CASE DOCUMENTS:
UPS “100% RELEASE” ADA CLASS ACTION CERTIFIED
Scott+Scott currently is litigating an employment discrimination class action against United Parcel Service, Inc. (“UPS”) under the Americans with Disabilities Act of 1990 (“ADA”) – Mark Hohider, et al. v. United Parcel Service, Inc., et al., and Branum v. United Parcel Service, Inc., et al., Consolidated Civil Action No. 04-0363 (W.D. Pa.). Originally filed on March 10, 2004, the complaint alleges UPS, a multi-billion dollar company and the world’s largest package delivery service, systematically violates the ADA by, among other things, employing a corporate-wide “100% healed” policy before any medically impaired employee on leave can return to work. A “100% healed” policy discriminates against qualified individuals with disabilities under the ADA because such a policy permits employers to substitute a determination of whether an individual is healed from his or her injury for the required individual assessment of whether a qualified individual is able to perform the essential functions of his or her job either with or without accommodation as mandated by the ADA. McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999).
On December 23, 2005, the Court denied UPS’s motion for summary judgment in the Hohider action and denied UPS’s motion to dismiss in the Branum action, allowing the case to proceed to the class-certification stage, in which the Court would determine whether the action would proceed officially on the entire employee class’s behalf.
On July 16, 2007, the Court granted Plaintiffs’ motion to certify a nationwide class of those persons throughout the U.S. employed by UPS at any time since May 10, 2000, who have been absent from work for medical reasons and who did not return to work by reason of: (i) UPS’s alleged 100% healed policy; or (ii) UPS’s allegedly discriminatory implementation of its formal ADA compliance policy; or (iii) the allegedly discriminatory use by UPS of uniform pretextual job descriptions. Excluded from the class are all presently working UPS management employees with supervisory authority over the formulation or implementation of UPS policies and practices alleged in this action to violate the ADA.
If you believe you have been affected by UPS’s discriminatory conduct as alleged in this action, please contact Scott+Scott using the links provided on this page.
RECENT DEVELOPMENTS
On July 31, 2007, UPS filed a petition for permission to file an appeal with the Third Circuit Court of Appeals, asking that Court to reverse the July 16, 2006 class certification order that was entered by the District Court. On August 31, 2007, the Third Circuit Court of Appeals granted UPS’s petition, allowing UPS to appeal the District Court’s decision to certify a class in this case. UPS filed its brief in March 2008 and Plaintiffs filed their brief in support of affirming the District Court’s class certification order on April 24, 2008. A copy of this brief can be read by clicking on Plaintiffs-Appellees' Third Circuit Brief under Case Documents above. Oral argument on the appeal is not yet scheduled. The Third Circuit has stayed all proceedings in the District Court until the appeal is decided.
On July 31, 2008 the Third Circuit Court of Appeals issued an order allowing the District Court to decide plaintiffs’ motion for sanctions while the rest of the case remains in front of the Court of Appeals. The District Court, Judge Conti, immediately issued an order setting in motion the resumption of proceedings before the Special Master who is undertaking a thorough investigation of plaintiffs’ charges that UPS has allowed important evidence to be destroyed. UPS denies that it has destroyed any evidence. We will be resuming the proceedings before the Special Master. We do not yet have a hearing date on the appeal but expect to receive a date soon. When we receive the date we will post it on this webpage.
Please return to this site for updated news as the action proceeds.
