Equal Emp't Opportunity Comm'n v. UPS Ground Freight, Inc.

• Decision Date: 01 November 2018
• Docket Number: Case No. 17-CV-2453-JAR-JPO
• Citation: 344 F.Supp.3d 1256
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. UPS GROUND FREIGHT, INC., d/b/a UPS Freight, et al., Defendants.
• Court: U.S. District Court — District of Kansas

344 F.Supp.3d 1256

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.UPS GROUND FREIGHT, INC., d/b/a UPS Freight, et al., Defendants.

Case No. 17-CV-2453-JAR-JPO

United States District Court, D. Kansas.

Signed November 1, 2018

Dayna F. Deck, Equal Empoyment Opportunity Commission, Kansas City, KS, Grant R. Doty, Equal Employment Opportunity Commission, St. Louis, MO, for Plaintiff.

Daniel K. O'Toole, Armstrong Teasdale LLP, St. Louis, MO, Shelley I. Ericsson, Armstrong Teasdale, LLP, Kansas City, MO, Jon Dedon Kennyhertz Perry LLC, Kansas City, MO, Michael Amash, Blake & Uhlig, PA, Kansas City, KS, for Defendant.

MEMORANDUM AND ORDER

JULIE A. ROBINSON, CHIEF UNITED STATES DISTRICT JUDGE

Plaintiff Equal Employment Opportunity Commission ("EEOC") filed this suit against Defendant UPS Ground Freight, Inc. ("UPS Freight") to correct unlawful employment practices on the basis of disability in violation of the Americans with Disabilities Act ("ADA"). The Court granted EEOC's Motion for Judgment on the Pleadings on Count II, brought under Fed. R. Civ. P 12(c), and granted injunctive relief prohibiting continuation of the discriminatory practice and policy.¹ This matter is now before the Court on UPS Freight's Motion to Modify and/or Vacate the Court's Permanent Injunction and Motion in the Alternative to Stay the Permanent Injunction Pending Ratification and Appeal (Doc. 32). For the reasons explained in detail below, the Court grants in part UPS Freight's motion to modify the injunction and denies its request for a stay.

I. Procedural and Factual Background

The EEOC filed a two-count action to correct unlawful employment practices, alleging (1) UPS Freight violated the ADA by discriminating against Thomas Diebold on the basis of his disability (Count I); and (2) UPS Freight has a facially discriminatory policy against disabled drivers in its current 2013–2018 Collective Bargaining Agreement "CBA") with Defendant Teamsters National UPS Freight Negotiating Committee (Count II). The focus of Count II is Article 21.2 and Article 21.3 of the CBA. UPS Freight filed an Answer admitting (1) the CBA attached as Exhibit A to the Amended Complaint is a true and correct copy;² (2) that UPS Freight, "pursuant to Article 21, Section 2(a), of the 2013–2018 CBA, provides non-CDL required (non-driving) work at the full rate (100%) of pay to drivers whose CDLs are suspended or revoked for non-medical reasons, including convictions for driving while intoxicated";³ and (3) UPS Freight, "pursuant to Article 21, Section 3(a) of the 2013–2018 CBA ... provides full-time or casual inside work at 90% of the rate of pay for the full-time classification of work being performed to drivers who are judged medically unqualified to drive."⁴

The EEOC moved for judgment on the pleadings under Fed. R. Civ. P. 12(c), arguing that UPS Freight's admissions were sufficient to prove the existence of a discriminatory policy and meet the EEOC's burden to make a prima facie case of discrimination. The Court agreed that UPS Freight's additional explanations regarding when Article 21.3(a) applies were immaterial, because there are no circumstances under which paying a disabled driver 90% of what others earn is legal under the ADA.⁵ On July 27, 2018, the Court entered partial judgment on the pleadings on Count II as follows:

1. The CBA in dispute violates 42 U.S.C. § 12112 by discriminating against drivers with disabilities by (1) limiting, segregating, or classifying drivers because of disability adversely affecting the opportunities or status of disabled drivers and (2) using standards, criteria, or methods of administration that have the effect of discrimination on the basis of disability;

2. The CBA in dispute violates 42 U.S.C. § 12112(b)(2) by participating in a contractual relationship that expressly discriminates against medically disabled UPS Freight drivers.⁶

The Court entered a permanent injunction that:

3. UPS Freight, its officers, agents, servants, employees, attorneys, and all persons in active concert or participation with it, are permanently enjoined from discriminating on the basis of disability in violation of 42 U.S.C. § 12112(a) by enforcing Article 21.3 as written;⁷ and

4. UPS Freight and the Teamsters National UPS Freight Negotiating Committee are permanently enjoined from negotiating and ratifying terms of the next collective bargaining agreement which would discriminate on the basis of disability in violation of 42 U.S.C. § 12112(a).⁸

