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Warren v. UPS Inc., No. 07-2197 (1st Cir. Mar. 6, 2008)


Monday, March 9, 2008

Courts applying the ADA cede wide discretion to employers in the field of vehicular safety. Recent examples include Bates v. UPS, 511 F.3d 974, 20 A.D. Cases 1 (9th Cir. 2007) (en banc) (deaf truckers), and EEOC v. Schneider Nat'l Inc., 481 F.3d 507, 19 A.D. Cases 100 (7th Cir. 2007) (drivers with neurocardiogenic syncope). But the First Circuit last week found a different answer under the Maine Human Rights Act, affirming a jury verdict for a trucker shoved out of his job because of an epilepsy diagnosis: Warren v. UPS Inc. No. 07-2197.01 (1st Cir. Mar. 6, 2008)

Wrote the panel, "The most significant question in this case is how Maine law treats the issue of safety risk in the context of disability discrimination. Neither the MHRA nor the decisions of the Maine Law Court flatly answer the question. The federal district court judge, predicting how Maine would address the question, concluded that Maine would treat safety solely as a matter of defense for the employer to show. It did so based on differences in language between the federal Americans with Disabilities Act ("ADA") and the MHRA, the 1996 amendment to and recodification of the Act by the Maine legislature, and the reasoning of the Maine Law Court in other cases. We find no error in the district court's prediction based on present Maine law."

After the plaintiff (Paul Warren) was diagnosed with epilepsy in 2000, he entered a period of disability leave and treatment. Temporarily, he was placed in the less-lucarative position of washing and loading the delivery trucks. Within two years, his doctor cleared him to return to work driving the lighter trucks in the UPS fleet. Even the UPS doctor assigned to give a second opinion agreed:

"The UPS doctor agreed that Warren's seizures were well controlled, that Warren was not at risk of "los[ing] voluntary control," and that there was no concern of 'loss of consciousness.' The doctor concluded that Warren could resume driving, but that Warren would not be eligible for a Department of Transportation ('DOT') commercial driver's license (a 'DOT card'), which under DOT rules [for vehicles at or in excess of 10,001 pounds] cannot be granted to individuals who have been diagnosed with epilepsy or are taking anti-seizure medication. See 49 C.F.R. §§ 391.41(b)(8), 391.43(f). The doctor found, however, that as long as Warren took his medications regularly, Warren was 'fit for duty' and that 'he may safely drive any UPS vehicle not requiring DOT licensure.'"

Unfortunately for Warren, it was the policy of UPS to bar drivers who did not qualify for a DOT card for any of its vehicles (an issue that arose in the Bates case cited above):

"On June 3, 2004, Warren made a written request to return to work as a driver on the Whitefield route, a route on which an 8,500-pound vehicle is used. This litigation centers on Warren's June 2004 request. Warren made the request through his union representative, Terry Hanlon, to Sue Davis, UPS's regional labor relations manager. The request stated that Hanlon had communicated with the DOT and that the DOT had informed Hanlon that Warren would fall outside its regulations were he to drive a vehicle smaller than 10,001 pounds. Over the next few months, Davis and Hanlon spoke on several occasions regarding Warren's request. Aside from conversations with one of her employees, Hanlon, and UPS's counsel, Davis took no other steps to evaluate Warren's request. Davis testified that no individualized assessment of Warren's medical condition was conducted. In November 2004, Davis sent an e-mail to Hanlon denying the request, citing to UPS's company-wide DOT card policy."

After a three-day jury trial for disability discrimination and reasonable accommodation under Maine law (a parallel ADA claim was not presented the jury), the verdict came back for Warren. "The jury found that UPS had discriminated against Warren on the basis of his disability. It awarded $74,155.99 in back wages, a sum the court accepted as reasonable, but no compensatory damages. The jury also found that UPS had not performed an individualized assessment. The judge upheld the jury verdict over post-trial objections by the defendant, ordered that Warren be restored to his driving job 'unless and until UPS has legal reasons to take him off the job,' and awarded front pay until his reinstatement and pre-judgment interest on the back pay award."

The First Circuit affirmed over objections that the jury instructions placed the burden of proving a safety rationale on UPS. Although the ADA (and First Circuit law construing it) would have allowed UPS to argue that safe driving was an "essential function" of the job (on which the burden rests upon the employee), Maine law treated the same issue under the rubric of "direct threat," an affirmative defense. "The placement of the burden as to any safety risk posed by a disability raises significant public policy concerns about the best way to protect both the public and the disabled. It is entirely reasonable, as the district court said, that Maine law would strike the balance in one direction and federal law the other. Definitive resolution of the direction Maine chooses, however, is most appropriately directed to the Maine courts and the Maine legislature, not the federal courts."

The court also affirmed the reasonable accommodation, safety defense and "regarded as" instructions.

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