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Fredricksen v. United Parcel Service Co.

March 31, 2008

DANIEL L. FREDRICKSEN, PLAINTIFF,
v.
UNITED PARCEL SERVICE CO., DEFENDANT.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Daniel Fredricksen ("Fredricksen" or "Plaintiff") filed suit against defendant United Parcel Service Co. ("UPS" or "Defendant") alleging discrimination and retaliation in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C § 12101 et seq. UPS moves for summary judgment on all claims. For the reasons set forth below UPS's Motion for Summary Judgment is granted.

STATEMENT OF UNDISPUTED FACTS

UPS is a company engaged in the business of facilitating global commerce, including the delivery of packages via air transport.*fn1 (Pl. 56.1 Resp. at ¶ 3.) UPS hired Fredericksen in 1992 to work as an aircraft maintenance technician ("AMT" or "aircraft mechanic") at UPS's gateway at O'Hare Airport in Chicago, Illinois (the "O'Hare gateway"). (Pl. 56.1 Resp. at ¶ 4.) From 2004 through May 2006, Fredericksen worked as an afternoon-shift aircraft mechanic at the O'Hare gateway. (Pl. 56.1 Resp. at ¶ 7.) During this time, Fredricksen generally reported to Supervisor Essey Kinfe ("Kinfe"). (Pl. 56.1 Resp. at ¶ 11.) In addition, UPS employee Scott Crane ("Crane") served as Fredricksen's Manager from early 2004 until UPS employee Sam Mize ("Mize") assumed the position in April 2005. (Id.) At all relevant times, UPS and the the International Teamsters Local 2727 (the "Union") were parties to a labor agreement that governed the terms and conditions of Fredricksen's employment. (Pl. 56.1 Resp. at ¶ 6.)

As a member of the afternoon crew, Fredricksen was responsible for performing pre-departure inspections and preparing planes for their nightly, on-time departures. (Pl. 56.1 Resp. at ¶ 8.) The morning crew, in contrast, typically performed arrival service extended ("ASE") inspections and made necessary repairs after the aircraft arrived. (Id.) The parties dispute which of the two inspections - pre-departure inspections or ASE inspections - was more extensive. (Pl. 56.1 Resp. at ¶ 8.) The parties also dispute and the record is unclear as to the level of inspection required to perform the pre-departure inspection. (Pl. 56.1 Resp. at ¶¶ 10, 60.) By mid-2004, Fredricksen had approximately thirty years of experience inspecting aircrafts. (Def. 56.1 Resp. at ¶ 110.) He had previously received a commendation from UPS for his assistance in developing inspection guidelines. (Id.) Crane had also previously likened Fredricksen's attention to detail to that of a brain surgeon. (Id.)

Fredericksen and Crane had, at times, a contentious working relationship. (Pl. 56.1 Resp. at ¶ 14.) The record indicates that, between December 2002 and February 2004, Fredricksen filed five grievances (one on his behalf and four on behalf of other non-disabled UPS employees) related to Crane's allegedly harassing behavior, called the UPS Employee Help Line to complain about Crane's behavior, and wrote a letter to UPS management reporting that Crane was responsible for certain threats, palpable harassment, duress, and criminal conversion. (Pl. 56.1 Resp. at ¶ ¶ 12 -13; Pl. Ex. A, Fredricksen Dep. at 266-67.) In addition to Fredricksen's grievances, UPS received multiple complaints regarding Crane's conduct towards other, non-disabled UPS employees.*fn2 (Pl. 56.1 Resp. at ¶ 17.) Mechanic Paul Batzel ("Batzel") described the work environment at the O'Hare gateway as hostile for most mechanics between mid-2004 and mid-2006. (Pl. 56.1 Resp. at ¶ 20.) Batzel also testified that working relations between management and Fredricksen had always been fairly contentious, that sometimes the friction between management and mechanics centered on one individual more than another, and that hostility increased overall in 2005. (Pl. 56.1 Resp. at ¶ 21; Pl. Ex. E, Batzel Dep. at 100-01.)

In February 2004, Fredricksen received preliminary test results indicating that he may have Chronic Lymphocytic Leukemia ("leukemia"). (Pl. 56.1 Resp. at ¶ 12; Pl. Ex. A, Fredricksen Dep. at 273.) Fredricksen did not inform anyone of these results at the time. (Pl. Ex. A, Fredricksen Dep. at 273.) Fredricksen also testified that, in early 2004, he became substantially limited in the major life activity of procreating, but did not inform UPS of this limitation. (Pl. 56.1 Resp. at ¶¶ 36-37.)

