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Pagenkopf v. United Parcel Service, Inc.

United States District Court, D. Minnesota

January 22, 2019

Jeffrey Pagenkopf, Plaintiff,
v.
United Parcel Service, Inc., Defendant.

          Heather M. Gilbert, Esq., Gilbert Law PLLC, counsel for Plaintiff.

          Jason Hungerford, Esq., Joseph G. Schmitt, Esq., and Sarah B. C. Riskin, Esq., Nilan Johnson Lewis PA, counsel for Defendant.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         In this case, Plaintiff Jeffrey Pagenkopf brings three disability-discrimination claims against his employer, Defendant United Parcel Service, Inc. (“UPS”), alleging that UPS failed to promote him, accommodate him, and engage with him in the interactive process. This matter is before the Court on a motion for summary judgment brought by UPS. (Doc. No. 42.) For the reasons set forth below, the Court denies UPS's motion.

         BACKGROUND

         I. UPS Operations

         UPS is a round-the-clock, unionized operation. (Doc. No. 48 (“Hokens Aff.”) ¶ 3.) During the day, package drivers are delivering and picking up packages. (Id.) In the evenings and overnight, package handlers work inside UPS's facilities to unload, sort, and load packages. (Id.) Over 160 delivery routes originate in the Minneapolis facility. (Id. ¶ 4.) Each day, approximately 52, 000 packages are delivered from the Minneapolis facility. (Id.) Each driver has between 100 and 300 stops every day, but the number of packages, routes, and stops goes up during the period from Thanksgiving through Christmas. (Id.; Doc. No. 49 (“Riskin Aff.”) ¶¶ 3, Ex. A (“Kaiser Dep.”) at 21; 4, Ex. B (“Hokens Dep.”) at 201; 5, Ex. C (“Laber Dep.”) at 26-27.)

         Most union employees start as part-time package handlers. (Id.) UPS's Collective Bargaining Agreement (“CBA”) with the Teamsters Central Region sets many of the terms and conditions of employment, including transfer and promotion procedures. (Riskin Aff. ¶¶ 6, Ex. D at Art. 3; 7, Ex. E at Art. I.) Jobs are assigned by seniority, and seniority is based on length of employment. (Id.) An employee may work several years before building sufficient seniority to move into a driver role. (Hokens Aff. ¶ 5.)

         A. Process for Becoming a Driver

         The CBA governs the process for becoming a driver. The process operates on a seniority system, whereby employees sign a physical notice called a “bid sheet” and the bidder with the most seniority is awarded the bid. (Riskin Aff. ¶¶ 6, Ex. D at Art. 3, Secs. 8, 10; 15 (“Kettler Dep.”) at 14-16.) The winning bidder must then fill out an application and pass background and motor-vehicle-record checks, a road test, and a DOT physical. (Hokens Dep. at 36-38.)

         The next stage for a candidate is UPS's classroom and on-road driver training class, New Service Provider Training (“NSPT”). (Kettler Dep. at 19-20; Riskin Aff. ¶ 8, Ex. F (“Elmberg Dep.”) at 13.) UPS views NSPT as critical to its safety efforts and therefore an essential function of a driver's job. (Riskin Aff. ¶ 6, Ex. N (“Gordon Dep.”) at 93; Doc. No. 47 (“Elmberg Aff.”) ¶ 9.) The classroom instruction portion of NSPT includes lectures, computer-based trainings, and written tests. (Riskin Aff. ¶ 17, Ex. O; Elmberg Dep. at 22-24.)

         Classroom instruction also introduces candidates to UPS's safety rules, including the Five Seeing Habits, which are habits of safe drivers. (Riskin Aff. ¶ 18, Ex. P (“NSPT Packet”).) UPS based the Five Seeing Habits on the Smith System, an industry-standard training system, but tailored it based on the company's experience and observations. (Elmberg Aff. ¶¶ 5-6.) The Five Seeing Habits include audible communication, such as using the horn to alert pedestrians and other drivers. (NSPT Packet at 7.)

         On-road training has three parts: (1) the instructor demonstrates and narrates while candidates observe; (2) candidates take turns driving, engaging in simultaneous communication with the instructor to explain their driving decisions; and (3) candidate completes the “driver drill, ” a test where the driver calls out what he or she observes while driving. (Elmberg Dep. at 25; Elmberg Aff. ¶¶ 8-11; Hokens Dep. at 148.) Throughout all driving exercises, UPS expects its driver candidates to verbalize what they are doing. (Elmberg Aff. ¶¶ 8, 19.) UPS provides the example that if a driver was pulling away from a parked position, the driver would be expected to narrate putting on a seatbelt, turning on the vehicle, releasing the parking brake, looking for approaching traffic, turning on the turn signal, identifying risks to prevent the rear from “swinging out, ” and actually pulling away from the curb. (Id. ¶ 10.)

