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# J ones v . UPS

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 99-3108

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. e du/thir dc ir c uit_2000/118Filed June 2, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3108

NEIL E. JONES

* Robert E. Jones, Appellant (*Pursuant to F.R.A.P. Rule 43)

v.

UNITED PARCEL SERVICE

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 96-cv-00268J) District Judge: Hon. D. Brooks Smith

Argued May 23, 2000

Before: SLOVITER and MANSMANN, Circuit Judges , and WARD,* District Judge

(Filed June 2, 2000)

Seton Hall University School of Law Newark, NJ 07102 Jon Romberg, Esq.

Of Counsel Sarah O'Connor (Argued)
On the Brief Attorneys for Appellant

___________________________________________________ ______________ * Hon. Robert J. Ward, United States District Judge for the Southern District of New York, sitting by designation.David J. McAllister, Esq. (Argued)

Colleen A. Zak, Esq. Christopher J. Soller, Esq. Reed, Smith, Shaw & McClay Pittsburgh, PA 15219-1886 Attorneys for Appellee

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

BACKGROUND1

The plaintiff, Neil E. Jones, was employed as a pac kage car driver, a union position at the Altoona distrib ution plant of United Parcel Service ("UPS"). Jones's pos ition as a package car driver required that he perform "at a c onstant pace during a full work shift" and that Jones have the ability "to assist in moving up to 150 lbs - bend, stoop, crouch, climb, stand, sit, walk and turn/pivot for up to 9.5 hours per day, 5 days per week." See Jones v. UPS, No. 96- 268J, slip op. at 1-2 (W.D. Pa. Jan. 25, 1999) (her ein "slip op.").

On December 16, 1988, Jones sustained an injury to his back when he slipped and fell on some ice while mak ing a delivery. Jones began receiving workers' compensati on pursuant to the Pennsylvania Workers' Compensation Act at the rate of $377 per week. After his accident, J ones exited the work-force and enrolled at Pennsylvania State University. After two years during which Jones cont inued to receive benefits, a consulting orthopedist released Jones to return to work. Jones refused, and in January 1991 UPS filed a petition to cease and terminate Jones's ben efits, which proceeded before a Workers' Compensation Judg e

___________________________________________________ ______________

1. The following facts are drawn from the undispute d statement of facts set forth by the District Court in its memorandum o rder, and from prior decisions in proceedings related to this appeal.

2("WCJ"). Meanwhile, Jones continued his education a nd

ultimately received a B.A. in Heath Policy Administ ration.

On October 19, 1995, the WCJ granted UPS's petition to terminate Jones's workers' compensation benefits. T he WCJ concluded that Jones had "fully recovered from his work injury of December 16, 1988," both mentally and physically. In making this determination, the WCJ evaluated Jones's testimony and the reports and tes timony of five physicians, three of whom testified on Jone s's behalf. Jones appealed to the Pennsylvania Workers' Compens ation Appeal Board. The Appeal Board affirmed the WCJ's decision, holding that:

Overall, based upon the doctor's examination of December 18, 1990, it was the doctor's reaso ned medical opinion that [Jones] was fully recov ered and was able to return to his pre-injury job wit hout
restrictions as of that date. We find Dr. Ca sale's report and testimony to constitute substantial, com petent evidence sufficient to support the WCJ's det ermination.

See Jones v. United Parcel, 1997 WL 49126 at *4 (Pa . Work. Comp. App. Bd. Feb. 5, 1997).

Jones next appealed to the Commonwealth Court, whic h affirmed the Appeal Board's ruling, concluding that "[t]he medical expert testimony that United Parcel present ed to the WCJ amply supports the WCJ's finding that Jones had fully recovered from his work-related injuries." Jo nes v. WCAB (United Parcel), No. 590-CD-1997, slip op. at 4 (Pa. Commw. Ct. Nov. 3, 1997). On May 28, 1998, the Supr eme Court of Pennsylvania denied Jones's petition for a ppeal.

Before the ruling by the WCJ, Jones had contacted t he Equal Employment Opportunity Commission (EEOC) concerning "alleged discriminatory action against a person with disabilities." Slip op. at 3. The EEOC advised Jones that he must file a charge of discrimination with t he local EEOC office. Five months later, Jones wrote to the local
EEOC office. He stated that the "issues involved he re concern an ongoing workers' compensation case" and that his grievance against UPS arose because he did not" feel the present offer is a reasonable settlement offer. " Id. UPS
thereafter retained Cascade Rehabilitation Counseli ng, Inc.

