Bates v. United Parcel Service, Inc.

• Decision Date: 10 October 2006
• Docket Number: No. 04-17295.,04-17295.
• Citation: 465 F.3d 1069
• Parties: Eric BATES; Bert Enos; Babaranti Oloyede; Eric Bumbala; Edward Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. UNITED PARCEL SERVICE, INC., dba UPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

465 F.3d 1069

Eric BATES; Bert Enos; Babaranti Oloyede; Eric Bumbala; Edward Williams, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. UNITED PARCEL SERVICE, INC., dba UPS, Defendant-Appellant.

No. 04-17295.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 15, 2005.

Filed October 10, 2006.

Christopher J. Martin and Rachel S. Brass, Gibson, Dunn & Crutcher LLP, Palo Alto, California, Mark A. Perry and Rachel A. Clark, Gibson, Dunn & Crutcher LLP, Washington, DC, for the defendant-appellant.

Laurence W. Paradis and Caroline A. Jacobs, Disability Rights Advocates, Oakland, California, Todd M. Schneider and

W.H. Willson, Schneider & Wallace, San Francisco, CA, for the plaintiffs-appellees.

Claudia Center and Lewis Bossing, The Legal Aid Society—Employment Law Center, San Francisco, CA, for amici curiae American Association of People with Disabilities et al.

Ann Elizabeth Reesman, McGuiness Norris & Williams, LLP, Washington, DC, for amicus curiae Equal Employment Advisory Council.

Barbara L. Sloan, Equal Employment Opportunity Commission, Washington, DC, for amicus curiae Equal Employment Opportunity Commission.

Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-99-02216-THE.

Before FLETCHER, JOHN R. GIBSON,^* and BERZON, Circuit Judges.

BERZON, Circuit Judge.

This case concerns whether United Parcel Service (UPS) may categorically exclude individuals from employment positions as "package-car drivers" because they cannot pass a United States Department of Transportation (DOT) hearing standard that does not apply to the vehicles in question. A class of UPS employees and applicants unable to pass the DOT hearing standard—a class we refer to throughout this opinion as "Bates" (the last name of the original class's lead plaintiff)—contends that this policy violates the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and two California laws: (1) the Fair Employment and Housing Act (FEHA), CAL. GOV'T CODE §§ 12900-12996; and (2) the Unruh Civil Rights Act (Unruh Act), CAL. CIV. CODE § 51.

After the first phase of a bifurcated trial, the district court held in a detailed opinion that UPS violated the ADA, the FEHA, and the Unruh Act, and ordered injunctive relief.¹ At the same time, the district court denied UPS's motion for judgment on partial findings or, in the alternative, for class decertification. On appeal, UPS contends that (1) Bates did not establish that any class members are "qualified"; (2) UPS satisfied its burden under the business necessity defense of the ADA; (3) the plaintiff class should be decertified; (4) the court's injunction was an abuse of discretion; and (5) UPS did not violate the FEHA or the Unruh Act.

Much of the basic legal ground covered in this appeal was covered in Morton v. United Parcel Service, Inc., 272 F.3d 1249 (9th Cir.2001), a case in which another deaf UPS employee challenged the company's use of the DOT hearing standard for smaller vehicles to which the standard does not apply. Because, unlike this case, Morton came to us on summary judgment, we did not resolve the validity of UPS's use of the DOT hearing standard. We did, however, spell out some of the applicable legal principles, including burdens of proof, for deciding the question on a completely developed record. There is such a record here. On that record, we affirm the district court's factual findings as not clearly erroneous and its holding that UPS violated the ADA as consistent with the applicable legal standards. We also affirm the district court's denial of UPS's motion to decertify the class and the terms of the injunction issued. Because the district court's injunction can be upheld on ADA grounds alone and because the pertinent FEHA law has changed since the district court's decision, we do not at this time review the FEHA claim. Finally, we reverse the district court's finding that UPS violated the Unruh Act, as a recent decision by this court requires us to do so.