On August 23, 2018, UPS Freight moved to modify and/or vacate the permanent injunction under Fed. R. Civ. P. 60(b)(5) or, in the alternative, to stay the permanent injunction pending ratification of the new CBA. UPS Freight represented that if the request was denied, it intended to appeal the Order to the Tenth Circuit Court of Appeals.⁹ In its motion, UPS Freight stated the CBA had expired July 31, 2018, negotiations on a new CBA began in January 2018, and a tentative "hand shake" agreement was reached on July 12, 2018.¹⁰ The tentative new CBA contains the following revised Article 21.3, which shows the language struck through from the prior CBA:

A driver who is judged medically unqualified to drive, but is considered physically fit and qualified to perform other inside jobs, will be afforded the opportunity to displace the least senior fulltime or casual inside employee at such work until he/she can return to his/her driving job. However, if the displacement of a full-time employee with a CDL would negatively affect the employer's operations, the medically disqualified driver may only displace a casual inside employee. "Red-circled" non-CDL cartage employees shall not be subject to displacement in this process. While performing the inside work, the driver will be paid ninety percent (90%) of the appropriate rate of pay for the full-time classification of work being performed. The Company shall attempt to provide eight (8) hours of work, if possible, out of available work.¹¹

The new CBA would retroactively apply for the period August 1, 2018 through July 31, 2023.¹² UPS Freight argued that the permanent injunction should be modified and/or vacated in light of the new tentative CBA that was in the process of ratification that included a modified Article 23.1, which eliminates the need for an injunction.

The EEOC opposed UPS Freight's motion, and ultimately sought leave to file a sur-response to address new arguments raised in UPS Freight's reply brief claiming that the injunction should be vacated because it was an "obey the law" injunction and thus impermissible under Fed. R. Civ. P. 65(d).¹³ After the EEOC advised in its proposed sur-response that it would not oppose narrowing the terms of the second part of the injunction, the Court suggested the parties endeavor to submit a proposed agreed order on UPS Freight's motion.¹⁴ UPS Freight eventually indicated it was not willing to agree to anything less than vacation of the permanent injunction, however, and the Court granted the EEOC leave to file a sur-response. UPS Freight then clarified in its sur-reply that it was not open to modification, but instead was seeking elimination of the injunction,¹⁵ and contemporaneously filed a Notice of Appeal of the Court's Order.¹⁶

On October 17, 2018, UPS Freight was granted leave to file a supplemental brief.¹⁷ UPS Freight informed the Court that the "hand shake" agreement on the new CBA was sent to the union membership for a vote the first week of October, but was voted down and not ratified by the union members—not UPS Freight or the Teamsters.¹⁸ As a result of the failed vote, UPS Freight and the Teamsters will return to the bargaining table.¹⁹ UPS Freight represents that it has no intention to change the proposed Article 21.3, which eliminates the 90% pay language, nor does UPS Freight expect the Teamsters to seek to amend the proposed Article 21.3.²⁰ UPS Freight further represents that since the time of the Court's Order imposing a permanent injunction against UPS Freight and the Teamsters, UPS Freight has not applied the 90% pay provision set out in Article 21.3 as it existed in the CBA that expired on July 31, 2018, and that it fully intends to continue this practice.²¹

II. Discussion

A. Rule 60(b)(5)

A motion for relief from judgment under Fed. R. 60(b) is an extraordinary remedy and may be granted only in exceptional circumstances.²² Such a motion may not be used as a substitute for direct appeal.²³ Rather, Rule 60(b)(5) permits a district court to modify or vacate a permanent injunction when "applying it prospectively is no longer equitable."²⁴ " Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if ‘a significant change either in factual conditions or in law’ " has occurred since the judgment and those changes warrant modification of the injunction or decree.²⁵ Changed factual circumstances may warrant modification when the injunction "proves to be unworkable because of unforeseen obstacles," the changed circumstances "make compliance with the [injunction] substantially more onerous," or when "enforcement of the [injunction] without modification would be detrimental to the public interest."²⁶

Courts "should deny a party's request for modification ... if it merely establishes that ‘it is no longer convenient [for the movant] to live with the terms’ " of the injunction or consent decree.²⁷ "The party seeking relief bears the burden of establishing that changed circumstances warrant relief, ... but once a party carries this burden, a court abuses its discretion ‘when it refuses to modify an injunction or consent decree in light of such changes.’ "²⁸

UPS Freight initially cited two changed facts in support of its request for relief: (1) that subsequent to the Court's Order, UPS Freight and the Teamsters reached a tentative deal that modifies Article 23.1 to...