Today’s blog entry explores a variety of issues dealing with vindicating rights under the ADA in the face of a collective bargaining agreement (CBA). The case of the day is Murphy v. United Parcel Service,186188204208207 Inc., a decision from the Eastern District of Wisconsin on March 23, 2021. As usual, the blog entry is divided into categories and they are: facts; CBA need not be exhausted prior to filing an ADA claim; CBA does not require arbitration of the claim; plaintiff has standing; failure to accommodate claim do not require an adverse action; sufficient allegations exist with respect to plaintiff being otherwise qualified; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts Taken Directly from the Opinion Excepting Materials in Brackets Added at the Very End of This Section.

 

The defendant hired the plaintiff in 2004. Dkt. No. 19 at ¶7. The plaintiff worked in the Germantown facility, but now works in Elm Grove as package handler; he is a member of the Teamsters Local Union 344. Id. at ¶7, 9. The plaintiff, who is deaf and communicates through American Sign Language (ASL), did not have communication problems in Germantown because he had a supervisor who knew some ASL and whenever there was an important meeting, the defendant provided a sign language interpreter. Id. at ¶¶6, 7. The plaintiff began having problems with communication and the lack of interpreters once he transferred to the Elm Grove facility. Id. at ¶7. The plaintiff requested *9 interpreters for meetings and provided the human resources manager with contact information for interpreters. Id. at ¶8. On multiple occasions, the defendant failed to provide interpreters for meetings discussing promotions, scheduling, job changes, discipline and safety. Id. The failure to provide interpreters continues to be a problem for the plaintiff. Id. 9

 

The plaintiff has filed union grievances for the alleged “failure[s] to provide interpreters or appropriate communication.” Id. at ¶9. At least two of the grievances went to the Wisconsin Area Panel Grievance Committee, which ruled in the plaintiff’s favor and ordered the defendant to provide appropriate sign language interpretation to the plaintiff. Id. The plaintiff alleges that these orders have been followed “sporadically at best” and that there continues to be a failure to provide interpretation for many meetings, resulting in his not getting the information that his co-workers receive in daily briefings. Id. at ¶10. The plaintiff alleges that “[i]n the alternative,” the defendant has failed to provide him with notes on the meetings or has provided inadequate notes. Id. at ¶11. As a result, he has missed information about schedule changes in the days of the week he was supposed to work and how to participate in incentive programs. Id. at ¶12. The plaintiff alleges that the Elm Grove facility fails to follow UPS corporate policy for deaf and hard of hearing employees and applicants, which generally requires interpreters. Id.

 

The plaintiff applied for three full-time driving positions in 2016. Id. at ¶¶13-14. The process for bidding on driving positions is covered by the *10 seniority system mandated by the CBAs. Dkt. No. 24-3 at 7 (Sec. 8). A vacancy must be filled be the senior bidding employee. Id. 10 4 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021)

 

The first two times the plaintiff bid for full-time driver positions—on August 16 and September 16, 2016—he was the most senior bidder. Dkt. No 19 at ¶13. The defendant removed the postings without explanation. Id. The third time he bid (again, as the most senior bidder), on September 27, 2016, the plaintiff took a required physical exam (and passed), then was scheduled to take a driving test. Id. at ¶¶14-15. An applicant must complete several steps to be hired as a package car driver. He must pass the physical examination, which the plaintiff did. Dkt. No. 19 at ¶14. The applicant also must meet the hearing threshold required by the FMCSA. 49 C.F.R. §391.41(b)(11). The plaintiff obtained an exemption from the hearing requirement through an experimental program conducted by the FMCSA. Dkt. No. 19 at ¶14.

 

Next, the plaintiff was required to pass a driving test. Dkt. No. 19 at ¶15. When he took the test on November 7, 2016, the plaintiff requested an interpreter and asked to use a student truck because it had enough seats for the plaintiff, the tester and the interpreter. Id. The defendant refused to allow the interpreter to ride along and required the plaintiff to take the test in an older vehicle with a manual transmission. Id. When the plaintiff asked if he could practice driving with supervisors (which he says had happened in the past), the HR representative told him that option was no longer available because of liability concerns. Id. The plaintiff asserts, however, that after he *11 was told this, another driver (who was not deaf) was allowed to practice with a supervisor. Id. 11

 

The plaintiff alleges that before starting the test, the tester agreed to use hand gestures to administer directions on the test; however, the tester did not use the agreed upon gestures and used different gestures. Id. at ¶16. The tester never had the plaintiff pull over during the test to explain to the plaintiff what the tester wanted the plaintiff to do or what was to be evaluated. Id. The plaintiff says that his test was fifty-five minutes long; he says that non-deaf drivers usually had a test lasting between fifteen to twenty minutes. Id. The plaintiff did not pass the test. Id.