I. Background

UPS package-car drivers deliver and pick up packages for UPS in the familiar brown UPS trucks. An individual who wishes to become a UPS package-car driver must be an employee of UPS in a qualifying position and must "bid" on a package-car driving position. When an opening for a driving position becomes available at a particular UPS center, UPS contacts the individual in that UPS center with the highest seniority who has bid on such a position.² If that person is not interested, the human resources department moves down the list of individuals who have bid on a position in seniority order until it finds an employee interested in the position. Once UPS has located such an employee, that individual must demonstrate that she satisfies several requirements. The requirements vary somewhat from district to district but generally include (1) having completed an application; (2) being at least twenty-one years of age; (3) possessing a valid driver's license; (4) having a "clean driving record"; (5) passing a UPS road test; and (6) passing the physical exam the DOT requires drivers of commercial vehicles to pass. Standards for the "clean driving record" requirement vary, but a common one is that a driver not have more than three moving violations or any convictions for driving while intoxicated within the previous three years. If an applicant demonstrates that she satisfies all of these requirements, she proceeds to driver training, after which she begins a probationary period. Upon successful completion of the probationary period, she becomes a package-car driver.

At issue in the present appeal is the hearing standard that is part of the DOT physical. An individual satisfies the DOT hearing standard if she

[f]irst perceives a forced whispered voice in the better ear at not less than 5 feet with or without the use of a hearing aid or, if tested by use of an audiometric device, does not have an average hearing loss in the better ear greater than 40 decibels at 500 Hz, 1,000 Hz, and 2,000 Hz with or without a hearing aid when the audiometric device is calibrated to American National Standard (formerly ASA Standard) Z24.5-1951.

49 C.F.R. § 391.41(b)(11). According to the district court, the forced-whispered standard requires that potential drivers not only hear the sounds made but understand the words spoken.

Although UPS requires drivers of all package cars to pass the DOT physical, the DOT does not so mandate. Instead, the DOT requires it only for those driving vehicles with a "gross vehicle weight" or "gross vehicle weight rating" (GVWR) of at least 10,001 pounds. See 49 U.S.C. § 31132(1)(A); 49 C.F.R. § 391.41. A vehicle's "gross vehicle weight" is the actual weight of the vehicle plus any cargo in the vehicle. A vehicle's GVWR is determined by the manufacturer and is equal to the sum of the weight of the vehicle and the maximum load the manufacturer believes the vehicle can carry. As of October 2003, UPS's fleet contained 5902 vehicles with a GVWR of less than 10,001 pounds. The GVWR of those vehicles ranged from 7160 pounds to 9318 pounds.

The class accepts, as it must, that UPS may lawfully exclude individuals who fail the DOT test from positions that would require them to drive DOT-regulated vehicles. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 570, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). Bates contends, however, that UPS may not lawfully exclude deaf individuals from consideration for positions that require them to drive only vehicles whose gross vehicle weight and GVWR are less than 10,001 pounds.

The district court found that Bates satisfied his prima facie case based upon a combination of two factors: first, UPS's blanket exclusion of deaf individuals, and second, the credentials of at least one named plaintiff, Babaranti Oloyede, and at least one class member, Elias Habib, who were "qualified" by virtue of having satisfied all prerequisites for the driving position other than those connected to the DOT standard. The court further concluded that Bates did not have the burden to establish at this stage that any plaintiffs were "qualified" in the sense that they are capable of driving safely. Accordingly, the district court denied UPS's motion to decertify the class, rejecting UPS's argument that the class lacked a representative qualified for the driving positions in question.³

The district court next found that UPS failed to satisfy its burden under the business necessity defense and that the policy, therefore, violates the ADA (and, accordingly, the FEHA and the Unruh Act as well). Based on these conclusions, the district court issued an injunction prohibiting UPS from categorically excluding individuals who fail the DOT standard from consideration for positions driving non-DOT-regulated vehicles.

II. Jurisdiction

UPS appeals pursuant to 28 U.S.C. § 1292(a)(1), which grants us jurisdiction over "[i]nterlocutory orders of the district courts ... granting ... injunctions ..., except where a direct review may be had in the Supreme Court." UPS's appeal of the district court's order granting a permanent injunction falls squarely within the scope of § 1292(a)(1). We therefore have jurisdiction under § 1292(a)(1) to review the district court's injunctive order.

Section 1292(a)(1) also grants us jurisdiction to review the legal and factual decisions made by the district court that underlie its injunctive order where—as here—those issues "are inextricably bound up with the injunction." See Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824 (9th Cir.2002); TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 680 (9th Cir.1990); Marathon Oil Co. v. United States, 807 F.2d 759, 764 (9th Cir. 1986). Such review is particularly appropriate in cases like the present one, in which the appeal is taken from a permanent, rather...