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October 21, 2004.

ERIC BATES, et al., Plaintiffs,

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge



This pattern-or-practice class action concerns whether United Parcel Service ("UPS"), Inc., may categorically exclude from its package-car driver positions all individuals who cannot pass the federal Department of Transportation ("DOT") hearing standard. It is undisputed that the DOT standard bars deaf individuals, including members of the Plaintiff class, from driving any vehicles weighing 10,001 pounds or more.*fn1 It is equally undisputed that some vehicles in UPS's fleet weigh less than 10,001 pounds and are therefore not governed by the DOT regulations for commercial vehicles, but that UPS nonetheless requires all of its package-car drivers to pass the DOT hearing standard. The issue in this case is whether UPS's application of the DOT hearing standard to all package-car drivers is lawful under the Americans with Disabilities Act ("ADA") and California state anti-discrimination laws. Upon careful review of the parties' papers and arguments, the trial record, and governing law, the Court concludes, for the reasons discussed below, that it is not.


  Plaintiffs Eric Bates and Bert Enos filed this action on May 31, 1999, to challenge allegedly discriminatory policies by Defendant UPS on behalf of themselves and other similarly situated deaf individuals. After obtaining leave of court, Plaintiffs filed an amended complaint on July 3, 2001. Among other changes, the first amended complaint ("FAC") named Eric Bumbala, Babaranti Oloyede, and Edward Williams as additional plaintiffs and potential class representatives.

  The FAC contained three broad categories of claims. First, Plaintiffs asserted that UPS failed to develop interactive policies to address the communication barriers faced by deaf workers in the workplace. Plaintiffs further alleged that UPS's failure to address communication barriers, in conjunction with the company's subjective personnel policies, created a glass ceiling that prevented deaf workers from being promoted to supervisory positions. Finally, Plaintiffs argued that UPS impermissibly applied the DOT hearing standard to all driving positions, even though not all UPS vehicles are regulated by the DOT.

  On behalf of the proposed nationwide class and California subclass, Plaintiffs asserted that UPS's actions violated the ADA and California state anti-discrimination laws. In addition, Plaintiffs Bates, Enos, and Oloyede asserted individual claims of intentional infliction of emotional distress. These three individuals further brought a claim on behalf of themselves and the general public in California alleging that UPS violated California law regulating unfair business practices.

  This Court granted Plaintiffs' motion for class certification on November 2, 2001. The Court certified the following nationwide class for Plaintiffs' ADA claims: those persons throughout the United States who (i) have been employed by and/or applied for employment with UPS at any time since June 25, 1997 up through the conclusion of this action, (ii) use sign language as a primary means of communication due to a hearing loss or limitation, and (iii) allege that their rights have been violated under Title I of the ADA on account of UPS's policies and procedures. The Court also certified a similar California subclass for Plaintiffs' class claims arising under state law: those persons throughout California who (i) have been employed by and/or applied for employment with UPS at any time since June 25, 1997 up through the conclusion of this action, (ii) use sign language as a primary means of communication due to a hearing loss or limitation, and (iii) allege that their rights have been violated under California civil rights laws on account of UPS's policies and procedures.

  In the order certifying the class and subclass, the Court also granted Plaintiffs' motion to bifurcate trial into two phases. Phase I was to address class liability and equitable relief issues. Phase II would address Plaintiffs' two non-class claims as well as individual and class damages, if necessary.

  The Phase I bench trial began on April 8, 2003. Following several weeks of trial, the parties requested a recess to pursue settlement. During the recess, they settled Plaintiffs' first two categories of claims relating to accommodations and promotions. The parties requested approval of their settlement on July 21, 2003. After allowing for notice to the class and receiving no objections, the Court granted final approval of the settlement on November 26, 2003. Thus, the only Phase I claim remaining for resolution is Plaintiffs' claim that UPS impermissibly applies the DOT hearing standard to all of its package-car driver positions.

  Trial resumed on September 2, 2003. On September 17, 2003, the Court visited UPS's San Francisco facility to view the different sizes of UPS package cars and participate in an abbreviated ride-along designed to simulate part of the training provided to UPS package-car drivers. Trial concluded on November 20, 2003, and the parties submitted simultaneous post-trial briefs and proposed findings of fact and conclusions of law on December 23, 2003. Having carefully considered all of the evidence and testimony adduced at trial, the parties' oral and written submissions, and the entire record herein, the Court makes the following findings of fact and conclusions of law.


