Bower v. Federal Exp. Corp., 94-2862.

156 F.Supp.2d 678

Richard A. BOWER, Equal Employment Opportunity Commission, Ernest O. McKnatt and John J. Oswald, Plaintiffs Richard A. Bower, Plaintiff-Intervenor Sharon Herdrich, Luis Morales, and Tim Weise, Plaintiff-Intervenors, v. FEDERAL EXPRESS CORPORATION, Defendant.

No. 94-2862.

United States District Court, W.D. Tennessee, Western Division.

August 21, 2001.

COPYRIGHT MATERIAL OMITTED

Connie Westbrook, Law Office of Connie Westbrook, Memphis, TN, Carolyn Howard, Norwood, Howard & Atchley, Memphis, TN, for Richard A. Bower.

Clare O. Shields, David M. Rudolph, Richard M. Carter, Martin Tate Morrow & Marston, Memphis, TN, Brian Stacy Miller, Martin Tate Morrow & Marston, Memphis, TN, for Ernest O. McKnatt.

Jeana Littrell, Memphis, TN, Carolyn Howard, Norwood, Howard & Atchley, Memphis, TN, for John J. Oswald.

Steven W. Dills, Thomas J. Borek, Memphis, TN, Draga G. Anthony, Memphis, TN, for Equal Employment Opportunity Commission.

Virginia Gandy Connors, Colby S. Morgan, Jr., Memphis, TN, Karen E. Dooley, Steven H. Taylor, Memphis, TN, Rosemary Globetti, Memphis, TN, Thomas L. Henderson, James R. Mulroy, II, Lewis, Fisher, Henderson & Claxton, Memphis, TN, for Federal Express Corporation.

Callan G. Carter, J. Kendrick Kresse, San Leandro, CA, Vicki Laden, Boxer & Gerson, Oakland, CA, Richard B. Fields, Law Office of Richard B. Fields, Memphis, TN, for Sharon Herdrich, Luis Morales, and Tim Weise.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING THE ADA CLAIM; DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT REGARDING THE ACAA CLAIM; AND GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS REGARDING THE THDA CLAIM

DONALD, District Judge.

Defendant, Federal Express Corporation ("FedEx"), filed a motion under Federal Rule of Civil Procedure 12(c) for judgment on the pleadings, or in the alternative, for summary judgment in its case against Plaintiffs, Richard Bower ("Bower") and the Equal Employment Opportunity Commission ("EEOC"); and Plaintiffs-Intervenors, Sharon Herdrich ("Herdrich"), Luis Morales ("Morales"), and Tim Weise ("Weise"). Plaintiffs assert claims against Defendant for violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 - 12213 (1994 & Supp.1998); the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1994 & Supp.1998); the Air Carriers Access Act of 1986 ("ACAA"), 49 U.S.C. § 41705 (1994 & Supp. IV 1998); and the Tennessee Handicap Discrimination Act ("THDA"), Tenn.Code Ann. § 8-50-103 (1993). The Court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the Court (1) denies Defendant's motion for summary judgment regarding Plaintiffs' ADA claims; (2) denies Defendant's motion for summary judgment regarding Plaintiffs' ACAA claims; and (3) grants Defendant's motion for judgment on the pleadings regarding Plaintiffs' claims under the THDA.

I. Background Facts¹

Defendant, a Federal Aviation Administration ("FAA") certified all-cargo carrier, provides its employees the fringe benefit of riding "jumpseat." Riding "jumpseat" means that Defendant permits its employees to use the limited passenger seating available on its cargo flights to travel to destinations within the United States and worldwide. Defendant currently employs five types of aircraft, B-727s, A300s, A310s, DC-10s, and MD-11s, with a varying number of available passenger seats, ranging from two to eight. (Camper Affidavit). Until 1998, Defendant's fleet also included 747s, which held twenty-one passenger seats. (Camper Affidavit). Defendant does not have ramps or terminals open to the general public and does not issue tickets to its employees riding jumpseat. Defendant does, however, maintain a "flight release" roster, which lists those employees who are authorized to ride jumpseat on particular flights. Defendant requires its employees seeking to ride jumpseat to take a "jumpseat skills test."

Bower was born with spina bifida, which requires him to use crutches and wear leg braces. He is disabled within the meaning of the Rehabilitation Act and the ADA. Bower began working for Defendant on August 7, 1989 and became a senior global operations control specialist. The job responsibilities of a senior global operations control specialist includes dispatching aircraft over assigned routes, insuring the orderly movement of freight on Defendant's aircraft, and arranging the ground transportation of freight.

