition in either May or August 2004. The union then advised Mr. Jones that the opinion of the third doctor (Dr. Buck) was controlling and would determine his employment status.

In addition to the two grievances he filed with the union, on February 27, 2004, Mr. Jones completed an "Intake Questionnaire" with the Equal Employment Opportunity Commission ("EEOC") alleging that UPS discriminated against him. In filling out the questionnaire, Mr. Jones checked the "no" box in response to the question: "Do you believe that the employer regarded you as disabled?" He also checked "no" when asked whether he advised his employer that he required an accommodation. In addition, Mr. Jones indicated that he felt UPS discriminated against him when UPS contacted Dr. Legler and Dr. Legler subsequently changed his opinion regarding Mr. Jones's lifting restrictions.

The EEOC responded by letter, indicating that it had not filed a charge of discrimination because the information he provided did not demonstrate that his condition amounts to a disability within the meaning of the ADA. The agency also sought additional information from Mr. Jones. Mr. Jones only partially responded to the EEOC's inquiry, providing additional information in response to one of three questions. The EEOC again advised Mr. Jones by letter that his questionnaire and supplemental materials were not being treated as a charge of discrimination. But on October 27, 2004, the EEOC sent Mr. Jones a dismissal of his charge and notice of his right to sue. The EEOC also sent UPS a copy of the dismissal and notice. This correspondence was the first notice UPS received from the EEOC regarding Mr. Jones's allegations of...

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