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December 12, 2000


The opinion of the court was delivered by: William Alsup, United States District Judge.



In this case under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., the issue is whether applicants with excellent vision in one eye but little or no vision in the other may be categorically excluded by United Parcel Service, Inc., from any and all driver positions regardless of their actual safety records and driving abilities. The issue is not whether an individual's vision may be a factor in assessing his or her qualification for such a job. Without question, it surely can and should be. Nor is the issue whether public safety can be compromised by the ADA. Sufficient vision to drive safely is a manifest and essential job function for all positions at stake. This order makes clear that UPS need not employ any disabled driver posing a greater safety risk than the unimpaired drivers it otherwise employs. Rather, the essence of this case concerns whether the particular per se rule of categorical exclusion used by UPS is lawful under the ADA. On the trial record herein, this order holds that UPS has not proven that its omnibus rule is lawful. Therefore, until UPS adopts a standard that satisfies the ADA, it must make individualized employment decisions that allow otherwise qualified monocular applicants to try to demonstrate that they can perform the essential job function of driving safely.

Procedural History

In 1995 UPS adopted a nationwide "vision protocol." This set eyesight standards for its drivers of smaller UPS vehicles, those not regulated by federal authority. In practice, anyone failing the protocol has been categorically barred from any and all driving positions with no inquiry into his or her actual abilities or safety record. To challenge the per se rule, this action was filed by the EEOC against UPS in March 1997, alleging discrimination against monocular driver applicants and seeking nationwide relief on their behalf. Certain individual applicants, including James Francis and Shawn Hogya, intervened as party plaintiffs. After considerable discovery, massive cross-motions for summary judgment were made and denied. The Court directed that the trial would comprehend four pilot claimants selected by plaintiffs and that all other claimants for whom a summary judgment opposition had been filed would temporarily remain in abeyance. The pilot claims were intended to illuminate the UPS vision protocol and driving positions at issue. A bench trial followed. During trial, the Court conducted a view of various UPS vans and package cars, sat in drivers' seats, and inspected package compartments. There were several post-trial submissions and a two-day oral argument.

Subject-Matter Jurisdiction

The EEOC may sue a private employer in district court to enforce Title VII and the ADA based on an employee's charge of discrimination if the employer fails to submit to a conciliation agreement acceptable to the EEOC. 42 U.S.C. § 2000e-5(f)(1). Without the necessity of class-action procedures, the EEOC may seek relief for all aggrieved employees. Only practices made part of a reasonable-cause determination, however, may be litigated. EEOC v. Hearst Corp., 553 F.2d 579, 580 (9th Cir. 1977). In light of the reasonable-cause determinations as to Yvonne Harbison and James Francis (TX 1073, 1078), the Court has subject-matter jurisdiction to hear and determine all claims of applicants similarly situated. EEOC v. Dinuba Medical Clinic, 222 F.3d 580, 589 (9th Cir. 2000). Even though Ms. Harbison settled her claim after the cause determination, her claim still provides jurisdiction for the EEOC to seek injunctive and declaratory relief on behalf of others similarly situated. EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1542 (9th Cir. 1987); EEOC v. Frank's Nursery & Crafts, Inc., 177 F.3d 448, 456 (6th Cir. 1999). Whether the Court has jurisdiction over the claims of UPS mechanics will be considered below.


At the close of evidence, the parties submitted over 2400 proposed findings. As a concession to comprehensibility, the Court has tried to reduce the bulk, to focus on the essentials, and to distill the findings while still covering the case sufficiently so that both sides may fairly present their legal arguments on appeal. That said, a number of proposed points have been omitted as too remote. This order will cite the record as the exception and not the rule.

UPS Business and Organization

1. United Parcel Service is the world's largest private carrier of packages with 340,000 employees worldwide. Deliveries and pickups are made via "package cars," i.e., the familiar brown UPS trucks. UPS employs about 70,000 package-car drivers in the United States. They normally operate solo, doing all the driving, pickup and delivery alone.

2. The corporate headquarters of UPS is located in Atlanta. There are twelve geographical regions within UPS. The twelve regions contain 62 geographical districts. Corporate UPS supports the regions. The regions support the districts. The latter are the operating level. Each district is a semi-autonomous operation employing on average 5000 employees.

