BEMESDERFER

v.

UNITED PARCEL SERVICE, INC.

This cause is before the Court on Defendant United Parcel Service, Inc.’s (“UPS”) Motion for Summary Judgment. (Doc. 139 (the “Motion”)). The Plaintiff submitted a Response in Opposition (Doc. 145), and UPS replied. (Doc. 151). Upon due consideration, the Motion is denied.

I. LEGAL STANDARD

To prevail on a summary judgment motion on any claim or issue, the movant must show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the applicable substantive law, it might affect the outcome of the case,” and “[a]n issue of fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Harrison v. Culliver, 746 F. 3d 1288, 1298 (11th Cir. 2014). The movant bears the initial burden of proving that no genuine factual dispute exists. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1260 (11th Cir. 2004). Where the nonmovant bears the burden of proving the issue at trial, the moving party will satisfy this initial burden “merely by pointing out to the district court that there is an absence of evidence to support an essential element of the non-moving party’s case.” Thurmon v. Ga. Pac., LLC, 650 F. App’x 752, 756 (11th Cir. 2016) (citing Celotex, 477 U.S. at 325). Once the movant shows there is no genuine dispute of material fact, the burden shifts to the non-movant to prove that a genuine factual dispute exists which would preclude entry of summary judgment. Porter v. Ray, 461 F. 3d 1315, 1320 (11th Cir. 2006). To survive summary judgment, the non-moving party “must go beyond the pleadings, and present affirmative evidence to show that a genuine issue of material fact exists.” Id. The non-movant must support its position by “citing to particular parts of materials in the record, including depositions,

documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatories, or other materials.” FED. R. CIV. P. 56(c)(1)(A). If the non-moving party fails to identify specific record evidence supporting its position, the court must enter summary judgment. FED. R. CIV. P. 56(a).

Importantly, the Court must “view the evidence and all factual inferences therefrom in the light most favorable to the non-moving party and resolve all reasonable doubts about the facts in favor of the non-movant.” Davila v. Gladden, 777 F. 3d 1198, 1203 (11th Cir. 2015) (quoting Carter v. City of Melbourne, Fla., 731 F. 3d 1161, 1166 (11th Cir. 2013)). At the same time, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F. 3d 1160, 1162 (11th Cir. 2006) (quoting Walker v. Darby, 911 F. 2d 1573, 1577 (11th Cir. 1990)). Ultimately, summary judgment should only be granted “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. DISCUSSION

A. Exhaustion of Administrative Remedies

The Defendant contends Mr. Bemesderfer failed to exhaust his administrative remedies for the five claims brought against UPS under the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act (“FCRA”). (Doc. 139, pp. 5–6). The Plaintiff alleges in the Amended Complaint that UPS failed to promote him between 2019 and 2022, and that Plaintiff’s supervisor retaliated against him in 2021. (Id.; Doc. 12, ¶¶ 57, 70–75). That said, UPS claims the Charge of Discrimination is limited to discrimination between July and December 2020 and is silent about retaliation. (Doc. 139, p. 6). UPS reasons that since the discrimination is alleged to have occurred over four months in 2020, any discriminatory conduct taking place after December 2020 is outside the scope of the charge and such claims are not exhausted. (Id.). Similarly, UPS asserts the Plaintiff’s failure to specifically raise retaliation in the charge means that claim has not been exhausted. (Id. at p. 7). The Court has reviewed the charge of discrimination filed by the Plaintiff,

and it reads as follows: Since July of 2020, despite meeting all qualifications, Sunni Gary (disability status unknown), Human Resources Staff Member, has denied my promotion to Driver and refused to accept my [Department of Transportation] credentials including my [Federal Motor Carrier Safety Administration (“FMCSA”)] waiver. (Doc. 139-23, ¶ 1). Contrary to the Defendant’s representation, the charge is not limited to discriminatory conduct taking place between July and December 2020. Rather, the Plaintiff accused UPS of engaging in discriminatory conduct “since July 2020.” Thus, the Defendant is incorrect that the discriminatory conduct alleged in the Amended Complaint is outside the scope of the charge of discrimination. The Defendant failed to quote the charge in its briefing, and a cursory examination of the description of discriminatory conduct charge should have led UPS to abandon this argument.¹ Next, UPS claims “[t]he [Equal Employment Opportunity Commission (“EEOC”)]’s administrative investigation further confirms its scope was limited to events occurring between July and December 2020 only.” (Doc. 139, p. 7). UPS points to Exhibit 24 of the Motion to support this contention. (Id.). Exhibit 24 is 84-pages long, and the Defendant fails to offer a pinpoint citation to support its