July 2004 Pre-Departure Inspections Restriction

On March 5, 2004, Crane met with Fredricksen and two other Union Stewards, apologized to Fredricksen for his actions, and told Fredricksen that he was committed to improving their working relationship. (Def. 56.1 Resp. at ¶ 136.) In May 2004, Fredricksen informed Crane of his preliminary test results, which indicated that he may have leukemia, but noted that he was waiting on additional test results. (Def. 56.1 Resp. at ¶ 99.) In addition, Fredricksen told Crane that his doctor suggested he attempt to avoid stressful conditions. (Def. 56.1 Resp. at ¶ 99.)

In the months following this conversation, Crane disciplined Fredricksen twice. First, on May 21, 2004, Crane verbally disciplined Fredricksen for allegedly exceeding the prescribed level of inspection when performing pre-departure inspections. (Pl. 56.1 Resp. at ¶ 61.) On July 2, 2004, Crane disciplined Fredericksen again for allegedly going beyond the prescribed levels of inspection when conducting pre-departure inspections and prohibited Fredricksen from performing any future pre-departure inspections unless directed to do so by UPS management. (Id.; Def. 56.1 Resp. at ¶ 109.) In his deposition, Crane explained that he imposed the prohibition for two reasons: (1) he believed that Fredricksen used an inappropriately excessive level of inspection in an effort to ground an aircraft that was safe for flight, and (2) Fredericksen told Crane he would not change his level of inspection. (Pl. 56.1 Resp. at ¶ 62.)

Despite this restriction on pre-departure inspections, Fredricksen was allowed to and did continue to work on aircrafts. (Def. 56.1 Resp. at ¶ 116; Pl. Ex. A, Fredricksen Dep. at 175.) Specifically, Fredricksen continued to perform all of his other job responsibilities, including troubleshooting, replacing components, ordering parts, fueling, preparing headsets for departure, and other aircraft maintenance related tasks.*fn3 (Pl. 56.1 Resp. at ¶ 65.) While he continued to perform all of his other job responsibilities, Fredricksen testified that, "for the most part," he was assigned to perform back room filing duties, including verifying paperwork and completing the paperwork of other mechanics. (Def. 56.1 Resp. at ¶ 116.) Two UPS supervisors admitted that Crane directed them to assign Fredricksen tasks such as processing paperwork. (Def. 56.1 Resp. at ¶ 117.) Crane, Mize, and Kinfe agreed that Crane never directed them to assign Fredricksen menial tasks due to his health. (Id.)

June 2004 Failure to Sign the Log Book

On June 15, 2004, Kinfe verbally warned Fredericksen that he violated UPS policy when he failed to sign the aircraft log book, which resulted in the plane departing with an open item in violation of UPS policy and federal regulations. (Pl. 56.1 Resp. at ¶ 66; Def. 56.1 Resp. at ¶ 118; Pl. Ex. A, Fredricksen Dep. at 141-42.) Batzel testified that it was not uncommon for management to speak with an AMT when the AMT failed to sign the log book. (Pl 56.1 Resp. at ¶ 68.) When a failure to sign the log book resulted in the departure of an aircraft with an open item, a more serious situation resulted because the departure of an aircraft with an open item violates federal rules. (Id.; Def. 56.1 Resp. at ¶ 118; Pl. Ex. E, Batzel Dep. at 93-94.)

Diagnosis and Disclosure of Leukemia

In December 2004, Crane was diagnosed with leukemia. (Pl. 56.1 Resp. at ¶ 23.) Fredricksen informed Crane, Kinfe, and other mechanics of his confirmed diagnosis in January 2005. (Pl. 56.1 Resp. at ¶ 25.) In approximately February or March 2005, Fredricksen was informed that his leukemia was at stage 0. (Pl. 56.1 Resp. at ¶ 23; Pl. Ex. A, Fredricksen Dep. at 34-35.)

June 2005 Warning Letter

As a mechanic, Fredricksen was required to pass a recurrent recertification test in order to maintain his annual DC8 CAT certification. (Pl. Ex. A, Fredericksen Dep. at 37; Pl. 56.1 Resp. at ¶ 73.) UPS guidelines required management to inform an employee ninety days before the certification expired that the employee had thirty days to take and pass the training test. (Pl. 56.1 Resp. at ¶ 74.) Employees who failed to do so were subject to a documented verbal warning. (Id.) The parties dispute whether Kinfe conveyed this thirty-day warning to Fredricksen. (Pl. 56.1 Resp. at ¶ 53.)

