2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-2000

Jones v. UPS

Precedential or Non-Precedential:

Docket 99-3108

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Recommended Citation

"Jones v. UPS" (2000). 2000 Decisions. Paper 118.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/118
Filed 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 package 

car driver, a union position at the Altoona distribution 

plant of United Parcel Service ("UPS"). Jones's position as a 

package car driver required that he perform "at a constant 

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) (herein "slip 

op."). 

On December 16, 1988, Jones sustained an injury to his 

back when he slipped and fell on some ice while making a 

delivery. Jones began receiving workers' compensation 

pursuant to the Pennsylvania Workers' Compensation Act 

at the rate of $377 per week. After his accident, Jones 

exited the work-force and enrolled at Pennsylvania State 

University. After two years during which Jones continued 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 benefits, 

which proceeded before a Workers' Compensation Judge 

_________________________________________________________________ 

1. The following facts are drawn from the undisputed statement of facts 

set forth by the District Court in its memorandum order, and from prior 

decisions in proceedings related to this appeal. 

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("WCJ"). Meanwhile, Jones continued his education and 

ultimately received a B.A. in Heath Policy Administration. 

On October 19, 1995, the WCJ granted UPS's petition to 

terminate Jones's workers' compensation benefits. The 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 testimony 

of five physicians, three of whom testified on Jones's behalf. 

Jones appealed to the Pennsylvania Workers' Compensation 

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 reasoned 

 medical opinion that [Jones] was fully recovered and 

 was able to return to his pre-injury job without 

 restrictions as of that date. We find Dr. Casale's report 

 and testimony to constitute substantial, competent 

 evidence sufficient to support the WCJ's determination. 

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, which 

affirmed the Appeal Board's ruling, concluding that "[t]he 

medical expert testimony that United Parcel presented to 

the WCJ amply supports the WCJ's finding that Jones had 

fully recovered from his work-related injuries." Jones v. 

WCAB (United Parcel), No. 590-CD-1997, slip op. at 4 (Pa. 

Commw. Ct. Nov. 3, 1997). On May 28, 1998, the Supreme 

Court of Pennsylvania denied Jones's petition for appeal. 

Before the ruling by the WCJ, Jones had contacted the 

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 the local 

EEOC office. Five months later, Jones wrote to the local 

EEOC office. He stated that the "issues involved here 

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 Counseling, Inc. 

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to locate alterative employment opportunities at a sedentary 

level for Jones. See id. Although Cascade located numerous 

such sedentary positions in January and February 1995, 

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 appeals 

process, Jones filed a one count complaint in the District 

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 that he 

was completely incapable of performing his previous duties 

due to his slip-and-fall accident. Jones stated that there 

were no circumstances -- absent UPS providing somebody 

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 disability, 

nor did he ever request a lateral transfer to another nonunion position at UPS or a promotion to a managerial 

position. See id. at 2-3. 

After discovery UPS moved for summary judgment, 

arguing, inter alia, that Jones's ADA claim was barred by 

the doctrine of collateral estoppel or, alternatively, that 

Jones could not demonstrate that he was a qualified

individual with a disability under the ADA. Jones argued 

that although he was incapable of carrying out his duties 

as a package car driver, UPS violated the ADA because 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 positions to 

which plaintiff could be reassigned as an accommodation. 

Plaintiff himself concedes that he does not know of any 

positions at UPS that he would have been able to perform." 

Id. at 10-11. The District Court therefore granted summary 

judgment for UPS because Jones failed to meet his burden 

of proving that he was a qualified individual under the 

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ADA. In light of this disposition, the District Court did not 

decide whether Jones's ADA claim was barred by the 

doctrine of collateral estoppel, although it alluded to the 

issue in a footnote. 

Jones filed a timely appeal but died of cancer, unrelated 

to his back injury, during the pendency of this appeal. 

