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Divided en banc 8th Circuit rules UPS driver who couldn’t work overtime not qualified

By Marjorie Johnson, J.D.

As a matter of law, a UPS employee could not perform the essential functions of his delivery driver job, or another less strenuous job (that would have required training and was not vacant at the time), since both positions required working overtime as an essential function and his doctor had unambiguously restricted him to eight-hour shifts. In a divided en banc decision, the Eighth Circuit reversed in part the decision of a divided panel, thereby affirming the district court’s dismissal of his ADA and state-law claims on summary judgment. The full appeals court agreed that he was undisputedly unqualified for the delivery driver position, and that UPS did not unlawfully deny his temporary request to work only four-hour shifts in another job and it had engaged in the interactive process in good faith. However, three partially dissenting judges would have let a jury decide whether he could have performed the less strenuous job—a position the EEOC also supported in an amicus brief (Faidley v. United Parcel Service of America, Inc., May 11, 2018, Loken, J.).

Eight-hour restriction. After the employee hurt his back twice and had hip surgery, his doctor restricted him to eight-hour work days. UPS required delivery drivers to work nine-and-a-half-hour days, but he sought a disability accommodation. The HR director initially considered a less physically demanding “feeder driver” position, which also required overtime and would have entailed additional training, but there were no vacancies. The employee was unable to obtain reassignment to any other alternative full-time jobs he sought, and UPS offered him a part-time job. He declined and, in 201, filed his first lawsuit asserting disability discrimination.

New position too demanding. Several months later, his doctor removed the hourly restrictions on any job other than delivery driver. He was then reassigned to a combined pre-loader/loader position, which proved too physically demanding and resulted in medical restrictions of four-hour shifts for several weeks as only a pre-loader. UPS refused the reduced schedule since he had already used all his available time in its temporary alternative work program. Later, he received another set of work restrictions that limited his lifting but contained no hourly restriction. UPS reinitiated the accommodation process but no full-time positions fitting his restrictions were available. He was again offered a part-time job but, again, he declined the offer. He subsequently retired and filed a second suit in 2013.

Procedural background. The district court consolidated the actions and granted summary judgment to UPS. Significant to this appeal, it found that working overtime was an essential job function of both the delivery driver and feeder driver positions that could not be accommodated and that the employee failed to demonstrate that UPS acted in bad faith. On appeal, a divided panel reversed in part and remanded. The panel judges all agreed that he was not qualified to be a delivery driver but only a majority found that triable issues existed as to whether he could perform the essential job functions of the feeder driver position. The full panel also affirmed dismissal of his 2013 claim.

Overtime “essential” to delivery driver job. The en banc court agreed with the panel’s finding that UPS did not violate the ADA or state law by refusing the employee’s request to work eight-hour shifts as a delivery driver since being able to work overtime was undisputedly an essential job function. Significantly, UPS explained that working overtime was an essential function because delivery drivers’ workloads could increase unpredictably, particularly during the busy year-end holiday season, and drivers also encountered unpredictable weather. Moreover, if a driver were unable to deliver all his packages within eight hours and was restricted from working overtime, other drivers would have to finish the deliveries or packages would not be timely delivered. Either alternative adversely affects UPS’s business. Finally, the overtime requirement was listed in the job description and the issue was collectively bargained with the union.

Unqualified for feeder job. However, the en banc majority disagreed with the panel’s finding that triable issues prevented summary judgment on the employee’s claim that UPS failed to reasonably accommodate him when it did not offer him the feeder driver position. It was undisputed that working overtime was an essential function and that his doctor permanently restricted him from working longer than eight-hour shifts. Though he and the EEOC argued that it was ambiguous whether his doctor intended the restriction to apply to jobs other than that of delivery driver, the doctor’s deposition testimony showed that he did.

The ADA “does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden,” the court said. Moreover, the HR director’s subjective opinion that the employee appeared “preliminarily” capable of performing the feeder driver job was insufficient to create a triable issue about his qualifications. Rather, his doctor’s “facially unambiguous restriction” established that he was not qualified to be reassigned to a feeder driver position. While UPS could have further explored his ability to perform the job if his doctor were to modify his eight-hour permanent restriction, it was under no ADA duty to pursue that unlikely accommodation, which would require training him and waiting for a vacancy.

Remaining claims. The en banc court also affirmed the panel’s determination that UPS did not unlawfully refuse to accommodate the employee’s temporary hourly restrictions at the combined loader/pre-loader job. The panel had correctly concluded that UPS was not required to reallocate the essential functions of the combined position and that the employee failed to demonstrate he could perform the essential functions of any available jobs with his new permanent lifting restrictions. Moreover, no reasonable jury could find that UPS acted in bad faith.

Three judges dissented in part. Judge Murphy, joined by Judges Smith and Kelly, disagreed with the ruling as to the loader/pre-loader position. They would have reversed and remanded that claim for trial on the issue of whether he was qualified to perform the job’s essential functions.