Morton v. United Parcell Serv.

• Decision Date: 30 November 2001
• Docket Number: No. 99-17447,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,99-17447
• Parties: (9th Cir. 2001) JANA L. MORTON,, v. UNITED PARCEL SERVICE, INC.,
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1249

272 F.3d 1249 (9th Cir. 2001)

JANA L. MORTON, PLAINTIFF-APPELLANT, v. UNITED PARCEL SERVICE, INC., DEFENDANT-APPELLEE.

No. 99-17447

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 9, 2001

Filed November 30, 2001

Marc P. Charmatz, Mary C. Vargas and Sarah S. Geer, National Association of the Deaf Law Center, Silver Spring, Maryland, Suzanne M. Dohrer, Dohrer & Watts, P.L.C., Phoenix, Arizona, for the plaintiff-appellant.

Patricia S. Radez, Gibson, Dunn & Crutcher LLP, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the District of Arizona; John W. Sedwick, District Judge, Presiding. D.C. No. CV-96-02813-JWS

Before: Reinhardt, Tashima and Berzon, Circuit Judges.

Berzon, Circuit Judge.

Jana Morton appeals from the district court's order granting summary judgment for defendant-appellee United Parcel Service ("UPS") on her claim under the Americans with Disabilities Act, 42 U.S.C. § § 12101-12213. We reverse.

I. Background

Morton was employed in Phoenix by UPS from 1992 until her resignation in June 1996. She was initially employed as a part-time warehouse worker, with duties including sorting packages and loading and unloading vehicles. Morton was honored by UPS as "Employee of the Month" on four separate occasions between 1992 and 1994. In February 1995, she applied for the position of "package car driver, " a full-time position which is the primary route to advancement at UPS.

The Department of Transportation ("DOT") regulates vehicles with a gross vehicle weight rating in excess of 10,000 pounds. Professional drivers who drive such vehicles are required by federal law to be certified by DOT. 49 C.F.R. § § 390.5, 391.41(b). UPS has a policy of hiring for driving positions only individuals who have obtained DOT certification.

Morton is severely hearing impaired, which precludes her from obtaining DOT certification.¹ Thus, although she successfully passed UPS's driving and written tests-two of the three prerequisites for promotion to package car driver -she was denied the promotion because she was unable to meet the physical requirements to obtain DOT certification. ² When Morton was informed that she would not be hired as a driver because of her hearing impairment, she asked her supervisor if she could be hired and permitted to drive only non-DOT vehicles (those with gross vehicle weight under 10,001 pounds). Consistent with UPS's policy, this request was refused.

Most packages delivered by UPS are carried by drivers on fixed routes, assigned pursuant to a seniority-based bidding process under the terms of UPS's collective bargaining agreement with the Teamsters Union. All of UPS's drivers hold the title of package car driver, although the duties of package car drivers vary based on seniority. The collective bargaining agreement covering drivers provides that when a new route is created, it will be posted for bidding and assigned to the most senior package car driver who bids for it. The least senior drivers work as unassigned, or "swing", drivers until they accrue enough seniority to bid successfully on a fixed route.

UPS operates five geographic "centers" in Phoenix, each of which maintains a separate seniority list for full-time drivers. The swing drivers in a particular geographic center fill in on that center's assigned routes when the drivers assigned to those routes are on vacation or otherwise absent. In addition, the record indicates that package loads on fixed routes vary from day to day and that swing drivers handle overflow work. There is also evidence that on days when there is insufficient driving work to occupy all of the swing drivers, UPS assigns them to non-driving work, such as warehouse work.

At the relevant time, UPS operated 254 fixed routes in the Phoenix area, of which approximately 5.5% (14 routes) were served by non-DOT vehicles. During this same time period, UPS employed approximately 313 package car drivers in the Phoenix area, of whom roughly 80% drove on fixed routes while 20% worked as swing drivers. According to the record, the routes that use the smaller vehicles are generally the more rural and residential routes, requiring more driving between deliveries and typically featuring smaller packages and fewer packages at each stop. The non-DOT vehicle routes are considered more desirable by drivers because of their location and lighter load and are thus generally held by the more senior drivers. Of the 96 drivers hired in Phoenix since February 1995, 30 have successfully bid on assigned routes, but none has successfully bid on one of the 14 routes delivered with non-DOT vehicles.