3. Within a district, there are four divisions: a package division, hub operations, feeder operations, and staff. The package division is organized around "centers," out of which the local package cars operate. Typically, a center will have from forty to sixty drivers. Each district has many centers and almost all districts have at least one hub. A hub is like a wheel with spokes extending to centers. The hub receives packages from centers (and from other hubs). Feeder operations move packages between centers and hubs (and between hubs) via multiple-axle tractor trailers. At centers and hubs, packages are received, sorted by destination, and dispatched to the next logical node in the network.

4. The Northwest Region includes Washington, Oregon and California down to Bakersfield. The East Bay District is within the Northwest Region. The East Bay District extends from Napa in the north to Union City in the south (excluding Fremont). It extends into the Central Valley and includes San Ramon, Walnut Creek, Concord, Cordelia, Modesto and down to Bakersfield.

The Daily Package Cycle

5. The first step in the daily package cycle occurs when a customer decides to send a shipment by UPS. The package is picked up by the UPS operator assigned to the route. Pickups usually occur in the afternoon. The driver transports all pickups back to the center at the end of the work day.

6. All packages are then unloaded onto a conveyor belt and separated by zip-code destinations. So sorted, packages are next loaded onto various tractor-trailer trucks to be delivered to appropriate hubs. Sorters are generally part-time "inside" employees.

Structure of UPS Labor Force and Progression to Package-Car Driver

8. Most entry-level UPS jobs are part-time. Part-time employees eventually earn enough seniority to bid for full-time positions. A typical pattern is that a part-time sorter or preloader, after accumulating enough seniority, will bid to become a full-time driver as openings occur and will drive until retirement. All relevant jobs will now be described.

Part-Time Jobs

Preloaders and Local Sorters

9. Preloaders are part-time employees who load package cars before the drivers report to work. This is the entry level for most UPS employees. Preload operations begin at around 3:00 a.m. and generally last three to four hours. The job consists of picking up packages from a moving belt and loading them onto trucks. Similarly, "local sort" employees work in the afternoons unloading incoming packages from the package cars, and then sorting and reloading them onto tractor trailers. Local sort employees also work on a part-time basis. The local sort shift runs from approximately 5:00 p.m. to 9:00 p.m.

Utility (or Cover) Drivers

10. Utility drivers fill in for absent full-time package-car drivers as needed. They deliver packages when there are not enough package-car drivers to cover all the delivery routes that day. Part-time employees who work as utility or cover drivers do so in addition to their regular job duties. They often work the early morning preload shift, for example. They do not drive on a daily basis. When they do, however, they work the same hours as the package-car drivers. Under the seniority system, UPS may not call on utility or cover drivers if full-time drivers are available.

Part-Time Air Drivers

11. Air packages are airmail. They are delivered by part-time employees as well as full-time employees known as air drivers. Some part-time air-delivery driver positions are bid jobs that enable the drivers to perform "scheduled" air driving five days a week. These "air drivers" have a standing start time and serve a designated area. Other air work is "exception" or "call-in" work. These employees have another regular part-time job and perform air driving only in exceptional cases, such as when an aircraft arrives late or when a facility experiences a problem that delays a dispatch.

Full-Time Jobs

Package-Car Drivers

12. The primary job at stake in this litigation is the package-car driver. UPS employs approximately 70,000 of them in the United States. There are two types of full-time package-car drivers. Some are called "bid" drivers because they have sufficient seniority to bid on and keep a single route. Each operates the same route and vehicle every work day. Bid drivers are the most senior.

Full-Time Air Drivers

14. In addition to part-time air drivers, there are some full-time air drivers who deliver and pick up packages for overnight delivery. The volume of air packages has increased over the last five years, but the number of air drivers has decreased. It is more economical to deliver air packages through regular package drivers rather than through air drivers. Thus, more and more air packages are being delivered by regular full-time package drivers rather than by air drivers. For this reason, there are few full-time air-driving jobs.


