No. 04-0502 _________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________________________________ RICHARD A. BOWER, EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ERNEST O. McKNATT, AND JOHN J. OSWALD, Plaintiffs-Respondents, RICHARD A. BOWER, Plaintiff-Intervenor-Respondent, SHARON HERDRICH, LUIS MORALES, AND TIM WIESE, Plaintiffs-Intervenors-Respondents, v. FEDERAL EXPRESS CORPORATION, Defendant-Petitioner. ______________________________________________ On Petition from the United States District Court for the Western District of Tennessee ______________________________________________ Answer of the U.S. Equal Employment Opportunity Commission As Respondent ______________________________________________ ERIC S. DREIBAND General Counsel JOSEPH A. SEINER Attorney LORRAINE C. DAVIS U.S. EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7020 CAROLYN L. WHEELER Washington, DC 20507 Assistant General Counsel (202) 663-4772 TABLE OF CONTENTS Page TABLE OF CONTENTS .......................................... i TABLE OF AUTHORITIES .......................... ii INTRODUCTION ........................................ 1 STATEMENT OF THE CASE................. 2 DISTRICT COURT ORDER ..................................... 7 EEOC'S ANSWER TO PETITION FOR INTERLOCUTORY REVIEW ........................... 9 A. Providing Limited Free Travel on Commercial Airlines to Disabled Employees is a Reasonable Accommodation on its Face.................................... 11 B. The Issue of Undue Hardship Remains Unresolved by the District Court and is not Before This Court ................ 13 CONCLUSION .............................................. 15 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES FEDERAL CASES Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . . .9 Bower v. Fed. Express Corp., 96 F.3d 200 (6th Cir. 1996) . . . . . . . . . . . . . . . . . . . 1, 4 Bower v. Fed. Express Corp., 156 F. Supp. 2d 678 (W.D. Tenn. 2001) . . . . . . . . . . . . . . .4-5 Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775 (6th Cir. 1998) . . . . . . . . . . . . . . . . . . . 12 In re City of Memphis, 293 F.3d 345 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . .9 Johnson v. Burken, 930 F.2d 1202 (7th Cir. 1991) . . . . . . . . . . . . . . . . . . . 10 Kuehner v. Dickinson & Co., 84 F.3d 316 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . .9 Oneida Indian Nation v. County of Oneida, 622 F.2d 624 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . .9 Paschall v. Kan. City Star Co., 605 F.2d 403 (8th Cir. 1979) . . . . . . . . . . . . . . . . . . . 10 U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) . . . . . . . . . . . . . . . . . . . . 11, 12, 15 Vitols v. Citizens Banking Co., 984 F.2d 168 (6th Cir. 1993) . . . . . . . . . . . . . . . . . .9, 10 FEDERAL STATUTES AND REGULATIONS 28 U.S.C. 1292(b) . . . . . . . . . . . . . . . . . . . . . . . . . 8-10 Americans with Disabilities Act, 42 U.S.C. 12101 et seq., . . . . . . .3 42 U.S.C. 12112(b)(5)(A) . . . . . . . . . . . . . . . . . . . . . . . 11 14 C.F.R. 121.583. . . . . . . . . . . . . . . . . . . . . . . . . . . .6 14 C.F.R. 121.585 . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6 29 C.F.R. 1630.2(o)(1)(iii) . . . . . . . . . . . . . . . . . . . . . 11 29 C.F.R. pt. 1630 app. 1630.2(o) . . . . . . . . . . . . . . . . . . 11 INTRODUCTION The Commission agreed below not to oppose an interlocutory appeal on the issue presented by this petition. This petition for interlocutory appeal marks the second time that this litigation is before this Court. See Bower v. Fed. Express Corp., 96 F.3d 200 (6th Cir. 1996) (reversing dismissal of claim under Air Carriers Access Act brought by individual plaintiff prior to consolidation with EEOC case). This nine-year litigation has also included, to date, three summary judgment decisions and a stay while issues were certified to the Federal Aviation Administration. Federal Express Corporation (Federal Express) now asks this Court to review the district court's ruling that disabled employees who were denied the benefit of free air travel are entitled to a reasonable accommodation so long as it does not pose an undue hardship. For the reasons briefly set forth in this Answer, the Commission believes that the district court's decision is unassailable. The issue on which review is sought is narrow and somewhat abstract. Discovery has not yet concluded on the undue hardship issue, which has been reserved for further proceedings in the district court. Some of this additional discovery on the hardship issue might also show that the Commission's proposed accommodation is reasonable under the particular facts of this case, even if it is not reasonable on its face. Thus, even if this Court were to rule in favor of Federal Express in this petition, the holding would not definitively resolve whether this accommodation is required by law. Moreover, if this additional discovery reveals an undue hardship, the issue presented in this petition will likely become moot. And regardless of the outcome of this petition there will be further proceedings in the district court, which may lead to additional appeals following a final judgment. STATEMENT OF THE CASE As a benefit, Federal Express has provided eligible employees free personal travel on its cargo aircraft. Stipulated Fact No. 1 (Attachment B to Federal Express's Petition). These employees were allowed to ride jumpseat, meaning that they could use available seats on cargo flights to travel to destinations worldwide. District Court Order (Oct. 15, 2003), at 2 (Attachment A to Federal Express's Petition). Federal Express incurs a cost to administer the jumpseat program and operates an office to administer this benefit. District Court Record Entry 436 (EEOC's Memorandum in Support of Partial Summary Judgment), Exhibit 1 (Declaration of Richard Bower) 9. Moreover, Federal Express operates a travel office that regularly purchases passenger airline tickets for employees for personal travel at significantly reduced rates through negotiated agreements with commercial airlines. Id. 5, 7. Federal