 

The plaintiff had a second driving test that was similar to the first one, except that the tester wrote notes and stuck them in the plaintiff’s face while he was driving. Id. at ¶17. The tester also marked a score for the plaintiff on the uphill parking portion of the test, even though the plaintiff does not recall being directed to perform this portion of the test. Id. The plaintiff did not pass this test. Id. After the second test, the tester allegedly told others that the defendant was determined never to let the plaintiff become a company driver. Id. at ¶18.

 

The CBAs are negotiated every five years [an internal process exist for resolving disagreements with the CBA].

 

II

A Collective Bargaining Agreement Need Not Be Exhausted Prior to Filing an ADA Claim

 

  1. The Labor Management Relations Act is silent on whether exhaustion is an affirmative defense with the default rule being it is an affirmative defense.
  2. Plaintiff is not suing under the Labor Management Relations Act rather this is a title I of the ADA claim claiming the defendant failed on multiple occasions to provide reasonable accommodations to help the plaintiff in his work and also failed on multiple occasions to provide reasonable accommodations so that he was denied a promotion to full-time work.
  3. Several courts have held that exhaustion of a CBA is not jurisdictional.

 

III

The Labor Management Relations Act Does Not Preempt ADA Claims

 

  1. The amended complaint asserts federal law claims.
  2. The Sixth Circuit has held that the Labor Management Relations Act did not preempt a claim brought in federal court under the ADA.
  3. Since the claim is based upon a federal cause of action and is in federal court, there is no danger of divergent application of the collective bargaining agreement provisions and therefore, preemption simply does not apply.
  4. A claim under the ADA is a separate, statutorily created federal cause of action independent from a CBA based contract claim under the Labor Management Relations Act. So, any contractual right under the collective bargaining agreement does not negate the statutory rights under the ADA.
  5. The Labor Management Relations Act does not bar a plaintiff from bringing an independent state or federal claim in court unless the claim can be conclusively resolved by interpretation of the CBA. That is, the claim is only precluded if it can be dispositively resolved through an interpretation of a CBA, which is not the case here.
  6. The defendant has not identified any provision of the CBA needing to be reinterpreted, or applied differently to other similarly situated employees if the court were to rule on the plaintiff’s ADA claim.
  7. The first amended complaint alleges that the defendant repeatedly failed to provide interpreters for meetings and other employment functions when requested and refused to provide notes on meetings without interpreters in violation of the ADA. Figuring this case out does not involve interpreting the CBA to decide whether the defendant has violated federal law. The case also has nothing to do with seniority bidding processes.
  8. The plaintiff alleges he was treated differently from other employees during the examination process so that the defendant would never allow him to become a driver. Further, the procedures employed during testing are not governed by the CBA. So while the court may consult the collective bargaining agreement or his prior grievances in resolving this case, a decision on the plaintiff’s claim does not require interpretation of the CBA.

 

IV

The CBA Does Not Require Arbitration of the Claims

 

  1. The relevant section of the CBA with respect to the ADA states as follows:

 

The Parties agree to abide by the provisions of the Americans with Disabilities Act. The Company shall be required to negotiate with the Local Union prior to providing a reasonable accommodation to a qualified bargaining unit employee. The Company shall make a good faith effort to comply in a timely manner with requests for a reasonable accommodation because of a permanent disability. Any grievance concerning the accommodation not resolved at the center level hearing will be referred to the appropriate Union and Company co-chairs for the Local Area or to the Region Grievance Committee, if applicable. If not resolved at that 32 14 Murphy v. United Parcel Serv. Case No. 19-cv-1728-pp (E.D. Wis. Mar. 23, 2021) *33 Dkt. No. 24-1 at 49-50 (emphasis added). level within then (10) days, the grievance shall be submitted directly to the National Safety and Health Grievance Committee. If the Company claims that the individual does not fall within the protections of the Americans with Disabilities Act, then the grievance must follow the normal grievance procedure in order to resolve that issue before it can be docketed with the National Safety and Health Committee. Any claim in dispute concerning rights under this Section shall be addressed under the grievance and arbitration procedures of this Agreement. A grievance may be filed by an employee or the Union, notwithstanding any contrary provision in any Supplement, Rider or Addendum. The submission of a claim under this Section to the grievance and arbitration procedures of the Agreement shall not prohibit or impede an employee or the Union from pursuing their statutory rights under the Americans with Disabilities Act (ADA) or comparable state or local laws.

