Petition for Writ of Certiorari — Jay Hannah, Petitioner v. United Parcel Service, Inc.

No. 23In the

Supreme Court of the United States

JAY HANNAH,

Petitioner,

v.

UNITED PARCEL SERVICE, INC.,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Hoyt Glazer

Counsel of Record

Glazer Saad A nderson L.C.

320 Ninth Street, Suite B

Huntington, WV 25701

(304) 522-4149

hoyt@gsalaw-wv.com

Counsel for Petitioner

322706

A

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

This is a crucial matter involving the rights of disabled,

union employees to receive reasonable accommodation

that has not yet been, but should be, decided by this

Court: Is an employer’s decision that it cannot modify the

equipment used by a union employee dispositive proof that

the employer cannot offer a reasonable accommodation

for the employee?

The Petitioner produced evidence that a smaller van

was available for deliveries after he sought the same as

a reasonable accommodation. The Respondent did not

offer any specific records to rebut Petitioner’s position

that the van he sought was available. The Fourth Circuit

ruled in favor of the Respondent, and held it would not

second guess the Respondent’s business decision that it

could not provide another van to Petitioner as a reasonable

accommodation. (Pet. App. 13a, 17a). The novel question

presented is:

Whether an employer’s selection of the equipment

used to perform a job precludes a court from considering

whether modification of such equipment would still allow

a union employee to perform the essential functions of his

job under the ADA?

ii

PARTIES BELOW

Petitioner is Jay Hannah.

Respondent is United Parcel Service, Inc.

iii

RELATED CASES

• Hannah v. UPS, No. 2:20-cv-120, U.S. District

Court for the Southern District of West Virginia.

Judgment entered June 2, 2021.

• Hannah v. UPS, No. 21-1647, U.S. Court of Appeals

for the Fourth Circuit. Judgment entered July 10,

2023.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATUTORY AND REGULATORY PROVISIONS . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THE WRIT . . . . . . . . . . 9

I.

The Fourth Circuit’s Decision Conflates

Modification of Equipment With A Job’s

Essential Functions and Conflicts With This

Court’s Relevant Precedent . . . . . . . . . . . . . . . . . 9

II. The Decision Below Is Incorrect . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

v

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, DATED JULY 10, 2023 . . . . 1a

APPENDIX B — MEMORANDUM OPINION

& ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF W E S T V I RGI N I A ,

C H A R L E S T O N DI V I S IO N , DA T E D

JUNE 2, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a

vi

TABLE OF CITED AUTHORITIES

Page

CASES

Hall v. United States Postal Service,

867 F.2d 1073 (6th Cir. 1988) . . . . . . . . . . . . . . . . . . . 16

School Bd. of Nassau County v. Arline,

480 U.S. 273 (1986) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

US Airways, Inc. v. Barnett,

535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . . . 9, 10, 13, 17

STATUTES AND OTHER AUTHORITIES

28 U.S.C. § 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

29 C.F.R. § 1630.2(n) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

29 C.F.R. § 1630.2(n)(1) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 14

29 C.F.R. § 1630.2(n)(3) . . . . . . . . . . . . . . . . . . . . . . 1, 2, 14

29 U.S.C. § 701 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

42 U.S.C. § 12111(9)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

42 U.S.C. § 12112(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 12112(b)5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

1

OPINIONS BELOW

The Fourth Circuit’s decision is published at 72 F.4th

630. (Pet. App. 1a-17a). The district court’s opinion is

available at 2021 U.S. Dist. LEXIS 103497. (Pet. App.

18a-30a).

JURISDICTION

The Fourth Circuit entered its decision on July 10,

2023. This Court has jurisdiction under 28 U.S.C. § 1254.

STATUTORY AND REGULATORY PROVISIONS

The relevant provisions are 42 U.S.C. § 12112(a), (b)5)

and 29 C.F.R. pt. 1630.2(n)(1), (3).

42 U.S.C. § 12112 (a) provides “[n]o covered entity shall

discriminate against a qualified individual on the basis

of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee

compensation, job training, and other terms, conditions,

and privileges of employment.”

42 U.S.C. § 12112(b)(5) provides “[a]s used in

subsection (a), the term ‘discriminate against a qualified

individual on the basis of disability’ includes-- (5)(A) 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,

unless such covered entity can demonstrate that the

accommodation would impose an undue hardship on the

operation of the business of such covered entity; or (B)

denying employment opportunities to a job applicant or

2

employee who is an otherwise qualified individual with

a disability, if such denial is based on the need of such

covered entity to make reasonable accommodation to

the physical or mental impairments of the employee or

applicant; . . . .”

Code of Federal Regulation 29 pt. 1630.2(n)(1) provides

“[t]he term essential functions means the fundamental job

duties of the employment position the individual with a

disability holds or desires. The term ‘essential functions’

does not include the marginal functions of the position.”

Code of Federal Regulation 29 pt. 1630.2(n)(3)

provides “[e]vidence of whether a particular function is

essential includes, but is not limited to:

(i) The employer’s judgment as to which functions are

essential;

(ii) Written job descriptions prepared before

advertising or interviewing applicants for the job;

(iii) The amount of time spent on the job performing

the function;

(iv) The consequences of not requiring the incumbent

to perform the function;

(v) The terms of a collective bargaining agreement;

(vi) The work experience of past incumbents in the

job; and/or

(vii) The current work experience of incumbents in

similar jobs.”

3

STATEMENT OF THE CASE

During litigation before the district court, Petitioner

worked for Respondent as a delivery driver. Appendix

Volume 2 at 472, lines 21-23. On December 13, 2017,

Petitioner alleged he sustained injuries to his lower back

and buttocks while driving. App. Vol 1 at 236; App. Vol.

2 at 542. Respondent opposed the claim and appealed

Petitioner’s case to the West Virginia Supreme Court

of Appeals. Id. at 638-665. The West Virginia Supreme

Court upheld Mr. Hannah’s claim compensable for right

hip bursitis. Id. at 661-665.

After missing several months of work to treat his

compensable bursitis, Petitioner requested Respondent

to provide him a reasonable accommodation. App. Vol.

2 at 553, lines 176:16-177:3. Petitioner explained that he

required a vehicle with a softer suspension to perform his

duties as a driver: App. Vol. 2 at 558, lines 181:2-7.

Petitioner requested Respondent to provide him with

a delivery truck with a softer suspension than the usual

truck Respondent supplied to its drivers. App. Vol. 2 at

8, ¶ 18. On September 6, 2018, Petitioner made another

reasonable accommodation request for his back injury.

App. Vol. 1 at 265-268; App. Vol. 2 at 627-635. Petitioner

explained he could not return to work until his treating

physician had released him to regular duty without

restrictions. App. Vol. 2 at 573, lines 10-13. “And prolonged

sitting is technically a restriction.” Id.

On September 11, 2018, Petitioner’s physician

completed the medical portion of the request for a

reasonable accommodation. App. Vol. 1 at 257-262. In

4

response to the question was “the employee currently

able to perform all of the functions of his/her position,”

Petitioner’s doctor marked “no,” and stated Petitioner

was unable to tolerate riding on a seat. Id. at 260. He

diagnosed Petitioner with sacroiliitis that impaired his

ability to tolerate riding. Id.

On September 17, 2018, Petitioner’s doctor stated

Petitioner “may return to work with no lifting restrictions.

He should avoid prolonged sitting. These requests are

related to his workers’ compensation injury claim. They

should be in effect until 11/1/2018.” App. Vol. 1 at 264; App.

Vol. 2 at 571, lines 21-25.

On October 19, 2018, Petitioner completed Respondent’s

written accommodation application. App. Vol. 1 at 266-267.

Petitioner again explained that prolonged sitting in an

UPS truck that was “full size—and 500 [cubic feet] and

above” affected his ability to drive. Id. at 266. He made a

specific request for a “delivery van or pickup truck that

has softer suspension.” Id. He also suggested transfer to

another position that did not involve driving, and would

accept assignment within a 30-mile area of Parkersburg,

West Virginia, his home office. Id. at 524; App. Vol. 2 at

726. Petitioner did not seek a medical leave of absence as

an accommodation.