3to locate alterative employment opportunities at a sedentary

level for Jones. See id. Although Cascade located n umerous such sedentary positions in January and February 19 95, Jones did not accept any of them. See id. at 4.

In September 1996, following the adverse ruling by the WCJ but before the conclusion of the lengthy appeal s process, Jones filed a one count complaint in the D istrict Court against UPS, claiming that UPS violated the Americans With Disabilities Act ("ADA") by failing to provide
him with a reasonable accommodation for his return to work. During discovery, Jones continued to assert t hat he was completely incapable of performing his previous duties due to his slip-and-fall accident. Jones stated tha t there were no circumstances -- absent UPS providing someb ody else to do his job for him -- that would enable him to perform his package car driver responsibilities or any of the other three union positions (tractor-trailer driver , sorterpreloader, and package handler) available under the collective bargaining agreement between UPS and the Teamsters union. At no time did Jones ask anyone at UPS for a reasonable accommodation for his alleged disa bility, nor did he ever request a lateral transfer to anoth er nonunion position at UPS or a promotion to a manageria l position. See id. at 2-3.

After discovery UPS moved for summary judgment, arguing, inter alia, that Jones's ADA claim was bar red by the doctrine of collateral estoppel or, alternative ly, that Jones could not demonstrate that he was a qualified individual with a disability under the ADA. Jones a rgued that although he was incapable of carrying out his duties as a package car driver, UPS violated the ADA becau se it denied him alternative employment opportunities and did not reassign him to a vacant position. The District Court concluded that "[w]hat is left is a record that is devoid of any evidence that there were any equivalent positio ns to which plaintiff could be reassigned as an accommoda tion.
Plaintiff himself concedes that he does not know of any positions at UPS that he would have been able to pe rform." Id. at 10-11. The District Court therefore granted summary judgment for UPS because Jones failed to meet his b urden of proving that he was a qualified individual under the

4ADA. In light of this disposition, the District Cou rt did not

decide whether Jones's ADA claim was barred by the doctrine of collateral estoppel, although it allude d to the
issue in a footnote.

Jones filed a timely appeal but died of cancer, unr elated to his back injury, during the pendency of this app eal. Pursuant to Fed. R. App. P. 43(a) the executor of h is estate, Robert E. Jones, has been substituted as appellant.

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C. S 1331 and we have jurisdiction over this appeal pu rsuant to 28 U.S.C. S 1291. We engage in plenary review of a district court's grant of summary judgment and cons ider the facts in the light most favorable to Jones. See , e.g., Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 2 36, 238 (3d Cir. 1999). It was UPS's burden to demonstrate that there were no genuine issues as to any material fac t and that it was entitled to a judgment as a matter of l aw. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, I nc., 477 U.S. 242, 247 (1986).

III.

DISCUSSION

Appellant does not contest the findings of fact set forth in the District Court's opinion, specifically that Jon es, who claimed he was incapable of working as a package ca r driver, failed to make any request for an accommoda tion, an alternative equivalent position, or a promotion, and that the record is completely devoid of evidence of any equivalent position in UPS to which Jones could hav e been reassigned as an accommodation. Appellant contends Jones was excused from providing evidence of the ex istence
of a reasonable accommodation because UPS failed to engage in the interactive process required by 29 C. F.R. S 1630.2(o)(3). Appellant cites our decision in Tay lor v.

5Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), as

controlling.

UPS responds by reasserting its position that Jones 's ADA claim is barred by the doctrine of collateral e stoppel, inasmuch as the WCJ's finding that Jones had comple tely recovered from his back injuries and could return t o his position as a package car driver has been sustained on each of Jones's appeals. UPS also contends that Jon es cannot establish that he is a qualified individual under the ADA as he has admitted that he cannot perform the essential functions of the employment position that he held. Finally, UPS contends that Jones's reliance on Tayl or is misplaced as none of the four elements set forth in Taylor are present in this case. In particular, UPS conten ds Taylor supports its position because Jones never initiated the interactive process by requesting an accommodation.

A.

