574 F.3d 169 (3rd Cir. 2009), 07-4588, Hohider v. United Parcel Service, Inc.

Docket Nº:07-4588.
Citation:574 F.3d 169
Opinion Judge:SCIRICA, Chief Judge.
Party Name:Mark HOHIDER; Robert DiPaolo, On Behalf of Themselves and All Others Similarly Situated v. UNITED PARCEL SERVICE, INC.; Does 1-100 Preston Eugene Branum, On Behalf of Himself and All Others Similarly Situated v. United Parcel Service, Inc.; Does 1-100 United Parcel Service, Inc., Appellant.
Attorney:Mark A. Perry, Esquire, (Argued), Eugene Scalia, Esquire, Gibson Dunn & Crutcher, Washington, D.C., Rachel S. Brass, Esquire, Gibson Dunn & Crutcher, San Francisco, CA, Perry A. Napolitano, Esquire, Reed Smith, Pittsburgh, PA, for Appellant. Judith S. Scolnick, Esquire, (Argued), Scott & Scott, N...
Judge Panel:Before: SCIRICA, Chief Judge, and RENDELL, Circuit Judges, and O'CONNOR, Associate Justice (Ret.).
Case Date:July 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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574 F.3d 169 (3rd Cir. 2009)

Mark HOHIDER; Robert DiPaolo, On Behalf of Themselves and All Others Similarly Situated

v.

UNITED PARCEL SERVICE, INC.; Does 1-100

Preston Eugene Branum, On Behalf of Himself and All Others Similarly Situated

v.

United Parcel Service, Inc.; Does 1-100

United Parcel Service, Inc., Appellant.

No. 07-4588.

United States Court of Appeals, Third Circuit.

July 23, 2009

Argued Nov. 20, 2008.

Page 170

[Copyrighted Material Omitted]

Page 171

Mark A. Perry, Esquire, (Argued), Eugene Scalia, Esquire, Gibson Dunn & Crutcher, Washington, D.C., Rachel S. Brass, Esquire, Gibson Dunn & Crutcher, San Francisco, CA, Perry A. Napolitano, Esquire, Reed Smith, Pittsburgh, PA, for Appellant.

Judith S. Scolnick, Esquire, (Argued), Scott & Scott, New York, NY, David R. Scott, Esquire, Scott & Scott, Colchester, CT, Geoffrey M. Johnson, Esquire, Scott & Scott, Cleveland Heights, OH, Christian C. Bagin, Esquire, Wienand & Bagin, Pittsburgh, PA, for Appellees, Mark Hohider, Robert DiPaolo and Preston Eugene Branum.

Rae T. Vann, Esquire, Norris Tysse Lampley & Lakis, Washington, D.C., for Amicus Curiae-Appellant, The Equal Employment Advisory Council.

Robin E. Shea, Esquire, Constangy Brooks & Smith, Winston-Salem, NC, for Amicus Curiae-Appellant, The Society for Human Resource Management.

John H. Beisner, Esquire, O'Melveny & Myers, Washington, D.C., for Amicus Curiae-Appellant, Chamber of Commerce of the United States of America.

Michael D. Lieder, Esquire, Sprenger & Lang, Washington, D.C., for Amici Curiae-Appellees, The National Employment Lawyers Association and AARP.

Brad Seligman, Esquire, Impact Fund, Berkeley, CA, for Amici Curiae-Appellees, The Public Interest Law Center of Philadelphia, Disability Rights Network of Pennsylvania, Disability Rights Education and Defense Fund, Inc., Disability Rights Legal Center, The Impact Fund, The Legal Aid Society-Employment Law Center, The National Disability Rights Network, New Jersey Protection and Advocacy, Inc.

Before: SCIRICA, Chief Judge, and RENDELL, Circuit Judges, and O'CONNOR, Associate Justice (Ret.).[*]

OPINION

SCIRICA, Chief Judge.

At issue in this interlocutory appeal under Fed.R.Civ.P. 23(f) is whether the District Court properly certified a nationwide class of employees alleging a pattern or practice of unlawful discrimination under Title I of the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § § 12101-12117. Analogizing to pattern-or-practice discrimination suits brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e-2000e-17, the District Court found certain of named plaintiffs' claims and requested relief could be adjudicated on a classwide basis in a manner consistent with Rule 23(a) and (b)(2). We disagree, and will reverse the court's grant of class certification and remand for proceedings consistent with this opinion.

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I.

Named plaintiffs Mark Hohider, Robert DiPaolo, and Preston Eugene Branum (" plaintiffs" ) are employees of package-delivery company United Parcel Service, Inc. (" UPS" ). They brought this civil action against UPS on behalf of themselves and all others similarly situated, alleging UPS has adopted and implemented companywide employment policies that are unlawfully discriminatory under the ADA. On March 10, 2004, plaintiffs Hohider and DiPaolo filed suit under the ADA and the Rehabilitation Act,1 and on June 29, 2004, they moved for class certification. The District Court permitted limited discovery with respect to the class certification motion.2 On November 4, 2004, while that discovery was proceeding, plaintiff Branum filed a similar suit against UPS, alleging discriminatory practices in violation of the ADA and seeking class treatment of his claims. Counsel for Hohider and DiPaolo moved to consolidate the two cases, which UPS opposed. The court initially granted consolidation for the purpose of discovery only, and subsequently consolidated the cases for all purposes.

