Metropolitan News-Enterprise


Monday, December 3, 2001


Page 3


Ninth Circuit Allows Hearing-Impaired Worker to Sue UPS for Bias


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Ninth U.S. Circuit Court of Appeals yesterday reinstated a hearing-impaired  woman’s suit accusing her former employer, United Parcel Service, of violating the Americans With Disabilities Act by refusing to promote her to a driving position.

The panel concluded that a district judge erred in granting summary judgment to UPS, which takes the position that Jana L. Morton is not qualified to be a “package car driver” because her disability precludes her from obtaining professional driver certification from the Department of Transportation.

Without DOT certification, it is illegal to operate a commercial vehicle with a gross weight of more than 10,000 pounds. Judge John W. Sedwick of the District of Arizona concluded that a UPS policy of not hiring drivers who cannot obtain the certification is reasonable and that there was no way to accommodate Morton.

The Ninth Circuit panel disagreed, saying Morton raised a triable issue on her claim that the company should have accommodated her disability by giving her a job driving smaller trucks.

Morton worked for UPS in Phoenix from 1992 until 1996, when she resigned. She started with the company as a part-time warehouse worker, earning several “Employee of the Month” awards before applying for the driving position—the primary route to advancement within the company.

She passed the driving and written tests given by the company, meaning that she met all of the hiring standards other than DOT certification.  She also presented evidence that more than 5 percent of UPS routes in the Phoenix area are served by smaller vehicles, and that a number of such vehicles are used for backup of vehicles in need of repair or to deliver overflow packages.

The company responded that it could not assign Morton to a particular vehicle without violating the seniority requirements of its collective bargaining agreement with the drivers.

That agreement requires that drivers be allowed to bid on routes according to seniority. Drivers who haven’t been with the company long enough to obtain routes in the bidding process—about 20 percent of the Phoenix-area drivers at the time Morton applied—are called “swing” drivers.

Swing drivers are used as backup and overflow drivers or as warehouse workers when not needed to drive.

Even if Morton could be accommodated without violating the seniority system, UPS argued, her inability to drive larger vehicles makes her unqualified as a matter of law and requiring the company to hire her as a driver would cause undue hardship.

Judge Marsha Berzon, writing for the court, rejected Sedwick’s finding that Morton could not be accommodated without violating seniority rights. The evidence, the appellate jurist and former labor lawyer said, was that while Morton could not bid on a fixed route, she could have been hired as a swing driver and assigned to smaller vehicles consistent with the seniority system.

 The company also failed, Berzon said, to establish that logistics and safety factors make it essential that every driver be qualified to operate larger trucks. The evidence on those issues was conflicting, the judge explained.

UPS is not precluded from trying to prove those claims at trial, the judge said. It can also prevail, she added, if it can prove that Morton’s hearing impairment would make her a safety risk when driving smaller trucks.

 “Nor are we requiring that UPS employ deaf drivers of non-DOT vehicles if it can show either that substantially all of them present a higher risk of accidents than non-deaf drivers or that there are no practical criteria for determining which deaf drivers present a heightened risk and which do not,” the judge added.

Judges Stephen Reinhardt and A. Wallace Tashima joined in the opinion.

The appeal was argued by Marc P. Charmatz of the National Association of the Deaf Law Center of Silver Spring, Md. for the plaintiff and Patricia S. Radez of Gibson, Dunn & Crutcher’s San Francisco office for UPS.

The case is Morton v. United Parcel Service, Inc. 99-17447.


Copyright 2001, Metropolitan News Company