  UPS and Its Operations

  United Parcel Service is engaged in the business of package transportation and delivery on a worldwide basis. Headquartered in Atlanta, Georgia, UPS employs over 350,000 individuals worldwide, including over 320,000 at approximately 1700 facilities across the United States. Of these domestic employees, over 70,000 are package-car drivers who deliver and pick up packages via the familiar brown UPS trucks.

  Within the United States, UPS is divided geographically into nine regions, which in turn contain 61 districts. Each district contains four divisions: a package division, hub operations, feeder operations, and staff functions. Each package division is organized around "centers," which correspond to particular geographical areas or ZIP codes. UPS package-car drivers are assigned to centers and pick up and deliver packages within the center's geographical area. Centers typically include anywhere from 30 to 60 drivers, and more than one package center may be housed in the same UPS facility.

  Hubs act as distribution centers that receive packages from centers and other hubs. Packages are sorted by geographic area at each hub and then distributed either to another hub or to a center served by the hub, depending on the delivery destination. Feeder operations is the division responsible for moving packages between hubs and centers and between hubs.

  UPS's Package-Car Fleet

  Plaintiffs do not seek to drive vehicles that are governed by DOT safety regulations. Thus, this case only concerns vehicles that have a gross vehicle weight rating ("GVWR") and gross vehicle weight ("GVW") of less than 10,001 pounds. See 49 U.S.C. § 31132(1)(A) (defining "commercial motor vehicle," drivers of which the DOT regulates, to include any vehicle that "has a gross vehicle weight rating or gross vehicle weight of at least 10,001 pounds, whichever is greater"). The GVWR of a vehicle refers to the weight of the vehicle plus the maximum load that the manufacturer believes the vehicle can carry. This rating is set by the manufacturer, and UPS cannot change it. However, it is possible for a vehicle to exceed its GVWR if heavier cargo is placed on the vehicle. Thus, a vehicle may have an actual weight, or GVW, of 10,001 pounds or more even if the GVWR is less than 10,001 pounds. Vehicles may be randomly checked for their GVW at roadside inspections designed to monitor compliance with DOT regulations.

  According to an October 2003 inventory (DX2232), UPS's fleet contains 65,198 vehicles, of which 5902 have a GVWR of less than 10,001 pounds. This is an increase from the 5292 vehicles with a GVWR of less than 10,001 pounds in UPS's fleet as of February 2003. JX55 (February 2003 inventory). These lighter vehicles are distributed across every UPS district in the United States. In addition, when necessary, the company can transfer vehicles between districts or between centers within the same district.

  UPS refers to its delivery vehicles as "package cars" and classifies them based on cubic feet of cargo space. All package cars with more than 500 cubic feet of cargo space weigh 10,001 pounds or more; thus, this suit only concerns packages cars with 500 cubic feet of cargo space or less.

  Specifically, the UPS package cars with GVWRs of less than 10,001 pounds are the P20, P30, P31, P40, P47, and P5. The P20 is a Ford Aerostar van with approximately 105 cubic feet of cargo space and a GVWR of 7160 pounds. UPS currently has 480 P20's in its fleet.*fn2

  The P30 and P31 are Ford Econoline vans with approximately 300 cubic feet of cargo space and GVWRs of 7900 and 8550 pounds, respectively. UPS's fleet currently includes 186 P30's and 66 P31's.

  The P32 contains slightly more cargo space than the P31 and has a GVWR of 8600 pounds. UPS currently has 3082 P32's in its fleet.

  The P40, also referred to as a P400, has approximately 400 cubic feet of cargo space and a GVWR of 8000 pounds. UPS has only seven P40's remaining in its fleet.

  The P47, also called a P47D or Sprinter, has a GVWR of 8550 pounds. UPS currently has 1821 P47's in its fleet and has no plans to order any additional P47's. These vehicles cannot be used in California because they do not meet California's emission standards.

  Finally, UPS has two types of P5's, also known as P50's or P500's, both of which have approximately 500 cubic feet of cargo space. P5's manufactured by General Motors have a GVWR over 10,001 pounds, but P5's manufactured by Ford have a GVWR of 9318 pounds. UPS currently has 259 Ford P5's in its fleet. The last time UPS ordered P5's weighing less than 10,001 pounds was in 1990. Less than 75 of these 1990 vehicles remain in service; the remainder of the 259 Ford P5's still in service were manufactured in 1979 and 1980. Ford P5's have a typical lifespan of 17 to 25 years, and the number of P5's weighing less than 10,001 pounds in UPS's fleet is therefore declining. For example, the number of such vehicles was 1283 in September 2000, only 621 in February 2003, and reduced even further to 259 by October 2003. JX56 (September 2000 inventory); JX55 (February 2003 inventory); DX2232 (October 2003 inventory). UPS cannot order additional P5's from Ford because Ford changed the way it manufactures the chassis for the vehicle, and the specifications no longer meet UPS's needs. Route Design

  The overarching principle of route design at UPS is to maximize delivery stops while minimizing miles driven. To achieve that goal, UPS's industrial engineering ("IE") department uses a loop concept to divide a package center's delivery area into specific routes. The IE department uses detailed time studies to plan its loops and routes. The company periodically reviews its loops to make sure that the loops are efficiently designed. The "re-loop" process for a center typically takes two-and-a-half to three months and involves a team of six to eight people.