15. Mechanics are full-time employees. Mechanics rebuild and repair UPS vehicles and their components. This includes changing oil, changing tires, performing body repair, and rebuilding brakes, clutches and transmissions. Mechanics perform some driving work for UPS in the context of making road calls with vehicles and taking vehicles on road tests. This lawsuit also alleges discrimination with respect to UPS driving restrictions on monocular mechanics.

Feeder Jobs

16. Feeder drivers are full-time employees who move packages between distribution centers and hubs in multiple-axle tractor trailers. These are high seniority jobs. UPS employs approximately 15,000 feeder drivers. These positions are not at issue in this lawsuit because all the heavy trucks they drive are subject to the DOT vision standards.

The UPS Fleet

17. This lawsuit concerns only that fraction of the overall UPS fleet exempted from the DOT safety regulations. Since 1995 (and arguably earlier), the DOT safety regulations have applied only to vehicles with a Gross Vehicle Weight Rating ("GVWR") of 10,001 pounds or more. GVWR is the maximum loaded weight of the vehicle as set by the manufacturer. Nationwide, UPS currently has a fleet of 67,178 package cars of all sizes. Of that fleet, 5,511 have a GVWR of 10,001 pounds or less.

18. UPS package cars are classified by the cubic feet in their cargo hold. For example, a P500 has 500 cubic feet of cargo space. A P500 is sometimes called a P50, for short. Non-DOT package cars include P20's (Dodge Caravan or Ford Aerostar, both 200 cubic feet), P30's (Ford Econoline or Econovan, both 300 cubic feet), P31 (Econoline with an extended roof, 310 cubic feet), P32's (UPS brown trucks with 320 cubic feet of cargo space), P35's and P40's (same with 350 and 400 cubic feet), and P50's (UPS delivery trucks with 500 cubic feet of cargo space).

19. P500 package cars are made by two different manufacturers. One brand has a GVWR of slightly over 10,001 pounds and the other is slightly under. Those under typically have a GVWR of 9300 to 9600 pounds. Those over have a GVWR of 11,300 pounds. All have the same dimensions, except the heavier vehicles are eight to ten inches higher. The lighter versions are generally 20 to 25 years old. The useful life of a UPS package car depends on the area of the country, but where conditions are optimal, it is between 20 to 25 years. Currently, 175 non-DOT P500's are scheduled for disposal in 2001.

20. P40's have a GVWR of 8,000 pounds. P32's have a GVWR of 8,600 pounds. P31's have a GVWR of 8,500 pounds. P30's have a GVWR of 7,900 pounds. P20's have a GVWR of 5,300 pounds. (Curiously, the P40 is lighter than some of the smaller vehicles.)

21. The vans, i.e., the P20's and P30's, have a useful life of three to five years, slightly longer in optimal conditions. P20's and P30's are ordered without windows on the rear sides and back, if available. They are structurally stronger without windows. Shifting packages can break windows. Windows may also encourage theft. Where these vehicles are ordered with windows, they are often modified by inserting a plywood liner in the cargo areas and painting the windows. P20's, P30's and P31's are used for air-exception or part-time air-delivery work.

22. The trend at UPS, based on package volume, favors larger package cars. With few exceptions, routes are not delivered in package cars smaller than a P32. P32's and P500's are used on routes with fewer packages and more driving and stops, i.e., rural routes and residential routes. Of the non-DOT package cars, most are P32's and P500's with a GVWR under 10,001 pounds. UPS has 2958 and 1263 units of each, respectively. Eight percent of the UPS fleet weighs less than 10,001 pounds.

23. In the East Bay District are approximately 830 routes, of which 105 are P500 routes. Each of these routes could be delivered in trucks weighing 10,001 pounds or less. In Northern California, there are currently 79 P500's with a GVWR under 10,001 pounds.

24. Package cars may be reassigned from one center to another depending on need. Nothing prohibits moving package cars from district to district.

UPS Route Definition

25. All UPS routes are organized around centers. UPS uses a loop concept to design routes. A concentric set of imaginary geographic loops emanate from the center, each loop comprising a route. UPS designs routes to minimize miles and optimize stops per car, consistent with customer service. As stated, for example, in the East Bay District there are 830 routes.