In discovery, Petitioner requested Respondent’s

documentation on its West Virginia vehicle fleet for the

period from April 2018 through October 2019. Respondent

claimed it did not maintain the specific records of its fleet,

and instead produced an Excel spreadsheet documenting

the different types of vehicles it maintained at the time,

including the make and size, and their assigned locations.

5

App. Vol. 2 at 695-696. The Excel spreadsheet does not

capture the exact number of vehicles that Respondent

may have maintained during 2018 when Petitioner first

alleges he required an accommodation. It does reveal that

Respondent had vehicles in West Virginia in 2019 that

complied with Petitioner’s request for a lighter vehicle.

Petitioner also completed an affidavit supporting the same.

App. Vol. 2 at 726.

Using the Excel spreadsheet, Respondent’s designated

representative admitted Respondent had Dodge trucks in

its fleet, which were smaller in cubic feet than its fullsize, delivery vehicles. App. Vol. 2 at 681, lines 19-23.

He also acknowledged Respondent had Dodge trucks in

use in West Virginia in 2019, which is when Respondent

placed Petitioner on a leave of absence. Id. at 682, lines

8-9. Respondent’s representative could not recall the year

when it first adopted use of Dodge trucks in West Virginia.

Id. at 680, lines 4-8; 682, lines 11-13. He testified that

Respondent uses smaller vans, and could not recall when

Respondent began use of the same. Id. at 684, lines 20-24.

Although Respondent’s representative could not recall

if Respondent had a Dodge pickup truck in use in 2018, a

co-worker of Petitioner’s did recall this information, and

attested he “drove a UPS Dodge Ram pickup truck from

Parkersburg to Charleston in [p]eak of 2018. It was more

comfortable than the P70s. The Dodge Ram was available

and sitting on the lot for the duration of peak.” App. Vol. 2

at 697. Respondent did not depose Petitioner’s co-worker,

nor did it offer any evidence to rebut the co-worker’s

affidavit that it had a soft, suspension truck available for

Petitioner to drive in 2018.

6

On October 19, 2018, Respondent’s area human

resource manager met with Petitioner to discuss his

request for a job-related accommodation. App. Vol. 2 at

636. Two months later, Respondent denied Petitioner his

request for a softer, suspension vehicle. App. Vol 1 at 270;

App. Vol. 2 at 637.

Respondent’s human resource manager claimed

Respondent had reviewed and discussed Petitioner’s

request for a van or Dodge truck as a reasonable

accommodation. App. Vol. 2 at 705, lines 16-22. Respondent’s

human resource manager opined that allowing Petitioner a

van or Dodge truck would result in other drivers working

over 9.5 hours in violation of UPS’ collective bargaining

agreement. Id. at 706, lines 7-18. He also claimed that

placing Petitioner in a smaller vehicle would require him

to make multiple trips, which was neither cost effective

or safe. Id. at 706-707.

Respondent’s Accommodation Checklist reminds its

employees to “[b]e sure to memorialize the steps taken

to search for an accommodation, preserve supporting

documents, and send relevant documents and e-mails”

for record keeping. App. Vol. 2 at 636. When asked what

documentation, if any, he or Respondent had maintained

to support its denial of a van or truck for Petitioner, the

human resource manager admitted the denial letter

does not memorialize what his committee discussed. Id.

at 709, lines 4-9. Respondent’s representative also could

not recall the documentation, if any, that might support

Respondent’s decision that Petitioner did not merit a

reasonable accommodation. Id. at 710, lines 11-14.

7

The record evidence from Respondent involving

its response to Petitioner’s request for a reasonable

accommodation does not include any records reflecting

its alleged search for other vehicles for him to drive. Nor

did Respondent offer any documented studies or analysis

that providing Petitioner a van or Dodge truck would

cause it undue hardship or violate its obligations to other

employees under the collective bargaining agreement

(“CBA”).

Respondent’s human resource manager stated he

did not explore Petitioner’s request for a reasonable

accommodation with him in a one-on-one conversation,

and that he did not know if anyone else did. App. Vol. 2

at 714-715. Contrary to Respondent’s position, Petitioner

testified Respondent had a Dodge truck that fit his request

for accommodation when he was off work from his injury

from April 2018 to May 2019. App. Vol. 2 at 577-578; 726.

He explained any truck that is full-size and has 500 or

more cubic feet of storage capacity “has stiffer suspension.

And vans and light-duty trucks have softer suspension

because they’re small vehicles.” App. Vol. 2 at lines 8-10.

Petitioner testified that Respondent did not attempt to

locate a lighter van or truck for him, and that based on

his work history and experience that Respondent had the

resources and ability to provide him with another van as

a reasonable accommodation. Id. at 587 lines 19-25 – 588,

line 1.

When asked whether the packages on his route would

fit in a delivery van or a light-duty truck, Petitioner

believed that they could, but was not “a hundred percent

sure” because he “never got a chance to try it out.” App.

Vol. 2 at 578, line 25-579, line 4. In an affidavit, Petitioner

8

attested that a Dodge truck and/or van “could hold all of

my packages on my route because it was a country route.

. . . [Respondent] has never made a determination to the

contrary or provided me with information to the contrary.”

Id. at 726.

Although Respondent concluded that a smaller van

could not hold the packages on Mr. Hannah’s route,

its designated representative could not recall any

documentation to support that Respondent discussed how

many packages a smaller van could hold. Id. at 710. Nor

did Respondent provide any studies, analysis or other

documentation for its defense that Petitioner would not

have been able to complete his deliveries with a smaller

truck.

Respondent’s denial of Petitioner’s request for a

reasonable accommodation left him no choice but to accept

an unpaid, leave of absence for the remainder of 2018 and

several months of 2019. On May 4, 2019, after undergoing

nerve ablation on his back, Petitioner returned to work

as a driver for Respondent. App. Vol. 2 at 561, lines 3-11.

In early 2020, Petitioner initiated this action in West

Virginia state court and asserted several theories of

recovery, including a failure to accommodate claim under

the ADA. After removal and discovery, Respondent sought

summary judgment on all claims. On June 2, 2021, the

district court granted Respondent summary judgment

on all claims. The district court found that Petitioner

had failed to establish a prima facie case of failure to

accommodate under the ADA. Pet. App. 18a-30a.

9

Petitioner timely filed an appeal with the Fourth

Circuit, and challenged the district court’s award of

summary judgment to Respondent on only his ADA claim.

The Fourth Circuit affirmed the district court’s grant

of summary judgment to Respondent. Pet. App. 1a-17a.

Although the enabling regulations of the ADA identify

several factors in determining the essential functions of a

job, the Fourth Circuit focused its analysis on two factors,

the Respondent’s business judgment on what functions

were essential and the collective bargaining agreement.

Pet. App. 8a-9a. The Fourth Circuit did not consider

Petitioner’s 16-years’ experience in the job as evidence

that providing him a smaller van was a reasonable

modification of equipment. Of chief concern, the decision

applied the ADA’s regulatory guidance in determining

what functions of a job are essential by equating the

modification of equipment with modification of the job’s

essential functions. Pet. App. 8a-9a. No such existing

precedent from this Court supports this result, which

eviscerates the modification of equipment as a reasonable

accommodation.

This petition followed.

REASONS FOR GRANTING THE WRIT

I.

The Fourth Circuit’s Decision Conflates Modification

of Equipment With A Job’s Essential Functions and

Conflicts With This Court’s Relevant Precedent.

In US Airways, Inc. v. Barnett, 535 U.S. 391 (2002),

this Court established the burden-shifting analysis for

reasonable accommodation cases involving a collective

bargaining agreement. US Airways held an employer’s

10

showing that a requested accommodation conflicts with

seniority rules is ordinarily sufficient to demonstrate that

an accommodation is not reasonable. The Court noted

an employee remains free to present evidence of special

circumstances that makes a seniority rule exception

reasonable in the specific case.

Unlike Petitioner’s case, US Airways considered an

employee’s requested reassignment to another position. It

did not address modifications of the equipment or devices

used to perform the employee’s work. This is a crucial

distinction, and one that supports a grant of certiorari.

If upheld, the Fourth Circuit’s decision imposes an

overwhelming restriction on a union employee’s ability

to prove and receive a reasonable accommodation for a

disability.

The ADA provides “reasonable accommodation” may

include “. . . acquisition or modification of equipment or

devices, . . . .” 42 U.S.C. § 12111(9)(B). The Fourth Circuit

did not question that Petitioner’s request for a lighter,

suspension van constituted a “modification of equipment1.”