On June 1, 2005, Fredricksen complained to Kinfe that Crane's prohibition on pre-departure inspections interfered with his ability to perform his job and was discriminatory and harassing. (Pl. 56.1 Resp. at ¶ 122.) The following day, Kinfe issued Fredricksen a documented verbal warning for failing to take and pass the recertification test within the required thirty-day period. (Pl. 56.1 Resp. at ¶ 76.) Kinfe also instructed Fredricksen to take the test by the end of June. (Pl. 56.1 Resp. at ¶ 76; Def. 56.1 Resp. at ¶ 122.) Despite this instruction, Kinfe returned again on June 3, 2005 and directed Fredricksen to take the test immediately. (Def. 56.1 Resp. at ¶ 122.) Fredricksen then took and failed the recertification test on June 3, 2005. (Id.) According to UPS guidelines, an employee who fails the certification test upon his first attempt is required to retake the test within fifteen days. (Def. 56.1 Resp. at ¶ 124; Pl. Ex. U, Procedures - Maintaining Certification.) However, Fredricksen was only afforded seven days to retake the recertification test. (Def. 56.1 Resp. at ¶ 124; Pl. Ex. A, Fredricksen Dep. at 237-38.) Nevertheless, Fredricksen passed the test upon his second attempt. (Def. 56.1 Resp. at ¶ 124; Pl. Ex. A, Fredricksen Dep. at 238.)

On June 10, 2005, UPS convened a fact-finding hearing regarding Fredricksen's failure to pass the recertification test on his first attempt and issued Fredricksen a warning letter ("June 10 letter"). (Pl. 56.1 Resp. at ¶ 77; Def. 56.1 Resp. at ¶ 123.) Fredricksen filed a grievance on or about June 20, 2005 because he believed that UPS improperly issued the June 10, 2005 warning letter. (Def. 56.1 Resp. at ¶ 130; Pl. Ex. Q, Pl. Ans. Interr. at 15.)

Fredricksen testified that he became substantially limited in the major life activities of working and walking in mid-2005, but admits that he was able to work five days a week for at least eight hours or longer. (Pl. 56.1 Resp. at ¶¶ 33-34.)

July 2005 Working Suspension

UPS relies on its mechanics to work overtime to ensure that aircrafts will be repaired in a timely manner and packages are delivered as guaranteed. (Pl. 56.1 Resp. at ¶ 82.)

On the night of July 6, 2005, Kinfe asked AMT Dave Horning ("Horning"), who was not disabled, and Fredricksen to work overtime on an engine test run. (Pl. 56.1 Resp. at ¶ 84.)

At approximately 1:45 a.m. on July 7, 2005, Fredricksen and Horning learned that they could not conduct the engine test run for at least four hours. (Def. 56.1 Resp. at ¶ 126; Pl. Ex. A, Fredricksen Dep. at 116.) Thirty minutes later, Fredricksen filled out his time card and punched out before obtaining permission to do so from a UPS supervisor. (Def. 56.1 Resp. at ¶ 126; Pl. 56.1 Resp. at ¶ 86.) When Fredricksen and Horning explained to Supervisor Alex Restrepo ("Restrepo") that they could not conduct the test run for hours, Restrepo told them he did not want them to leave. (Def. 56.1 Resp. at ¶ 127; Pl. Ex. A, Fredricksen Dep. at 117.) Fredricksen explained to Restrepo that he was tired after working twelve hours and lacked stamina because he had leukemia. (Def. 56.1 Resp. at ¶ 127; Pl. Ex. A, Fredricksen Dep. at 117.) Restrepo did not ask Fredricksen to punch back in or force him to stay at work after learning about Fredricksen's illness. (Def. 56.1 Resp. at ¶ 127; Pl. 56.1 Resp. at ¶ 88; Pl. Ex. A, Fredricksen Dep. at 117.)

The following day, Horning informed Kinfe of the exchange that occurred between Restrepo and Fredricksen. (Def. 56.1 Resp. at ¶ 128.) In response, Kinfe stated, "The company can't do that.

He has a condition. They have to respect that."*fn4 (Def. 56.1 Resp. at ¶ 128; Pl. Ex. F, Horning Dep. at 16.)

