Five years ago, truck driver Thomas Diebold was offered work on a Kansas City, Kan., dock when a minor stroke kept him off the road for a while.
It meant earning 10 percent less than other dock workers, but only because Diebold had a medical issue. He’d have qualified for the same pay as other dock workers had he been sidelined for any other reason — even driving while intoxicated.
Diebold, now retired, was a Teamster and drove for UPS Ground Freight. He complained to the U.S. Equal Employment Opportunity Commission.
While investigating his complaint, government attorneys learned that UPS had inserted its policy into a new contract with the Teamsters union, signed in early 2014, said Grant Doty, EEOC trial attorney.
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The EEOC filed a disability discrimination lawsuit against UPS and the Teamsters’ national negotiating committee.
UPS and the union have fought the lawsuit for years. This was part of their negotiated contract, UPS argued in court.
In court filings, UPS attorneys pointed out that the contract allows the driver sidelined by medical reasons to replace, or “bump,” one of the dock workers. It ensured he’d have work, though they acknowledged it would be at the 90 percent pay rate.
In contrast, a driver sidelined for a DUI or other non-medical reasons couldn’t bump anyone. He’d earn 100 percent pay but might not get any work if the dock didn’t need additional help.
“That’s not the point. That doesn’t make it legal,” Doty said.
A federal judge has agreed.
“There are no circumstances under which paying a disabled driver 90 percent of what others earn is legal under” the Americans with Disabilities Act, Chief U.S. District Judge Julie A. Robinson said in a Nov. 1 order.
Robinson was ruling on UPS’ effort to overturn her previous decision in the case. It had prohibited the company from shaving pay of disabled drivers it transfers to other jobs and banned UPS and the Teamsters from negotiating labor deals that included such terms.
She has not yet ruled on Diebold’s complaint about his specific case.
UPS is appealing the case to the 10th Circuit Court of Appeals.
In an emailed statement, UPS said it has “robust policies regarding the accommodation of disabilities under the Americans with Disabilities Act” and state laws. “While UPS disagrees with the EEOC’s position and the Court’s opinion, the company has nonetheless agreed voluntarily to modify its practice to address the EEOC’s or the Court’s concern.”
Officials for the Teamsters negotiating committee declined to comment.
Robinson’s ruling came the same day that UPS Freight began to “empty” its network of freight. It has been refusing new cargo from commercial shippers in anticipation of a Teamsters strike.
Workers rejected one contract offer. Any disruption is not expected to interfere with UPS consumer package deliveries.
Continued negotiations have led to a vote Friday, Nov. 9, on what UPS calls its “last, best and final” offer to the union. A 30-day extension of the current agreement expires Monday, and the union has told members there would be a strike if they reject the offer.
Mark Davis | 816-234-4372, @mdkcstar