26. The UPS Industrial Engineering Department ("IE") helps to optimize efficiency through work measurement and operations planning. For the package-delivery operations, the IE department decomposes the work day into tasks and time studies are conducted. An observer spends an entire day with a package-car driver, timing each task. Once the tasks are measured, average times are developed. The averages developed through the time studies are used to develop routes which will fit within a UPS "planned day."

27. UPS designs its routes to provide a minimum of eight hours of work for the delivery driver and a maximum of 9.5 hours. These hours are set by the terms of the collective bargaining agreement. It requires that full-time package-car drivers be paid for a minimum of eight hours for any day they work without working more than 9.5 hours on a regular basis. UPS aims for 8.7 hours.

28. Once the route is defined, UPS estimates the normal volume and size of the packages on the route. It then assigns the smallest package car that can handle the volume, leaving some extra room for operator movement in and out of the package compartment. New routes are provoked by an increase in package volume. The principal criterion for adding a new route is whether it is justified based on the average stops per car.

29. Because the smallest vehicle which will fit a route is assigned to that route, fitting a route into a yet smaller vehicle would impose additional costs. If a smaller package car is assigned to a route, all of the packages for delivery and pickup will not necessarily fit into that package car.

30. When routes are added or subtracted, other routes are affected as work is added to or taken away from them. UPS, however, does not need the union's approval for changing a route (up to fifty percent) or to add a new route. UPS can change the equipment assigned to a route without the union's consent.

The Collective Bargaining Agreement and the Role of Seniority

31. The terms and conditions of employment of UPS drivers and other UPS employees are established by collective bargaining agreements with the Teamsters United Parcel Service National Negotiating Committee, and with local unions affiliated with the International Brotherhood of Teamsters (TX 2). The National Master United Parcel Service Agreement ("National Master Agreement") applies to all UPS employees represented by the Teamsters in the United States. Full-time employees in the UPS districts of Northern California, East Bay and Sacramento Valley who are represented by the Teamsters are governed by the "Northern California Supplement" in addition to the National Master Agreement. Part-time UPS employees in Northern California who are represented by the Teamsters are covered by the "Northern California Sort Rider" in addition to the National Master Agreement. UPS mechanics in Northern California are represented by a different union than the Teamsters and are covered by wholly different collective bargaining agreements.

Seniority Generally

32. UPS's collective bargaining agreements with the Teamsters have contained seniority provisions since their inception. One section of the Northern California Supplement is dedicated solely to emphasizing the importance of seniority: "The company recognizes that the principles of seniority will be given prime consideration in the everyday operation of the business" (TX 1). Seniority provisions, bidding rights and grievance procedures are generally set forth in supplemental collective bargaining agreements and riders rather than in the National Master Agreement.

33. There are separate seniority lists for part-time and full-time employees. Full-time drivers retain no standing on the part-time seniority list and vice versa. The contract does not allow employees to earn seniority on both full-time and part-time seniority lists. Under some circumstances, UPS employees may transfer between buildings. When they do so, they are put at the bottom of the relevant seniority list for the new building. They keep their company seniority only for purposes of benefits.

Selection of Package-Car Drivers and Assignment of Bid Routes

34. The threshold selection criterion for package-car drivers is seniority. Part-time employees who successfully bid into the package classification remain on the part-time seniority list until completing the thirty-day probationary period. Then they are removed from the part-time list and added to the bottom of the full-time list. "Bid" package routes are also awarded by seniority.

Only full-time driving seniority counts. It can take five to six years of full-time driving to bid successfully for a "bid" route, although less time is common too. Delivery routes become available for bid when a package-car driver vacates an existing route or when UPS creates a new one.

35. In Northern California, when a route is bid as a result of a permanent vacancy or new position, the route is posted for bid by any driver in the building. When a route is bid, the company must post the bid for five days and must provide a geographic description of the route, including the number of stops on the route and other general characteristics of the route. This description enables employees to decide whether to bid. The most desirable routes are usually those that cover more miles and involve fewer packages and fewer stops. Drivers on these routes do not have to get in and out of the vehicle as much or carry as much. Typically, small vehicles such as P500's (as opposed to P800's) are assigned to these high-mileage routes. The smaller vehicles carry fewer packages and are more fuel efficient.