Less than two weeks later, UPS initiated a fact-finding hearing regarding the July 7, 2005 incident. ( Def. 56.1 Resp. at ¶ 130; Pl. Ex. Q, Pl. Ans. Interr. at 17.) Because UPS had previously issued Fredricksen a verbal warning and a written warning letter, Crane subsequently issued Fredricksen the next step of progressive discipline - a Notice of Intent to Suspend - on July 21, 2005 for allegedly failing to work as directed. (Pl. 56.1 Resp. at ¶ 89.) The suspension was a thirty-day "working suspension." (Id.) Thus, Fredricksen was not demoted, suspended, terminated, and did not lose any pay as a result of the suspension. (Pl. 56.1 Resp. at ¶¶ 90-91.)

In response, Fredricksen filed another grievance on July 30, 2005, stating that the issuance of the Notice of Intent to Suspend violated the ADA, federal law, and the labor agreement. (Def. 56.1 Resp. at ¶ 132; Pl. Ex. Q, Pl. Ans. Interr. at 17.) Prior to July 6, 2005, Fredricksen had not requested an accommodation to work a restricted number of hours. (Pl. 56.1 Resp. at ¶ 83.)

July 2005 Employee Help Line Report

One day prior to filing his grievance relating to the Notice of Intent to Suspend, Fredricksen called the UPS Employee Help Line to report that a hostile work environment existed for all UPS mechanics at the O'Hare gateway due to the actions of Crane and others. (Pl. 56.1 Resp. at ¶ 15; Pl. Ex. A, Fredricksen Dep. at 211-12.) The complaint also referred to Manager Mize physically threatening employees.*fn5 (Def. 56.1 Resp. at ¶ 138; Def. Rep. Ex. 1, Fredricksen Dep. Ex. 26.) Fredricksen did not mention his medical condition during the call. (Pl. 56.1 Resp. at ¶ 15.)

UPS Human Resources spoke with Crane about the complaint. (Pl. 56.1 Resp. at ¶ 16.) UPS Human Resources also met with employees at the O'Hare gateway and inquired as to the work environment at the O'Hare gateway, any issues that had arisen, and how to resolve those issues. (Def. 56.1 Resp. at ¶ 139; Pl. Ex. E, Batzel Dep. at 57-58.) Even though Mize's behavior violated the Company's zero-tolerance policy related to workplace violence, UPS only mandated that Mize receive coaching and counseling as a result of his physical threats. (Def. 56.1 Resp. at ¶ 140; Pl. Ex. C, Crane Dep. at 178-79.)

Fredricksen's First Request for Accommodation

On August 9, 2005, Fredricksen submitted a written request to UPS for an accommodation under the ADA. (Pl. 56.1 Resp. at ¶ 47.) Specifically, Fredricksen requested that he be able to use his two "option weeks" (which he could use as paid vacation) to take off from work on a day-to-day basis for medical reasons, as opposed to taking one of the weeks in a week-long block, as provided by the labor agreement. (Pl. 56.1 Resp. at ¶ 47; Pl. Ex. A, Fredricksen Dep. at 138-39.)

The following day, UPS sent Fredricksen the ADA accommodation paperwork and instructed him to return the forms to UPS within the next two weeks. (Pl. 56.1 Resp. at ¶ 48.) Upon receipt of the forms, Fredricksen conveyed to the UPS Occupational Health Manager his belief that one of the required forms - a questionnaire - was vague and that it led him to believe that the form was drafted to either disqualify an individual as disabled under the ADA or show that the person was unable to perform the job. (Def. 56.1 Resp. at ¶ 142; Pl. Ex. A, Fredricksen Dep. at 150-51.) UPS did not attempt to modify the forms to remedy Fredricksen's concerns. (Def. 56.1 Resp. at ¶ 142.) When Fredricksen did not timely submit the forms, the Company sent Fredricksen a reminder letter, informing him that UPS would consider his request withdrawn if he did not submit the completed forms by September 8, 2005. (Id.; Pl. 56.1 Resp. at ¶ 49.)

On August 23, 2005, Fredricksen filed a charge with the EEOC, alleging that UPS violated the ADA. (Pl. 56.1 Resp. at ¶ 92; Pl. Ex. A, Fredricksen Dep. at 53.) On September 7, 2005, before UPS became aware of the EEOC charge, UPS forced Fredricksen to take a temporary duty ("TDY") assignment in Michigan scheduled for later that month. (Pl. 56.1 Resp. at ¶ 93.) While the labor agreement requires UPS to post the TDY assignment for seven days before forcing an employee to ...


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