E.E.O.C. v. United Parcel Service, Inc.
| Decision Date | 15 September 2005 |
| Docket Number | No. 04-15928.,No. 03-16855.,No. 04-16403.,03-16855.,04-15928.,04-16403. |
| Citation | 424 F.3d 1060 |
| Parties | EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Shawn Hogya, James Francis, James Akins, and Chris Wilson, Intervenors-Appellants, v. UNITED PARCEL SERVICE, INC., Defendant-Appellee. Larry Bryan and Ignacio Torres, Plaintiffs-Appellants, and Tim Hancock, Jeff Morales, Creg Quiroz, and Mark Jensen, Plaintiffs, v. United Parcel Service, Inc., Defendant-Appellee. Larry Bryan, Tim Hancock, Jeff Morales, Ignacio Torres, Creg Quiroz, and Mark Jensen, Plaintiffs-Appellees, v. United Parcel Service, Inc., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Andrea G. Asaro, Rosen, Bien & Asaro, LLP, San Francisco, CA, for intervenors-appellants and plaintiffs-appellees; John J. Mavredakis, Law Offices of John J. Mavredakis, Santa Rosa, CA, for the plaintiffs-appellants.
Mark A. Perry, Gibson, Dunn & Crutcher LLP, Washington, D.C., and Kathrin
Sears and Rachel Brass, Gibson, Dunn & Crutcher LLP, San Francisco, CA, for the defendant-appellee/appellant.
Claudia Center and Elizabeth Kristen, The Legal Aid Society Employment Law Center, San Francisco, CA, for the amici curiae.
Appeals from the United States District Court for the Northern District of California; William H. Alsup, District Judge, Presiding. D.C. Nos. CV-97-00961-WHA, CV-01-01730-WHA.
Before: KLEINFELD, HAWKINS, and GRABER, Circuit Judges.
Defendant United Parcel Service, Inc. ("UPS"), denied driving positions to certain employees because the employees failed to pass UPS's "Vision Protocol," which requires drivers to have some central vision and some peripheral vision in each eye. In two separate actions, the employees alleged that UPS had discriminated against them because of their monocular vision, a disability, in violation of California's Fair Employment and Housing Act ("FEHA").
We hold that the employees are sufficiently limited in the major life activities of seeing and working to fall within FEHA's broad definition of disability. We therefore affirm, on interlocutory appeal, the district court's partial summary judgment on the issue of disability in favor of the employees in one action. But, for the other group of employees, who appeal from the district court's final judgment after a bench trial, the threshold disability determination is not dispositive. Although those employees likewise are disabled within the meaning of FEHA, we affirm the judgment in favor of UPS because UPS has demonstrated that the employees would "endanger the health or safety of others to a greater extent than if an individual without a disability performed the job" and, thus, has satisfied FEHA's safety-of-others defense. See Cal.Code Regs., tit. 2, § 7293.8(d).
Factual background1
Monocular vision generally results in a decrease in peripheral vision: An average monocular individual has a field of view that is 10 to 40 degrees less than the field of view of an average binocular individual. EEOC v. United Parcel Servs., Inc., 149 F.Supp.2d 1115, 1142 (N.D.Cal.2000) ("EEOC"), rev'd in part, 306 F.3d 794, 797 (9th Cir.2002); see also id. (). Central vision acuity, on the other hand, is not affected by lack of vision in one eye—a monocular individual with 20/20 vision in one eye can see as well looking straight ahead as a binocular individual with 20/20 vision. See id. at 1141-42.
Other than decreased peripheral vision, the primary difficulty that monocular individuals experience is with near-field depth perception. "Individuals who can see out of only one eye are unable to perform stereopsis, the process of combining two retinal images into one through which two-eyed individuals gain much of their depth perception, particularly at short distances." Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 n. 12, 119 S.Ct. 2162, 144 L.Ed.2d 518 (1999). The inability to perform stereopsis can affect a range of near-field activities, including working with tools. See, e.g., EEOC, 149 F.Supp.2d at 1146, 1151, 1153. On the other hand, monocularity usually does not impair depth perception at a distance. "In their distance vision, monocular individuals are able to compensate for their lack of stereopsis to varying degrees by relying on monocular cues, such as motion parallax, linear perspective, overlay of contours, and distribution of highlights and shadows." Kirkingburg, 527 U.S. at 566 n. 12, 119 S.Ct. 2162.
