Faidley v. United Parcel Serv. of Am., Inc.

• Decision Date: 11 May 2018
• Docket Number: No. 16-1073,16-1073
• Parties: Jerry Lee FAIDLEY, Plaintiff–Appellant v. UNITED PARCEL SERVICE OF AMERICA, INC., Defendant–Appellee United States Equal Employment Opportunity Commission, Amicus on Behalf of Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

889 F.3d 933

Jerry Lee FAIDLEY, Plaintiff–Appellant

v.UNITED PARCEL SERVICE OF AMERICA, INC., Defendant–Appellee

United States Equal Employment Opportunity Commission, Amicus on Behalf of Appellant

No. 16-1073

United States Court of Appeals, Eighth Circuit.

Submitted: October 17, 2017

Filed: May 11, 2018

Melissa Hasso, Mark D. Sherinian, SHERINIAN & HASSO LAW FIRM, Des Moines, IA, for Plaintiff–Appellant.

Bradley M. Bakker, Jeffery Thomas McPherson, ARMSTRONG & TEASDALE, Saint Louis, MO, Laurence R. Tucker, ARMSTRONG & TEASDALE, Kansas City, MO, for Defendant–Appellee.

Susan L.P. Starr, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, DC, for Amicus on Behalf of Appellant(s) United States Equal Employment Opportunity Commission.

Before SMITH, Chief Judge, WOLLMAN, LOKEN, MURPHY, COLLOTON, GRUENDER, BENTON, SHEPHERD, and KELLY, Circuit Judges, En Banc.^*

LOKEN, Circuit Judge.

Jerry Faidley brought two state court actions against his former employer, United Parcel Service of America, Inc. (UPS), alleging that UPS violated the Iowa Civil Rights Act (ICRA), Iowa Code § 216, when it placed him on medical leave from his long time position as a package car driver and then failed to reasonably accommodate his physical disability. After UPS removed the actions based on diversity of citizenship, Faidley filed an amended complaint in the first action adding claims of disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. The two actions were consolidated and the district court¹ granted summary judgment in favor of UPS. Faidley appealed. A divided panel of this court reversed in part and remanded. Faidley v. United Parcel Serv. of Am., Inc., 853 F.3d 447 (8th Cir. 2017). We granted rehearing en banc and vacated the panel opinion. The Equal Employment Opportunity Commission (EEOC) has submitted an amicus brief in support of plaintiff Faidley. Reviewing the grant of summary judgment de novo , we affirm the district court.

I. Background

A. The First Action. Faidley began working as a UPS package car driver in 1987, making residential and business deliveries and picking up commercial packages. He suffered a work-related back injury in February 2010 and was assigned to temporary alternate work (TAW) until April 2010. In February 2011, he suffered another work-related injury and was off work receiving worker's compensation benefits until June 2011. In October 2011, he had hip replacement surgery to treat a degenerative hip condition, which he described as "a different medical issue than the back pain" in 2010. He began physical therapy in November 2011. His orthopaedic surgeon, Dr. Devon Goetz, released Faidley to return to work with no restrictions on April 26, 2012.

Faidley testified that when he returned to work as a package car driver, he requested an eight-hour day the first day he drove, and UPS gave him a lighter-than-normal day that he completed in 8.27 hours. His second day of driving was exceptionally heavy, taking 9.65 hours to complete and leaving him "sore and [with] some pain in my back." He worked 6.12 hours the third day. When Faidley saw that his fourth "plan day" was scheduled to be almost 12 hours, he told his supervisor, "The way I'm feeling there's no way I can get that done." After consulting the union steward and an occupational nurse, UPS made an appointment for Faidley to see Dr. Goetz on May 15 and told him, "You are done until you get in to the doctor." However, UPS contacted Faidley when it was short drivers the following week and offered to "take it easy on you" if he returned to work. Faidley said he was feeling better and returned to his package car position, working between 6.84 and 9.53 hours from May 7 to 14, 2012.

On May 15, Faidley visited Dr. Goetz with a nurse hired by UPS. The three discussed the trouble Faidley was having and concluded that Dr. Goetz should issue a "Patient Status Report" stating that Faidley could return to work but with a permanent restriction limiting him to working no more than eight hours a day. Faidley testified that he handed Dr. Goetz's Status Report to his station manager, Scott Schmitz, at work the following morning. Schmitz said, "Congratulations, your career at UPS is now over. ... UPS won't allow anybody to work with a permanent restriction." Schmitz told Faidley he could not work with that restriction. They consulted the union steward, who said to Faidley, "Go home."