It instead considered Petitioner’s request for a light,

suspension van as redefining the essential functions of the

delivery job, itself. Nothing in US Airways or the ADA’s

implementing regulations supports this result, which

mistakes a job “modification” for an “essential function”

of the job.

1. The Fourth Circuit expressly noted 42 U.S.C. § 12111(9)

(B) provides for “job restructuring, . . . modified work schedules.

. . and other similar accommodations” but omits specific mention

of the modification of equipment and devices, which is the crux

of Petitioner’s argument.

11

In upholding the district court’s award of summary

judgment to Respondent, the Fourth Circuit placed

emphasis on the A DA’s regulatory guidance that

“consideration be given ‘to the employer’s judgment as

to what functions of a job are essential.’” Pet. App. at 8a

(Italics in original). It cited the following example from

the ADA regulations:

It is important to note that the inquiry into

essential functions is not intended to second

guess an employer’s business judgment with

regard to production standards, whether

qualitative or quantitative, nor to require

employers to lower such standards. . . . If an

employer requires its typists to be able to

accurately type 75 words per minute, it will

not be called upon to explain why an inaccurate

work product, or a typing speed of 65 words per

minute, would not be adequate. Similarly, if a

hotel requires its service workers to thoroughly

clean 16 rooms per day, it will not have to

explain why it requires thorough cleaning, or

why it chose a 16 room rather than a 10 room

requirement.

29 C.F.R. pt. 1630, app. § 1630.2(n).

In concluding Petitioner’s requested accommodation

for a smaller truck or van did not appropriately consider

Respondent’s requirements for the position, the Fourth

Circuit confused the equipment Petitioner used to perform

the job with the job’s production standards. Petitioner

never asked Respondent to alter the production standards

of his job. He always remained ready, willing, and able to

12

deliver to his assigned area, and did not seek to limit or

reduce his deliveries. Petitioner simply sought a smaller

van to perform his job assignment. In contrast, the above

examples of the typist and a service worker assume each

employee’s requested modification redefined the job’s

production standards.

Consider the example of the typist who uses a

typewriter whose keys constantly stick and prevent him

from typing 75 words a minute. The typist, who suffers

from carpal tunnel syndrome, requests the employer

for another typewriter whose keys do not stick. The

request for a properly, working typewriter does not alter

the essential functions of typing 75 words per minute.

Nor could the employer credibly claim that securing a

properly, working typewriter would result in an undue

hardship on it, and it would ordinarily have to provide

another typewriter to its typist to comply with the

ADA’s reasonable accommodation requirement. Under

the Fourth Circuit’s approach, though, the employer may

argue the request for another typewriter changes the

production standards of the typist’s job, and deny the

modification of equipment. That completely eviscerates

modification of the equipment, a properly, functioning

typewriter, as a reasonable accommodation.

The same holds true for a hypothetical union service

worker who cleans rooms. Assume this service worker,

like the Petitioner, develops a disabling back injury during

her employment. The service worker asks the employer

for a lighter, weight vacuum cleaner as a reasonable

accommodation. This service worker, like the Petitioner,

has worked nearly two decades for the employer, and is

familiar with her job such that she knows she can still

13

clean 16 rooms efficiently and thoroughly with a smaller

vacuum. She also knows the employer has a smaller vacuum

available on the premises and produces an affidavit from

another employee on the same. The employer denies the

request and claims that the lighter vacuum cleaner will not

allow the employee to clean the required 16 rooms a day.

The employer offers no documentation or specific support

for its business decision. Again, the employee’s request

for a smaller vacuum does not redefine the essential

functions of her job or its production standards. Based

on this example, though, which is similar to Petitioner’s

case, the Fourth Circuit would likely accept the employer’s

business decision that provision of a smaller vacuum to the

service worker conclusively prevents her from cleaning

the required 16 rooms a day. The ADA regulations do

not support such result, which assumes a modification of

equipment automatically redefines the job’s production

standards. Nor does anything in US Airways or this

Court’s jurisprudence hold that an employer’s selection

of the equipment used to perform a job precludes a court

from considering whether modification of such equipment

would still allow a union employee to perform the essential

functions of a job under the ADA. For this reason, this

Court should exercise certiorari and hear this case.

II. The Decision Below Is Incorrect.

The Petitioner produced sufficient evidence that

allowing him a lighter van would not have resulted

in violation of the collective bargaining agreement.

Petitioner’s testimony, his co-worker’s affidavit, and

Respondent’s failure to offer any documentation to rebut

the same was more than sufficient to establish a material

issue of disputed fact on Respondent’s alleged attempts

14

to provide Petitioner another truck. The record evidence

created a material issue of disputed fact that Respondent

did not make a meaningful effort to secure another van

for Petitioner. To the contrary, its denial of his request

for reasonable accommodation constitutes a “rubber

stamped” decision.

As a sixteen-year employee w ith Respondent,

Petitioner’s experience and familiarity with his work

supports a finding that a smaller van would still have

allowed him to complete his route’s deliveries. To conclude,

as the Fourth Circuit did, that Petitioner “needed to do

more than express optimism that his intuition [about being

able to perform his job with a smaller van] was correct,”

is to ignore the value of an employee’s understanding of

his job, and also that the Respondent offered absolutely no

empirical support for its own opinion that Petitioner could

not do the job with another vehicle. Pet. App. at 12a-13a.

In determining the essential functions of a job, the

ADA regulations support Petitioner’s view. While the

employer’s judgment on what duties are essential is one

factor in determining a position’s essential function,

the ADA’s regulation also acknowledges that the “work

experience of past incumbents in the job” and/or “current

work experience of incumbents in similar jobs” factor

in the determination of a position’s essential duties.

See, Code of Federal Regulation 29 pt. 1630.2(n)(3)

(i)-(vii). The Fourth Circuit’s decision relies chiefly on

the Respondent’s assumption that it could not provide

Petitioner with another van, and disregards Petitioner’s

relevant knowledge about a position he had performed

for over 16 years.

15

In conflating a modification of equipment with a

job’s production standard, the Fourth Circuit misapplied

the burden of proof in this ADA claim. To repeat,

Petitioner developed evidence to support his claim that

the Respondent could have easily provided him with a

lighter van. Respondent’s defense that it could not relied

entirely on its own, self-serving speculation that a smaller

truck could not hold the packages for Petitioner’s route.

Respondent had a duty to support its position with actual

evidence; yet the record reveals the Respondent offered no

documentation to support its denial of the accommodation.

Rather than acknowledge the Respondent lacked

evidentiary support for its opinion, the Fourth Circuit

erroneously determined the Respondent’s decision on the

modification Petitioner requested was, itself, an essential

function of Petitioner’s job.

The Fourth Circuit’s refusal to accept Petitioner’s

evidence that his request for another van was reasonable

contravenes this Court’s requirement of an “individualized

inquiry” in cases determining the ability of a disabled

person to perform the job in question. See, School Bd.

of Nassau County v. Arline, 480 U.S. 273, 287 (1986),

superseded on other grounds by statute, (holding under

§ 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701

et seq. that an individualized inquiry is essential to that

statute’s goal of protecting handicapped individuals

from deprivations based on prejudice, stereotypes, or

unfounded fear, while giving appropriate weight to such

legitimate concerns of grantees as avoiding exposing

others to significant health or safety risks). The reason

an “individualized inquiry” is important here is because

as the Sixth Circuit also appreciates, the ADA recognizes

that a defendant’s justifications for its actions may well

reflect a “rubber stamp” lacking factual grounds:

16

While legitimate physical qualifications may

be essential to the performance of certain jobs,

both that determination and the determination

of whether accommodation is possible are factspecific issues. The court is obligated to

scrutinize the evidence before determining

whether the defendant’s justifications reflect

a well-informed judgment grounded in a

careful and open-minded weighing of the

risks and alternatives, or whether they are

simply conclusory statements that are being

used to justify reflexive reactions grounded in

ignorance or capitulation to public prejudice.

See, Hall v. United States Postal Service, 867 F.2d 1073,

1079 (6th Cir. 1988) (italics in original), citing Arline

(complete citation omitted).

