In re Accusation of Department of Fair Employment and Housing , 040711 CAFEHC, E200809-K-0620-00-pe

Docket Nº:E200809-K-0620-00-pe, C 09-10-015, 11-05
Opinion Judge:Caroline L. Hunt, Administrative Law Judge.
Party Name:In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING v. UNITED PARCEL SERVICE, INC., Respondent. EVA LINDA MASON, Complainant.
Case Date:April 07, 2011
Court:Fair Employment and Housing Commission of California

In the Matter of the Accusation of the DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING



EVA LINDA MASON, Complainant.

Nos. E200809-K-0620-00-pe, C 09-10-015, 11-05

Fair Employment and Housing Commission of California

April 7, 2011


Caroline L. Hunt, Administrative Law Judge.

The Fair Employment and Housing Commission hereby adopts the attached Proposed Decision as the Commission's final decision in this matter.

Any party adversely affected by this decision may seek judicial review of the decision under Government Code section 11523, Code of Civil Procedure section 1094.5, and California Code of Regulations, title 2, section 7437.

Any petition for judicial review and related papers shall be served on the Department of Fair Employment and Housing, the Commission, respondent, and complainant.

Fair Employment and Housing Commission

George Woolverton

Linda NG

Patricia Perez

Kristina Raspe


Administrative Law Judge Caroline L. Hunt heard this matter on behalf of the Fair Employment and Housing Commission on May 12, and 17 through 19, 2010, in Riverside, California. Alexandra Seldin, then Staff Counsel, and Ralph Tsong, Senior Staff Counsel, represented the Department of Fair Employment and Housing (DFEH). George Abele, Esq., and Cindy Morgan, Esq., of Paul Hastings, Janofsky & Walker LLP, represented United Parcel Service, Inc. Complainant Eva Linda Mason and United Parcel Service, Inc.'s Human Resource Manager, Christine Castaldi-Inman, were present throughout the hearing.

On receipt of the transcripts, both parties timely filed closing briefs, the latter received by the Commission on August 4, 2010, and the matter was deemed submitted.

After consideration of the entire record, the administrative law judge makes the following findings of fact, determination of issues, and order.


1. On October 17, 2008, complainant Eva Linda Mason (Mason or complainant) filed a written, verified complaint with the DFEH alleging that her employer United Parcel Service denied her reasonable accommodation and terminated her employment because of her disability (knee injury) in violation of the Fair Employment and Housing Act (FEHA or Act). (Gov. Code, § 12900, et seq. )

2. The DFEH is an administrative agency empowered to issue accusations under Government Code section 12930, subdivision (h). On October 15, 2009, Phyllis W. Cheng, in her official capacity as Director of the DFEH, issued an accusation against respondent United Parcel Service, Inc. (UPS or respondent). The accusation alleged that UPS discriminated against Mason and barred her from employment based on her disability and/or perceived disability (left knee injury); failed to reasonably accommodate her; failed to engage in a timely, good faith, interactive process; and failed to take all reasonable steps necessary to prevent discrimination from occurring. The DFEH asserted that this conduct violated, respectively, Government Code section 12940, subdivisions (a), (m), (n), and (k).

3. At all relevant times, UPS was engaged in the business of international and domestic parcel delivery, employing between 8,000 to 10,000 employees in its Southeast California District, and is an employer within the meaning of Government Code sections 12926, subdivision (d), and 12940, subdivisions (a), (k), (m) and (n).

4. Eva Linda Mason began working for UPS at its San Bernardino facility in October 1997, becoming an Operations Management Specialist in June 1998. In 2000, Mason transferred to an Operations Management Specialist position at UPS's Riverside facility, located at 1391 Spruce Street, Riverside, California. Mason worked a part-time Operations Management Specialist position at the Riverside facility, on a daily five and one-half hour morning shift.

5. In 2007, Eric DeCoud was Business Manager at the Riverside UPS facility, responsible for overall management of the Riverside UPS facility and its employees. Mason's direct supervisor was Frank Lonning, On-Road Supervisor.

Operations Management Specialist Position

6. Mason's key duties as an Operations Management Specialist involved handling customer calls and complaints relating to the shipment of packages by UPS. Over 75 percent of her time was spent either on the telephone or at the computer, responding to messages and emails, contacting customers, communicating with UPS drivers, and tracking packages. Mason was also responsible for dispatching UPS drivers to pick-up packages that customers had requested be shipped. UPS used an automated tracking system to scan and track packages, and used communications devices, called " DIADs" to send delivery information to drivers.