On May 17, Faidley faxed UPS that he "would still like to continue working at UPS even if it means a job with-in or out-side my current classification. I am hopeful that ... there is something available for me." Properly treating this as an employee request for an ADA accommodation, UPS immediately sent Faidley a Request for Medical Information form to be completed by his physician. On June 18, Faidley returned the form to UPS.² On July 24, Faidley attended an "accommodation checklist meeting" with UPS Occupational Health Supervisors Jurgen Rosner and Terra Vellema, and District Human Resources Manager Vince Blood. The purpose of the meeting, as stated in UPS's ADA Procedural Compliance Manual, was:

to engage in a good faith, interactive meeting with the employee in order to determine whether the employee can be accommodated in his current job and, if not, to determine whether there are any other positions that are currently available, or that will become available within a reasonable period of time for which he is qualified, and for which he can perform the essential job functions with or without accommodation.

Faidley submitted an Accommodation Checklist stating that he requested an accommodation because of "my hip replacement surgery and my lumbar degenerative disk disease and right hip osteoarthritis

," that he had hip and back pain "after 8 hours of repetitive lifting, walking, climbing, standing," and that he "could currently do my bid route if it was dispatched between 8 and 8.50 hours of work a day." With regard to other UPS positions, Faidley stated:

with an 8.0 hr accommodation, I believe I could do any job at UPS that I'm aware of such as car washer, porter jobs, preload airdriver—air ramp or hub positions. Without an accommodation, I'm not aware of any jobs that I would be able to do. Preload-air driver is best position I could think of.

The day after the meeting, Faidley sent an email to the three UPS attendees urging UPS to grant his request for an eight-hour accommodation as a package car driver:

I really believe that UPS should put [m]e back to working the delivery driver position i have held for 25 years. During the time that i held that position i rarely had to work overtime. In fact, i regularly earned the production bonus because i completed my stops in eight hours or less. There are around 100 drivers at the Des Moines center and i am sure that any additional work could be managed by other drivers who want to work overtime. I would appreciate it if the company would reconsider its position that all drivers have to work overtime.

After the meeting, the UPS regional review committee determined that Faidley could not be accommodated in his current package car driver position, because its essential functions included being able to work nine and one-half hours a day, and sometimes more. The committee discussed reassigning Faidley to other positions as a possible accommodation. The positions identified by Faidley—car washer, porter, and preload air-driver inside or hub jobs—were identified as full-time eight-hour jobs for which Faidley was qualified, and he was encouraged to bid on those jobs when available. In addition, Blood raised the possibility of Faidley becoming a "feeder driver" who drives semi-tractor trailers between UPS locations, a job that requires working more than eight hours a day and for which Faidley would need training, but one that does not require as much walking, lifting, and climbing in and out of the truck as the package car driver job. Blood testified that he was asked whether feeder jobs were "currently available" and was told not to list that job when he answered "No." In opposing summary judgment, Faidley submitted an affidavit averring he "was unaware that UPS considered the position of a Feeder Driver as a potential accommodation" and opining, "I could have performed that position" for the required 9.5 hours per day "because it did not require me to get in and out of the truck frequently [nor] require me to do any significant lifting."

Faidley was unable to obtain reassignment to any of the alternative full-time jobs he had suggested. Some had no vacancies, and he lacked the seniority to successfully bid on others. As a result, UPS instead offered him a part-time inside job on August 9, 2012. He declined that offer because it would reduce his seniority and bidding rights. Faidley remained a UPS employee on medical leave. He filed the first action in January 2013. As amended after removal, Faidley claims that UPS failed to accommodate his disability in violation of the ADA and the ICRA.

B. The Second Action. Faidley testified that he filed a grievance with the local union objecting to not being able to work. At a state-level proceeding, UPS and union representatives stated that his eight-hour work restriction was "the biggest drawback" to successfully bidding on other full-time UPS positions. Faidley returned to Dr. Goetz in January 2013. They reviewed other non-driver positions, including "car washer, porter, loader, unloader, preloader." On January 24, Dr. Goetz issued revised restrictions stating that Faidley could perform any job other than package car driver with no hourly restriction.³ Faidley then bid on a number of positions and won a full-time combined loader/preloader position on February 4, 2013.

The loader position required stacking packages in semi-trailer trucks, while the preloader position required loading packages into delivery trucks. When the combined position caused Faidley too much pain, he...