In Hall, the district court granted the employer

summary judgment finding no issue that a 70-pound

lifting requirement was an essential function of the job,

and that the employer did not have to modify such lifting

requirement because it would eliminate an essential

function of the work. Hall at 1076-1077. The Sixth Circuit

reversed. It found that the employee had spent time doing

clerk work and stated in her affidavit that she never

observed other clerks doing any heavy lifting. Id. at 1079.

The Sixth Circuit noted the employer did not dispute

the accuracy of the employee’s observations. Id. Most

important, it disagreed that the affidavit of the employer’s

supervisor that heavy lifting was an essential part of the

job qualified as a legal conclusion. Id. The court noted the

employer’s supervisor’s assessment of what is “essential”

may differ from a court’s conclusion after it has conducted

the “individualized inquiry” required by Arline. Id. The

17

Sixth Circuit remanded the case to the district court for

a jury trial.

Neither the ADA or this Court’s jurisprudence

allows an employer a presumption that its selection of

the equipment used to perform a job is binding in the

reasonable accommodation process. If it were, then that

would render modifications of equipment meaningless as

reasonable accommodations. After Petitioner provided

evidence that Respondent could provide him a smaller

van, the Respondent had the duty to produce evidence

that it violated the CBA. In crediting the Respondent’s

bare assertion that it could not offer Petitioner another

van because it would violate the CBA, the Fourth Circuit

refused to credit Petitioner’s evidence casting doubt on

the Respondent’s position. US Airways v. Barnett does

not support this result, and as a matter of law, the Fourth

Circuit’s decision is incorrect.

The Respondent has never justified why it denied

Petitioner a trial run with a smaller van to determine if

he could complete the deliveries on his route. Petitioner, a

sixteen-year employee with experience handling packages

on his route, testified he thought could perform his job

with the smaller van. The record evidence supports a jury

finding that allowing Petitioner to perform a trial run

with the smaller van would not have violated the CBA.

The bottom line is the Respondent’s decision denying

Petitioner’s reasonable request for an accommodation

is a rubber stamp. The Fourth Circuit’s adoption of the

Respondent’s position results from a clearly erroneous

application of this Court’s existing ADA jurisprudence, the

result of which severely limits union employees’ ability to

receive reasonable accommodations that may not violate

CBAs.

18

CONCLUSION

Based on the foregoing, your Petitioner respectfully

urges that this Court should grant certiorari.

Respectfully Submitted:

Hoyt Glazer

Counsel of Record

Glazer Saad A nderson L.C.

320 Ninth Street, Suite B

Huntington, WV 25701

(304) 522-4149

hoyt@gsalaw-wv.com

Counsel for Petitioner

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, DATED JULY 10, 2023 . . . . 1a

APPENDIX B — MEMORANDUM OPINION

& ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN

DI S T R IC T OF W E S T V I RGI N I A ,

C H A R L E S T O N DI V I S IO N , DA T E D

JUNE 2, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18a

1a

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT, DATED JULY 10, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-1647

JAY HANNAH,

Plaintiff-Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant-Appellee.

January 26, 2023, Argued;

July 10, 2023, Decided

Appeal from the United States District Court for the

Southern District of West Virginia, at Charleston. (2:20cv-00120). Joseph R. Goodwin, District Judge.

Before NIEMEYER, RUSHING, and HEYTENS,

Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote

the opinion, in which Judge Rushing and Judge Heytens

joined.

2a

Appendix A

NIEMEYER, Circuit Judge:

When Jay Hannah, a package delivery driver for

United Parcel Service, Inc. (“UPS”), injured his hip

and buttocks, he requested that he be allowed to drive

his route with a smaller truck that would have a softer

suspension or, alternatively, that he be assigned to an

“inside job.” Because UPS had determined that the route

that Hannah had been driving required a larger truck

and there were no openings for inside work at the time,

UPS instead accommodated Hannah by allowing him to

take an unpaid leave of absence until his hip and buttocks

healed and he could return to work.

Hannah commenced this action under the Americans

with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et

seq., alleging that UPS’s refusal to provide him with the

accommodations he requested violated his rights under

the ADA. The district court granted summary judgment

to UPS, concluding, as a matter of law, that Hannah

had not shown that the accommodations he requested

were reasonable and that Hannah’s unpaid leave of

absence constituted a reasonable accommodation in the

circumstances.

For the reasons given herein, we affirm.

I

Hannah, who had been a UPS employee in Parkersburg,

West Virginia, since 2008, began experiencing pain in

his lower back, hip, and buttocks in December 2017. His

3a

Appendix A

condition was then diagnosed as hip bursitis. At the time,

Hannah was assigned to a delivery route, for which he had

bid under the governing collective bargaining agreement

and which, as UPS had determined, required him to

drive a truck with a 600-cubic-foot capacity to carry

all the packages to be delivered on his route. That size

truck, however, had a stiff suspension, which made for a

rough ride that aggravated Hannah’s injury. After UPS

accommodated his request for a better padded seat, he

still could only work sporadically until October 2018. At

that time, his physician diagnosed him with sacroiliitis

and cleared him to return to work, so long as he avoided

prolonged sitting until November 1, 2018. Hannah then

made a request to UPS for an accommodation under the

ADA to provide him with a smaller vehicle, a van with a

cargo capacity of 300 to 400 cubic feet, which would have

a softer suspension and thus would provide him with an

easier ride. Alternatively, he requested assignment to

an “inside job” within a 30-mile radius for which he was

qualified until he could return to his route.

UPS officials met with Hannah and then conferred

among themselves and determined that UPS could not

provide Hannah with the smaller vehicle he had requested

because such a van would have an insufficient capacity

to serve his route. Thus, providing Hannah with such a

van would require either that Hannah give a part of his

route to another driver or that Hannah himself complete

the route in multiple trips. UPS found neither option to

be feasible, as each would violate the governing collective

bargaining agreement. With respect to inside work, UPS

advised Hannah that it had no openings at the time,

4a

Appendix A

but it would consider him for any such opening when it

occurred. While UPS thus denied Hannah the particular

accommodations he requested, it did allow him to retain

his job and take leave without pay until he could return

to work. And after several months, Hannah did return

to work, continuing to drive the route to which he was

assigned in a truck suited for that route.

After returning to work, Hannah commenced this

action against UPS under the ADA for its failure to

provide him with either of the accommodations that he

requested. The district court granted UPS’s motion for

summary judgment, concluding that Hannah failed to

carry his burden of demonstrating that he could perform

the essential functions of his job with the accommodations

requested. The court also concluded that the leave of

absence that UPS provided was in fact a reasonable

accommodation, even though not one that Hannah had

requested.

This appeal followed.

II

The issue in this case turns on whether Hannah,

who was temporarily disabled, requested a reasonable

accommodation under the ADA and whether UPS,

in providing a different accommodation that was not

requested by Hannah, complied with its duties in response

to Hannah’s request.

The record shows that because of his hip and buttocks

condition, Hannah was unable to drive the 600-cubic-foot

5a

Appendix A

truck provided to him for delivering the route’s packages

because the truck’s stiff suspension resulted in too harsh

a ride. He requested that UPS provide him with a 300to 400-cubic-foot van, which had a softer suspension and

which, he claimed, would enable him to drive his route.

Hannah acknowledged that the smaller van would need to

hold all of the packages for delivery on his assigned route.

He also stated that he was not sure that such a van would

be able to hold all of the packages because “I’ve never got

a chance to try it out.” But he agreed that if such a van

could not accommodate all of the packages, his request

would require that he “displace somebody from another

route,” implicating the collective bargaining agreement.

Alternatively, he requested “an inside job,” such as

washing vehicles or sorting packages.

UPS rejected Hannah’s requests. In defending its

position, UPS explained that delivery routes were assigned

to drivers based on seniority and their bids for the routes,

as provided by the collective bargaining agreement. And

the size of vehicle assigned to each route was based on

the expected volume of packages for that route. Thus,

a 600-cubic-foot truck was assigned to Hannah’s route

because UPS had determined that that was the size of

truck that the route required. In addition, UPS noted that

the collective bargaining agreement restricted drivers to

working no more than 9.5 hours per day. In light of these

restrictions, it explained that a 300- to 400-cubic-foot van

would not be able to service Hannah’s route — Hannah

“would have . . . [to] put [work] on another driver or

drivers . . . [w]hich potentially would put them over 9.5

hours dispatched; [and] they are protected from working

6a

Appendix A

over 9.5 hours in the collective bargaining agreement.”

