Murphy v. United Parcel Serv., Inc.

Citation528 F.Supp.3d 983
Decision Date23 March 2021
Docket NumberCase No. 19-cv-1728-pp
Parties Quinton MURPHY, Plaintiff, v. UNITED PARCEL SERVICE, INC., Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Joseph Rose, Rachel S. Brass, Gibson Dunn & Crutcher LLP, San Francisco, CA, for Defendant.


PAMELA PEPPER, Chief United States District Judge

The plaintiff, who is deaf, alleged in his original complaint that the defendant failed to accommodate his request for interpreters and discriminated against him by denying him a full-time position driving a UPS package car. Dkt. No. 1. After the defendant filed a motion to dismiss that original complaint, dkt. no. 14, the court reminded the plaintiff that he had the option of either responding to the motion to dismiss or filing an amended complaint, dkt. no. 17. The plaintiff opted to amend the complaint, dkt. no. 19, and the defendant since has moved to dismiss the amended complaint, dkt. no. 22.

The amended complaint alleges two causes of action—failure to accommodate/employment discrimination in violation of the Americans with Disabilities Act, dkt. no. 19 at 5, and disparate treatment/employment discrimination in violation of that same statute, dkt. no. 19 at 6. The amended complaint seeks declaratory judgment, compensatory damages, costs and fees. Dkt. No. 19 at page 6.

The defendant moves to dismiss under Fed. R. Civ. P. Rule 12(b)(1), on the ground that the court does not have authority to decide the plaintiff's claims because he did not exhaust the grievance procedure, and under Fed. R. Civ. P. 12(b)(6), because the ground that the plaintiff fails to state a claim. Dkt. No. 23. The court will deny the defendant's motion to dismiss the substantive causes of action but will grant the defendant's request to strike the request for declaratory relief.

I. Request for Judicial Notice (Dkt. No. 24)

Along with the motion to dismiss, the defendant filed a motion asking the court to take judicial notice of four documents under Fed. R. Evid. 201 : the National Master Agreements between the defendant and the International Brotherhood of Teamsters for 2013-2018 and 2018-2023, the Central Region Supplemental Agreement for 2018-2023 and the Department of Transportation's Federal Motor Carrier Safety Administration's rule granting certain individuals (including the plaintiff) exemptions from its physical qualifications standards for hearing for interstate drivers. Dkt. No. 24 (asking the court to take judicial notice of Dkt. Nos. 24-1, 24-2, 24-3, 24-4). The defendant argues that the authenticity of the first three documents is not in question because they are they are posted on the International Brotherhood of Teamster's website. Id. at 1. The defendant asserts that judicial notice is appropriate because the three agreements are central to the allegations in the complaint.

Id. at 1-2. Finally, the defendant argues that the last document is not subject to reasonable dispute because it is part of the public record. Id. at 2.

The court assumes the defendant made this request because of Fed. R. Civ. P. 12(d). "In response to an ordinary 12(b)(6) motion [to dismiss a complaint for failure to state a claim], a court simply examines the allegations in the complaint to determine whether they pass muster." Gen. Elec. Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). Similarly, when a party moves for judgment on the pleadings under Rule 12(c), the court considers the only "pleadings""the complaint, the answer, and any written instruments attached as exhibits." Fed. Mut. Ins. Co. v. Coyle Mech. Supply, Inc., 983 F.3d 307, 312-313 (7th Cir. 2020) (quoting N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998) ). Rule 12(d) mandates that in the context of motions to dismiss under Rules 12(b)(6) or 12(c), if "matters outside the pleadings" are presented to the court and not excluded, the court "must" treat the motion as a motion for summary judgment under Fed. R. Civ. P. 56. The result of such a "conversion" from a motion to dismiss under Rule 12(b)(6) or 12(c) to a motion for summary judgment under Rule 56 is that "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed. R. Civ. P. 12(d).

There is a narrow, court-crafted exception to the rule that consideration of matters outside the pleadings requires conversion to a summary judgment motion, an exception that "permit[s] a district court to take judicial notice of matters of public record without converting a motion for failure to state a claim into a motion for summary judgment." Gen. Elec. Capital Corp., 128 F.3d at 1080 (collecting cases). The exception "has allowed courts to avoid unnecessary proceedings when an undisputed fact in the public record establishes that the plaintiff cannot satisfy the 12(b)(6) standard." Id. at 1081.

