While the EEOC and others have gone after Big Brown’s alleged “100% healed” policy, looks like Mr. Thornton has reached the end of the road with his challenge.
Thornton v. United Parcel Service, Inc., No. 08-2162 (1st Cir. Nov. 12, 2009): The plaintiff, a long-haul driver from 1968 to 2002, filed a charge complaining that he was denied accommodations and worked beyond his restrictions (he suffered from chronic pain from various back, shoulder and arm ailments). After filing his opening complaint in federal district court, he amended with allegations “that UPS had engaged in per se disability discrimination by adhering to an unwritten ‘100% medical release’ policy. . . . Under that alleged discrimination policy, employees with medical restrictions are forced to remain on unpaid leave unless they certify that they are completely recovered and one hundred percent healthy.”
The district court granted summary judgment on the claim and the First Circuit affirms. It holds that the “100% healed” policy was not within the scope of the agency charge filed by plaintiff with the Massachusetts Commission Against Discrimination. As the panel summarizes:
“Mr. Thornton’s 2001 MCAD charge relates solely to UPS’s alleged misunderstanding of his medical restrictions, resulting in a failure to accommodate his disability in relation to a route he drove to Buffalo, New York. Using these allegations as our guide, we are in agreement that a reasonable investigation of this charge would naturally relate to Mr. Thornton’s then-existing medical restrictions, UPS’s response, if any, to those restrictions, and the circumstances of Mr. Thornton’s assignment to drive the Buffalo, New York route. But we see no reason to believe that a reasonable investigation would have uncovered the various subsequent, discrete events, actions, and medical restrictions that Mr. Thornton cites in his district court complaint. Nor would we expect that a reasonable investigation would have uncovered UPS’s alleged 100% medical release policy, as Mr. Thornton made no reference to such a policy. Mr. Thornton’s reliance on the scope of the investigation rule is thus misplaced.”
The plaintiff pursued another, less common argument to overcome the lack of a timely charge, as well — that the “100% healed” claim challenged a “systemic violation” for which the timing rules were different. Without pausing to discuss whether this argument continues to be valid in the wake of Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), the panel holds that the plaintiff simply failed to produce sufficient evidence of such a systemic violation:
“As to systemic violations, ‘we have recognized that if a Title VII violation occurs in the wake of some continuing policy, itself illegal, then the law does not bar a suit aimed at the employer’s dogged insistence upon that policy within the prescriptive period [even if no discrete violation occurs during the period].’ Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d 179, 183 (1st Cir. 1989). But a mere ‘series of discrete discriminatory acts motivated by a discriminatory animus cannot be a systemic violation.” Megwinoff v. Banco Bilbao Vizcaya, 233 F.3d
73, 76 (1st Cir. 2000). Rather, the alleged discriminatory violations must arise from some discriminatory policy. See id. ‘[G]eneral references to some vague, undefined policy of discrimination are not . . . sufficient to make out a . . . showing that a discernible discriminatory policy was in effect.’ Mack, 871 F.2d at 184.
“In this case, Mr. Thornton’s 2001 MCAD charge does not allege the existence of a discriminatory 100% medical release policy. Similarly, his original complaint in the present action neither cited to nor pled the existence of such a policy. See Complaint, Thornton v. United Parcel Serv. Inc., No. 05-cv-10210 (D. Mass. Feb. 1, 2005). Indeed, Mr. Thornton first pled the existence of a discriminatory policy in his amended district court
complaint, in which he alleged simply:
“Moreover, this discrimination and failure to offer reasonable accommodation was due to an unlawful employment policy requiring employees to obtain a ‘100% medical release,’ without restrictions, before being allowed to return to work from a medical leave. This ‘100% medical release’ policy forced Mr. Thornton to bid on jobs outside his restrictions because U.P.S. refused to accommodate his medical limitations.
“Amended Complaint at 9 ¶¶52-53, Thornton v. United Parcel Serv. Inc., No. 05-cv-10210 (D. Mass. Feb. 10, 2006). And ultimately, in opposition to summary judgment, Mr. Thornton proffered only his own affidavit to support his allegations. Even then, Mr. Thornton’s allegations are self-contradictory, as he agrees that UPS has repeatedly permitted him to return to work with medical restrictions in place. He also admits that UPS provided him with an accommodation in the form of assistance with the lifting necessary for the March 2001 drive to Buffalo, New York.”
So the ultimate resolution of the controversy over UPS’s alleged policy must await the EEOC’s pattern or practice case, pending in Chicago.