Bemesderfer v. United Parcel Service, Inc.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

DUSTIN BEMESDERFER,

Plaintiff,

v. Case No: 6:22-cv-270-PGB-EJK

UNITED PARCEL SERVICE,

INC.,

Defendant.

/

ORDER

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

1 UPS alleges the Plaintiff “complains only about a failure to promote between the distinct dates

of July and December 2020.” (Doc. 139, p. 6).

argument. The Court will not search an extensive document to help counsel

perform their function. See United States v. Dunkel, 927 F.2d 955 (7th Cir. 1991)

(per curiam) (“Judges are not like pigs, hunting for truffles buried in briefs.”).

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 December 8, 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 August 8, 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.

2 UPS cites the Collective Bargaining Agreement (“CBA”), Article 48, sections 1 and 6, but does

not direct the Court to specific language supporting its contention that UPS is required to

select candidates based on relative seniority. (Doc. 139, p. 8 (citing Doc. 139-6)). At any rate,

the Plaintiff does not appear to contest that seniority is relevant—but not dispositive—to one’s

qualification for the driver position. (Doc. 145, p. 8). The Court makes this observation,

because citing exhibits without specificity is improper and unhelpful when seeking summary

judgment.

(Doc. 139, p. 9). Yet UPS skips over the portion of the transcript in which the

Plaintiff engages in the following exchange with the defense:

Q: Okay. And so, to your knowledge, did you sign a bid

sheet between August 2019 and December ‘21

related to driving at all?

A: I signed them, yeah.

Q: Okay. You just didn’t take photographs of them?

A: The only thing I can remember is those two

[photographs] during 2019.

(Doc. 139-8, 116:12–19).

The Plaintiff also testified that he started taking photographs of the bid

sheets in 2020 and “maybe . . . missed one per year.”3 (Id. 115:20–23). Accordingly,

the Plaintiff testified that he signed bid sheets between August 2019 and December

2021 and may have failed to photograph the bid sheet once a year. The Plaintiff’s

deposition testimony falls far short of an admission that he did not sign bid sheets

after 2020. The Court is mindful that weighing the evidence and judging the

credibility of witnesses are quintessential functions for the trier of fact, not the

Court. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993).

In ruling on a motion for summary judgment, “the evidence of the non-movant is

to be believed, and all justifiable inferences are to be drawn in [the non-movant’s]

3 UPS had no established procedure for the preservation of bid sheets, which is why it cites to

bid sheets produced by the Plaintiff. But for the Plaintiff’s presence of mind to photograph

some of the bid sheets, there would be no record. Having failed to enact basic document

retention policies, UPS now seeks to capitalize on its lax recordkeeping. UPS cannot satisfy its

burden of proving the absence of a material fact by failing to keep records. To find otherwise

would be absurd and motivates document destruction as a defense tactic.

favor.” Anderson Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Drawing all

reasonable inferences in the light most favorable to Plaintiff, the Court finds that

genuine factual disputes remain as to whether Plaintiff bid for driver positions

between August 2019 and December 2021.4

As for UPS’s argument that the Plaintiff lacked sufficient seniority to qualify

for the driver positions, the Court agrees with the Plaintiff that there is a material

issue of disputed fact on this point. (Doc. 145, p. 8). UPS fails to demonstrate that

the driver positions for which the Plaintiff applied were filled by qualified

employees with greater seniority. For example, the Plaintiff testified that David

Nutter and Roger Haron are employees who were offered driver positions despite

the Plaintiff’s higher seniority date. (Id.). And, as the Plaintiff aptly notes, an

employee with greater seniority can be offered a position and not accept it, making

the Plaintiff potentially the most senior applicant. As a result, summary judgment

is unwarranted.

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”)

4 The Court need not reach Plaintiff’s argument that he had a justifiable belief that applying for

driver positions in 2020 and 2021 was futile due to the Defendant’s discriminatory practices.

(Doc. 145, p. 7).

standard while opting out of the FMCSA hearing exemption program. (Id.). The

Court has rejected this argument in denying the Defendant’s Motion for Judgment

on the Pleadings.5 (Docs. 91, 161). UPS also contends it is entitled to prevail under

the business necessity defense. (Doc. 139, pp. 10-17).