Pursuant to Fed. R. App. P. 43(a) the executor of his 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 pursuant 

to 28 U.S.C. S 1291. We engage in plenary review of a 

district court's grant of summary judgment and consider 

the facts in the light most favorable to Jones. See, e.g., 

Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 238 

(3d Cir. 1999). It was UPS's burden to demonstrate that 

there were no genuine issues as to any material fact and 

that it was entitled to a judgment as a matter of law. See 

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 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 Jones, who 

claimed he was incapable of working as a package car 

driver, failed to make any request for an accommodation, 

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 have been 

reassigned as an accommodation. Appellant contends 

Jones was excused from providing evidence of the existence 

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 Taylor v. 

 5 
Phoenixville 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 estoppel, 

inasmuch as the WCJ's finding that Jones had completely 

recovered from his back injuries and could return to his 

position as a package car driver has been sustained on 

each of Jones's appeals. UPS also contends that Jones 

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 Taylor is 

misplaced as none of the four elements set forth in Taylor 

are present in this case. In particular, UPS contends 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 estoppel. 

The parties concede that we must provide the same 

preclusive effect to the WCJ's findings as would the 

Pennsylvania courts. Under Pennsylvania law, the doctrine 

of collateral estoppel applies where the following four 

prongs are met: 

 (1) An issue decided in a prior action is identica l to one 

 presented in a later action; (2) The prior action resulted 

 in a final judgment on the merits; (3) The party against 

 whom collateral estoppel is asserted was a party to the 

 prior action, or is in privity with a party to the prior 

 action; and (4) The party against whom collateral 

 estoppel is asserted had a full and fair opportunity 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' compensation 

proceeding identical to the issue presented here. The WCJ 

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found that Jones had "fully recovered" from his slip-and-fall 

injury, a finding sustained on Jones's various appeals, and 

UPS argues that Jones cannot continue to claim he is 

disabled as a result of that accident. Appellant responds 

that "even if the factual issues were identical, because the 

ADA has different policies, goals and definitions from the 

Pennsylvania Workers' Compensation Statute, collateral 

estoppel does not preclude [his] ADA claim." Appellant's 

Reply Br. at 29. 

Pennsylvania law in this respect has recently been 

refined. Earlier, in Odgers v. Unemployment Compensation 

Board of Review, 525 A.2d 359 (Pa. 1987), the Court had 

held that a determination that a teacher work action was a 

strike for purposes of a state statute authorizing the court 

to order teachers back to work did not have preclusive 

effect on the characterization of the action for purposes of 

employment compensation because the underlying policies 

and goals of the statutes differed. But more recently, in Rue 

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

Supreme Court clarified the limits of its holding in Odgers. 

In particular, the Court stated that when the issue before 

the Unemployment Compensation Board is a factual issue, 

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 policy." Id. at 

85. The Court then cited with approval several illustrative 

examples of the preclusive effect of factual findings 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 injury had 

preclusive effect in subsequent products liability action), 

and Christopher v. Council of Plymouth Township , 635 A.2d 

749 (Pa. Commw. Ct. 1993) (finding of no work-related 

disability had preclusive effect in subsequent action on 

collective bargaining agreement). See Rue, 713A.2d at 87 

n.4. 

We predict that the Pennsylvania Supreme Court would 

follow its decision in Rue under the circumstances here and 

would give preclusive effect to the factual finding of the 

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WCJ in the workers' compensation proceeding that Jones 

was fully recovered from his work-related injury, regardless 

of the differing policies behind the ADA and the Workers' 

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 litigated 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 workrelated injury and was able to return to his position as a 

package car driver. 

B. 

ADA Claim 

Because Jones is precluded from re-litigating his recovery 

from the slip-and-fall accident, Jones's ADA claim fails as 

a matter of law. The ADA prohibits covered employers from 

discriminating against a "qualified individual with a 

disability" because of the disability of such an individual. 