Therefore, the Defendant’s contention regarding the scope of the EEOC’s investigation is unsupported. Finally, UPS asserts that the Plaintiff did not complain about retaliation or harassment at all, and as such failed to exhaust his administrative remedy. (Doc. 139, p. 7). The charge of discrimination is dated December⁸, 2020, (Doc. 139-23),

and the Plaintiff claims he was retaliated against starting the Fall of 2021, (Doc. 12, ¶ 57). Since the retaliation claim could not have been brought contemporaneous with the discrimination charge, the Defendant suggests the charge should have been amended. (Doc. 139, p. 7). The Eleventh Circuit, however, has resolved this argument against the Defendant. Last September, the Court reversed a trial judge who dismissed the plaintiff’s retaliation claim for failure to exhaust administrative remedies, holding that “under Batson v. Salvation Army, 897 F. 3d 1320 (11th Cir. 2018), [appellant’s] ADA retaliation claim could have reasonably grown out of his charge of discrimination.” Sugg v. City of Sunrise, No. 20-13884, 2022 WL 4296992, at *5–6 (11th Cir. Sep. 19, 2022). Accordingly, the exhaustion requirement does not apply to retaliation claims that grow out of earlier charges,

as is alleged to have occurred here. For these reasons, the Defendant’s argument that Plaintiff failed to exhaust administrative remedies is rejected. The Court need not dwell on whether ADA exhaustion requirements apply to state law claims.

B. Failure to bid for a driver position in 2020

Defendant UPS argues that Mr. Bemesderfer applied for a driver position in 2019 and failed to apply again between August 2019 and December 2021. (Doc. 139, pp. 8–9). UPS cites bid sheets signed by the Plaintiff on August⁸, 2019 and August 22, 2019, (id. at p. 9, n.10), and the Plaintiff’s deposition where Mr. Bemesderfer admitted being unable to recall signing bid sheets after August 2019, (id. at p. 9, n.9). Accordingly, UPS contends Counts I, III, and IV must be dismissed as time-barred. (Id. at p. 9). UPS also moves for summary judgment, because the Plaintiff lacked seniority and was, therefore, unqualified.² (Id. at p. 8). The Plaintiff argues there is an issue of material fact related to which driver positions he applied for and when. (Doc. 145, p. 5). Both parties cite the Plaintiff’s deposition, and the Court finds UPS’s citation mischaracterizes the Plaintiff’s testimony. UPS is correct that the Plaintiff at first stated he could not recall if he signed bid sheets for driver positions between August 2019 and December 2021.

C. Business Necessity Affirmative Defense

UPS argues it is entitled to summary judgment on Counts I and III of the Amended Complaint alleging disparate treatment for failure to promote. (Doc. 139, p. 10). The Defendant asserts two grounds: first, that the Supreme Court’s decision in Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999), controls and renders moot the Plaintiff’s challenge to UPS’s policy to adopt the base-level hearing (“BLH”)

relatedness “is used in analyzing the questions or subject matter contained in a test or criteria used by an employer in making hiring or promotional decision making.” Id. at 1317. Thus, “[f]or a qualification to be ‘job-related,’ ‘the employer must demonstrate that the qualification standard is necessary and related to ‘the specific skills and physical requirements of the sought-after position.’” See Atkins v. Salazar, 677 F. 3d 667, 682 (5th Cir. 2011) (quoting Cripe v. City of San Jose, 261

F. 3d 877, 890 (9th Cir. 2001)). Business necessity “analyzes whether there is a business reason that makes necessary the use by an employer of a test or criteria in hiring or promotional decision making.” Allmond, 558 F. 3d at 1317. “[F]or a qualification standard to be ‘consistent with business necessity,’ the employer must show that it ‘substantially promotes’ the business’s needs.” Atkins, 677 F. 3d at 682 (quoting Bates v. UPS,

constitutes a trustworthy benchmark for assessing safety and thus business necessity is fact specific.