The court assumes that the defendant asked the court to take judicial notice of the two master bargaining agreements, the supplement to the 2018-2023 agreement and the Department of Transportation's Federal Motor Carrier Safety Administration's decision granting the plaintiff and others exemptions from its hearing standards for interstate drivers because although the defendant wants the court to consider those documents, it does not want the court to convert its motion to dismiss into a motion for summary judgment. The court will grant the defendant's request to take judicial notice of the DOT's FMCSA exemption decision. Under Fed. R. Evid. 803(8)(A)(i) and (B), a "public record" is a record or statement of a public office that sets out the office's activities and anyone opposing admission of the document record does not show any indicia of lack of trustworthiness. The FMCSA exemption decision is a record of statement of the Department of Transportation—a public office—and it sets out an activity of that office—a decision to exempt certain individuals from the agency's physical qualifications standards concerning hearing for interstate drivers.

Although the plaintiff has not opposed the defendant's request, the court will not take judicial notice of the collective bargaining agreements. "Judicial notice is a powerful tool that must be used with caution." Tobey v. Chibucos, 890 F.3d 634, 648 (7th Cir. 2018) (quoting Daniel v. Cook Cty., 833 F.3d 728, 742 (7th Cir. 2016) ). Judicial notice "is an adjudicative device that substitutes the acceptance of a universal truth for the conventional method of introducing evidence." Gen. Elec. Capital Corp., 128 F.3d at 1081 (citations omitted).

"[T]he effect of taking judicial notice under [Fed. R. Evid.] 201 is to preclude a party from introducing contrary evidence and, in effect, directing a verdict against him as to the fact noticed." Id. at 1083 (quoting United States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) ).

While it seems unlikely that the plaintiff would challenge the authenticity of the agreements later in the litigation—he cites the language of the agreements in his brief in opposition to the motion to dismiss, dkt. no. 25 at 8-12—the agreements are not matters of public record, and the fact that they are published on the Teamsters’ web site does not make them so. The agreements are not published on the web site of a public office. See Outley v. City of Chi., 407 F. Supp. 3d 752, 767 (N.D. Ill. Sept. 9, 2019) (taking judicial notice of CBAs reproduced on the city's website). No public entity has formally adopted the agreements or enacted them into law. See Minch v. City of Chi., 486 F.3d 294, 300, n.3 (7th Cir. 2007) (taking judicial notice of a collective bargaining agreement formally adopted by the city council and not objected to by the plaintiff).

That said, the court does not need to take judicial notice of the agreements to consider them. The defendant relies on the agreements in arguing that the court should dismiss the complaint for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Dkt. No. 23 at 12-19. "[A lack of subject matter] defense can take the form of a facial or a factual attack on the plaintiff's allegations." Bazile v. Finance Sys. Of Green Bay, Inc., 983 F.3d 274, 279 (7th Cir. 2020) (citing Apex Dig., Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009) ).

A facial attack tests whether the allegations, taken as true, support an inference that the elements of standing exist. See [ Apex Dig., Inc. , 572 F.3d at 443-44 ]. In this way, a facial attack does not challenge the alleged facts themselves. But a factual attack does, testing the existence of jurisdictional facts underlying the allegations. See id. at 444. Accordingly, a plaintiff undergoing only a facial attack enjoys treatment of her allegations true, but that benefit does not carry into the context of a factual challenge. See id. (quoting Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977) ). In that context, the court may consider and weigh evidence outside the pleadings to determine whether it has power to adjudicate the action. See Venezuela v. Helmerich & Payne Int'l Drilling Co. , ––– U.S. ––––, 137 S. Ct. 1312, 1316 (2017) ; Craftwood II, Inc. v. Generac Power Sys., Inc. , 920 F.3d 479, 481 (7th Cir. 2019).


The defendant has not mounted a facial challenge to the court's subject-matter jurisdiction; it concedes that the complaint purports to state a claim under the ADA, and because the ADA is a federal statute, the face of the complaint asserts federal question jurisdiction. The defendant argues, however, that there are facts that deprive the court of jurisdiction—facts contained in the collective bargaining agreements. Because the defendant has raised a factual challenge to the court's jurisdiction, the court may consider the agreements in determining whether it has...

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