“To benefit from the [business necessity] affirmative defense, an employer

must prove that the pertinent qualification standard is job-related and consistent

with business necessity.” Allmond v. Akal Sec. Inc., 558 F.3d 1312, 1316–17 (11th

Cir. 2009). Job-relatedness and business necessity are distinct concepts. Id. Job-

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,

5 The undersigned found that the FMCSA hearing exemption is distinct from a waiver, and an

employer cannot simply ignore the exemption. (Doc. 161, p. 4). As a result, the Court found

Albertson’s is not controlling. (Id.).

Inc., 511 F.3d 974, 996 (9th Cir. 2007)). And so, the affirmative defense is available

when a qualification like the BLH test is necessary and related to the specific skills

and physical requirements of the position, and the employer can show it

substantially promotes the business’s needs.6 If an employer can establish a

legitimate business necessity, the burden shifts to the employee to show a

reasonable accommodation would have enabled the employee to satisfy the

challenged selection criterion. Allmond, 558 F.3d at 1317.

UPS submits the BLH standard is job-related because federal regulatory

standards provide a trustworthy benchmark for assessing safety-based business

necessity claims. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1121 (11th Cir.

1993). However, Fitzpatrick does not stand for such a broad principle. To the

contrary, Fitzpatrick teaches that whether a federal regulatory standard, such as

the Occupational Safety and Health Administration (“OSHA”) standard for beard

length for firefighters wearing self-contained breathing apparatus (“SCBA”),

constitutes a trustworthy benchmark for assessing safety and thus business

necessity is fact specific.

6 The parties disagree over the employer’s burden of proving the business necessity defense.

The general rule is that the employer’s burden “is generally quite high,” but the employer

enjoys a “significantly lowered” burden when “the job clearly requires a high degree of skill

and the economic and human risks involved in hiring an unqualified applicant are great.”

Allmond, 558 F.3d at 1317. The Court agrees with the Plaintiff that the driver positions for

which he applied are dissimilar to the court security officer and firefighter positions in

Allmond, 558 F.3d at 1317, and Hamer v. Atlanta, 872 F.2d 1521, 1535 (11th Cir. 1989), such

that the higher burden of proof applies. (See Doc. 145, pp. 8–9, n.2). No matter what, for the

reasons discussed in this Order, UPS would not prevail even applying the reduced burden of

proof.

In Fitzpatrick, the plaintiff claimed the City of Atlanta’s (the “City”) no-

beard policy had a disparate impact on African American firefighters who suffer

from bacterial disorder making saving impossible. Fitzpatrick, 2 F.3d at 1113. The

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 job-

related 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-

7 The Defendant’s cursory reference to “validity studies” from the 1970s and citation to expert

witness Dr. Brian Filgor—since struck pursuant to a Daubert challenge—is not enough to

demonstrate the BLH is job-related and is thus insufficient to carry the employer’s burden of

proving business necessity under either the heightened or lessor standard. (Doc. 139, pp. 13–

14).

hearing-impaired people such as UPS customers, public safety personnel, and

other members of the public. (Id. (citing Doc. 137; Doc. 138, ¶ 5; Doc. 138-2, ¶ 4)).

And the Plaintiff identifies five deaf individuals with FMCSA exemptions employed

by UPS as package car drivers. (Id. (citing Doc. 108-10, 9:6–7, 17:10; Doc. 108-11,

11:5–17; Doc. 145, p. 11). Plaintiff argues since the five deaf employees can

successfully perform their jobs, the BLH qualification is not job-related. (Id.).

The Court finds UPS has failed to show the absence of a genuine issue of

material fact over whether the BLH criterion is job-related. While the Court need

not address the business necessity prong of the affirmative defense, it will do so for

completeness. UPS argues it adopted the BLH standard to address safety risks,

relying almost entirely on the expert reports and testimony of Brian Fligor and

John Pinckney. (Doc. 139, pp. 15–16). The Court, however, granted the Plaintiff’s

Daubert challenges as to these experts, and the Court may not consider the

Defendant’s citation to their initial, and highly improper, expert reports. (Docs.

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.

8 Defense counsel cites “Exhibit X” for Mr. Hallam’s deposition testimony, yet there is no

Exhibit X attached to the Motion. Fortunately, the Plaintiff directed the Court to Doc. 139-26,

otherwise, Mr. Hallam’s testimony would not have been considered. Greater care is expected

of lawyers appearing in federal court.

Thus, there is a material issue of fact about Mr. Hallam’s knowledge that the

Plaintiff engaged in protected activity and was thereafter subjected to retaliation.

UPS also argues the Plaintiff’s protected activity ended in December 2020,

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 non-

selection. (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