United States Equal Employment Opportunity Commission v. United Parcel Service, Inc.

Filing 126

OPINION AND ORDER. Signed by the Honorable Sara L. Ellis on 2/11/2014:Mailed notice(rj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.
UNITED PARCEL SERVICE, INC.,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 09 C 5291
Judge Sara L. Ellis

OPINION AND ORDER
Plaintiff Equal Employment Opportunity Commission (“EEOC”) filed a second amended
complaint against United Parcel Service, Inc. (“UPS”) on behalf of former UPS employee Trudi
Momsen and other unidentified class members alleging that UPS violated sections 102(b)(3)(A),
(b)(5)(A), and (b)(6) of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12112(b)(3)(A), (b)(5)(A), (b)(6). Before the Court is UPS’s motion to dismiss the
§ 12112(b)(6) claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following
reasons, UPS’s motion [97] is denied.
BACKGROUND 1
Since 2002, UPS has maintained a leave policy providing that employees will be
“administratively separated from employment” after twelve months of leave. Second Am.
Compl. ¶ 9. This policy is applied to qualified individuals with disabilities who can perform the
essential functions of their jobs with or without a reasonable accommodation. For example,
1

The Court presumes familiarity with its prior opinions and orders in this case and refers the reader to its
January 11, 2013 Memorandum Opinion and Order, Doc. 83, for a more detailed description of the
procedural history of this case. It sets forth here only those facts necessary to resolution of the pending
motion to dismiss. These facts are taken from the second amended complaint and are presumed true for
the purpose of resolving UPS’s motion to dismiss. See Virnich v. Vorwald, 664 F.3d 206, 212 (7th Cir.
2011).

Momsen, who worked at UPS since 1990, was terminated in March 2007 soon after returning
from a twelve-month medical leave of absence. When she returned to work in February 2007,
she required a cane to walk and requested reasonable accommodations including a hand cart, but
UPS refused to provide her with any accommodations. Soon after returning to work, Momsen
injured herself and needed to take additional time off to receive therapeutic treatment. Instead of
granting Momsen’s request for additional medical leave, however, UPS fired her pursuant to its
twelve-month leave policy. Another employee, Mavis Luvert, was also fired pursuant to the
policy after being placed on a disability leave of absence for twelve months.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not
its merits. Fed. R. Civ. P. 12(b)(6); Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir.
1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all wellpleaded facts in the plaintiff’s complaint and draws all reasonable inferences from those facts in
the plaintiff’s favor. AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th Cir. 2011). To survive
a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a
claim’s basis but must also be facially plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 173 L. Ed. 2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678.

2

ANALYSIS
The ADA prohibits an employer from
using qualification standards, employment tests or other selection
criteria that screen out or tend to screen out an individual with a
disability or a class of individuals with disabilities unless the
standard, test or other selection criteria, as used by the covered
entity, is shown to be job-related for the position in question and is
consistent with business necessity.
42 U.S.C. § 12112(b)(6). In its second amended complaint, the EEOC alleges that UPS’s leave
policy, which acts as a 100% healed requirement, operates as a qualification standard in violation
of § 12112(b)(6). See Doc. 63 at 2 (“Because UPS’s application of its leave policy acts as a
health requirement (effectively, a 100% healed requirement for employees who have been on
leave) that limits the ability of qualified individuals with a disability to return to work, it acts as
just such a ‘qualification standard’ prohibited by § 12112(b)(6).”); id. at 4 (“[I]n order for UPS
employees to return to work from their medical leave, they had to meet a standard of fitness
which required them to work without an additional accommodation, in violation of the ADA.”).
The Seventh Circuit has held that, when applied to a qualified individual with a disability, a
100% healed policy is per se impermissible because it “prevents individualized assessment” and
thus “necessarily operates to exclude disabled people that are qualified to work.” Steffen v.
Donahoe, 680 F.3d 738, 748 (7th Cir. 2012). UPS argues, however, that this is irrelevant
because “the ability to regularly attend work and not miss multiple months is an essential job
function and not a qualification standard, employment test or other selection criteria.” Doc. 97 at
1. Without an actionable qualification standard, UPS contends, the EEOC’s § 12112(b)(6) claim
fails.
EEOC regulations define “qualification standards” as “the personal and professional
attributes including the skill, experience, education, physical, medical, safety and other
3

requirements established by a covered entity as requirements which an individual must meet in
order to be eligible for the position held or desired.” 29 C.F.R. § 1630.2(q). An “essential
function” is defined as “the fundamental job duties of the employment position the individual
with a disability holds or desires.” Id. § 1630.2(n)(1). Although, as UPS points out, the Seventh
Circuit has found regular job attendance to be an essential job requirement, see EEOC v. Yellow
Freight Sys., Inc., 253 F.3d 943, 948–49 (7th Cir. 2001), the EEOC’s § 12112(b)(6) claim is not
premised on attendance but rather on UPS’s imposition of a 100% healed requirement on those
seeking to return to work. Framed as such, the twelve-month policy can be considered a
qualification standard—a medical requirement that an individual must meet in order to maintain
his or her position with UPS—and not an essential job function. See Street v. Ingalls Mem’l
Hosp., No. 06 C 2963, 2008 WL 162761, at *7–8 (N.D. Ill. Jan. 17, 2008) (discussing 100%
healed policy in connection with the ADA’s prohibition against the use of qualification standards
to screen out individuals with disabilities); Moore v. Jackson County Bd. of Educ., --- F. Supp.
2d ----, 2013 WL 5797844, at *11 (N.D. Ala. Oct. 28, 2013) (discussing whether a 100% healed
policy would violate § 12112(b)(6)). Because such a requirement falls within the definition of a
“qualification standard,” and the EEOC has alleged that the policy applies to qualified
individuals with disabilities, 2 the EEOC may proceed on its § 12112(b)(6) claim.

2

The Court has previously found that the EEOC has sufficiently pleaded that UPS discriminated against
qualified individuals in enforcing its leave policy and that whether those allegedly subjected to the leave
policy are in fact “qualified individuals” is a question on the merits to be resolved at a later stage of the
case. Doc. 83 at 11.

4

CONCLUSION
For the foregoing reasons, UPS’s motion to dismiss [97] is denied. UPS is ordered to
answer the second amended complaint by February 28, 2014.

Dated: February 11, 2014
SARA L. ELLIS
United States District Judge

5