  Each package center typically includes twelve to eighteen loops, which are usually defined by postal code or a natural barrier. Each loop is in turn divided into six to ten units, each of which has about 50 delivery stops on a typical day. Routes may consist of more than one unit, and each loop usually contains only three to five package-car routes. UPS aims to design each route so that it contains enough stops and packages to provide for a 9.1-hour shift on a typical day, although drivers are paid overtime after working 8 hours. Because of contractual bargaining arrangements, the company does not want to dispatch workers for shifts longer than 9.5 hours.

  Once a route has been designed, the company assigns a vehicle to the route based on the average volume and package size for that route. UPS assigns the smallest vehicle that can handle the average volume and package size to the route. It would be inconsistent with UPS's design model to reverse the process and design a route to fit a particular size of vehicle. The IE department conducts a review once or twice a year to determine the correct-sized vehicle to assign to each route.

  In addition, UPS has designed its process to plan for fluctuation in volume and number of stops, allowing for slight adjustment of routes on a daily basis. For example, if one route has a spike in volume on a particular day, some of that route's stops may be shifted to a neighboring route for that day.

  Routes are also adjusted during peak season, defined contractually as the period between October 1 and December 24. During this period, and particularly during the time between Thanksgiving and Christmas, package volume spikes. To handle this increase in volume, UPS dispatches more drivers, uses package cars to fuller capacity, and employs larger package cars.

  Collective Bargaining and Seniority

  The Teamsters Union represents over 200,000 employees at UPS, including all UPS drivers. In 1979, UPS and the Teamsters Union negotiated a National Master Agreement ("NMA") that is periodically re-negotiated. The NMA currently in effect runs for six years, expiring on July 31, 2008. The previous NMA was in effect for five years, from August 1, 1997 to July 31, 2002. In addition to the NMA, UPS and various Teamsters Union locals throughout the country have negotiated local supplements, riders, or addenda that establish local terms, conditions, and work rules that apply to particular geographic areas of the country. Seniority rules are found primarily in these local supplements.

  Seniority governs virtually all of the key terms and conditions of a UPS employee's employment. Typically, UPS employees exercise their seniority rights to bid on a particular job, and the most senior qualified individual is generally awarded the bid.

  UPS has one seniority system for full-time employees and a separate seniority system for part-time employees. When an employee has risen to the top of the part-time seniority system, he or she will generally have enough seniority to bid on a full-time position. Once an employee switches from part-time to full-time employment, he or she begins at the bottom of the full-time seniority system.

  Each center also maintains its own seniority list based on the date each employee became employed at the center. When a person transfers to a different UPS center, he or she starts at the bottom of the center's seniority system regardless of his or her company seniority date — that is, the date on which he or she first became employed by UPS.

  Plaintiffs in this case do not ask for any remedies that would violate the seniority systems in place at UPS. Thus, some class members may not yet have the requisite seniority to apply for driving positions at the facilities at which they work. However, while it may be that no driving work is available to particular class members seeking such work, this is an individualized inquiry that cannot be decided during this phase of trial. Here, the Court is concerned with class-wide liability and injunctive relief issues, and UPS has not established that all class members lack sufficient seniority to obtain driving work without violating UPS's seniority systems.

  Driving Positions at UPS

  UPS employs drivers in several different capacities. Different locations may use different terminology to describe the driving positions, but the positions are generally grouped into the categories discussed below.

  Feeder Drivers

  Feeder drivers drive large tractor trailers that have gross vehicle weight ratings greater than 10,001 pounds and are therefore regulated by the DOT. Plaintiffs do not contend that they should be allowed to drive DOT-regulated vehicles. Consequently, the position of feeder driver is not at issue in this lawsuit.