And, as UPS explained, Hannah’s doing the route himself

with a smaller truck would require multiple trips. That

would not only require him to work more than 9.5 hours

but would also be unreasonable because of the substantial

increase in costs in terms of maintenance, wear and tear

on the vehicle, and fuel and oil usage. UPS also noted that

it would be a “safety risk to have Mr. Hannah continue

to drive up and down the road all day long . . . [b]ecause

it is proven the more miles that you incur, the more at

risk you are to have an auto accident.” As to an inside

job, UPS told Hannah that it had no suitable vacancies

at the time but that it would continue to look for one. In

these circumstances, UPS provided Hannah with the

accommodation of granting him an indefinite unpaid leave

of absence with the option to return to work when his hip

and buttocks healed. Hannah did not agree that that was

a reasonable accommodation, although he remained on

leave until finally returning to work several months later.

The issue, in short, is whether the accommodations

Hannah requested were reasonable under the ADA and

whether the accommodation UPS did provide was a

reasonable one, albeit not agreeable to Hannah.

The ADA prohibits an employer from discriminating

against an employee with a disability if the employee can

perform the essential functions of his job with “reasonable

accommodation.” 42 U.S.C. § 12112(a), (b)(5); id. § 12111(8).

In making a claim under the ADA for a failure to

accommodate, the employee has the burden of establishing

a prima facie case by showing “(1) that he was an individual

7a

Appendix A

who had a disability within the meaning of the statute; (2)

that the employer had notice of his disability; (3) that with

reasonable accommodation he could perform the essential

functions of the position; and (4) that the employer refused

to make such accommodations.” Wilson v. Dollar Gen.

Corp., 717 F.3d 337, 345 (4th Cir. 2013) (cleaned up). In

carrying out the burden of establishing a reasonable

accommodation in the context of a workplace governed by a

collective bargaining agreement, the employee must show

either that the requested accommodation would not violate

the agreement or that some “special circumstances” exist

that nonetheless make “the requested accommodation . . .

reasonable on the particular facts.” US Airways, Inc. v.

Barnett, 535 U.S. 391, 403, 405, 122 S. Ct. 1516, 152 L.

Ed. 2d 589 (2002) (cleaned up).

In this case, Hannah did not meet this burden. While

he did request an accommodation of driving a smaller

van with a softer suspension, he acknowledged that such

a van would have a cargo capacity of 300 to 400 cubic

feet, whereas the vehicle that UPS had designated as

necessary to perform his route had a capacity of 600

cubic feet. And, as UPS determined, such a shortfall in

capacity would prevent Hannah from completing his route

in one trip and within 9.5 hours. UPS explained that, in

that circumstance, it would have been necessary to adjust

another driver’s route to take on part of Hannah’s route.

But each scenario — requiring work longer than 9.5

hours or adjusting another driver’s route — would violate

the collective bargaining agreement, as UPS explained.

Routes were assigned by seniority pursuant to a bidding

process, and drivers could work no more than 9.5 hours per

8a

Appendix A

day. Hannah has provided no solution to these problems

arising from his request to be given a smaller truck or van.

Moreover, an accommodation is not reasonable if it

does not “enable[] the employee to perform the essential

functions of the job.” Myers v. Hose, 50 F.3d 278, 283 (4th

Cir. 1995). Here, Hannah has not addressed whether

his proposed accommodation would require alteration

of the “essential functions” of the job he had previously

occupied as determined by UPS. UPS designed the

delivery routes and assigned trucks to them with the

capacity that it determined was needed to complete the

routes. And when an employee, such as Hannah, bid on

the route, the essential functions of the job of driving

that route were so defined. Consequently, when Hannah

sought an accommodation for his injury, part of his burden

of demonstrating its reasonableness was to show that it

would allow him to perform the essential functions of the

position. See 42 U.S.C. § 12111(8); Wilson, 717 F.3d at

345. And to satisfy that burden, he is not free simply to

redefine the job. The ADA directs that consideration be

given “to the employer’s judgment as to what functions of

a job are essential.” 42 U.S.C. § 12111(8) (emphasis added).

The ADA’s regulatory guidance explains this point in

detail, stating:

It is important to note that the inquiry into

essential functions is not intended to second

guess an employer’s business judgment with

regard to production standards, whether

qualitative or quantitative, nor to require

employers to lower such standards . . . . If

9a

Appendix A

an employer requires its typists to be able to

accurately type 75 words per minute, it will not

be called upon to explain why an inaccurate

work product, or a typing speed of 65 words per

minute, would not be adequate. Similarly, if a

hotel requires its service workers to thoroughly

clean 16 rooms per day, it will not have to

explain why it requires thorough cleaning, or

why it chose a 16 room rather than a 10 room

requirement.

29 C.F.R. pt. 1630, app. § 1630.2(n). Yet, Hannah’s

requested accommodation for a smaller truck or van

fails to give the appropriate consideration to UPS’s

requirements for his job; he fails to demonstrate that he

can, with his requested accommodation, “perform the

essential functions of the employment position” that he

held before his injury. 42 U.S.C. § 12111(8). His requested

accommodation was accordingly not reasonable within the

meaning of the ADA.

In addition, Hannah has not shown that there was a

vacancy that would allow him to do inside work.

In short, Hannah has not carried his burden of

demonstrating that the accommodations he requested

were reasonable.

In response to Hannah’s request for accommodation

and in light of the lack of reasonable alternatives, UPS

decided to place Hannah on an indefinite unpaid leave

of absence until he could return to work. But Hannah

10a

Appendix A

complains that “[he] did not want medical leave” and that

such leave “prevented [him] from earning his wages.” Yet,

he provides no authority as to why that accommodation

was not a reasonable one in the circumstances. He only

argues that it was not the accommodation he requested

and that it provided him with no wages.

First, it is well settled that the “ultimate discretion”

to choose among reasonable accommodations rests with

the employer. Reyazuddin v. Montgomery Cnty., 789

F.3d 407, 415-16 (4th Cir. 2015) (quoting Hankins v. The

Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). And it is

also clear that the ADA specifically authorizes unpaid

leave as a reasonable accommodation. The Act provides

that a “reasonable accommodation” may include “job

restructuring, . . . modified work schedules, . . . and

other similar accommodations.” 42 U.S.C. § 12111(9)(B).

And these examples are further explained in regulatory

guidance to include “permitting the use of accrued paid

leave or providing additional unpaid leave for necessary

treatment.” 29 C.F.R. pt. 1630, app. § 1630.2(o) (emphasis

added); see also Wilson, 717 F.3d at 344-45. While a

period of unpaid leave might not always be a reasonable

accommodation, such leave may be reasonable where the

disability that interferes with an employee’s capacity to

complete assigned tasks is temporary and there is reason

to believe that a leave of absence will provide a period

during which the employee will be able to recover and

return to work. See Graves v. Finch Pruyn & Co., 457

F.3d 181, 185-86 (2d Cir. 2006); Humphrey v. Mem’l Hosps.

Ass’n, 239 F.3d 1128, 1135-36 (9th Cir. 2001); Cehrs v. Ne.

Ohio Alzheimer’s Rsch. Ctr., 155 F.3d 775, 783 (6th Cir.

11a

Appendix A

1998); Baucom v. Potter, 225 F. Supp. 2d 585, 592 (D. Md.

2002) (“[A] leave of absence to obtain medical treatment

for alcoholism can be a reasonable accommodation if it is

likely that, following treatment, the plaintiff would be able

to safely return to his duties”). Such was the case here.

During the leave-of-absence accommodation provided by

UPS, Hannah received treatment, and, when he felt ready,

he returned to full-time employment as a UPS package

delivery driver. That Hannah would have preferred to be

accommodated in some other way does not support a claim

of discrimination under the ADA.

At bottom, we conclude that the district court did

not err in concluding that, as a matter of law, Hannah

failed to demonstrate that he requested a reasonable

accommodation that would allow him to perform the

essential functions of his job, as is required to establish

his ADA claim.