Although only 14 fixed routes were served by non-DOT vehicles during the relevant time period, UPS operated approximately 33 non-DOT vehicles in the Phoenix area. Some of those extra vehicles were maintained as backup vehicles for use when other vehicles were out for repairs. Others were used by swing drivers to handle "overflow " work, generated by the fluctuating day-to-day demand on certain routes. Further, there was evidence that routes and vehicles assigned to a particular route may be modified from day to day "to meet delivery needs."

After Morton filed suit alleging that UPS failed to accommodate her and failed to engage in the interactive process required by the ADA, UPS moved for summary judgment. On October 6, 1999, the district court granted UPS's motion for summary judgment, on the grounds that no reasonable accommodation was available and that Morton could not perform the essential functions of the job of package car driver.³

II. Analysis

The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability . . . ." 42 U.S.C. § 12112(a). An individual is a "qualified individual with a disability" if she can perform the essential functions of the position that she holds or desires, with or without reasonable accommodation. 42 U.S.C. § 12111(8); Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir. 1996); see also Cripe v. City of San Jose, 261 F.3d 877, 884 (9th Cir. 2001). It is an act of discrimination to fail reasonably to accommodate a qualified employee with a disability unless the employer can show that such an accommodation would impose an undue hardship. See 42 U.S.C. § 12112(b)(5)(A); see also McAlindin v. County of San Diego, 192 F.3d 1226, 1236 (9th Cir. 1999), amended by , 201 F.3d 1211 (9th Cir.), cert. denied, 530 U.S. 1243 (2000); Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1157 (9th Cir. 2000).

UPS concedes that it refused to promote Morton to the position she sought solely on account of her hearing impairment, and does not dispute that the impairment constitutes a disability for purposes of the ADA. So the issues for decision concern UPS's contentions that the ADA permits it to refuse to hire Morton as a package car driver because (1) it would not be possible to accommodate Morton without violating the seniority provisions of the collective bargaining agreement; (2) Morton is not a "qualified individual" because the ability to drive DOT-certified cars is an essential function of the job of package car driver; (3) accommodating Morton would constitute an undue hardship; and (4) employing only DOT-certified individuals as drivers is a safety-related"business necessity" for UPS. In this complex statute with its layers of seemingly redundant employer defenses, sorting out the appropriate roles of these various defenses poses some interesting quandaries, as we shall see.

A. The collective bargaining agreement

The focus of the district court opinion was its holding that no reasonable accommodation was available within the terms of the collective bargaining agreement. Although the "reasonable accommodation" issue logically arises only after one has determined that the individual seeking relief is "qualified," it is more orderly for present purposes to begin with the issues the district court addressed and then proceed to the ones it did not. Reviewing it de novo, Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1133-34 (9th Cir. 2001), we find no support in the record for the district court's reasonable accommodation finding.

Although some potential accommodations (such as assigning Morton to a route using a non-DOT vehicle, an assignment which she lacks sufficient seniority to obtain in the bidding process) would conflict with the collective bargaining agreement, others would not. In particular, the requirements of the collective bargaining agreement in no way conflict with the accommodation actually requested by Morton-employment as a swing driver of only non-DOT vehicles. ⁴

The collective bargaining agreement requires UPS to make any new full-time route available via the seniority-based bidding process. Thus, even though reasonable accommodation "may include . . . job restructuring . . . or modified work schedules," 42 U.S.C. § 12111(9)(B), under the seniority provisions of the collective bargaining agreement, UPS could not accommodate Morton by creating a new full-time fixed route specifically for her. Other employees would have the right to bid on any such newly created route, and more senior employees would presumably prevail over Morton because the route would, for the reasons outlined above, be regarded as a desirable one. See Willis v. Pacific Mar. Ass'n, 244 F.3d 675, 679-80 (9th Cir. 2001).

Nothing in the collective bargaining agreement, however, prevents UPS from accommodating Morton by hiring her as a swing driver and assuring that she is assigned to drive only non-DOT vehicles. The record establishes that the collective bargaining agreement does not limit UPS's authority with respect to assigning vehicles; it is only the allocation among drivers of the fixed geographic routes that is affected by the seniority provisions of the collective bargaining agreement. Compare id. at...