Plaintiffs' claims of unlawful discrimination focus on UPS's alleged treatment of employees who attempt to return to work at UPS after having to take leave for medical reasons. Hohider, DiPaolo, and Branum each suffered an injury of some sort during the course of their employment with UPS, leaving them unable to return to their respective previous positions at the company without some form of permanent medical restriction.3 Their subsequent attempts to resume work at UPS were unsuccessful. According to plaintiffs, UPS, as a matter of companywide policy, refuses to offer any accommodation to employees seeking to return to work with medical restrictions, effectively precluding them from resuming employment at UPS in any capacity because of their impaired condition. Namely, plaintiffs allege UPS

(1) enforce[es] a " 100% release" or " no restrictions" unwritten policy, which prohibits employees from returning to UPS in any vacant position unless the employee can return to his or her last position without any medical restrictions;

(2) disseminat[es] a written corporate " ADA compliance policy," which is implemented nationwide to delay and avoid providing accommodations, that is illegal, both on its face and as applied;

(3) us[es] uniform job descriptions, which intentionally fail to describe the essential functions of available UPS

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jobs, as a pretext to prevent disabled employees from holding any UPS job;

(4) prohibit[s] employees from returning to work in an alternative job within the employees' restrictions and prevent[s] employees from using union seniority rights to transfer to a position that accommodates their disabilities;

(5) withdraw[s] accommodations previously provided to disabled workers, and then den[ies] requests for the previously provided accommodations; and

(6) treat[s] persons who make requests for accommodations differently and less favorably in the terms, conditions, rights and privileges, of or incident to, their employment as a result of engaging in this protected act under the ADA.

Hohider v. UPS, 243 F.R.D. 147, 153 (W.D.Pa.2007) (citing Pls.' Br. Supp. Mot. Class Certification 3-4). These policies of non-accommodation, plaintiffs contend, constitute patterns and practices of intentional discrimination prohibited under the ADA. Plaintiffs asked the District Court to certify a nationwide class 4 with respect to these claims, and sought various forms of classwide relief, including injunctive and declaratory relief, back pay, and compensatory and punitive damages. Plaintiffs proposed the following class definition for certification:

Those persons throughout the United States who: (i) according to the records of UPS, its agents and contractors have been employed by UPS at any time since May 10, 2000, including those employees absent from work and receiving either workers' compensation or short or long term disability insurance benefits; and (ii) have been absent from work because of a medical impairment; and (iii) are disabled as defined under the Americans with Disabilities Act (ADA); and (iv) have attempted to return to work or continue to work at UPS or have submitted to UPS a medical release that permits the employee to work with restrictions and conditions, or have been disqualified by UPS from returning to work; and (v) were harmed as a result of UPS's policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS's workforce.

Excluded from the Class are all presently working UPS management employees with supervisory authority over the formulation or implementation of the UPS policies and practices alleged in this action to violate the ADA.

Id. at 154 (citing Pls.' Br. Supp. Mot. Class Certification 4-5). The District Court analyzed plaintiffs' motion for class certification under Fed.R.Civ.P. 23(a) and (b)(2).5 The court premised its analysis on a two-stage evidentiary framework that the Supreme Court has promulgated for adjudicating pattern-or-practice claims of discrimination

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under Title VII of the Civil Rights Act of 1964, discussed in greater detail infra. Applying this framework to plaintiffs' ADA claims, the court found three of them satisfied the requirements of Rule 23(a) and (b)(2). Accordingly, the court certified those claims for class treatment, and modified plaintiffs' proposed class definition to incorporate them. The court also removed from the proposed class definition the requirement that class members be " disabled as defined under the [ADA]" and " harmed as a result of UPS's policies, practices and procedures that control reentry into the workplace or otherwise govern the making of reasonable accommodations under Title I of the ADA to employees in UPS's workforce." According to the court, " [t]his exclusion would make determining membership in the class less problematic by removing the criteria which require what are arguably legal conclusions and may entail individualized inquiries," Hohider, 243 F.R.D. at 209, and would place the " focus on the alleged conduct at issue rather than the ease of identifying the class members prior to determinations of liability," which it considered most fitting for the broad injunctive relief sought under Rule 23(b)(2). Id. at 210. The court approved for certification the following modified class definition:

Those persons throughout the United States who:

(i) according to the records of UPS, its agents and contractors, have been employed by UPS at any time since May 10, 2000, including those employees who were absent from work and were receiving either workers' compensation or short or long term disability insurance benefits; and

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