36. In the Richmond building (in the Northern California district), the least-senior driver to have successfully bid on a P500 route had seven years of driving seniority. P500 drivers in the Richmond building have, on average, 13.5 years of full-time driving seniority. In the Petaluma building, there are two routes delivered in P32's. One is held by a driver with full-time seniority beginning in 1981 and the other by a driver with seniority beginning in 1985.

Bidding by "Unassigned" Package-Car Drivers

37. Package-car operators may be "unassigned" for years before gaining enough seniority to hold a "bid" route. The "unassigned" fill in for absent "bid" package-car drivers. Under the Northern California Supplement, bid routes that are temporarily available for more than five days must be filled for the duration of the temporary vacancy by seniority. For shorter periods, the company usually selects an unassigned driver on the basis of seniority. UPS may choose a driver who has knowledge of the route over a more senior driver without such knowledge, but the most senior unassigned drivers tend to be familiar with more routes.

38. It is easier to bid into the package classification from a full-time air position than from a part-time position because full-time driving jobs are open to full-time employees first. For bid-package routes, however, it is one's seniority as a package driver rather than one's seniority as a full-time employee that determines bid rights.

Seniority and Part-Time Employees

39. Part-time jobs are also awarded to part-time employees on the basis of seniority, usually through a bidding process.

Air Drivers

40. UPS posts a notice when it needs new air-exception drivers. Qualified employees who indicate interest are given air-exception work in seniority order. Air-driving positions for scheduled air runs also are awarded on the basis of seniority. Part-time air drivers accrue seniority on the part-time seniority list. A sorter who begins performing air-driving work — whether on a scheduled bid run or on an "exception" basis — remains on the part-time seniority list with the same part-time seniority date.

Utility (or Cover) Drivers

41. Interested part-time employees are called for utility-driving work in order of their part-time seniority. Utility drivers are part-time employees. They earn part-time seniority. These part-timers gain valuable experience regarding route knowledge.

Selection and Training Procedure for Package-Car Drivers

43. The employee must then complete a road test within an established error range. It is conducted on a ten-mile course on public streets. It is intended as a gate-keeping exercise, to determine if the individual has the basic skills to go on. Examinees typically have never driven a package car before. Few fail. The test is not intended to be a final assessment of the care and safety of the applicant.

44. Applicants must then take a physical exam. For vehicles over 10,001 pounds GVWR, as noted, DOT imposes certain vision standards for both eyes. UPS normally requires all applicants to pass the test on the theory that entry-level package-car drivers will be asked to drive many different routes and thus heavy as well as lighter trucks (i.e., DOT and non-DOT vehicles).

For the vision-impaired, however, UPS will substitute its vision protocol (requiring good vision in only one eye but some vision in the other) as an accommodation.

45. Those who pass advance to classroom training. UPS emphasizes defensive-driving training. UPS bases its training on what it calls its Space and Visibility methods, which, in turn, include the so-called "Five Seeing Habits," the "Ten Point Commentary" and the "Rules of Backing and Parking." The Space and Visibility methods focus on use of visual skills to detect hazards and avoid accidents. They include the Five Seeing Habits which are drilled into the recruits. They are (TX 17):

(a) Aim high in steering. The purpose of this rule is to find a safe path well ahead, to center the vehicle in the travel lane and to provide a safe path on turns.
(b) Get the big picture. The purpose of this rule is to be able to view well ahead of the vehicle to detect moving objects, including pedestrians, children playing, other vehicles and merging traffic and to detect fixed objects such as parked vehicles, traffic signals and signs. This also allows drivers to maintain the proper following distance. Inadequate following distance causes reduced visibility and reduced time to react.
(c) Keep your eyes moving. The purpose of this rule is to avoid accidents by staying constantly ahead of the "visibility job." Drivers are taught to scan, not stare, and to shift their glance from object to object every two seconds.
They are taught that when approaching an intersection, they should look left, right and left again.
(d) Leave yourself an out. The purpose of this rule is to ensure that drivers can constantly gather traffic information, make plans and take action when necessary.
(e) Make sure they see you. This rule teaches drivers to use their horn, lights and signals to communicate with others in traffic.