City’s business necessity defense was supported by an expert witness, Kevin Downes, who opined the SCBA should be worn without facial hair contacting the sealing surface of the face piece. Id. at 1119. The expert relied on studies conducted by the American National Standards Institute, the National Institute for Occupational Safety and Health, and OSHA. Id. at 1120. The firefighters countered with anecdotal evidence that no adverse incidents had been reported during the six-year period the City allowed firefighters to wear beards. Id. Based on the competing evidence, the Court upheld the business necessity defense. Id. In Allmond the Plaintiff served as a contract employee with the United States Marshal’s Service to provide protective services at a federal courthouse and was terminated when he failed a hearing test. 558 F. 3d at 1315. The defendant presented testimony from Dr. Richard Miller, the then Director of Law Enforcement Medical Programs for the Office of Federal Occupational Health, who conducted a comprehensive study following the Oklahoma City bombing. Id. Dr. Miller concluded that security personnel must be able to clearly understand verbal directions in times of crisis, including communications spoken face-to-face, via telephone and radio, and outside the range of one’s sight. Id. The Court found “the government sponsored a detailed analysis of the security officer position to identify the essential functions of the job and the medical qualifications necessary to perform it.” Id. at 1317. The Court sustained the prohibition against use of hearing aids as consistent with business necessity because hearing aids may malfunction, break, or become dislodged. Id.

UPS asserts that it has adopted the BLH standard and claims that, “[b]ecause the FMSCA may waive the BLH standard for deaf drivers based on their personal driving record, the BLH standard does not necessarily represent the regulatory ‘floor’ in all circumstances.” (Doc. 139, p. 13) UPS concludes that its decision to adopt the BLH criterion is comparable to Fitzpatrick where the City adopted the OSHA standard despite not being required to do so. (Id.). There are two problems with the Defendant’s reasoning. First, there is no evidence the FMSCA hearing exemption is based merely on one’s personal driving record.⁷ Second, in Fitzpatrick, the City proved the OSHA no-beard criterion was jobrelated and necessary, as those terms are understood. As the Plaintiff correctly notes, “UPS has not identified one essential function to which the [BLH] physical qualification standard is sufficiently tailored.” (Doc. 145, p. 10). The Plaintiff goes further and cites to the record to show that he can speak, hear with the use of hearing aids, and lipread. (Doc. 145, p. 11 (citing Doc. 108-8, 177:19–178:7, 238:16–239:4, 239:7–8; Doc. 116-9, 15:8–23; Doc. 137, ¶ 15; Doc. 138, ¶ 1)). Accordingly, the Plaintiff can successfully communicate with non-

159, 164). Since UPS has failed to carry its burden on the business necessity defense, the Court need not address whether the Plaintiff identified a reasonable accommodation. D. FMCSA’s hearing exemption was a nullity UPS claims the FMCSA’s issuance of a hearing exemption is a legal nullity because the agency action was arbitrary and capricious. (Doc. 139, p. 17). The Court notes UPS failed to raise this defense in its Answer and Affirmative Defenses and has waived the defense. (Doc. 32). UPS proffers its interpretation of the grounds upon which the FMCSA issued a hearing exemption to the Plaintiff, citing generally to 85 FED. REG. 30.011, but without specific citation to support its argument. Counsel then proffers a diagram of the analytical steps “the FMSCA needed to measure versus what it actually measured,” without citing legal authority or expert testimony in support of the proffer. (Doc. 139, pp. 19–20). Moreover, the Plaintiff is correct that the Defendant’s argument invoking the Administrative Procedure Act cannot be asserted against a private party, and the FMSCA is not a party to this litigation. See Shell Gulf of Mex. Inc. v. Ctr. For Biological Diversity, Inc., 771 F. 3d

632, 636 (9th Cir. 2014). UPS failed to join the FMCSA, did not challenge the Plaintiff’s application for a hearing exemption, and did not raise this defense in its Answer and Affirmative Defenses. Summary judgment is therefore not proper on this ground.

E. Retaliation, Lack of Knowledge, and Temporal Gap

The Defendant submits Counts II and V asserting retaliation fail, because the Plaintiff cannot make a prima facie showing of retaliatory intent. (Doc. 139, p. 21). UPS does not dispute that the Plaintiff was engaged in statutorily protected expression, or that he suffered an adverse action. (Id.). Rather, UPS claims Mr. Bemesderfer cannot show a causal relation between the protected activity and the adverse action because the time between those events is too great. (Id.). UPS also claims the decisionmaker was unaware of the protected activities. (Id. at p. 22). That is, Mr. Kenny Hallam, the Plaintiff’s preload supervisor, was not involved in driver bids or the grievance process and professed lack of knowledge concerning Plaintiff’s EEOC charge. (Id. (quoting Doc. 139-26, 29:5–31:11, 32:1–19)).⁸ The Plaintiff counters that there is a dispute of material fact as to Mr. Hallam’s knowledge of his protected activity because the Plaintiff asked Mr. Hallam who he should contact to apply for a driver position. (Doc. 145 (quoting Doc. 139-8, 48:7–21)). The Plaintiff also notes that he filed an internal complaint and a union grievance against Mr. Hallam in December 2021. (Doc. 137, ¶¶ 20, 24– 25; Doc. 138, ¶ 6). And the Plaintiff testified that after he unsuccessfully applied for the driver position, Mr. Hallam treated him differently than other employees when each hour Mr. Hallam stood about one foot away and criticized him for working too slowly. (Doc. 145, pp. 17–18 (quoting Doc. 139-8, 55:1–19)). Mr. Hallam also required the Plaintiff to handle heavy packages while having an injured shoulder, and he would not wear a mask during COVID and stood behind the Plaintiff breathing on him. (Doc. 139-8, 55:1–19).

