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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. UPS
December 12, 2000
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PLAINTIFF, SHAWN HOGYA, JAMES FRANCIS, JAMES AIKENS AND CHRIS WILSON, INTRVENORS,
UNITED PARCEL SERVICE, INC., DEFENDANT.
The opinion of the court was delivered by: William Alsup, United States District Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER BENCH TRIAL AND
INJUNCTION WITH TEMPORARY STAY PENDING APPEAL
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.
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.
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
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
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
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
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.
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.
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.
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.
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
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
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
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
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
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
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
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.
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
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
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
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.
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
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
(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
(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
(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
(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
(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
47. After completing the Space and Visibility training, the applicant
spends a full day learning to apply the training in a UPS vehicle under
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
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
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
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
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
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
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
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
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,