46. The Ten Point Commentary includes (TX 17):

(a) Leave one car length space when stopped in traffic.

(b) Look left, right, left at intersections and then check your mirrors.
(c) Count one, two, three at start up to create a space cushion around the vehicle.
(d) Allow four to six seconds following time to allow the driver to get the big picture.
(e) Check your mirrors every five to eight seconds to get the big picture, keep your eyes moving and leave yourself an out. Drivers are taught a process called "triangular viewing" where the driver checks the mirror on one side, moves his or her vision to the middle of the "big picture," and then moves his or her eyes to the other mirror.
(f) Scan the steering wheels of cars along the curb to see if the vehicles are occupied and to be prepared in case the driver decides to pull away from the curb.
(g) Check for stale green traffic lights to determine whether you will have to stop, and look at the cross traffic.
(h) Maintain eight to twelve seconds of eye lead time to give the driver the big picture.
(i) In pulling out from the curb, check your mirror and glance over your left shoulder to check for anything in your blind spot.
(j) Make eye-to-eye contact to ensure that the other driver or pedestrian sees you. "When you establish eye contact, you can expect the other driver to act in a reasonably predictable manner and avoid [a] dangerous situation."

47. After completing the Space and Visibility training, the applicant spends a full day learning to apply the training in a UPS vehicle under supervision.

48. Then follows a thirty-day qualification period. Applicants drive a training route for thirty days. There is direct supervision for the first three to six days, a series of follow-up rides, and a final ride with the center manager. Space and Visibility training is revisited three to four times during the thirty days. In addition to defensive-driving techniques, UPS trains drivers on its products and delivery procedures. It is not unusual for trainees to be disqualified during the thirty-day probationary period. Unsafe candidates are rejected. At the completion of the thirty-day probationary period, if the trainees have demonstrated that they can deliver the route in a timely and safe manner without service failures, they graduate.

49. Air drivers are provided the same safety training, but the remaining topics are provided in a condensed form.

Safety and UPS Accident History

50. UPS puts 75,000 package-car drivers on public roads every work day. Despite its emphasis on safety and driving defensively, UPS trucks have been involved in many thousands of accidents.

51. In recent years, there have been between 20,000 and 27,000 accidents involving package cars annually. The most frequent accidents involve backing. The most serious typically involve intersections, pedestrians, head-on collisions, and rear-ending someone. In 1999, UPS drivers were involved in 52 fatal accidents, of which 36 involved package cars. All of these involved binocular drivers.

Federal and State Vision Requirements

52. Since 1937, a succession of federal agencies have promulgated the Federal Motor Carrier Safety Regulations. Prior to 1988, those regulations (then as now promulgated by DOT) required drivers of motor vehicles in interstate or foreign commerce to pass a physical test and to obtain a certificate of medical examination. This included a vision requirement of 20/40 vision (Snellen) in each eye,*fn1 and peripheral vision of 70 degrees in the horizontal meridian for each eye, among other things.

53. It is common ground herein that the DOT standards trump the ADA as to any vehicles covered by the DOT regulations. The parties are in further agreement that up to at least 1988, all UPS vehicles were subject to this requirement. They agree that from at least July 1995 forward, the DOT requirements had no application to lighter-weight vehicles and, therefore, the ADA applied to employment practices concerning those vehicles. But the parties are in disagreement as to whether the DOT regulations applied between July 1992, the effective date of the ADA, and July 1995.

54. In May 1988, DOT published its intention to suspend its physical requirements for vehicles weighing less than 10,001 pounds. 53 Fed. Reg. 18044 (May 19, 1988). The announcement noted that the states should thenceforth decide on any vision requirements for lighter-weight vehicles. The published rules, however, failed to carry out this intention, evidently through a drafting error, and it was not until July 1995 that a formal "correction" was made to delete vehicles weighing less than 10,001 pounds from the vision regulation. 60 Fed. Reg. 38739 (1995).