Collateral Estoppel

We must consider at the outset UPS's position that the ADA claim is barred by the doctrine of collateral e stoppel. The parties concede that we must provide the same preclusive effect to the WCJ's findings as would th e Pennsylvania courts. Under Pennsylvania law, the do ctrine of collateral estoppel applies where the following four prongs are met:

(1) An issue decided in a prior action is id entica l to one presented in a later action; (2) The prior a ction resulted in a final judgment on the merits; (3) The p arty against whom collateral estoppel is asserted was a p arty to the prior action, or is in privity with a party to the prior action; and (4) The party against whom colla teral estoppel is asserted had a full and fair opp ortunity to litigate the issue in the prior action.

Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998).

The only question at issue here is the first prong of the analysis: is the issue decided in the workers' comp ensation proceeding identical to the issue presented here. T he WCJ

6found that Jones had "fully recovered" from his sli p-and-fall

injury, a finding sustained on Jones's various appe als, and UPS argues that Jones cannot continue to claim he i s disabled as a result of that accident. Appellant re sponds that "even if the factual issues were identical, be cause the ADA has different policies, goals and definitions f rom the Pennsylvania Workers' Compensation Statute, collate ral estoppel does not preclude [his] ADA claim." Appell ant's Reply Br. at 29.

Pennsylvania law in this respect has recently been refined. Earlier, in Odgers v. Unemployment Compens ation Board of Review, 525 A.2d 359 (Pa. 1987), the Court had
held that a determination that a teacher work actio n was a strike for purposes of a state statute authorizing the court to order teachers back to work did not have preclus ive effect on the characterization of the action for pu rposes of employment compensation because the underlying poli cies and goals of the statutes differed. But more recent ly, in Rue v. K-Mart Corp., 713 A.2d 82 (Pa. 1998), the Pennsy lvania Supreme Court clarified the limits of its holding i n Odgers. In particular, the Court stated that when the issue before the Unemployment Compensation Board is a factual is sue, differences between the public policies affected by the subsequent civil litigations are irrelevant. As the Court stated: "A fact is a fact, regardless of public pol icy." Id. at 85. The Court then cited with approval several illu strative examples of the preclusive effect of factual findin gs in workers' compensation proceedings, including Kohler v. McCrory Stores, 615 A.2d 27 (Pa. 1992) (finding of workrelated injury had preclusive effect in subsequent negligence action), Capobianchi v. BIC Corp., 666 A .2d 344 (Pa. Super. Ct. 1995) (finding of no work-related i njury had preclusive effect in subsequent products liability action), and Christopher v. Council of Plymouth Township , 6 35 A.2d 749 (Pa. Commw. Ct. 1993) (finding of no work-relat ed disability had preclusive effect in subsequent acti on on collective bargaining agreement). See Rue, 713A.2d at 87

n.4.

We predict that the Pennsylvania Supreme Court woul d
follow its decision in Rue under the circumstances here and would give preclusive effect to the factual finding of the

7WCJ in the workers' compensation proceeding that Jo nes

was fully recovered from his work-related injury, r egardless of the differing policies behind the ADA and the Wo rkers' Compensation Act. As this prior proceeding resulted in a final judgment, to which Jones was a party and had a fair and full opportunity to litigate, and indeed litiga ted it through the Pennsylvania courts, Jones is barred by Pennsylvania's doctrine of collateral estoppel from challenging this factual finding in his ADA claim. We are therefore required by 28 U.S.C. S 1738 to consider Jones's ADA claim in light of the irrefutable fact that as of December 1990 Jones had fully recovered from his wo rkrelated injury and was able to return to his positi on as a package car driver.

B.

ADA Claim

Because Jones is precluded from re-litigating his r ecovery from the slip-and-fall accident, Jones's ADA claim fails as a matter of law. The ADA prohibits covered employer s from discriminating against a "qualified individual with a disability" because of the disability of such an in dividual. See 42 U.S.C. 12112(a). It is, of course, an axiom of any ADA claim that the plaintiff be disabled and that t he employer be aware of the disability. Arguably, Jone s may have suffered from a different disability (i.e., hi s undiagnosed cancer). However, this contention was n ever presented to the District Court, nor is there any i ndication or even an allegation that UPS was made aware of "possible" unrelated disabilities. Furthermore, it is clear from Jones's complaint and deposition testimony tha t the core of his ADA claim is the allegation that he rem ained disabled as a result of his 1988 work-related injur y and that UPS failed to provide a reasonable accommodati on for that disability.