  Full-Time Bid Route Drivers

  UPS employs two types of full-time package-car drivers: bid route drivers and unassigned drivers. Bid route drivers are assigned to specific routes and drive the same route every day. Drivers must attain sufficient seniority to bid on routes. Actual bidding procedures vary depending on the specific provisions of the local seniority agreements. Typically, when a route becomes available, it will be posted for one week and opened for bidding. The driver with the highest full-time driving seniority who bids on the route will be awarded that route.

  Different routes have different degrees of desirability. In general, UPS drivers tend to prefer routes that involve more driving time — or "windshield time," as it is sometimes known — and fewer deliveries. As a result, these routes tend to be held by drivers with high levels of seniority. Such routes are often found in rural areas or other areas located further away from package centers.

  Full-time bid route drivers generally keep the same route until they relinquish that route when, for example, they win a bid on a different route or retire from driving or from the company. In some centers, however, routes are put up for re-bid every one or two years.

  Full-time drivers may transfer from one center to another, depending on seniority and local rules. In general, a driver who transfers to another center will move to the bottom of the seniority list at the new center. As a result, a bid route driver who transfers to a new center may not have enough seniority to bid on a route at the new center; the driver may have to work as an unassigned package-car driver until he or she gains sufficient seniority at the new center.

  Unassigned Package-Car Drivers

  Unassigned drivers, or cover drivers, are full-time drivers assigned to a particular center but generally not assigned to a specific route. These drivers have attained sufficient seniority to obtain a full-time driving position but not enough seniority to win a bid route. Unassigned drivers cover for bid route drivers who are absent or serve as additional drivers when there are spikes in volume.

  The order in which unassigned drivers are assigned to fill in for vacant routes varies somewhat by local policy, but it is generally based on seniority. For example, under some local seniority agreements, if a bid route vacancy is for five or more days, the unassigned driver with the highest seniority will be assigned to cover that route. If the vacancy is for less than five days, then seniority will generally be observed, but route knowledge may also come into play. At other centers, there are some unassigned drivers, referred to as bid cover drivers, who own bids to select open routes in seniority order. At these centers, once the bid cover drivers have bid on their routes, the remaining routes are either assigned or chosen based on seniority. Air Drivers (Full- and Part-Time)

  Regular package-car drivers sometimes pick up and deliver air products, including Next Day Air and Second Day Air, but UPS also employs drivers who only pick up and deliver air products. It is more economical for regular drivers to handle air products, but tight deadlines sometimes require additional pick-ups or deliveries by air drivers. In addition, some air drivers do what is referred to as "shuttle work," meaning that they do not interact with customers but instead shuttle air packages between airports and hubs or package centers. UPS employs relatively few full-time air drivers, and the majority of air drivers work on a part-time basis.

  At some centers, when a full-time air job becomes available, full-time drivers have the first option to bid on that job, and the driver with the most seniority would get the job. However, at other centers, employees bid on open full-time air jobs based on their company seniority. The person with the highest company seniority would get the job, and then that person would use his or her driving seniority to bid on available routes.

  Some part-time air drivers have the equivalent of bid routes; they cover set delivery areas on a regular schedule five days a week. Other part-time air drivers, sometimes referred to as exception air drivers, only drive to fill in for other air drivers or under exceptional circumstances, such as when an aircraft carrying a package arrives late or other delays require a special delivery or pick-up. Part-time air work is assigned based on seniority.

  Part-Time Utility (or Cover) Drivers

  Utility drivers drive for UPS on a part-time basis. They typically have other part-time jobs within UPS — for example, as preloaders, unloaders, or sorters — but fill in for full-time drivers when necessary. Under the seniority system, UPS may only use a utility driver if no full-time unassigned drivers are available. Utility drivers are assigned to fill in for full-time drivers based on seniority and may drive routes, pick up or deliver air volume, or drive air shuttles. Article 22.3 Positions

  Article 22.3 refers to a section in the National Master Agreement that requires UPS to create full-time jobs from existing part-time jobs. Accordingly, Article 22.3 positions are full-time positions that combine two different job functions. An Article 22.3 job cannot include delivery of ground packages, but some Article 22.3 employees work part-time as drivers in other capacities. For example, an Article 22.3 employee may work as an air driver for part of an eight-hour shift and then complete the shift by working as a sorter.

  Like the other jobs already discussed, Article 22.3 jobs are also based on seniority. Part-time employees use their company seniority to bid on Article 22.3 jobs, with the job going to the bidder with the highest seniority. However, as with other seniority provisions in place at UPS, this procedure also varies based on local contractual arrangements with the Teamsters Union. For example, in Central Florida, first preference for Article 22.3 job openings goes to employees who already hold Article 22.3 jobs, followed by full-time package-car drivers, and then part-time employees. As another ...

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