III

Hannah maintains that in any event, material factual

disputes precluded granting summary judgment to

UPS and that the district court erred in overlooking or

misstating them. He contends that there were factual

disputes as to whether he would have “been able to

complete his assigned route with one of his requested

vehicles” and whether his requested accommodation

“would have actually caused a violation of the [collective

bargaining agreement].” He has acknowledged, however,

that “if his requested truck could not hold all the packages

for his route, then that would violate the [collective

12a

Appendix A

bargaining agreement].” (Emphasis in original). Thus,

the dispute actually reduces to whether the requested van

could handle all the packages for delivery on his route. And

on this issue, the record reveals no triable factual dispute.

First, it was undisputed that UPS selected a

600-cubic-foot truck for Hannah’s route because it

considered such a truck to be necessary for the number

of packages to be delivered on the route. As the UPS

representative explained, “[I]n order to let Mr. Hannah

[drive] a smaller vehicle, he would have had to have taken

the work off of that [vehicle] . . . and put it on another

driver or drivers in that particular loop as we would call

it.” The representative also explained, “[I]f you were to

put Mr. Hannah in a smaller vehicle and keep him on the

same route, he would have to do multiple trips to and from

the facility to continue to get his packages.” He explained

that those considerations led UPS to decide “that it [was]

not a reasonable accommodation to get [Hannah] a smaller

vehicle.”

Hannah did not dispute those facts in his deposition.

When asked whether the packages for his route would fit in

a van, he could only say, “I believe so. It was never tried.”

He added that UPS simply “didn’t try to see if a van would

have worked on my route with all the packages.” This does

not contradict UPS’s determination that a 600-cubic-foot

truck was necessary to complete Hannah’s route. It was

more the expression of a hope or a request for an empirical

study to determine whether he could do the route with a

van of only 300 to 400 cubic feet. Because Hannah had

the burden of proof, he needed to do more than express

13a

Appendix A

optimism that his intuition was correct to create a triable

issue of fact.

Perhaps recognizing this, Hannah filed an affidavit

during the litigation, which he now argues sufficed to

create a dispute of fact. In that affidavit, he stated,

despite what he had said to the contrary in his deposition,

“The Dodge Truck and UPS Van could hold all of my

packages on my route because it was a country route.

On some occasions a few stops might have received a lot

of packages but then UPS could’ve put those on another

driver and then gave me a few of that driver[’]s stops that

weren’t bulky.” This claim appears to be only a hopeful

opinion, offered without any supporting factual basis.

And more importantly, it is well established that “a party

who has been examined at length on deposition [cannot]

raise an issue of fact simply by submitting an affidavit

contradicting his own prior testimony,” because to allow

that “would greatly diminish the utility of summary

judgment as a procedure for screening out sham issues

of fact.” Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th

Cir. 1984) (quoting Perma Rsch. & Dev. Co. v. Singer, 410

F.2d 572, 578 (2d Cir. 1969)); see also Stevenson v. City of

Seat Pleasant, 743 F.3d 411, 422 (4th Cir. 2014).

IV

Finally, Hannah contends that UPS did not, as required

by the ADA, “engage in an interactive[] communication

with [him] to determine if a reasonable accommodation

existed” or that there was, at least, a factual dispute as

to whether it did. See 29 C.F.R. § 1630.2(o)(3) (stating that

14a

Appendix A

in determining an appropriate accommodation, “it may

be necessary for the [employer] to initiate an informal,

interactive process with the [employee]”).

Hannah agrees that he first made his request for a

reasonable accommodation under the ADA on or about

September 6, 2018. Before that date, he requested that

UPS fit his truck with a more padded and supportive

seat so as to mitigate any undue jarring of his buttocks,

and UPS accommodated that request. But he agrees

that it was in September when he made his request for

an ADA accommodation. The record shows that UPS

acknowledged the request and asked that Hannah’s

medical provider complete a medical information form.

Hannah’s physician did complete the form, indicating

that Hannah had sacroiliitis and was currently unable

to perform all of the functions of his position based on

Hannah’s representation that he was “unable to tolerate

riding on a seat.” And his physician noted that his “only

[job] restriction [was] driving [a] truck” and stated that

Hannah could return to work but “should avoid prolonged

sitting” until November 1, 2018.

Then, on October 19, 2018, Hannah met with several

UPS officials, including its human resources manager,

to discuss his request for an accommodation. During

that meeting, Hannah completed an “Accommodation

Checklist,” on which he wrote that his medical restrictions

prevented him from “prolong[ed] sitting in a UPS truck

that[‘]s full size and 500 [cubic feet] and above.” He also

wrote that he was requesting a “delivery van or pickup

truck that has softer suspension.” As he later explained,

15a

Appendix A

The suspension [in a regular UPS truck] is

harsh because we have to carry so many boxes.

So they have to have stiff suspension to hold all

those boxes. And that makes the harsh ride.

In the Accommodation Checklist, Hannah also requested

alternatively that he be transferred to another position

that did not involve driving, such as a “preload” role or

“the night shift.” Finally, he indicated that he would be

willing to commute within 30 miles of the UPS center in

Marietta, Ohio.

After meeting with Hannah and receiving Hannah’s

Accommodation Checklist, the human resources manager

and other UPS employees “reviewed” and “discussed”

Hannah’s request for a smaller vehicle. After “discussing”

and “evaluating” “how many packages [Hannah] was

delivering on his route,” they decided a smaller vehicle

“would not be a reasonable accommodation.” They also

recognized that when drivers bid on different routes

based on seniority, a “package car is typically assigned to

[the] route” and “to switch a package car out on a route,

it would have to be the same size of car due to . . . all

things pertaining to that route.” They also discussed how

sharing Hannah’s route with other drivers would not be

possible under the collective bargaining agreement, and

having Hannah drive the route in a smaller vehicle would

involve multiple trips, which could not be done in a timely

manner, would not be cost effective, and would implicate

safety risks.

Thus, in a letter dated December 21, 2018, UPS

informed Hannah that, “after carefully reviewing [his]

16a

Appendix A

situation,” it was “not aware of any available position at

UPS at [the] time for which [he was] qualified and capable

of performing the essential job functions with or without

reasonable accommodation.” The letter indicated that

UPS would “continue to look for such available position

for up to six months” and that if his “condition or abilities

change[d] in the future,” or if he were to “become aware

of an open position that [he] believe[d] [he was] capable

of performing,” he should contact UPS so that it could

“re-evaluate the situation.”

Hannah has not proffered what additional interaction

he believes was required or what additional discussions

he and UPS representatives could have had with each

other that could have made a difference. We conclude that

nothing more was required. Accordingly, we reject this

argument.

***

At bottom, Hannah has not presented evidence

from which a jury could find that UPS was required to

allow him to drive his assigned delivery route using a

smaller vehicle when (1) UPS, in considering his request,

discussed and evaluated the number of packages he was

delivering on his route and determined that they would

not consistently fit on the type of vehicle Hannah had

requested and that there was no reasonable way to work

around that impediment, and (2) Hannah has failed to

present any real evidence to rebut that determination.

Nor could a jury find that UPS was required to provide

him with an alternative inside job when Hannah failed to

17a

Appendix A

show any opening for such a job. Finally, Hannah has failed

to show, as a matter of law, that his leave of absence was

not a reasonable accommodation. Accordingly, we affirm

the district court’s grant of summary judgment to UPS.

AFFIRMED

18a

B

APPENDIX B — Appendix

MEMORANDUM

OPINION

& ORDER OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF

WEST VIRGINIA, CHARLESTON DIVISION,

DATED JUNE 2, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT

OF WEST VIRGINIA

CHARLESTON DIVISION

CIVIL ACTION NO. 2:20-cv-00120

JAY HANNAH,

Plaintiff,

v.

UNITED PARCEL SERVICE, INC.,

Defendant.

June 2, 2021, Decided;

June 2, 2021, Filed

MEMORANDUM OPINION & ORDER

Pending before the court is Defendant’s Motion for

Summary Judgment [ECF No. 32]. Plaintiff has responded

[ECF No. 35] and Defendant has replied [ECF No. 36].

For the reasons below Defendant’s Motion is GRANTED.

19a

Appendix B

I.

Relevant Facts

Plaintiff Jay Hannah began working part-time for

Defendant United Parcel Service, INC. (“UPS”) in 2004

in Parkersburg, West Virginia. He began working full

time as a UPS truck driver in 2008. As a part of his

employment, Plaintiff is a union member of IBT Local

175, and he is subject to the Union’s Collective Bargaining

Agreement.