Defendant never permitted Bower to ride jumpseat on one of its aircraft, despite Bower's contention that he was permitted to ride jumpseat by other cargo carriers that he has worked for in the past. Defendant allegedly also refused Bower's requests to make reasonable accommodations for his disability concerning the jumpseat privilege. Bower is an FAA-certified aircraft dispatcher and asserts that as a certified dispatcher, he must ride jumpseat a specified number of hours each year to maintain his license.²

On October 24, 1994, Bower filed a complaint, alleging violations of the ACAA, the Rehabilitation Act, and the THDA.³ According to Bower, Defendant's policy of denying him the privilege of riding jumpseat caused him to suffer lost wages; to incur expenses for air travel; and to suffer emotional pain, inconvenience, mental anguish, humiliation, embarrassment, and the loss of the enjoyment of life. Bower seeks declaratory relief, injunctive relief, actual damages, compensatory damages, punitive damages, attorney's fees, and any other relief that the Court deems appropriate.

On December 2, 1994, Defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Defendant argued that, as an all-cargo carrier, it was not subject to the ACAA, and that the Rehabilitation Act did not provide a private cause of action. On March 6, 1995, the district court granted Defendant's motion to dismiss. The district court found that the Rehabilitation Act and its accompanying regulations establish an administrative complaint system for individuals claiming discrimination based on handicap and does not provide a private cause of action in federal district court. Regarding the ACAA claim, the district court concluded that it does not apply to all-cargo carriers such as Defendant. In addition, because the district court dismissed the two federal claims, it declined to exercise supplemental jurisdiction over the remaining State law claims.

On April 5, 1995, Bower appealed the decision to the Sixth Circuit. Finding the ACAA to cover all-cargo carriers such as Defendant, the Sixth Circuit reversed the district court's decision and remanded the case for further proceedings. The Sixth Circuit did not reverse the district court's decision dismissing Bower's claims under the Rehabilitation Act.

On September 25, 1995, the EEOC filed a suit against Defendant on behalf of Bower and similarly-situated individuals, alleging violations of the ADA.⁴ Bower subsequently moved to intervene in the EEOC's case, and he filed a complaint with an amendment. Both cases were consolidated in December 1996.⁵ Further consolidation occurred on August 13, 1997, when the district court consolidated the instant case with McKnatt v. Federal Express Corp.⁶ and Oswald v. Federal Express Corp.,⁷ two cases also involving the privilege of riding jumpseat.⁸

On March 6, 1997, asserting an "unconditional right intervene ... pursuant to Fed.R.Civ.P. 24(a)(1), 42 U.S.C. § 12117, and 42 U.S.C. § 2000e-5(f)(1)," Herdrich, Morales, and Weise filed a motion to intervene in the instant case. Herdrich, Morales, and Weise are deaf employees of Defendant who were denied the privilege of riding jumpseat. These three plaintiffs also asserted, under Federal Rule of Civil Procedure 23, the rights of a class of unnamed deaf FedEx employees.

Herdrich, a resident of California, began working as a cargo handler for Defendant on January 18, 1988. She allegedly took and passed the jumpseat skills test, but was denied jumpseat privileges because she is hearing-impaired. Defendant allegedly neither provided Herdrich with any substitute benefits nor responded to her suggestions for reasonable accommodation.⁹ Morales, a resident of California and disabled within the meaning of 42 U.S.C. § 12102(2), began working as a checker/sorter for Defendant on March 3, 1990. Morales was deterred from taking the jumpseat certification test by the preamble to the test and by knowledge of Defendant's policy of denying deaf employees the use of jumpseat travel. Weise, a resident of California and disabled within the meaning of 42 U.S.C. § 12102(2), began working as an equipment operator for Defendant on June 1990. Weise was deterred from taking the jumpseat certification test by the preamble to the test and by knowledge of Defendant's policy denying deaf employees the use of jumpseat travel. Weise asked if he could fly jumpseat if accompanied by a non-hearing-impaired relative, but Defendant refused his request.

Defendant filed its first motion for summary judgment on November 21, 1997, arguing that the Federal Aviation Act and its regulations prohibit Defendant from allowing Plaintiffs to use its jumpseats and that the ADA does not require an employer to make reasonable accommodations for benefits and privileges of employment. Less than three months later, Defendant filed a second motion to dismiss, or in the alternative for summary judgment as to Bower's claims under the ACAA.

On March 23, 1998, the district court certified a number of issues to the FAA, specifically, whether 14 C.F.R. § 121.583 and § 121.585 were applicable to Defendant's jumpseat program. All proceedings were stayed pending resolution of the aforementioned issues by the FAA.

On September 16, 1998, the district court denied Defendant's November 21, 1997 motion for summary judgment and Defendant's February 6, 1998 motion for judgment on the pleadings or in the alternative summary judgment. Both motions were denied without prejudice, permitting Defendant...