7. In 2007, UPS employed five Operations Management Specialists, including Mason. Their daily shifts' start times were staggered by about an hour each, with the first shift beginning work at 6:30 a.m., the second at 7:30 a.m., etc. All of the Operations Management Specialists, who were salaried, worked with and directed hourly clerical staff, who were generally union employees, subject to a collective bargaining agreement. Under the collective bargaining agreement, hourly clerical staff physically handled and advanced packages, not the salaried staff. However, if a clerk was not available or if there was an emergency situation, an Operations Management Specialist might need to locate a package within the UPS warehouse building or to deliver a message to a driver. On occasion, the Operations Management Specialist might need to go into the package room or up onto the dock in the center of the warehouse. The dock was a raised platform with two steps. Generally, less than 25 percent of the duties of the Operations Management Specialist required physically walking around the warehouse facility, such as to the package room, or to the drivers' bays, and the need for these tasks varied on a daily basis.

8. UPS did not maintain a written job description of the duties of Operations Management Specialists, but had promulgated a document dated December 21, 2005, entitled " Position: Operations Management Specialists (OMS); Essential Job Functions" (OMS Position Statement), which described that incumbents in the position may be required to, in pertinent part:

• Sit continuously for the duration of the workday

• Part-time: up to 5.5 hours per day, 5 days per week

• Full-time: up to 9.5 hours per day, 5 days per week;

• Bend stoop/squat, crouch, stand and walk intermittently throughout the work day;

• Perform office tasks using simple hand grasping, fine hand manipulation, and reaching associated with assigned tasks such as paperwork, typing, and/or use of a computer, filing, calculating and use of telephone;

• Lift, lower, push, pull, leverage and manipulate equipment and/or packages weighing up to 70 pounds ...

Complainant's On the Job-Injury

9. In 1993, during her employment at UPS, Mason sustained an injury to her left knee in a work-related incident, when she hit that knee on the corner of a broken filing cabinet. She subsequently underwent arthroscopic surgery and removal of a cyst in 2003.

10. In early June 2007, Mason experienced a series of " popping" sensations in her left knee, and experienced increasing pain in her knee.

11. On June 14, 2007, Mason notified her immediate supervisor, Frank Lonning, of her knee pain. Lonning referred Mason to the UPS medical clinic, and contacted UPS's workers' compensation carrier, Gallagher Bassett. That day, clinic doctor, Dionisio Lazaro, M.D., issued a work status report stating that Mason could return to work with the following restrictions: unable to kneel, squat or use a ladder; able to stand or walk intermittently. Mason also received a referral for an M.R.I, and consultation with an orthopedic surgeon, Barry Scott Grames, M.D., of Arrowhead Orthopedics.

12. Effective June 15, 2007, UPS classified Mason's employment status as on " " temporary alternative work." The record did not reflect who at UPS decided on this status; no one at UPS discussed it with Mason and she was not aware of it. Human Resources logged Mason's temporary alternative work status into UPS's Human Resources Reporting System (H.R.R.S.), tracking the time elapsed since her injury.

13. On July 18, 2007, Mason saw the orthopedic surgeon Dr. Grames for an initial consultation. The doctor suspected a medial meniscus tear in Mason's left knee, and wanted to review her prior medical records relating to her 2003 injury and her recent M.R.I, results. In all workers' compensation cases, it was Arrowhead Orthopedics' customary practice to prepare work status reports describing the patients' limitations and what they can do at work, and send copies to the workers' compensation carrier or employer. In Mason's case, UPS's workers' compensation carrier was Gallagher Bassett. Mason's work status at her first consultation at Arrowhead Orthopedics, based on Dr. Grames' evaluation, was to " [cjontinue her usual and customary duties."

14. From the date of her June 14, 2007 report of her knee injury, Mason continued working her customary duties as an Operations Management Specialist. Her knee was painful, but she felt that she could perform all of her job duties.

15. On July 24, 2007, Mason again saw Dr. Grames, who administered an injection into Mason's knee. A work status report issued that day stated that Mason was " temporarily totally disabled; " however, the report was issued in error, and corrected within a week, to state that Mason " may continue her usual and customary duty."

16. Brenda Hellerud was UPS's District Occupational Health...

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