 

  1. The section talking about how a submission of claim under this particular section of the CBA does not prohibit or impede an employee or the union from pursuing their statutory rights under the ADA is ambiguous. For instance, it doesn’t define what a claim under this section means. Also, this section does not appear to give rise independent claims, rather it simply states its intent to abide by the ADA. It also isn’t clear whether a claim refers to an employee claim for reasonable accommodation or whether it refers to a claim regarding the defendant’s handling of such claims. Finally, it is unclear whether this section means that an employee may pursue his statutory rights under the ADA and arbitration or whether he may pursue those rights in the courts. The CBA could have easily made that clear. Accordingly, the language of the CBA suggests that nothing shall prohibit or impede a plaintiff from pursuing his rights under the ADA in any forum.
  2. For a claim to be subject to arbitration, the agreement must be really clear (clear and unmistakable), that the claim subjects itself to arbitration and this one isn’t.
  3. In short, the CBA did not articulate a clear intent to require employees to submit ADA claims to the grievance process. For that matter, it does not contain a clear waiver of an employee’s right to pursue an ADA claim in federal court.

 

V

Plaintiff Has Standing to Pursue His Claim

 

  1. The plaintiff took all the necessary steps to file an ADA claim: he filed his claims with the EEOC and received a notice of right to sue with a finding of reasonable cause. The plaintiff has suffered a concrete and particularized injury. The injuries he alleges are neither hypothetical nor illusory; the plaintiff requested an ASL interpreter, he grieved the failure to accommodate and prevailed twice, he applied three times for the driving position, he requested accommodations in testing and he failed the driving test twice without accommodations. He alleges that others were tested under different conditions, allowed to practice, and accommodated.
  2. The defendant argues that the plaintiff must repeatedly return to a process that has failed him. Twice the state panel has agreed with the plaintiff and ordered the defendant to provide accommodation. Yet the plaintiff alleges that the defendant still has failed to address his needs. It is not clear why the defendant believes that a third—or fourth or fifth trip through the grievance process would make a difference. The defendant’s argument has little to do with ripeness. The plaintiff’s claims are ripe.

 

VI

Failure to Accommodate Claims Do Not Require an Independent Adverse Action

 

  1. In the Seventh Circuit, to prevail on a failure to accommodate claim a plaintiff must show: 1) he was a qualified individual with a disability; 2) his employer was aware of a disability; and 3) the employer failed to reasonably accommodate his disability.
  2. The Seventh Circuit does not require a plaintiff pursuing a failure to accommodate claim to allege an adverse action.
  3. Plaintiff alleged: 1) he was a qualified individual with a disability; 2) the employer was aware of it disability and have previously provided ASL interpreters at another location; 3) the plaintiff requested an ASL interpreter for meeting and had agreed the requested accommodation twice and the defendant continue to ignore his request. All of this is sufficient to get by a motion to dismiss.
  4. Since an adverse action is not an essential element of a failure to accommodate claim, the fact that the plaintiff did not plead it in the amended complaint is irrelevant.

 

VII

Sufficient Allegations Exist With Respect to Whether the Plaintiff Was Otherwise Qualified

 

  1. To state a discrimination claim under the ADA, a plaintiff has to allege: 1) he is a person with a disability within the meaning of the ADA; 2) he is qualified to perform the essential elements of the job with or without reasonable accommodation; and 3) he suffered an adverse employment action because of his disability.
  2. Here, plaintiff alleges that he is qualified to perform the essential functions of the job with reasonable accommodation. He alleged that he sought and was granted a hearing exemption from the Federal Motor Carrier Safety Administration and passed the requisite physical test. He holds a valid Wisconsin driver’s license. Finally, he was denied accommodations and failed the driving test twice.
  3. Whether a plaintiff can perform the essential functions of the job with or without reasonable accommodations is a jury question.

 

Separately, the court granted the defendant’s motion to strike the claim for declaratory relief because the amended complaint did not identify any policies or regulations for the court to declare in violation of the ADA and did not assert a declaratory relief claim. For that matter, the plaintiff did not respond to the defendant’s arguments on the issue. Also, the court explicitly encouraged the party to consider mediation, especially since the defendant had already litigated a similar case in another federal court.

 

VIII

 

Thoughts/Takeaways

 

  1. If an employee is faced with an ADA claim and is a member of a union, the employee’s claim will not be bounced out of court automatically if the employee does not go through the collective bargaining grievance process.
  2. The Labor Management Relations Act may preempt ADA claims in narrow situations, but not often because just about all cases will not involve interpreting the CBA to decide whether the defendant has violated the ADA. It may be a different story with respect to seniority bidding processes (think mandatory reassignment situations).
  3. Any agreement to arbitrate must be clear and unmistakable.
  4. The more specific a plaintiff is with respect to allegations in an ADA claim, the more likely the plaintiff will have standing and also get by any claims he or she is not otherwise qualified.
  5. Check your jurisdiction with respect to whether failure to accommodate claim require an independent adverse action. The courts are definitely split on that question. Look for that question to go to the Supreme Court eventually.
  6. Whether you are qualified under the ADA involves asking whether you can perform the essential functions of the job with or without reasonable accommodations and is a jury question.
  7. It wouldn’t surprise me to see an appeal to the Seventh Circuit. Hard to say what the Seventh Circuit would do on the various issues raised in this opinion.

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