         The purpose of on-road training is to determine whether a candidate can adhere to the safety rules while in real-world, high-pressure environments. (Id. ¶ 18.) Drivers must be able to plan ahead and use unique techniques to account for the larger size and weight of a package car, which is fundamentally different from a passenger vehicle. (Id. ¶¶ 14-15.) As one example, drivers must learn to “rock and roll” their bodies to minimize blind spots. (Id. ¶ 15.) Because UPS drivers are regularly traveling residential streets, on-road training is critical. The goal is that drivers will be able to make split-second decisions and treat their safety habits as instinct. (Id. ¶ 19.)

         Once a candidate passes NSPT, he or she begins a 30 working-day probationary period, during which time they drive their assigned routes. (Elmberg Dept. at 32-33; Riskin Aff. ¶ 10, Ex. H (“Johnson Dep.”) at 75.) Supervisors accompany the new drivers during the first several days to reinforce safety habits, show the driver the route, and demonstrate efficient package delivery. (Kaiser Dep. 14-16, 25; Johnson Dep. at 74-77.) If the driver successfully completes the 30-day probation period, then he or she permanently takes over the route. Drivers then participate in ongoing training and observation. (Kaiser Dep. at 79; Gordon Dep. at 93; Johnson Dep. at 78.)

         B. Essential Job Functions of a Driver

         UPS considers its drivers the face of the company. (Elmberg Dep. at 72-74.) Their most important job function is to drive safely. (Kirby Dep. at 33-34; 51-52.) Consequently, the company considers effective communication with customers and the public an essential function of the driver position. (Id.; Doc. No. 46 (“Johnson Decl.”) ¶¶ 10-11.) The Essential Job Functions list identified “sufficient ability to communicate, through sight, hearing, and/or otherwise, to perform assigned tasks and maintain proper job safety conditions.” (Riskin Aff. ¶ 9, Ex. G (“EJF List”).) Also listed on the EJF List is “operation of the Delivery Information Acquisition Device (DIAD) and the DIAD Vehicle Adapter (DVA).” (Id.) The DIAD is a handheld device drivers scan packages with to record a delivery. (Elmberg Dep. at 33-34.) The DIAD produces audio cues signaling whether the scan was successful or not. (Id. at 62-63; Elmberg Aff. ¶ 23.)

         Drivers must also be able to gain access to secured buildings via buzzers or two-way intercoms because they cannot leave packages outside secured building. (Johnson Decl. ¶ 13.) With respect to certain packages, drivers must also obtain a signature from the customer, which requires greeting the customer, explaining that a signature is needed, obtaining the signature, and asking how to spell the customer's last name for typing into the DIAD. (Riskin Aff. ¶ 11, Ex. I; Kaiser Dep. at 74-76; Riskin Aff. ¶ 12, Ex. J (“Kirby Dep.”) at 31-33.) The DIAD beeps when a signature is required. (Elmberg Dep. at 62-63.) Some commercial deliveries require signatures also, and all require the driver to type the receiving person's last name in the DIAD. (Johnson Dep. at 41, 44.)

         Several other situations commonly arise requiring communication: customers refusing deliveries, customers with returns, answering questions about UPS's shipping practices, and the general public asking UPS drivers for directions. (Kaiser Dep. at 74-75, 93-94; Kirby Dep. at 74; Hokens Dep. at 210-11; Johnson Dep. at 43; Johnson Decl. ¶ 12.) Moreover, UPS represents that communication needs on any given route are unpredictable, in part because UPS does not track which addresses involve intercoms/secured buildings. (Hokens Dep. at 220-22; Johnson Dep. at 52-54, 86-87; Hokens Aff. ¶ 6; Kaiser Dep. at 58-60; Laber Dep. at 33-34.) UPS balances communication with efficiency, however, and discourages drivers from communicating unnecessarily. (Kaiser Dep. at 80-83; Johnson Dep. at 39.) Drivers also announce commercial deliveries when they arrive to encourage customers to come claim their packages more quickly.

         UPS expects its drivers to be extremely efficient also. (Johnson Dep. at 39.) The company relies on accurate predictions for how long deliveries will take to meet deadlines imposed by customer needs, Federal Department of Transportation regulations, and the CBA limit on drivers' hours. (Elmberg Dep. at 40; Riskin Aff. ¶ 6, Ex. D at Art. 12.) Based on engineering calculations, UPS has determined that it takes only 12.78 seconds on average to obtain a signature and type it into the DIAD. (Elmberg Aff. ¶ 25.)

         A component of the efficiency goal is “scratch, ” which is a calculation of how long a route should take on any given day. (Kettler Dep. at 93; Johnson Dep. at 81-82; Laber Dep. at 19.) Drivers are subject to discipline and eventually job loss if they do not “meet scratch, ” i.e. complete the route within the allotted time. (Johnson Decl. ¶ 7.)

         II. ...


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