Nonetheless, UPS knew at all material times prior to 1995 that DOT was no longer enforcing the vision requirements for lighter-weight trucks. This knowledge, together with the 1992 effective date of the ADA, was one of the motivating forces behind UPS's adoption of its vision protocol.

55. Forty-two states grant unrestricted passenger-car licenses to monocular drivers, while eight states and the District of Columbia have restrictions varying from daylight driving only, to restrictions on time of day and geographic areas, speed, and other unspecified restrictions. Certain of the 42 states do have visual field requirements. Some impose requirements for mirrors.

Monocular drivers may be required to have periodic check-ups with an eye-care specialist, and in several states, eye-care specialists are charged with the duty of making recommendations regarding restrictions. In addition, restrictions may apply if the vision in the better eye is worse than 20/40. These privileges and restrictions were in place at all relevant times.

The UPS Vision Protocol

56. When UPS moved its corporate headquarters to Atlanta, it established a relationship with Emory University as a source of consultants on medical issues. Dr. Howard Frumkin was in 1992 a physician at Emory University in the School of Public Health. His colleague, Dr. Ned Witkin, was then and remains a doctor of optometry and is an assistant professor of ophthalmology. He is also the Chief of Optometry at Grady Memorial Hospital. He is an expert in vision but not in driving. Dr. Ed Galaid was in 1994 a physician in occupational medicine at Emory.

57. In 1992, DOT was considering an experimental waiver program whereby monocular drivers could operate large and small vehicles. UPS wished to oppose the proposal. On May 22, 1992, Susan Pelchat, the chief nurse for UPS, sent a letter to Dr. Frumkin, asking a series of questions. The letter stated: "In response to the proposed rulemaking for vision waivers by DOT, I'm requesting your assistance in formulating a corporate medical recommendation" (TX 32). Dr. Frumkin forwarded the request to Dr. Witkin.

58. Nurse Pelchat received a response from Dr. Witkin (TX 35). His letter answered "the questions you had regarding vision requirements for Commercial Motor Vehicle Operators (CMV)." With respect to minimum visual acuity in the "affected eye," Dr. Witkin stated: "Keeping in mind the 20/40 visual acuity requirement in the better eye, the range of visual acuity in the affected eye could be 20/50 to 20/200. Twenty-two hundred vision is `gross object perception' and even in the case of a CMV operator getting something in the better eye, he/she would still be able to get to a safe stop until the vision cleared in the better eye" (TX 35).

59. With respect to depth perception, he replied:

There are several different types of "depth perception" (TX 35):

A. Stereopsis or Stereoscopic Vision — requires two eyes of equal best corrected visual acuity pointed at the object of regard measured in seconds of arc. Individuals with unequal best corrected visual acuity and/or individuals with strabismus (eye turn) have reduced or non-existent stereopsis. Stereoscopic vision is not useful beyond one hundred yards.
B. Monocular Cues To Depth — these do not require two eyes pointing simultaneously at the object of regard. Even monocular patients have monocular cues to depth. Examples of monocular cues to depth are relative size, interposition, distance and color. I feel that CMV operators can operate their vehicles safely even without stereoscopic visual acuity. I recommend that those CMV operators with less than one hundred seconds of stereopsis should have additional side mirrors including a true image size mirror and a field expanding (convex) mirror. . . .

60. With respect to whether there should be a visual-acuity requirement for both eyes as opposed to one eye, he replied (TX 35):

I think I have addressed this question in answering the very first question [re visual acuity in the "affected" eye]. I recommend that the CMV operator have 20/40 best corrected visual acuity in the "better" eye and at least 20/200 in the "affected" eye. I do not believe that equal visual acuity of 20/40 or better is absolutely essential for the operation of a commercial motor vehicle.

61. With respect to visual field, he stated (TX 35):

The definition of the visual field is: "The area or extent of physical space visible to an eye in a given position. Its average extent is approximately 65 degrees upward, 75 degrees downward, 60 degrees inward, and 95 degrees outward when the eye is in the straightforward position" (Dictionary of Visual Science, Schapero Cline and Hofstetter, 1965).

The combined visual field is the view using both eyes together.

Studies have shown that safe driving requires a combined visual field of at least one hundred and forty degrees.