Before 1988, the federal Department of Transportation ("DOT") regulated all commercial vehicles regardless of weight, and DOT regulations barred monocular individuals from driving even small commercial vehicles. EEOC, 149 F.Supp.2d at 1130. By July 1995, however, DOT had changed its rules to exempt lightweight commercial vehicles from federal regulation. Id. Thus, under the existing DOT rules, monocular individuals are permitted to drive commercial vehicles weighing 10,000 pounds or less. See 49 C.F.R. § 350.105.2
Defendant UPS employs about 70,000 people to drive package cars that pick up and deliver packages along established routes. EEOC, 149 F.Supp.2d at 1122. Most employees of UPS must start in part-time, entry-level loading positions and accumulate seniority in order to bid to become part-time, then full-time, package car drivers. Id. at 1123-24. The vast majority of UPS package cars weigh more than 10,000 pounds and, therefore, are subject to DOT regulations. Id. at 1124. Specifically, the district court found that only 5,511 of UPS's 67,178 package cars weigh 10,000 pounds or less. Id. Some established routes are served by those lighter vehicles. Id. at 1125. The monocular employees involved in these cases seek to drive only the lighter package cars for which DOT certification is not required.
UPS generally requires all driver applicants to pass DOT's vision standards, because they will be asked to drive routes served by both heavy (DOT-regulated) and light (non-regulated) package cars. See id. at 1128. Beginning in 1995, however, UPS made an accommodation that would allow vision-impaired applicants to drive nonregulated cars if they passed a "Vision Protocol." The Vision Protocol is less rigorous than the vision standards that DOT requires drivers of the regulated cars to satisfy. Id. at 1133. DOT's standards for regulated vehicles require visual acuity of 20/40 and peripheral vision of 70 degrees in each eye. Id. at 1129-30, 1133. The Vision Protocol, as relevant here, requires:
• 20/40 (corrected or uncorrected) in the better eye;
• 20/200 (corrected or uncorrected) in the affected eye;
• peripheral vision of 70 degrees in each eye or a combined horizontal visual field of 140 degrees; and
• peripheral acuity of at least 20/200 in each eye.
UPS's application of the Vision Protocol to deny driving positions to monocular employees prompted the actions leading to the three appeals that are now before us. We turn now to the procedural history of those three appeals.
No. 03-16855: Intervenors Hogya, Francis, Akins, and Wilson
In March 1997, the Equal Employment Opportunity Commission ("EEOC") filed an action against UPS on behalf of more than 100 monocular driver applicants, alleging discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"). Shawn Hogya, James Francis, James Akins, and Chris Wilson ("Intervenors") intervened in that action, asserting claims under both the ADA and FEHA. The district court held a bench trial involving four "pilot claimants"—Hogya, Francis, and two EEOC plaintiffs.
At the conclusion of that trial, the district court entered a final judgment and issued a lengthy published opinion that includes numerous findings of fact. The court's principal legal conclusions were (1) that all the plaintiffs and Intervenors were either disabled or "regarded as" disabled under the ADA, EEOC, 149 F.Supp.2d at 1156-58; (2) that Hogya (but not Francis) had proved that he was qualified to perform the job's essential function of safe driving, id. at 1158-59; and (3) that UPS had not satisfied the ADA defense by proving that its Vision Protocol was "job-related and consistent with business necessity," under 42 U.S.C. § 12113(a), id. at 1159-71. The court did not address Intervenors' FEHA claims separately, stating only that the "resolution of all FEHA claims will be deemed to follow the resolution of all ADA claims." Id. at 1159.
On appeal, we reversed the district court's threshold disability determinations under the ADA. EEOC v. United Parcel Serv., Inc., 306 F.3d 794, 797 (9th Cir.2002). We held (1) that the pilot claimants were not disabled, because their monocularity did not keep them "from using [their] eyesight as most people do for daily life," id. at 803; and (2) that, in order to establish that they were "regarded as" disabled, the employees must prove that UPS perceived them as limited in their activities of daily life, not merely in their employment (as the district court had held), id. at 806. Rather than decide whether UPS regarded monocular employees as disabled with respect to their daily activities, we acknowledged the district court's greater familiarity with the evidence and remanded for the district court to consider that issue in the first instance. Id.
"Because the existence of a `disability' is a gateway requirement for the ADA," we did not comment on the other issues raised in the appeal and cross-appeals—most significantly, on UPS's defenses to liability. See id. at 797. We did note that, if the district court were to hold on remand that no claimant was regarded as disabled under the ADA, the court would have to decide...
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