Jones is under the burden of demonstrating that he has a disability under the ADA before any claim can pro ceed to trial. See, e.g., Olson v. General Elec. Astrospace , 101 F.3d 947, 951 (3d Cir. 1996). At summary judgment, a pla intiff

8cannot rely on unsupported allegations, but must go

beyond pleadings and provide some evidence that wou ld show that there exists a genuine issue for trial. S ee Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In ligh t of Jones's full recovery from his work-related injurie s, Jones's ADA claim would fail as a matter of law as he has p rovided
no other evidence that he was "disabled" under the ADA.

UPS contends that even if the doctrine of collatera l estoppel were inapplicable in this case, Jones's AD A claim
nevertheless fails as he admitted there are no reas onable accommodations on the part of UPS that would have m ade it possible for Jones to perform his position as a package car driver. Appellant does not contest that fact. S ee Appellant's Br. at 21 ("Mr. Jones did not dispute h is inability to return to his former position of packa ge car driver, given his disability."). He insists, howeve r, that the only relevant accommodation would have been to tran sfer Jones to a different position at UPS, and that had UPS fulfilled its obligation to engage in the interacti ve process, the parties could have identified transfer position s as a reasonable accommodation.

The ADA's regulations provide that: "To determine t he appropriate reasonable accommodation it may be nece ssary for the [employer] to initiate an informal, interac tive process with the [employee] in need of the accommodation." 29 C.F.R. S 1630.2(o)(3). The goal of the interactive process is to help identify the precise limitations of the emp loyee's disability and the potential options that could rea sonably accommodate those limitations. The EEOC's interpret ive guidelines establish the circumstances that trigger the employer's duty to engage in this interactive proce ss: "Once a qualified individual with a disability has reques ted provision of a reasonable accommodation, the employ er must make a reasonable effort to determine the appr opriate accommodation. The appropriate reasonable accommodation is best determined through a flexible
, interactive process that involves both the employer and the [employee] with a disability." 29 C.F.R. Pt. 1630, App.
S 1630.9 at 361.

Appellant relies on our decision in Taylor v. Phoen ixville School District, 184 F.3d 296 (3d Cir. 1999), in su pport of

9his argument that UPS failed to engage in the inter active

process required by the ADA. However, Taylor is distinguishable on its facts. Katherine Taylor, the plaintiff, had worked as a school principal's secretary for tw enty years before suffering the onset of bipolar disorde r which resulted in her hospitalization at a psychiatric in stitution and subsequent leave of absence. Taylor's son infor med the school that doctors had diagnosed his mother with b ipolar disorder and told them that she " `would require

accommodations when she returned to work.' " Id. at 303. However, when Taylor returned to work, the school o ffered no accommodation, but instead began documenting her errors and eventually terminated her employment.

Taylor filed an ADA action; the district court gran ted summary judgment for the defendant, finding that th e only accommodation Taylor specifically requested, a tran sfer to another position, was not possible. We reversed, ho lding that Taylor had presented sufficient evidence to cr eate an
issue of material fact as to whether the school had failed to engage in the interactive process. We stated that t o show that an employer has violated its duty to engage in the interactive process, a disabled employee must demon strate: "1) the employer knew about the employee's disabili ty; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer's lack of good faith." Id. at 319-320.

Unlike Taylor, Jones never requested an accommodati on or assistance for his disability; he not only never requested to return to his old position as a package car driv er, he never asked for either one of the other jobs availa ble under his union contract or any other position with UPS. Appellant nevertheless contends that UPS had "suffi cient
constructive notice of Mr. Jones' desire for accommodation," Appellant's Reply Br. at 14, becaus e it
was aware of Jones's belief that he could not retur n to his former manual labor job and that his disability pre cluded him from returning to work at UPS. We disagree beca use appellant has not provided any evidence to suggest that

10UPS should have known that Jones sought an

accommodation. As we stated in Taylor, "while the n otice [of a desire for an accommodation] does not have to be in writing, be made by the employee, or formally invok e the magic words `reasonable accommodation,' the notice nonetheless must make clear that the employee wants assistance for his or her disability." Taylor , 184 F.3d at 313. The record reflects that the only request made by Jones of UPS was for continued payment of disabilit y benefits. Because there is no evidence from which a request for accommodation could be inferred, UPS was under no legal obligation to engage in the interactive proce ss.

IV.

CONCLUSION

For the reasons set forth above, we will affirm the judgment of the District Court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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