On December 13, 2017, Plaintiff suffered an injury

to his buttocks while at work. [ECF No. 17, at 2]. The

following day, Plaintiff met with a healthcare provider

who diagnosed him with right hip bursitis and cleared him

to work with the following restrictions for one week: only

1-3 hours of kneeling and 1-3 hours of sitting. [ECF No.

32, Ex. K]. During this time, the seat in Plaintiff’s UPS

truck was replaced. Plaintiff filed a workers’ compensation

claim and between December 14 and December 29, 2017,

Plaintiff was assigned Temporary Alternate Work, per

the terms of the Collective Bargaining Agreement. [ECF

No. 1, Ex. A, at 37:1-8]. Plaintiff was assigned to work

four hours per day washing trucks to accommodate his

restriction of limited sitting time. When his workers’

compensation claim was initially denied1 on December

29, 2017, he was notified that he was no longer eligible

for Temporary Alternate Work. [ECF No. 1, Ex. A, at

172:3-7].

1. Plaintiff did ultimately appeal the denial of his workers’

compensation claim to the Supreme Court of Appeals of West

Virginia which found in his favor that the right hip bursitis was a

compensable work-place injury.

20a

Appendix B

Once he was no longer eligible for Temporary

Alternate Work, Plaintiff took a Leave of Absence.

Plaintiff received a sacroiliac injection in February 2018,

and he was eventually cleared to return to work without

restriction on March 21, 2018. Plaintiff’s injury returned

in April of 2018, rendering him unable to perform his job.

[ECF No. 17, at 2]. Plaintiff requested that Defendant

provide him with a “delivery truck with softer suspension

than the usual truck Defendant supplied to its drivers.”

Id. This request was not granted, and Plaintiff once again

went on a Leave of Absence.

In September 2018, while on his Leave of Absence,

Plaintiff was diagnosed with sacroiliitis and the doctor

stated that Plaintiff was unable to perform the functions

of position and that his only work restriction was driving

the truck. [ECF No. 32, Ex. P]. His doctor cleared him

to return to work so long as he avoided prolonged sitting

until November 1, 2018. In October, Plaintiff requested

to return to work but to be assigned a “delivery van or

pickup truck that has softer suspension.” This request

was denied because there was not “any available position

at UPS at this time for which [Plaintiff was] qualified and

capable of performing the essential job functions with or

without reasonable accommodation.” [ECF No. 32, Ex.

R]. Plaintiff’s Leave of Absence was extended again in

December 2018. [ECF No. 32, Ex. S].

After having a nerve ablation which remedied his

pain, Plaintiff returned to work full-time in May 2019 to

his previous position as a UPS truck driver. He remains

employed in this position.

21a

Appendix B

In July 2020, Plaintiff filed a workers’ compensation

claim for heat exhaustion. Soon after filing that claim,

Plaintiff was disciplined at work for violating Defendant’s

Grooming Policy which required that a male employee’s

hair should “not extend below the upper half of the ear,

nor below the top of the shirt collar in the back.” [ECF

No. 17, at 4]. Plaintiff was told that he would serve a fiveday suspension for this violation. Plaintiff filed a union

grievance, and the suspension was ultimately rescinded.

Plaintiff did not serve any of this five-day suspension and

it has been removed from his record. [ECF No. 32, Ex.

A, at 32:25-33:19].

Plaintiff filed this action alleging five counts. Count

I: failure to accommodate a workplace disability in

violation of the Americans with Disabilities Act; Count

II: Disability Discrimination under the Americans with

Disabilities Act; Count III: Gender Discrimination in

violation of the West Virginia Human Rights Act; Count

IV: Workers’ Compensation Discrimination in violation of

West Virginia Code § 23-5A-1; and Count V: Retaliation

in Violation of the West Virginia Human Rights Act.

II. Discussion

A.

Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure

governs motions for summary judgment. A court “may

grant summary judgment only if, taking the facts in the

best light for the nonmoving party, no material facts are

disputed and the moving party is entitled to judgment as

22a

Appendix B

a matter of law.” Ausherman v. Bank of Am. Corp., 352

F.3d 896, 899 (4th Cir. 2003). “Facts are ‘material’ when

they might affect the outcome of the case, and a ‘genuine

issue’ exists when the evidence would allow a reasonable

jury to return a verdict for the nonmoving party.” The

News & Observer Publ. Co. v. Raleigh-Durham Airport

Auth., 597 F.3d 570, 576 (4th Cir. 2010).

The moving party may meet its burden of showing

that no genuine issue of fact exists by use of “depositions,

answers to interrogatories, answers to requests for

admission, and various documents submitted under

request for production.” Barwick v. Celotex Corp., 736 F.2d

946, 958 (4th Cir. 1984). “[A] party opposing a properly

supported motion for summary judgment may not rest

upon mere allegation or denials of his pleading, but must

set forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242,

256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Although

the court will view all underlying facts and inferences

in the light most favorable to the nonmoving party, the

nonmoving party nonetheless must offer some “concrete

evidence from which a reasonable juror could return a

verdict in his [or her] favor.” Anderson, 477 U.S. at 256.

B. Failure to Accommodate under the

Americans with Disabilities Act

[T]o establish a prima facie case against his

employer for failure to accommodate under the

ADA, the plaintiff must show: (1) that he was

an individual who had a disability within the

23a

Appendix B

meaning of the statute; (2) that the employer

had notice of his disability; (3) that with

reasonable accommodation he could perform

the essential functions of the position; and

(4) that the employer refused to make such

accommodations.

Thomas v. City of Annapolis, ---F. App’x ---, 851 Fed.

Appx. 341, 2021 U.S. App. LEXIS 7314, *13 (4th Cir. Mar.

12, 2021) (quoting Wilson v. Dollar Gen. Corp., 717 F.3d

337, 345 (4th Cir. 2013)). If Plaintiff establishes a prima

facie case, Defendant “may avoid liability if it can show

as a matter of law that the proposed accommodation “will

cause undue hardship in the particular circumstances.”

Halpern v. Wake Forest Univ. Health Scis., 669 F.3d 454,

464 (4th Cir. 2012).

“ The term ‘reasonable accommodation’ means

‘[m]odifications or adjustments to the work environment,

or to the manner or circumstances under which the

position held or desired is customarily performed, that

enable an individual with a disability . . . to perform the

essential functions of that position.’” EEOC v. Womble

Carlyle Sandridge & Rice, LLP, 616 F. App’x 588, 593

(4th Cir. 2015) (quoting 29 C.F.R. § 1630.2(o)(1)(ii)). The

ADA provides that “reasonable accommodation” includes

“job restructuring, part-time or modified work schedules,

[and] reassignment to a vacant position.” Reyazuddin

v. Montgomery Cty., 789 F.3d 407, 414 (4th Cir. 2015)

(quoting 42 U.S.C. § 12111(9)(B)).

An accommodation can be reasonable even if it

is not the employee’s requested accommodation. See

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Appendix B

Reyazuddin v. Montgomery Cnty., 789 F.3d 407,

415 (4th Cir. 2015) (“An employer may reasonably

accommodate an employee without providing the exact

accommodation that the employee requested.”); see also

Dones v. Brennan, 147 F. Supp. 3d 364, 369 (D. Md. 2015)

(“[A]n employer is not required to provide the employee’s

preferred accommodation.”); Scott v. Montgomery

Cnty. Gov’t, 164 F. Supp 2d. 502, 508-09 (D. Md. 2001)

(“The ADA does not require an employer to provide the

specific accommodation requested, or even to provide

the best accommodation, so long as the accommodation

is reasonable.”) (quoting Walter v. United Airlines, Inc.,

2000 U.S. App. LEXIS 26875, 2000 WL 1587489, at *4

(4th Cir. 2000) (internal alterations and quotation marks

omitted)). A temporary leave of absence may, in some

circumstances, be a reasonable accommodation. Kitchen

v. Summers Continuous Care Ctr., LLC, 552 F. Supp. 2d

589, 595 (S.D. W. Va. 2008). Further, the requirement to

provide reasonable accommodation does not require an

employer to violate the terms of a collective bargaining

agreement. Doe v. Mylan Farms, Inc., No. 1:16CV72, 2017

U.S. Dist. LEXIS 169639, 2017 WL 4584044, at *3 (N.D.

