United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Mark Howard, Plaintiff: Andrew Rozynski, Eric Baum, LEAD ATTORNEYS, Sheldon G. Karasik, Simon, Eisenberg & Baum, LLP, New York, NY.
For United Parcel Service, Inc., Gary Cashin, Defendants: Michael T. Bissinger, PRO HAC VICE, Day Pitney LLP, New York, NY.
AMENDEDOPINION & ORDER
KATHERINE B. FORREST, United States District Judge.
Mark Howard commenced this action against his employer, United Parcel Service, Inc. (" UPS" ) on July 11, 2012. (ECF No. 1.) Howard has been deaf since birth. He has been employed by UPS in various capacities since May 1999. He alleges that during the course of his employment, and because of his inability to hear, he was subjected to discrimination in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § § 12112-17, and the New York State Human Rights Law (" NYSHRL" ), N.Y. Exec. Law § 290 et seq. In particular, he alleges that in 2010 he was denied reasonable accommodations in connection with a certification course required for becoming a UPS driver. Following full discovery, UPS now moves for summary judgment as to all claims.
For the reasons set forth below, the Court GRANTS defendant UPS's motion in its entirety.
I. FACTUAL BACKGROUND
Plaintiff Howard is hearing impaired. (DRSOF ¶ 1.) He was first hired by UPS
in 1999. (DRSOF ¶ 2.) At the time that he was hired, UPS knew that he was hearing impaired. (PRSOF ¶ 2.) At UPS he is part of a unionized workforce and represented by the International Brotherhood of Teamsters, Local Union 177 (the " Union" .) (DRSOF ¶ 3.) The terms and conditions of employment for Union employees at UPS are set forth in a collective bargaining agreement (" CBA" ). (DRSOF ¶ 3.)
Plaintiff held several part-time positions after his hiring by UPS, and he became a part-time car washer in or about 2000. (DRSOF ¶ 4.) He became a fulltime employee in Parsippany, New Jersey in 2006. (DRSOF ¶ 5.) Plaintiff later decided that he did not want the job in Parsippany due to the longer commute and returned to his part-time car washer position. (DRSOF ¶ 6.)
In the fall of 2009, plaintiff sought a position as a full-time driver. (DRSOF ¶ 19.) To qualify as a driver of a UPS vehicle in excess of 10,000 pounds, employees must obtain a " DOT card." (DRSOF ¶ 11.) A DOT card is issued pursuant to federal regulation and certifies that an individual is physically qualified to operate commercial motor vehicles. See 49 C.F.R. § 391.41(a)(1)(i); (DRSOF ¶ 25). At the time that plaintiff first sought to become a driver with UPS (and at the time that he later did become a driver with UPS), such certification included confirmation that an individual could hear at certain levels. (See DRSOF ¶ 25.)
To become a driver with UPS, an employee must obtain a DOT card, a position must be available, the employee must have the seniority under the CBA to apply for the position, and the employee must seek approval for a transfer from UPS management. (DRSOF ¶ ¶ 11-12.) If an employee obtains management approval, he or she is placed in a six-day mandatory Driver Training Class (" DTC" ) run by UPS. (DRSOF ¶ ¶ 13-14.) An employee must pass the DTC final examination-which includes both written and practical components-in order to qualify for a UPS driver position. (See DRSOF ¶ ¶ 14, 68.) Class participants must attend all six days of classes. (DRSOF ¶ 57.)
UPS has written essential job functions for the package car driver position. (DRSOF ¶ 17.) Two of the essential job functions are:
● Have sufficient ability to communicate, through sight, hearing, and/or otherwise, to perform assigned tasks and maintain proper job safety conditions; and
● demonstrate cognitive ability to:
○ follow directions and work routines;
○ work independently with appropriate judgment;
○ exhibit spatial awareness;
○ read words and numbers;
○ concentrate, memorize, and recall;
○ identify logical connections and determine sequence of response;
○ process up to 5 steps ahead.
(DRSOF ¶ 18.) UPS generally requires its full-time drivers to be able to communicate effectively with customers, the public, and law enforcement. (DRSOF ¶ 40.)
Plaintiff sought and, after an initial failure as a result of the hearing test, obtained a DOT card in 2009. (DRSOF ¶ ¶ 20-21, 28.) In 2010, a driver position became available. (DRSOF ¶ 29.) UPS management approved plaintiffs application for the job and enrolled him in a UPS DTC course scheduled for April 2010. (DRSOF ¶ 32.) Prior to starting the course, plaintiff requested that UPS provide him with the services of an American Sign Language (" ASL" ) interpreter during the classroom portion of the training. (DRSOF ¶ 33.) UPS has an accommodation process that, in general, involves communications between the employee, the Union (if a Union employee is involved) and management. (DRSOF ¶ 34.) UPS management discussed plaintiff's accommodation request with both the plaintiff and his Union. (DRSOF¶ 35.) UPS also reviewed and discussed the request internally. (DRSOF ¶ 36.) UPS considered a " hearing impaired protocol" that had been previously developed as part of a settlement. (DRSOF ¶ 37.) UPS notified plaintiff that they would not provide him with an ASL interpreter prior to the beginning of the DTC on April 5, 2010. (DRSOF ¶ 41.) Although UPS did not provide an ASL interpreter, it did offer plaintiff other accommodations including:
● a seat in the front of the class 3-5 feet away from the instructor;
● asking the instructor to face the class whenever possible while speaking;
● having questions by class members repeated; and
● allowing plaintiff additional time to take the ...