The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
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.
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.
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
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
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
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.
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 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
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
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
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 ...