W. Va. Oct. 13, 2017). Plaintiff has not produced evidence

necessary to satisfy the prima facie elements of a failure

to accommodate claim.

Plaintiff repeatedly requested reassignment to

driving a van or pickup truck with a softer suspension to

accommodate his disability which caused him pain when

he sat for long periods of time in a standard UPS delivery

truck. According to Plaintiff, there were pickups in the fleet

available to be driven. Defendant counters that Plaintiff

25a

Appendix B

would not have been able to complete his assigned route

with one of the requested vehicles. Plaintiff confirmed that

this is the case. Assigning Plaintiff to a different route

would also have required Defendant to remove another

driver from their assignment, violating the terms of the

collective bargaining agreement. However, Defendant

was never required to provide the specific accommodation

requested by Plaintiff. Defendant permitted Plaintiff to

take two Leaves of Absence until he was able to return

to work. Further Plaintiff never alleges that the terms

of his Leave of Absence were unsatisfactory. During this

time, Plaintiff was not removed from his role, and when he

was medically able to return, he returned to his original

role. There is no dispute over the fact that Plaintiff was

permitted to take Leaves of Absence and still retain his

original role. As a matter of law, Plaintiff has failed to

offer evidence that Defendant denied him a reasonable

accommodation for the pain he suffered while driving.

C.

Disability Discrimination under the

Americans with Disabilities Act

The Americans with Disabilities Act prohibits a

covered employer from discriminating “against a qualified

individual on the basis of disability . . . in regard to . . .

discharge of employees.” 42 U.S.C. § 12112(a). To prove his

case, Plaintiff must show that (1) he has a disability, (2) he

is a “qualified individual” for the employment in question,

and (3) the defendant took an adverse employment action

against him because of his disability. EEOC v. Stowe-Pharr

Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000). A “qualified

individual” is one “who, with or without reasonable

26a

Appendix B

accommodation, can perform the essential functions” of

his job. 42 U.S.C. § 12111(8). If the plaintiff can prove his

prima facie case, the burden of production shifts to the

defendant to establish a legitimate, non-discriminatory

reason for the termination. McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d

668 (1973); Raytheon Co. v Hernandez, 540 U.S. 44, 50

n.3, 124 S. Ct. 513, 157 L. Ed. 2d 357 (2003) (noting that

courts use the McDonnell Douglas methodology for

ADA claims). Once such a reason is proffered, the burden

“reverts to the plaintiff to establish that the employer’s

non-discriminatory rationale is a pretext for intentional

discrimination.” Heiko v. Colombo Sav. Bank, 434 F.3d

249, 258 (4th Cir. 2006).

The element at issue here is whether Plaintiff suffered

an adverse employment action. “An adverse employment

action is a discriminatory act that ‘adversely affect[s] the

terms, conditions, or benefits of the plaintiff’s employment.’“

Chang Lim v. Azar, 310 F. Supp. 3d 588, 601 (D. Md. 2018)

(quoting Holland v. Washington Homes, Inc., 487 F.3d 208,

219 (4th Cir. 2007)). Plaintiff has offered no evidence that

he suffered an adverse employment action. Plaintiff was

not terminated from his position, has not had his wages

or benefits decreased, and to this day retains his job with

Defendant. Plaintiff’s claim of disability discrimination

under the ADA fails as a matter of law.

D.

Gender Discrimination under the West

Virginia Human Rights Act

The West Virginia Supreme Court of Appeals has

held that

27a

Appendix B

[i]n order to make a prima facie case of

employment discrimination under the West

Virginia Human Rights Act, W. Va. Code

§ 5-11-1 et seq. (1979), the plaintiff must offer

proof of the following: (1) That the plaintiff is

a member of a protected class[;] (2) That the

employer made an adverse decision concerning

the plaintiff[;] and] (3) But for the plaintiff’s

protected status, the adverse decision would

not have been made.

Syl. Pt. 3, Conaway v. Eastern Associated Coal Corp., 178

W. Va. 164, 358 S.E.2d 423 (W. Va. 1986); Higginbotham v.

Appalachian Railcar Servs., LLC, 2021 U.S. Dist. LEXIS

56302, 2021 WL 1146395, *2 (S.D. W. Va. Mar. 25, 2021).

Again, Plaintiff’s claim fails due to the lack of an adverse

employment decision.

Plaintiff argues that his five-day suspension for

violating Defendant’s grooming policy constitutes gender

discrimination because a female employee would not have

been suspended for having hair that touched her collar

or covered her ears. This is an interesting argument,

but Plaintiff was never actually suspended. He received

notice of a five-day suspension, but because of his union

membership, he did not serve any of his suspension until

the suspension was reviewed. During this review process,

Defendant updated its grooming standards and the

suspension was reversed. In addition, the suspension was

removed from Plaintiff’s employment record. Plaintiff was

never subject to any consequences of an adverse decision.

He continues to work at UPS and drives the same route

28a

Appendix B

he has always been assigned. Plaintiff’s claim of gender

discrimination under the West Virginia Human Rights

Act fails as a matter of law.

E. Workers’ Compensation Discrimination

under West Virginia Code § 23-5A-1

West Virginia Code § 23-5A-1 provides that “[n]o

employer shall discriminate in any manner against any of

his present or former employees because of such present or

former employee’s receipt of or attempt to receive benefits

under this chapter.” The Supreme Court of Appeals of

West Virginia has held that

[i]n order to make a prima facie case of

discrimination under W. Va. Code, 23-5A-1,

the employee must prove that: (1) an on-thejob injury was sustained; (2) proceedings were

instituted under the Workers’ Compensation

Act, W. Va. Code, 23-1-1, et seq.; and (3) the

filing of a workers’ compensation claim was a

significant factor in the employer’s decision to

discharge or otherwise discriminate against

the employee.

Syl. Pt. 1, Powell v. Wyo. Cablevision, 184 W. Va. 700,

403 S.E.2d 717 (W. Va. 1991). Again, a plaintiff must show

that he has been subject to an adverse employment action.

See W. Va. Pattern Jury Instructions § 308. An adverse

employment action under this section includes termination

and failure to reinstate to the employee to their previous

position. W. Va. Code § 23-5A-3.

29a

Appendix B

Here, Plaintiff was never terminated from his position

and was re-employed in the same position that he held

before he was injured. To the extent that the five-day

suspension could be considered discrimination under this

section, as discussed above, this suspension never came

to pass. This claim fails for lack of any evidence that

Plaintiff suffered any actual adverse impact from filing

this workers’ compensation claim.

F. Retaliation in Violation of the West Virginia

Human Rights Act

West Virginia Code § 5-11-9(7)(C) provides that it

is unlawful for any employer to “[e]ngage in any form of

reprisal or otherwise discriminate against any person

because he or she has opposed any practices or acts

forbidden under this article or because he or she has filed

a complaint . . . .”

In an action to redress an unlawful retaliatory

discharge under the West Virginia Human

Rights Act, W.Va. Code, 5-11-1, et seq., as

amended, the burden is upon the complainant

to prove by a preponderance of the evidence

(1) that the complainant engaged in protected

activity, (2) that complainant’s employer was

aware of the protected activities, (3) that

complainant was subsequently discharged and

(absent other evidence tending to establish a

retaliatory motivation) (4) that complainant’s

discharge followed his or her protected

activities within such period of time that the

court can infer retaliatory motivation.

30a

Appendix B

Syl. Pt. 1, Brammer v. West Va. Human Rights Comm’n,

183 W. Va. 108, 394 S.E.2d 340 (W. Va. 1990). Some courts

have held that actual discharge of employment is not

necessary if a plaintiff can show an adverse employment

action. Larry v. Marion Cnt’y Coal Co., 302 F. Supp. 3d

763, 773-774 (S.D. W. Va. 2018). Regardless of whether

a plaintiff must show discharge or merely an adverse

employment action, I have already discussed at length

that Plaintiff still maintains his job with Defendant and

has not been subject to any adverse employment action.

This claim also fails.

III. Conclusion

Defendant’s Motion for Summary Judgment [ECF

No. 32] is GRANTED. The court DIRECTS the Clerk

to send a copy of this Order to counsel of record and any

unrepresented party.

ENTER: June 2, 2021

/s/ Joseph R. Goodwin

JOSEPH R. GOODWIN

UNITED STATES DISTRICT JUDGE