62. Dr. Witkin also had performed a Medline literature search. A Medline search reveals peer-reviewed journals. The search produced one article relevant to the relationship between vision and safe driving: Fonda, "Legal Blindness Can Be Compatible With Safe Driving," Ophthalmology, Oct. 1989, Vol. 96, No. 10 (1989). It defined legal blindness to mean the best corrected vision in the better eye with conventional spectacles or contact lenses is 20/200 or worse. The article stated that individuals legally blind could nonetheless drive safely. Dr. Witkin, however, disagreed with that assessment.

63. Dr. Witkin, however, did not do any independent library research in preparing his answers to these questions. He did not drive any of the vehicles operated by UPS, did not interview any of the drivers, and did not interview any commercial vehicle operators. His letter advised UPS that there was a lack of sound research studies, but based on his clinical experience, some limited visual impairments would still permit safe driving by a trained commercial motor-vehicle operator.

Other than his anecdotal experience, Dr. Witkin did not have any studies to support his view that somebody with vision less than 20/200 in one eye could not drive safely. Dr. Witkin's 1992 letter laid the foundation for the later development of the vision protocol in 1994-95. In between, the matter lay dormant.

64. At least two events prompted UPS to develop the vision protocol. The first was that UPS learned that the DOT waiver program was ending. UPS was concerned about what would happen to its drivers with DOT waivers since, without a continuing waiver, they would no longer be DOT-qualified. (In this connection, it is noteworthy that eleven UPS monocular drivers participated in the DOT waiver program and successfully drove large trucks with no accidents.) The second event was the order reported at Sarsycki v. United Parcel Service, Inc., 862 F. Supp. 336 (W.D.Okla. 1994), decided on August 31, 1994. That order, involving insulin-dependent diabetics, held that UPS could not simply apply, on a blanket basis, the DOT physical-qualification requirements to disabled drivers of vehicles under 10,001 pounds (since DOT no longer enforced the requirements for vehicles under 10,001 pounds).

65. In December 1994, Nurse Pelchat re-contacted Emory. She met with Dr. Galaid and others to discuss the development of a vision standard. She explained that the goal of UPS was to implement "medical standards that would reasonably accommodate individuals into vehicles less than 10,001 pounds when they did not meet the DOT requirements for vision." At the same time, UPS was also considering the development of a program for insulin-dependent diabetics since they too had been the subject of the DOT waiver program.

66. Dr. Witkin was re-activated for vision. His assignment was "to develop a protocol for individuals to be evaluated on a case-by-case basis by medical experts as far as their ability to operate a commercial motor vehicle under 10,001 pounds with vision that did not meet the DOT requirements."

67. The opinions expressed in his 1992 letter informed his thinking. In addition, he reviewed the following materials and studies: Rogers and Jahnke, "Performance of Visually Impaired Heavy Vehicle Operators," Journal of Safety Research, Fall 1992, Volume 23, No. 3; Fonda, G., "Legal Blindness Can Be Compatible With Safe Driving," Ophthalmology, October 1989, Volume 96, No. 10; Editorial in that same volume: Whillans & Allen, "The Ophthalmologist's Role in Licensing Drivers; Color Defective Drivers and Safety," Optometry and Vision Science, Volume 69, No. 6, 1992; Wood & Troutbeck, "Elderly Drivers and Simulated Visual Impairment," Optometry and Vision Science, Volume 71, No. 12, 1994; "Vision Standards For Commercial Drivers," PDR For Ophthalmology; "Vision Standards and Low Vision," PDR For Ophthalmology, Section 5; "Evaluation of Permanent Visual Impairment," PDR For Ophthalmology, Section 6.

69. In early 1995, the UPS vision protocol was finalized. Dr. Witkin devised a form to be filled out by an optometrist or ophthalmologist (TX 1062) to measure four vision criteria: visual acuity, stereopsis, peripheral vision/field of view and color vision. With respect to visual acuity, an individual needed to have visual acuity of at least 20/40, corrected or uncorrected, in the better eye and 20/200 or better, corrected or uncorrected, in the other eye, to pass the protocol. This was more lenient than the DOT requirements, which called, then as now, for ...

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