The jury is tasked with making credibility determinations, including whether they believe Mr. Hallam when he professes ignorance of the Plaintiff having applied for and been denied a driver position or the existence of Plaintiff’s EEOC claim. The jury must also determine whether Mr. Hallam’s treatment of the Plaintiff constitutes retaliation, is simply bad management, or did not happen.

and the retaliation began in the fall of 2021 with the gap being too great to be actionable. (Doc. 139, pp. 22–23). It is true the nexus or temporal proximity between the protected activity and the adverse action must not be completely unrelated. Higdon v. Jackson, 393 F. 3d 1211, 1220 (11th Cir. 2004). And, “[i]f there is substantial delay between the protected expression and the adverse action in the absence of other evidence tending to show causation, the complaint of retaliation fails as a matter of law. Id. (citation omitted). That said, the temporal connection between the protected activities here and the alleged retaliation is not as clear-cut as UPS suggests. The logs used to document applications for driver positions are poorly maintained by UPS, and the Defendant’s policy to disregard FMCSA hearing exemptions is a continuing harm. The Plaintiff did not relent in his desire to obtain a driver position as evidence by his receipt of a hearing exemption in May 2020 and May 2022. (Doc. 137, ¶ 22). A reasonable jury may find the Plaintiff’s protected activity did not end in December 2020, thereby narrowing the temporal gap.

F. Preemption of FCRA Retaliation Claims

Finally, UPS argues Counts III and IV alleging retaliation should be dismissed, because his state-law claims are preempted by his CBA. This argument rests on a faulty premise. UPS contends the Plaintiff’s retaliation claims are, in reality, a dispute concerning the construction of the CBA over which federal labor law provides exclusive federal jurisdiction. (Doc. 139, pp. 23–24). This is simply wrong, and UPS fails to cite a single case holding that a retaliation claim arising from disability discrimination and brought under the FCRA fails when the plaintiff is a member of a union and subject to a CBA. The claim of retaliation rests on independent state law and does not require interpretation of the CBA. To prevail on the retaliation claim, the Plaintiff is required to satisfy three elements: (1) that “he engaged in a statutorily protected expression, (2) he suffered an adverse employment action, and (3) there was a causal link between the adverse action and [his] protected expression.” Parker v. Econ. Opportunity for Savannah-Chatham City. Area, Inc., 587 F. App’x 631, 632 (11th Cir. 2014). And the failure-to-promote claim is not predicated on an interpretation of the CBA. Rather, the failure-to-promote claim rests on whether the FMCSA hearing exemption issued to the Plaintiff rendered him qualified for the driver position for which he applied and whether UPS discriminated in his nonselection. (Doc. 12, ¶¶ 14–48, 66–79). The CBA is mentioned in the Amended Complaint simply because the Plaintiff was needed to exhaust the grievance procedure before suing. (Id. ¶ 49). Similarly, the retaliation claim involves a purely factual inquiry detached from the CBA. Accordingly, preemption under Section 301 of the Labor Management Relations Act does not apply. See Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 406–07 (1988); see also Atwater v. Nat’l Football Players Ass'n, 626 F. 3d 1170, 1176 (11th Cir. 2010) (“[I]n determining whether § 301 preempts a state-law cause of action ... consider whether the claim arises from a CBA ... or whether ‘the resolution of [the] state-law claim depends upon the meaning of a collective-bargaining agreement.”). Accordingly, the Plaintiffs claims are not preempted by Section 301.

II. CONCLUSION

For these reasons, Defendant United Parcel Service, Inc.’s Motion for Summary Judgment (Doc. 139) is DENIED. DONE AND ORDERED in Orlando, Florida on November 17, 2023.

/ [...] / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties