# Garza v. United Parcel Service, Inc.

> District Court, S.D. Texas · June 16, 2025

URL: https://www.frixlaw.com/law-library/cases/11100596

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** June 16, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11100596

## How later opinions describe it (automated extraction)

- holding that “counterfactual uncertainty” precludes summary judgment
- observing that Armstrong “specifically left open the question of whether or not the language of § 12112(d) would permit a non-disabled person from bringing suit.”
- explaining that a movant for judgment as a matter of law must “specify…the law and the facts on which the moving party is entitled to the judgment.”
- holding that “[t]he language of the ADA, and all available interpretive authority” indicate that “reasonable accommodations are not restricted to modifications that enable performance of essential job functions.”

## Opinion text

UNITED STATES DISTRICT COURT June 16, 2025
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
BROWNSVILLE DIVISION

GABRIEL BRANDON GARZA, §
§
Plaintiff, §
§
v. § Civil Action No: 1:23-cv-00097
§
UNITED PARCEL SERVICE, INC., §
§
Defendant. §

MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION
Before the Court are Plaintiff Gabriel Brandon Garza’s “Motion for Partial Summary
Judgment” (Garza’s “Motion for Summary Judgment”) and Defendant United Parcel
Service’s (“UPS”) “Motion for Summary Judgment” (UPS’s “Motion for Summary
Judgment”) (collectively, the parties’ “cross-motions for summary judgment”).1 Dkt. Nos. 43,
49. For the reasons discussed herein, the undersigned recommends that the cross-motions
for summary judgment be GRANTED IN PART, and DENIED IN PART.

I. FACTUAL AND PROCEDURAL BACKGROUND
The Court herein incorporates the factual and procedural background outlined in the
undersigned’s April 16, 2025, Report and Recommendation (“April 16 R&R”). Dkt. No. 67 at
1–2. The parties filed objections to the April 16 R&R on April 30, 2025. Dkt. Nos. 68, 69. The
Court partially adopted the April 16 R&R but reversed its finding that Garza had

1 The parties have also filed responses in opposition and replies in support of the cross-motions for summary
judgment, which are likewise before the Court. See UPS’s “Response to Plaintiff’s Motion for Partial
Summary Judgment;” Garza’s “Reply in Support of Plaintiff’s Motion for Partial Summary Judgment (Dkt.
No. 43);” Garza’s “Response to Defendant’s Summary Judgment Motion;” and UPS’s “Reply in Support of
Defendant’s Motion for Summary Judgment (ECF No. 49).” Dkt. Nos. 57, 58, 60, 61.
administratively exhausted his remedies for his failure to promote claims and its finding that
he was not qualified to be a driver before June 2022. Dkt. No. 72 at 2, 4. Accordingly, the
Court dismissed Garza’s: (1) non-driver hiring and promotion claims; (2) driver hiring and
promotion claims arising before August 19, 2020, and after June 15, 2021; and (3)
accommodation claims arising before August 19, 2020. Id. at 4. Garza’s only remaining claims
are: (1) driver promotion claims arising between August 19, 2020, and June 15, 2021;2 and
(2) accommodation claims arising from August 19, 2020, to the present. Id.

II. LEGAL STANDARD
A. Rule 56 Summary Judgment

A party may move for summary judgment by “identifying each claim or defense--or
the part of each claim or defense--on which summary judgment is sought.” Fed. R. Civ. P.
56(a). The Court shall grant summary judgment when the movant shows there is no genuine
dispute of material fact and that they are entitled to judgment as a matter of law. Id. Summary
judgment is designed to “isolate and dispose” of factually unsupported claims which “no
reasonable jury” would resolve in the claimant’s favor. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Apache Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647, 653 (5th Cir.
2019) (citing Fed. R. Civ. P. 50(a)(1)), cert. denied, 140 S. Ct. 649 (2019).
Because summary judgment is not intended to deprive litigants of their right to try
genuinely contested issues, the movant bears the heavy burden to show the absence of a
genuine issue of material fact. United States v. Burket, 402 F.2d 426, 430 (5th Cir. 1968);

2 The Order partially adopting the April 16 R&R identified “July 15, 2021” as the end date for the range of
live driver hiring and promotion claims. Dkt. No. 72 at 4. This appears to be a typographical error, as the
Order presumably meant to select the date on which Garza dual filed his administrative charges with the
Equal Employment Opportunity Commission (“EEOC”) and Texas Workforce Commission (“TWC”): June
15, 2021. Id. at 2; Dkt. No. 37-1 at 3. The Court will therefore treat the relevant range of live driver promotion
claims as ending on June 15, 2021.
Pitts v. Shell Oil Co., 463 F.2d 331, 335 (5th Cir. 1972); Wise v. E.I. DuPont de Nemours &
Co., 58 F.3d 193, 195 (5th Cir. 1995). Only after such a showing does the burden shift to the
nonmoving party to demonstrate, through competent evidence in the record, that a genuine
issue of material fact remains to be resolved. Wise, 58 F.3d at 195.
Facts are material when they might affect the outcome of the suit. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality of facts is determined by the applicable
substantive law. Id.; McKee v. Brimmer, 39 F.3d 94, 96 (5th Cir. 1994). A factual dispute is
genuine only if a “rational trier of fact” could find for the nonmoving party. Ricci v. DeStefano,
557 U.S. 557, 586 (2009). Federal law governs that inquiry. Impossible Elec. Techniques, Inc.
v. Wackenhut Protective Sys., Inc., 669 F.2d 1026, 1036 n.10 (5th Cir. 1982).

The Court is not limited to the pleadings at summary judgment and may consider
“affidavits, depositions, motions, answers to interrogatories, stipulations and any other
material properly before it.” Munoz v. Int’l All. of Theatrical Stage Emp. & Moving Picture
Mach. Operators of U. S. & Canada, 563 F.2d 205, 207 n.1 (5th Cir. 1977). The Court must
view that evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in their favor. Tolan v. Cotton, 572 U.S. 650, 657 (2014) (per curiam); Eastman
Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992). Cross motions for summary
judgment are analyzed independently of each other. White Buffalo Ventures, LLC v. Univ. of
Texas at Austin, 420 F.3d 366, 370 (5th Cir. 2005), cert. denied, 126 S.Ct. 1039 (2006).

III. DISCUSSION
A. Garza’s Motion for Summary Judgment
Following the Court’s disposition of UPS’s Rule 12(c) Motion, Garza’s remaining live
claims are that UPS: (1) failed to promote him to driver positions from August 19, 2020, to
June 15, 2021; and (2) refused him reasonable accommodations to work as a driver and
Preloader, since August 19, 2020. Dkt. No. 72 at 4; Dkt. No. 11 at 4, 6–9.
Garza seeks summary judgment to establish that: (1) he is disabled; (2) he was, at all
relevant times, qualified to work as a driver; (3) UPS refused to allow him to work as a driver
because of his disability; (4) his claims predating August 19, 2020, are not time-barred; and
(5) UPS is precluded from raising a direct threat affirmative defense. Dkt. No. 43 at 5–6.
Because the Court has already concluded that none of Garza’s claims predating August 19,
2020, are cognizable, the Court need not address Garza’s fourth summary judgment issue.
Dkt. No. 72 at 4. Further, because deafness is a disability under the Americans with
Disabilities Act (“ADA”) (see 42 U.S.C. § 12102(1)(A), (2)(A); 29 C.F.R. § 1630.2(i); Windham
v. Harris Cnty., Texas, 875 F.3d 229, 238 (5th Cir. 2017)) and UPS does not dispute that

Garza is disabled (Dkt. No. 58 at 7), summary judgment that Garza is disabled should be
GRANTED. Fed. R. Civ. P. 56(a). The Court will consider the remaining issues in turn.
1. Garza is not entitled to summary judgment that he was qualified
at all relevant times, i.e., between August 19, 2020, and June 15,
2021.

A qualified individual is someone who “with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual holds or
desires.” Rizzo v. Children's World Learning Centers, Inc., 84 F.3d 758, 762–63 (5th Cir.
1996) (quoting 42 U.S.C. § 12111(8)). In this Circuit, courts must first ask whether the
individual satisfies occupational prerequisites such as “skill, experience, education and other
job-related requirements,” then whether they can perform the essential functions of the job
with or without reasonable accommodation. Foreman v. Babcock & Wilcox Co., 117 F.3d 800,
810 n.14 (5th Cir. 1997), cert. denied, 118 S.Ct. 1050 (1998); 29 C.F.R. § 1630.2(m). Legally
required licenses and certifications count as prerequisites. Williams v. J.B. Hunt Transp.,
Inc., 826 F.3d 806, 812 (5th Cir. 2016); see also 29 C.F.R. Pt. 1630, App. § 1630.2(m).
Furthermore, the employer’s judgment and any written job descriptions are to be considered
evidence of which job functions are essential. 42 U.S.C. § 12111(8). Persons generally may not
operate Commercial Motor Vehicles (“CMVs”) unless they pass the “forced whisper” test for
hearing acuity and undergo a medical examination. Williams v. J.B. Hunt Transp., Inc., 132
F. Supp. 3d 858, 867–68 (S.D. Tex. 2015) (Harmon, J.), aff’d, 826 F.3d 806 (5th Cir. 2016);
49 C.F.R. §§ 391.11(a), 391.41(a)(1)(i), (a)(3)(i), (b)(11). An individual who cannot pass the
forced whisper test must obtain an exemption from the Federal Motor Carrier Safety
Administration (“FMCSA”) to operate a CMV. 49 U.S.C. § 31315(b)(1); 49 C.F.R. §
391.41(a)(3)(ii).
Garza’s argument that he was qualified at all relevant times depends on three
intermediary factual conclusions: (1) that he could have completed all necessary training; (2)

that he could have met all communication requirements for the job; and (3) that he could
have met all other job-related requirements, including obtaining a Department of
Transportation (“DOT”) card, during the onboarding process. See Dkt. No. 43 at 14–15. But
because Garza’s contentions are permeated with disputed fact questions, summary judgment
on the qualification issue is not appropriate.
First, Garza argues that because he was able to successfully train as a Temporary Cover
Driver (“TCD”) under accommodations in 2024, and other deaf drivers had been successfully
trained before 2024, this shows Garza was, “at all relevant times,” able to complete training
with accommodations. Id. at 13–14. But that does not necessarily follow. Garza successfully
trained as a TCD under UPS’s “Integrad” program. See Dkt. No. 43-1 at 32–33. As UPS’s
Integrad Training Manager, Jamie Becker, explained, Integrad evolved significantly since its
inception in 2007. Dkt. No. 58-8 at 3–4. Not all drivers were trained under Integrad until at
least 2022 as training facilities were slowly opened. Id. at 3. Additionally, UPS did not
consider modifying Integrad to accommodate deaf driver candidates until 2023 and those
modifications were not fully implemented until March of 2024. Id. at 3–4.
It is far from obvious that Garza would have been able to complete Integrad training
in its pre-2024 iterations. Dkt. No. 58 at 18. To conclude otherwise requires the Court to
impermissibly weigh the evidence or draw inferences in Garza’s favor. See Anderson, 477 U.S.
at 255. Nor does the fact that UPS had successfully trained deaf drivers in the past entail that
Garza would have been among them. Dkt. No. 43-7 at 120–21. Moreover, counterfactual
arguments do not ordinarily justify summary judgment. See Nat’l Oilwell Varco, L.P. v. Auto-
Dril, Inc., 68 F.4th 206, 218 (5th Cir. 2023) (holding that “counterfactual uncertainty”
precludes summary judgment); Holcombe v. United States, No. SA-18-CV-555-XR, 2021 WL
67217, at *16 (W.D. Tex. Jan. 6, 2021) (same); Hunt v. Cromartie, 526 U.S. 541, 542 (1999)
(“[Summary judgment] is inappropriate when the evidence is susceptible of different

interpretations or inferences by the trier of fact.”); Montgomery v. D.C., No. CV 18-1928
(JDB), 2023 WL 4684897, at *7 (D.D.C. July 21, 2023) (explaining that counterfactual
arguments “require[] the fact finder to draw inferences about what would have happened
given a different set of circumstances.”).
Garza’s other counterfactual arguments, then, are equally unpersuasive. Garza argues
that UPS’s present accommodations for deaf drivers show that Garza’s communication
limitations could have been similarly accommodated at all relevant times in the past. See Dkt.
No. 43 at 14–15. Garza admits that UPS began implementing these accommodations in 2024
but cites Jamie Becker’s deposition testimony that some of the accommodating technology,
speech to text software, has existed “since at least 2017.” Id. at 14; Dkt. No. 43-2 at 47–50.
This does not change the fact that UPS did not utilize that technology until 2024, nor that
UPS otherwise considered the ability to “hear and communicate in spoken English” an
essential function. Dkt. No. 43-8 at 4, 7. And because the ADA only affords Garza the right to
a reasonable accommodation, absent further evidence that UPS’s present accommodations
would have been reasonable to implement in the past, Garza has not shown that UPS would
have been obligated to accommodate Garza as it currently does deaf drivers.
Garza’s final counterfactual argument is that because he was able to obtain a DOT
card and FMCSA hearing exemption in 2022, he would have been able to do so “in due course”
in the past. Dkt. No. 43 at 16–17. But reasonable fact finders can disagree. Garza cites to the
FMCSA’s decisions in 2022 and 2024,3 which considered Garza’s driving record wherein
several traffic violations appear, to grant him a hearing exemption. See id. at 17; Dkt. No. 43-
21 at 7–10; Dkt. No. 43-22 at 5–12. But because the FMCSA makes exemption decisions based
on an “individual assessment,” it is possible that Garza could have been denied an exemption
for other reasons even if he had previously applied. 2022 FMCSA Exemption Decision.
Garza also claims that his “driving history prior to 2018 is consistent with his driving

history from 2018-2024.” Dkt. No. 43 at 17. Garza’s evidence for this point does not directly
support that, at best, debatable contention. See Dkt. No. 43-1 at 100, 103–104; Dkt. No. 43-
22 at 5–12. Regardless, evaluating evidence for consistency is properly the function of the
trier of fact, not of a court at summary judgment. Ramirez v. Landry's Seafood Inn & Oyster
Bar, 280 F.3d 576, 578 n.3 (5th Cir. 2002) (citing Dibidale, Inc. v. Am. Bank & Trust Co., 916
F.2d 300, 307–08 (5th Cir.1990)).
Notwithstanding counterfactual problems, the Court identifies several other material
fact disputes concerning the issue of Garza’s qualification. Garza admits that UPS hires
drivers based on a seniority system whereby “[t]he most senior person who signed the bid list
is contacted first.” Dkt. No. 43 at 8. Therefore, Garza could not have been qualified as a driver
unless he signed the bid list for the specific position desired and was the most senior bidder
up for consideration. Dkt. No. 58 at 13. Garza generally asserts that he signed all bid lists of
which he was aware since 2016 and that if there were any bid lists he did not sign, it was

3 Qualification of Drivers; Exemption Applications; Hearing, 87 FR 34747-01 [hereinafter 2022 FMCSA
Exemption Decision]; Qualification of Drivers; Exemption Applications; Hearing, 89 FR 59967-01.
because was not adequately informed about them. Dkt. No. 43-1 at 81, 84–86, 161. But, as
UPS observes, Garza’s deposition testimony reveals there were instances in which he could
have failed to sign bid lists for other reasons. See id. at 86, 156–57, 161–63. At best, this raises
a genuinely disputed question as to whether Garza signed all the bid lists for the positions he
claims he was denied and, if not, why.4 UPS also alerts the Court to at least fifteen other
essential job functions contained in UPS’s position statement with the EEOC which Garza
does not address, raising fact issues as to Garza’s ability to satisfy these too. Dkt. No. 58-6 at
59.
Because Garza has not established the absence of a genuine dispute of material fact,
summary judgment that he was, at all relevant times, qualified to become a driver should be

DENIED.
2. Garza is not entitled to summary judgment that, at all relevant
times, UPS refused to allow him to work as a driver because of his
disability.

Garza moves for summary judgment only for the post-October 2019 period during
which he alleges discrimination due to his disability. Dkt. No. 43 at 20 n.4. Garza’s driver
discrimination claims, however, are now limited to the period between August 19, 2020, and
June 15, 2021. Dkt. No. 72 at 4. The Court will thus limit its analysis to this period.
The ADA prohibits covered employers from discriminating against a “qualified
individual on the basis of disability” in the “terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). Actionable discrimination includes limiting individuals in ways that
adversely affect their job opportunities, failing to make reasonable accommodations for the
individual’s known limitations, and employing qualification standards and criteria that

4 UPS reasonably calls into question Garza’s claim that lack of notice was the only potential obstacle to his
signing all bid sheets. Many of the bid sheets expressly indicate that moving violations within specified time
windows are disqualifying. Dkt. No. 43-9 at 4, 6, 8, 10, 12. A reasonable person could conclude that Garza
might have avoided signing some bid sheets in part due to his accident history. See Dkt. No. 43-21 at 7–10;
Dkt. No. 43-22 at 5–12.
“screen out or tend to screen out” disabled individuals unless job-related and consistent with
business necessity. Id. § 12112(b).
Garza primarily claims that he suffered adverse employment action because of his
disability pursuant to UPS’s official written policy, implemented in October 2019 and
discontinued in January 2024, whereby UPS “refused to hire deaf candidates who did not
have the ability to pass the hearing portion of the DOT medical exam…without a hearing
exemption.” Dkt. No. 43 at 7, 20. Garza argues that UPS’s policy affected him because UPS
has refused to accept his bids or promote him since 2019 and claims he has applied for every
driver position of which he was aware since 2016. Id. at 20–21. Moreover, Garza continues to
argue that UPS’s failure to notify him of promotion opportunities constitutes the only reason

he would not have signed a bid list. Id. at 21. But as previously discussed, the Court finds a
genuine factual dispute exists as to that issue.
The record also reveals a genuine dispute as to whether the October 2019 policy ever
applied to Garza within the relevant period. The official policy itself reads, in relevant part:
UPS has decided not to participate in the hearing exemption program at this
time. UPS will not accept DOT cards that are accompanied by a hearing
exemption; applicants for driver positions of DOT-regulated commercial
vehicles must demonstrate that they have satisfied the hearing and speaking
requirements established in the Federal Motor Carrier Safety Regulations,
along with all other applicable requirements under federal, state, and local law
as well as UPS policies.
Dkt. No. 43-13.
The problem is immediately apparent: Given the fact that Garza did not obtain a DOT
card or FMCSA exemption until June 2022, how could a policy forbidding the acceptance of
DOT cards accompanied by a hearing exemption have applied to him before then? At the very
least, that question raises a genuinely disputed fact issue precluding summary judgment. See
Dkt. No. 58 at 22; Dkt. No. 43-1 at 116.
Garza also claims he can show that he was “reliably passed over every year from 2017
until 2024” for driver positions in accordance with UPS’s policy. Dkt. No. 43 at 21. Garza’s
evidence for this consists mostly of deposition testimony, seniority listings, and bid sheets
showing that several less senior drivers were hired instead of him. See Dkt. No. 43-5 at 10–
11, 50–52, 69–74, 76–77; Dkt. Nos. 43-9, 43-11, 43-16.
Yet, even if there were any sense in which UPS’s October 2019 policy could have
affected Garza within the relevant period, Garza also had to satisfy multiple other
prerequisites to become a prospective driver candidate—including having no disqualifying
moving violations or accidents. Dkt. No. 43-9 at 4, 6, 8, 10, 12; Dkt. No. 58 at 23. The record
does not foreclose the possibility that Garza could have been disqualified for failure to satisfy
some other precondition before the 2019 policy would apply to deny him a promotion

opportunity because of a hearing exemption. Because reasonable minds can disagree about
whether the 2019 policy ever applied to Garza, there remains a genuine issue for the trier of
fact. Summary judgment that Garza was discriminated against because of his hearing
disability should be DENIED.5

5 The Court finds that these genuine and material factual disputes are sufficient to support its
recommendation to deny summary judgment. The Court is unconvinced by UPS’s arguments that its
October 2019 policy, as a matter of law, was not facially discriminatory. See Dkt. No. 58 at 21–22. UPS
argues that the policy merely “adopts the FMCSA standard regulation.” Id. at 21. But the policy plainly does
not “adopt” the FMCSA’s additional regulatory judgment that individuals with exemptions from the DOT’s
physical qualification standards are “physically qualified to drive a commercial motor vehicle.” Dkt. No. 43-
13; 49 C.F.R. § 391.41(a)(3)(ii). Contrary to UPS’s characterization, the hearing exemption program is not
“experimental,” but rather law adopted under an express delegation from Congress to grant such
exemptions. Dkt. No. 43-13; 49 U.S.C. § 31315(b)(1). UPS’s reliance on Albertson’s, Inc. v. Kirkingburg to
the contrary is misplaced. 527 U.S. 555 (1999); Dkt. No. 49 at 21–22. There, the Supreme Court held that
an employer did not have to justify its job requirement that an employee meet default regulatory standards
despite the availability of a regulatory exemption because the exemption was merely experimental.
Albertson’s, 527 U.S. at 558, 578. The exemption in Albertson’s was experimental because it did not
substantively modify the default regulatory standard. Id. at 574. The Supreme Court gave two clearly
distinguishable reasons for this conclusion: first, the agency arrived at no “final, factual conclusion” that
waiver would be comparably as safe as observing the ordinary standard; and second, the waiver scheme
was proposed only as an information-gathering tool for future substantive alterations in the default
standard. Id. at 574–76. Neither factor is present in the FMCSA’s exemption decision. See 2022 FMCSA
Exemption Decision. UPS’s attempt to frame the FMCSA’s default forced whisper standard as required by
law and, therefore, binding on employers is wholly unpersuasive. Dkt. No. 58 at 22. Very clearly, the default
hearing requirement is obligatory except to the extent the FMCSA decides an exemption would be as safe,
or safer, than observing the forced whisper standard. 49 U.S.C. § 31315(b)(1).
3. Garza is entitled to summary judgment that UPS is precluded from
raising a direct threat defense as a matter of law.

The ADA recognizes an affirmative defense for employers who can show the employee
would, if hired, pose a direct threat to themselves or others in the workplace. See 42 U.S.C. §
12113(b); 29 C.F.R. § 1630.2(r). The direct threat defense must be “based on a reasonable
medical judgment that relies on the most current medical knowledge and/or the best
available objective evidence,” and upon an expressly “individualized assessment of the
individual’s present ability to safely perform the essential functions of the job[.]” Nall v. BNSF
Ry. Co., 917 F.3d 335, 342 (5th Cir. 2019) (quoting Chevron U.S.A. Inc. v. Echazabal, 536
U.S. 73, 86 (2002)); 29 C.F.R. § 1630.2(r). Garza argues that UPS is precluded as a matter of
law from raising a direct threat defense. Dkt. No. 43 at 23. Garza is correct.
As UPS’s Occupational Health Manager, Terra Vellema, explained, UPS never
conducted an individualized assessment to determine if hiring Garza as a driver would pose
a direct threat to himself or others at work. Dkt. No. 43-7 at 12, 125–26. Nor does UPS in
response address whether it ever conducted such an assessment. 6 See Dkt. No. 58 at 25–26.

6 The entirety of UPS’s response to Garza’s contention that no individualized assessment of direct threat
was conducted reads:

In arguing that UPS did not rely on the “most current medical knowledge,” Garza
contradicts the position in his Rule 12(c) response that UPS is bound by the FMCSA
decision to issue him a hearing exemption. Garza’s summary judgment motion confirms
he is challenging the FMCSA’s 50-year regulation requiring medical examinees to pass the
forced-whisper test, predicated on findings that the ability to hear is related to safely
driving a CMV. But, in his Rule 12(c) response, Garza argued that an FMCSA determination
cannot be challenged except by impleading the FMCSA. Either a private party can challenge
an FMCSA determination in an employment discrimination suit, or it cannot. In other
words, if Garza can challenge the FMCSA’s studies-based determination supporting its
current hearing standard in the forced-whisper test, then UPS can challenge the FMCSA’s
decision to issue Garza a hearing exemption in this suit. Garza cannot have it both ways.

Dkt. No. 58 at 26 (internal citations omitted).

UPS’s argument that Garza’s contention should be construed as challenging the FMCSA’s forced-whisper
standard is hard to follow. UPS appears to imply tension between Garza’s allegation that UPS did not rely
on current medical knowledge or evidence in making a direct threat assessment and UPS’s own
UPS has therefore failed to carry its burden in opposition to summary judgment to show that
a genuine fact question remains as to this issue. See Morris v. Covan World Wide Moving,
Inc., 144 F.3d 377, 380 (5th Cir. 1998) (“[T]he nonmoving party must set forth specific facts
showing the existence of a genuine issue concerning every essential component of its case.”
(internal quotations omitted)); Gilley v. Protective Life Ins. Co., 17 F.3d 775, 781 (5th Cir.
1994) (“We have held that an argument is waived if the party fails to make the argument in
response to summary judgment.”); Del Toro v. Fiesta Mart, LLC, No. 4:21-CV-1166, 2023 WL
3025072, at *2 (S.D. Tex. Apr. 20, 2023) (Hanen, J.) (“A party’s failure to respond to
arguments raised in a motion for summary judgment constitutes waiver or abandonment of
those issues at the district court level.”).

Furthermore, because conducting an individualized assessment is a prerequisite to
asserting a successful direct threat defense, failure to do so warrants judgment as a matter of
law in Garza’s favor. Fed. R. Civ. P. 50(a)(1). Summary judgment that UPS is precluded from
raising a direct threat defense should be GRANTED.
B. UPS’s Motion for Summary Judgment
UPS seeks summary judgment that: (1) Garza was not qualified for any promotional
opportunity he has identified; (2) Garza failed to exhaust his administrative remedies; and
(3) Garza is unable to establish his reasonable accommodation claims. Dkt. No. 49 at 6.
Because the Court has already concluded that Garza has not exhausted his administrative

characterization of its 2019 policy as adopting the FMCSA’s forced whisper standard, ostensibly “predicated
on findings that the ability to hear is related to safely driving a CMV.” Dkt. No. 43 at 24; Dkt. No. 58 at 21–
22, 26. UPS’s argument obfuscates the critical fact that the FMCSA, as Garza repeatedly points out, has also
determined that “current medical information and literature” and “the best available evidence” sometimes
supports exempting certain deaf individuals, as it did Garza, from the forced whisper standard. Dkt. No. 43
at 9, 24; Dkt. No. 43-15 at 5. There is nothing inconsistent in Garza’s argument that UPS, by refusing to
heed the FMCSA’s findings on hearing exemptions, did not rely on current medical knowledge or evidence
in conducting a proper direct threat assessment, if any. It should go without saying that a litigant who relies
on an explicit and lawful regulatory exemption from a baseline standard does not thereby challenge the
legality of the baseline.
remedies for his driver promotion claims arising before August 19, 2020, and after June 15,
2021, the Court need not address UPS’s second summary judgment issue.7 Dkt. No. 72 at 4.
Further, with respect to UPS’s first summary judgment issue, the Court need only address
UPS’s qualification arguments for driver promotion claims falling between August 19, 2020,
and June 15, 2021. Id.
As to the first summary judgment issue, UPS confusingly begins its briefing on a point
that seemingly has nothing to do with Garza’s driver qualifications. Namely, UPS argues that
Garza is limited to full-time driver promotion claims because Garza’s First Amended
Complaint and discovery responses only allege a denial of full-time, not part-time, positions.
Dkt. No. 49 at 11–12; Dkt. No. 11; Dkt. No. 49-1 at 6. As Garza and the summary judgment

evidence shows, however, that is debatable. Dkt. No. 57 at 15.
In response to UPS’s interrogatories, Garza explicitly lists several part-time driving
positions for which Garza alleges to have signed a bid sheet and have been passed over. Dkt.
No. 57-18 at 9–10; Dkt. No. 49 at 12 n.6. UPS otherwise draws heavily on Garza’s First
Amended Complaint in which several of his allegations imply a narrow focus on full-time
driver claims. Dkt. No. 61 at 20–21. For example, Garza alleges that UPS has denied Garza
promotion opportunities for “Driver or another full-time position,” and similarly claims that
he was qualified for “Driver and other full-time non-Driver positions.” Dkt. No. 11 at 3, 7
(emphasis added). But in several other places, Garza’s pleadings can easily be read to
encompass part-time driver positions too. Garza alleges that he has submitted bid sheets for
“full-time and Driver positions,” that other deaf employees treated similarly as Garza have
not been promoted to “Driver or to a full-time position,” and that UPS implements a
qualification standard that discriminates against deaf employees in hiring for “full-time and

7 UPS sought summary judgment that Garza has not exhausted driver promotion claims arising before
September 2020 and after February 2021. Dkt. No. 49 at 15.
Driver positions.” Id. at 4, 7.
Reasonable factfinders can disagree about the scope of the promotion claims
contemplated by Garza’s pleadings and discovery responses. Thus, to the extent UPS’s
argument that Garza is limited to full-time driver promotion claims constitutes a standalone
issue for summary judgment, summary judgment should be DENIED. The Court will address
UPS’s remaining summary judgment arguments in turn.
1. UPS is entitled to summary judgment that Garza was not qualified
to work as a driver from April 4, 2021, to June 15, 2021.

UPS’s first pertinent summary judgment argument is that Garza was not qualified for
driver positions because of his traffic history.8 Dkt. No. 49 at 20. As explained on UPS’s bid
sheets, a driver candidate is not qualified unless they have: (1) no moving violations within
the last twelve months; and (2) no more than two or three moving violations in the past thirty-
six months. See generally Dkt. Nos. 49-9, 49-10.
Texas Department of Public Safety (“DPS”) records show Garza was convicted of
speeding violations on May 4, 2021 (offense date: April 4, 2021), and October 8, 2022 (offense
date: September 22, 2022), and was involved in a crash on May 21, 2022. Dkt. No. 49-14 at 3.
Garza admits that these violations temporarily disqualified him for driver promotions within
the date ranges specified on the UPS bid sheets: i.e., “April 4, 2021-April 4, 2022[,] and May

8 UPS, resting the assumption that Garza could only pursue full-time driver promotion claims, also sought
summary judgment that Garza was not qualified for an Article 22.4 full-time combination driver position,
which UPS claims was the only specific full-time driver position for which Garza bid. Dkt. No. 49 at 12.
Without reaching UPS’s summary judgment arguments, because Garza bid on this position in May 2020,
any claims concerning it are not live and have been dismissed on administrative exhaustion grounds. Dkt.
No. 72 at 4. For the same reason, the Court need not address UPS’s arguments that Garza was not qualified
for any driver positions before the enactment of its October 2019 policy on hearing exemptions. Dkt. No.
49 at 16–20. UPS further challenges Garza’s claims for “promotional opportunities he alleges arose before
September 2020 and after February 2021,” by arguing that Garza was obligated to individually exhaust all
such claims because the underlying positions differed in various respects. Dkt. No. 49 at 15. But UPS’s
characterization of these differences as “material” is wholly conclusory and unsupported by any legal
citation. Id. Finally, to the extent UPS reiterates its Rule 12(c) arguments that Garza was not qualified for
driver positions before obtaining a DOT card, because the Court has already rejected them, they are
inapposite here. Dkt. No. 72 at 3–4.
22, 2022-Octover 8, 2023.” Dkt. No. 57 at 19. “[W]hen no genuine issues of material fact
exist[s], the court may grant a motion for summary judgment based on an admission.” Printy
v. Crochet & Borel Servs., 196 F.R.D. 46, 50 (E.D. Tex. 2000) (citing Hulsey v. State of Tex.,
929 F.2d 168, 171 (5th Cir. 1991)). Therefore, summary judgment that Garza was not qualified
for any driver positions from April 4, 2021, to June 15, 2021, should be GRANTED.
The remaining issue, then, is whether Garza was disqualified from other driver
positions from August 19, 2020, to April 4, 2021. UPS next argues that Garza cannot show he
was the most senior bidder for any other position. Dkt. No. 49 at 20–21. But the bid sheets
on which UPS relies at best show that Garza was not the most senior bidder at the time of
bidding; they do not conclusively show Garza lacked seniority at the time the hiring or

promotion decision was made. See generally Dkt. No. 49-10. The seniority listing report
which Garza attaches corroborates his claim that UPS hired several drivers with less seniority
than him, some within the relevant window of live claims.9 Dkt. No. 57 at 12–13, 17–19; Dkt.
No. 57-11 at 2 (part-time seniority attainment found on fourth column).
UPS and Garza agree that UPS contacts prospective driver candidates in order of
seniority. Dkt. No. 57 at 8; Dkt. No. 49 at 7–8. Thus, for UPS to reach these less senior
candidates, it first had to go down the list, contacting more senior candidates, offering them
the opportunity to proceed further in the hiring process, and vetting them against the
qualification criteria. Dkt. No. 49 at 8. Eventually, UPS would have reached Garza, the most
senior remaining bidder, at which point seniority would not have been an obstacle and so
could not have served as a basis for disqualification. Id. It is possible Garza might have failed
to satisfy other prerequisites, but UPS does not identify any, aside from moving violations
and seniority status, that could have disqualified Garza during this time. Id. at 20–21.

9 Those hires are: (1) Reynaldo Lara (hired August 21, 2020); (2) Ruben Yanez, III (hired August 26, 2020);
and (3) Pablo Alvarez, Jr. (hired August 28, 2020). Dkt. No. 57-11 at 2.
In a similar vein, Garza’s remaining traffic history does not support summary
judgment for UPS on his qualification status. The parties vigorously dispute how many
moving violations or accidents, if any, Garza was involved in outside of the three captured by
DPS records. Garza maintains that those three violations, in 2021 and 2022, are his only ones
from 2016 to the present. See Dkt. No. 57 at 19; Dkt. No. 57-22 at 1, 5. However, during his
deposition, Garza testified that he was involved in minor accidents in 2020 and 2023; and
when asked whether he had ever received more than one speeding ticket, Garza responded,
“sometimes I would get two in a year, and then sometimes I would get five over the span of
three years.” Dkt. No. 49-3 at 98–99, 103. Garza did not specify whether he received speeding
tickets with such frequency during 2020 or 2021 and could not remember his most recent

one. Id. at 104. UPS argues that DPS records only show violations for which Garza was
convicted and that Garza’s testimony suggests he was involved in additional incidents that
may have been dismissed or that were pending. Dkt. No. 61 at 13.
In a sworn declaration, Garza avers that any inconsistencies between his testimony
and DPS records resulted from his inability to consult his records during his deposition. Dkt.
No. 57-14 at 1–2. UPS asks the Court to strike Garza’s declaration as a sham affidavit, i.e., a
statement that “impeaches, without explanation, sworn testimony,” in order to manufacture
a fact issue to defeat summary judgment. Doe ex rel. Doe v. Dallas Indep. Sch. Dist., 220 F.3d
380, 386 (5th Cir. 2000), cert. denied sub nom. Doe v. Dallas Indep. Sch. Dist., 121 S. Ct. 766
(2001); Johnson v. Bd. of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll., 90
F.4th 449, 458 (5th Cir. 2024) (internal quotations omitted); Dkt. No. 61 at 12. However,
because Garza’s testimony, explicitly at times, apprised UPS of his uncertainty as to violation
dates without consulting his traffic records, his declaration is not “so markedly inconsistent”
with his testimony as to “constitute an obvious sham.” Winzer v. Kaufman Cnty., 916 F.3d
464, 472 (5th Cir. 2019) (per curiam), reh’g en banc denied, 940 F.3d 900 (5th Cir. 2019),
cert. denied sub nom. Kaufman Cnty., Texas v. Winzer, 141 S. Ct. 85 (2020); see also Dkt.
No. 49-3 at 98–105. UPS, then, has not cleared the high bar to exclude Garza’s declaration as
a sham affidavit. Johnson, 90 F.4th at 458.
Therefore, summary judgment that Garza was not qualified for driver positions from
August 19, 2020, to April 4, 2021, should be DENIED.
2. UPS is entitled to summary judgment that Garza cannot pursue
driver accommodation claims arising from April 4, 2021, to April
4, 2022, and from May 22, 2022, to October 8, 2023.

UPS lastly seeks summary judgment as to Garza’s accommodation claims. Because
Garza was not qualified for any driver position during the period from April 4, 2021, to April
4, 2022, and from May 22, 2022, to October 8, 2023, summary judgment that Garza is
precluded from pursuing driver accommodation claims arising during those intervals should
be GRANTED.10 See 42 U.S.C. § 12112(b)(5)(A); Clark v. Champion Nat’l Sec., Inc., 952 F.3d
570, 587 (5th Cir. 2020), cert. denied sub nom. Clark v. Inco Champion Nat’l Sec., Inc., 141
S. Ct. 662 (2020); see also Dkt. No. 57 at 19. Additionally, the Court will not consider Garza’s
accommodation claims predating August 19, 2020, because they are time-barred. Dkt. No. 72
at 4. The question, then, is which of Garza’s accommodation claims, within their respective
remaining live periods, survive summary judgment.
UPS first raises the issue of injury; specifically, UPS argues that Garza “has not claimed
any damages that stem from a denial of any disability accommodations, independent of being
denied in general a promotion to a full-time driver position.” Dkt. No. 49 at 23. UPS cites no
authority, either in its summary judgment or Rule 12(c) briefings, to show that Garza is
required to identify some additional injury apart from a denial of accommodations to succeed

10 In challenging Garza’s driver accommodation claims, UPS reiterates its earlier summary judgment
arguments that Garza was not qualified for a driver position. Dkt. No. 49 at 23. The Court construes UPS’s
briefing as seeking summary judgment on Garza’s driver accommodation claims based on his
disqualification for driver positions.
on his claim. See id. at 23–25; Dkt. No. 67 at 32. UPS, thus, has not shown it is entitled to
judgment as a matter of law on this issue even if Garza cannot identify any such injury. See
Fed. R. Civ. P. 50(a)(2); Logal v. United States, 195 F.3d 229, 233 (5th Cir. 1999) (explaining
that a movant for judgment as a matter of law must “specify…the law and the facts on which
the moving party is entitled to the judgment.”).
In fact, the only time UPS squarely addresses the injury issue is in its objections to the
April 16 R&R. Dkt. No. 68. But even if the Court entertained the arguments UPS raises there,
UPS would still not be entitled to judgment as a matter of law. Specifically, UPS cites to
DeLeon v. City of Alvin Police Dep't, No. CIV.A. H-09-1022, 2011 WL 43432 (S.D. Tex. Jan.
6, 2011) and Armstrong v. Turner Indus., Inc., 141 F.3d 554 (5th Cir. 1998) for the proposition

that “[t]he ADA requires actual injury resulting from the denial of reasonable accommodation
to maintain a claim.” Id. at 18. Context, however, dispels UPS’s notion.
In Armstrong, the plaintiff job applicant was subjected to a pre-employment medical
screening and was denied the job because of a prior undisclosed “possible asbestos exposure.”
Armstrong v. Turner Indus., Inc., 141 F.3d 554, 556–57 (5th Cir. 1998). The plaintiff sued,
alleging a violation of 42 U.S.C. § 12112(d)(2)(A), which bars employers from “conduct[ing] a
medical examination or mak[ing] inquiries of a job applicant as to whether such applicant is
an individual with a disability or as to the nature or severity of such disability.” Id. at 557. The
district court interpreted Section 12112(d)(2)(A) to only provide a cause of action for disabled
employees and granted the employer summary judgment after finding that plaintiff was not
unlawfully discriminated against because he was not disabled, which the plaintiff conceded
on appeal. Id. at 560. The Fifth Circuit affirmed, holding that “damages liability under section
12112(d)(2)(A) must be based on something more than a mere violation of that provision.
There must be some cognizable injury in fact of which the violation is a legal and proximate
cause for damages to arise from a single violation.” Id. at 562. Properly construed, then,
Armstrong signals that discrimination by reason of disability is a lynchpin element of a
compensable ADA injury, which is necessarily lacking when the plaintiff is not disabled; it did
not hold that disabled plaintiffs must show an injury over and above prima facie disability
discrimination to succeed on an ADA claim.11 Id. at 560–61.
DeLeon is consistent with this view. In DeLeon, the plaintiff, a deaf woman, was
arrested for assaulting her brother with a knife and, after a failed suicide attempt, detained in
a mental health cell pending evaluation. DeLeon v. City of Alvin Police Dep't, No. CIV.A. H-
09-1022, 2011 WL 43432, at *1 (S.D. Tex. Jan. 6, 2011) (Hoyt, J.). The plaintiff sued under
Title II of the ADA, alleging intentional discrimination by county officials for failing to
accommodate her disability. Id. The court held that “a plaintiff is obligated to show, by

competent evidence, that a defendant's violation of the ADA proximately caused her actual
injury before she can recover.” Id. at *3. The court granted summary judgment to the
defendants because the plaintiff, whose uncooperative conduct prevented the defendants
from ascertaining her accommodation needs, “failed to establish…that the defendants
discriminated against her by reason of [her] disability,” Id. at *3–4. Once again, the
dispositive issue was the absence of evidence that the defendants engaged in disability-
conscious discrimination.
The present case is distinguishable from Armstrong because Garza is in fact disabled.
Dkt. No. 58 at 7. And unlike the plaintiff’s accommodation needs in DeLeon, here it is
genuinely disputed when or whether UPS knew that Garza needed accommodations. Dkt. No.

11 Indeed, the Fifth Circuit’s Armstrong holding was remarkably tepid. First, it narrowly concluded that the
particular plaintiff had not alleged a compensable injury “whether or not in some other context a
nondisabled individual might be afforded judicial relief in respect to a section 12112(d)(2)(A) violation.”
Armstrong, 141 F.3d at 558; see also Fuzy v. S&B Eng'rs & Constructors, Ltd., 332 F.3d 301, 303 (5th Cir.
2003) (observing that Armstrong “specifically left open the question of whether or not the language of §
12112(d) would permit a non-disabled person from bringing suit.”), reh’g en banc denied, 77 F. App'x 289
(5th Cir. 2003), cert. denied, , 540 U.S. 1108 (2004). Second, Armstrong expressly distinguished the
“atypical and uncommon suit” at issue from ordinary, and presumably unproblematic, ADA cases in which
a party challenges an adverse employment action because of disability. Armstrong, 141 F.3d at 560.
49-3 at 111–12; Dkt. No. 57-14 at 2. If UPS had such knowledge but refused to furnish
accommodations, its conduct would undoubtedly constitute a compensable injury under the
ADA. See 42 U.S.C. § 12112(b)(5)(A) (to “discriminate against a qualified individual on the
basis of disability” includes “not making reasonable accommodations to the known physical
or mental limitations of an otherwise qualified individual with a disability who is an applicant
or employee.”).
Finally, as relevant here, UPS challenges Garza’s Preloader accommodation claims for
communications and interpretive assistance.12 Dkt. No. 49 at 23–25. UPS asserts that the only
time in which Garza requested a translator and was not provided one was “around 2019.” Id.
at 24. But Garza’s deposition testimony on which UPS relies is, at best, equivocal on that

point. Although Garza affirmatively identified “one time…[a]round 2019” when he requested
an interpreter, Garza could not “recall immediately” whether he had asked for interpretive
assistance at other times. Dkt. No. 49-3 at 111–12. Moreover, Garza declared under oath that
“[f]or my entire employment at UPS, until just recently when I started working as a part time
driver, I was denied effective translation, interpretation, and other means to understand what
was going on and what was shared” in meetings, and that he has “asked for help from
supervisors many times to translate from meetings and conversations.” Dkt. No. 57-14 at 2;

12 UPS also challenges Garza’s driver accommodation claims for the reasons articulated in Part IV.A. of its
Motion for Summary Judgment. Dkt. No. 49 at 23. The arguments in question challenge Garza’s
qualification for driver positions and have either already been addressed or are inapposite: (1) the Court
rejects UPS’s arguments that Garza was limited to full-time driver claims and declines to address Garza’s
qualification for the Article 22.4 full-time combination driver position because Garza bid on that position
in May 2020, outside the window of live driver claims (Supra, at p. 13–14, n.8; Dkt. No. 49 at 11–15); (2)
the Court declines to address UPS’s arguments that Garza was not qualified before the enactment of its
October 2019 policy because those claims are likewise outside the period of live claims (Supra, at n.8; Dkt.
No. 49 at 16–20); (3) the Court has held that Garza’s lack of a DOT card before June 2022 was not
disqualifying (Dkt. No. 72 at 3–4); (4) the Court rejects UPS’s arguments that Garza was disqualified
because of his traffic history and seniority status (Supra, at p. 14–17; Dkt. No. 49 at 20–21); and (5) to the
extent it is relevant, the Court rejects UPS’s argument that its October 2019 policy was not discriminatory.
Supra, at n.5; Dkt. No. 49 at 21–22. UPS further reasserts its Rule 12(c) exhaustion arguments against
Garza’s accommodation claims for communications assistance. Dkt. No. 49 at 23. These arguments, too,
are meritless; the Court has already rejected them. Dkt. No. 33 at 15; Dkt. No. 67 at 9–10; Dkt. No. 72 at 2–
3.
see also Tesco Corp. v. Weatherford Int'l, Inc., 904 F. Supp. 2d 622, 636 (S.D. Tex. 2012)
(Ellison, J.) (“Verified or sworn pleadings are competent summary judgment evidence.”).
UPS attempts to avoid this fact issue by arguing that Garza’s declaration is not founded
on personal knowledge and amounts to mere speculation. Dkt. No. 61 at 25. Although courts
apply the Federal Rules of Evidence at summary judgment, including the requirement that
an affidavit be based on personal knowledge, Garza’s declaration overcomes these evidentiary
barriers. Fed. R. Civ. P. 56(c); Fed. R. Evid. 602. UPS specifically argues that Garza lacks
knowledge about any information he may have missed at meetings. Dkt. No. 61 at 25. This
contention builds on UPS’s erroneous assumption that Garza has to show damages apart from
a denial of accommodations to have a viable ADA claim. Dkt. No. 49 at 24. But, again, Garza

need not identify information he missed to assert a successful accommodation claim against
UPS; he need only show that UPS failed to reasonably accommodate the limitations caused
by his known disability. 42 U.S.C. § 12112(b)(5)(A); TEX. LAB. CODE ANN. § 21.128(a). An
employer breaches its duty to provide reasonable accommodations simply by failing to
provide “meaningful access” to the benefit or service the employer offers. Alexander v.
Choate, 469 U.S. 287, 301 (1985).
Yet, even if Garza needed to show some additional prejudicial effect from the denial of
accommodations, UPS produces no legally (or logically) compelling basis for its belief that
Garza needs personal knowledge of the information he allegedly missed by not being
accommodated, as opposed to knowledge that some information was missed. In any event,
Garza’s contention that he asked for and was denied translation help has a sufficient
foundation in personal knowledge to satisfy Rule 602 because Garza presumably would have
made those requests himself or through an agent. There is thus at least a material fact issue
as to when or whether UPS was aware Garza needed communications accommodations to
meaningfully and equally participate in his work environment.
UPS further argues that because it otherwise provided Garza with interpreters and
communications assistance, Garza was reasonably accommodated as a matter of law. Dkt.
No. 49 at 24–25. UPS’s argument assumes that providing interpreters for deaf employees is
per se a sufficient accommodation and that an employer is only obligated to furnish
accommodations to facilitate performance of essential job functions. Id. at 25. Both premises
are legally unsound.
While an accommodation under the ADA can include interpreters, the statutory text
gives no indication that it, or any other accommodation, is categorically sufficient in all
situations. 42 U.S.C. § 12111(9). Nor is it the ultimate objective of accommodations to enable
performance of job functions. Feist v. Louisiana, Dep’t of Just., Off. of the Atty. Gen., 730

F.3d 450, 453 (5th Cir. 2013) (holding that “[t]he language of the ADA, and all available
interpretive authority” indicate that “reasonable accommodations are not restricted to
modifications that enable performance of essential job functions.”). Accommodations may be
necessary to make facilities “readily accessible…and usable” to the employee or to allow the
employee to “enjoy equal benefits and privileges of employment.” Id. at 453–54 (quoting 42
U.S.C. § 12111(9)(A) and 29 C.F.R. § 1630.2(o)(1)(iii)).
Despite Garza’s admission that he could perform all essential job functions, there
remains a disputed fact issue as to whether additional or different accommodations would
have eased difficulties and enabled Garza to meaningfully and equally participate in his work
environment. Dkt. No. 57-14 at 2; Choate, 469 U.S. at 301. UPS has not met its summary
judgment burden of showing Garza cannot establish his remaining accommodation claims.
Therefore, summary judgment that Garza cannot establish his remaining accommodation
claims should be DENIED.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the cross-motions for
summary judgment be GRANTED IN PART, and DENIED IN PART.
Specifically, it is RECOMMENDED that the Court GRANT SUMMARY
JUDGMENT that:
1. Garza is disabled within the meaning of the ADA, 42 U.S.C. 12101 et seq.;
2. UPS is precluded as a matter of law from raising a direct threat affirmative defense
under the ADA;
3. Garza was not qualified to work as a driver from April 4, 2021, to June 15, 2021; and
4. Garza is precluded from pursuing driver accommodation claims arising from April 4,

2021, to April 4, 2022, and from May 22, 2022, to October 8, 2023
It is FURTHER RECOMMENDED that the Court DENY SUMMARY
JUDGMENT as to all other issues, including that:
1. Garza was, at all relevant times, qualified to work as a driver;
2. Garza was, at all relevant times, discriminated against because of his hearing
disability;
3. Garza’s driver promotion claims are limited to full-time positions;
4. Garza was not qualified for any driver positions from August 19, 2020, to April 4, 2021;
and
5. Garza is precluded from pursuing his remaining accommodation claims.
V. NOTICE TO PARTIES
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within fourteen days
after being served with a copy shall bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the district court, provided that the party has been served with notice that such
consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass’n, 79
F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

SIGNED on this 16th day of June, 2025, at Brownsville, Texas.

Ignacio /rorteya, III
UnitedStates Magistrate Judge

24/24

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11100596. Public record. Not legal advice.