See 42 U.S.C. 12112(a). It is, of course, an axiom of any 

ADA claim that the plaintiff be disabled and that the 

employer be aware of the disability. Arguably, Jones may 

have suffered from a different disability (i.e., his 

undiagnosed cancer). However, this contention was never 

presented to the District Court, nor is there any indication 

or even an allegation that UPS was made aware of 

"possible" unrelated disabilities. Furthermore, it is clear 

from Jones's complaint and deposition testimony that the 

core of his ADA claim is the allegation that he remained 

disabled as a result of his 1988 work-related injury and 

that UPS failed to provide a reasonable accommodation for 

that disability. 

Jones is under the burden of demonstrating that he has 

a disability under the ADA before any claim can proceed to 

trial. See, e.g., Olson v. General Elec. Astrospace, 101 F.3d 

947, 951 (3d Cir. 1996). At summary judgment, a plaintiff 

 8 
cannot rely on unsupported allegations, but must go

beyond pleadings and provide some evidence that would 

show that there exists a genuine issue for trial. See Celotex 

Corp. v. Catrett, 477 U.S. 317, 324 (1986). In light of 

Jones's full recovery from his work-related injuries, Jones's 

ADA claim would fail as a matter of law as he has provided 

no other evidence that he was "disabled" under the ADA. 

UPS contends that even if the doctrine of collateral 

estoppel were inapplicable in this case, Jones's ADA claim 

nevertheless fails as he admitted there are no reasonable 

accommodations on the part of UPS that would have made 

it possible for Jones to perform his position as a package 

car driver. Appellant does not contest that fact. See 

Appellant's Br. at 21 ("Mr. Jones did not dispute his 

inability to return to his former position of package car 

driver, given his disability."). He insists, however, that the 

only relevant accommodation would have been to transfer 

Jones to a different position at UPS, and that had UPS 

fulfilled its obligation to engage in the interactive process, 

the parties could have identified transfer positions as a 

reasonable accommodation. 

The ADA's regulations provide that: "To determine the 

appropriate reasonable accommodation it may be necessary 

for the [employer] to initiate an informal, interactive 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 employee's 

disability and the potential options that could reasonably 

accommodate those limitations. The EEOC's interpretive 

guidelines establish the circumstances that trigger the 

employer's duty to engage in this interactive process: "Once 

a qualified individual with a disability has requested 

provision of a reasonable accommodation, the employer 

must make a reasonable effort to determine the appropriate 

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. Phoenixville 

School District, 184 F.3d 296 (3d Cir. 1999), in support of 

 9 
his argument that UPS failed to engage in the interactive 

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 twenty 

years before suffering the onset of bipolar disorder which 

resulted in her hospitalization at a psychiatric institution 

and subsequent leave of absence. Taylor's son informed the 

school that doctors had diagnosed his mother with bipolar 

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 offered 

no accommodation, but instead began documenting her

errors and eventually terminated her employment. 

Taylor filed an ADA action; the district court granted 

summary judgment for the defendant, finding that the only 

accommodation Taylor specifically requested, a transfer to 

another position, was not possible. We reversed, holding 

that Taylor had presented sufficient evidence to create an 

issue of material fact as to whether the school had failed to 

engage in the interactive process. We stated that to show 

that an employer has violated its duty to engage in the 

interactive process, a disabled employee must demonstrate: 

"1) the employer knew about the employee's disability; 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 accommodation 

or assistance for his disability; he not only never requested 

to return to his old position as a package car driver, he 

never asked for either one of the other jobs available under 

his union contract or any other position with UPS. 

Appellant nevertheless contends that UPS had "sufficient 

constructive notice of Mr. Jones' desire for 

accommodation," Appellant's Reply Br. at 14, because it 

was aware of Jones's belief that he could not return to his 

former manual labor job and that his disability precluded 

him from returning to work at UPS. We disagree because 

appellant has not provided any evidence to suggest that 

 10 
UPS should have known that Jones sought an 

accommodation. As we stated in Taylor, "while the notice [of 

a desire for an accommodation] does not have to be in 

writing, be made by the employee, or formally invoke 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 disability 

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 process. 

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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