                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             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Precedential or Non-Precedential: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.
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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.

                               2
("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.

                                3
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, sorter-
preloader, 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 non-
union 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

                               4
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

                               6
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 work-
related 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

                               7
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 work-
related 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

                               11