Express has sold commercial airline tickets to employees for as little as fifty dollars. District Court Record Entry 443 (Memorandum of Plaintiffs Herdrich, Morales and Weise in Support of Plaintiffs' Motion for Partial Summary Judgment), Exhibit C (Declaration of Sharon Herdrich attached to deposition) 4; Exhibit G (Declaration of Luis Morales attached to deposition) 4. Some of Federal Express's disabled employees were not allowed to ride jumpseat because of their disabilities. Plaintiff Richard Bower was born with spina bifida, requiring him to wear a leg brace and use crutches. District Court Order (Oct. 15, 2003), at 2. Plaintiffs Sharon Herdrich, Luis Morales, and Tim Weise are deaf. Id. at 3. It is undisputed for purposes of this petition that the plaintiffs in this action are qualified individuals with disabilities. All of these plaintiffs are employees of Federal Express who were ineligible for the benefit of free personal air travel because their disabilities prevented them from satisfying the company's policy regulating jumpseat travel. Id. at 2-4. The Equal Employment Opportunity Commission (EEOC or Commission) filed this action on September 18, 1995. The Commission alleges that Federal Express violated Title I of the Americans with Disabilities Act (ADA), 42 U.S.C.  12101 et seq., by denying Bower and other qualified employees with disabilities free personal air travel as a benefit of employment. The EEOC's case was subsequently consolidated with a number of similar cases, including Bower v. Federal Express Corporation. The Bower case had previously been remanded by this Court. See Bower, 96 F.3d at 211. Herdrich, Morales, Weise and Bower intervened in the action. On March 23, 1998, the district court certified to the Federal Aviation Administration (FAA) the question of whether the FAA's safety regulations apply to Federal Express's jumpseat program. District Court Order (Oct. 15, 2003), at 4. The court stayed the case pending the FAA's opinion on the matter. Id. The defendant moved for summary judgment after the FAA issued a letter indicating that all persons traveling in the jumpseats of certain aircraft models must meet the same standards as persons who travel in "exit row" seats on commercial flights. Bower v. Fed. Express Corp., 156 F. Supp. 2d 678, 686-87 (W.D. Tenn. 2001). On August 21, 2001, the district court denied Federal Express's motion for summary judgment. Id. at 690. The district court stated that, in accordance with FAA regulations, Federal Express was not required to provide the reasonable accommodation of modifying its policies to allow disabled individuals to ride in jumpseats. Id. at 686-87. At least one of the disabled employees maintains that he can meet the FAA's safety requirements, however, and Federal Express notes that this issue will involve further proceedings in the district court. See Federal Express's Petition at 8 n.3. Other disabled employees may also ultimately be able to show that they satisfy the FAA's safety requirements. As defendant concedes, the entire class of affected individuals has not yet been identified, and discovery on this issue is still proceeding. See Federal Express's Petition at 8. None of these issues are within the scope of this interlocutory petition, nor would these questions be ripe for appeal until final judgment is entered. In its August 21, 2001 order, however, the court noted that other reasonable accommodations may be available, and it therefore denied summary judgment. The parties subsequently agreed to submit cross-motions for partial summary judgment on the following issue: Whether Federal Express, as an all-cargo air carrier restricting its benefit of free space-available jumpseat personal travel to only those employees who can meet safety-related performance standards in compliance with federal law and regulations, is required by the ADA to provide an alternative benefit to those employees who meet the ADA's definition of a qualified individual with a disability but cannot meet the standards of 14 C.F.R. 121.585 by reason of their disabilities. Order on the Parties' Agreement to File Cross Motions for Partial Summary Judgment (Attachment B to Federal Express's Petition). The parties further stipulated for purposes of the motion to the following facts: 1) As a benefit, Federal Express Corporation has allowed eligible employees to use the privilege of free personal jumpseat travel on its cargo aircraft within policy guidelines, and subject to federal law and regulations, on a space available basis. Since September 11, 2001, Federal Express Corporation has suspended the privilege. 2) The Federal Express Corporation jumpseat program must comply with the safety requirements contained in Federal Aviation Regulations, including 14 C.F.R. 121.583 and .585, by excluding employees who cannot meet the safety-related performance requirements imposed by the regulations. 3) Some employees are qualified persons with disabilities under the Americans With Disabilities Act who have been excluded from participation in the jumpseat program due to their inability to meet one or more of the performance requirements of 14 C.F.R. 121.585 by reason of their disabilities. 4) It would be an undue burden on Federal Express Corporation to reconfigure its cargo aircraft to enable those employees referred to in paragraph 3, above, to meet the performance requirements of 14 C.F.R. 121.585. Id. The sole question presented for consideration by the district court, therefore, was whether providing alternative travel to disabled individuals was a reasonable accommodation. The court specifically stated that the issue of whether Federal Express could provide the accommodation without undue hardship was "in dispute and deferred." Id. DISTRICT COURT ORDER On October 15, 2003, the district court granted the Commission's motion for partial summary judgment and denied Federal Express's motion on this issue. District Court Order, at 12. The court concluded that the company's jumpseat program "constitutes a fringe benefit covered by the ADA." Id. at 8-9. Thus, the court determined, Federal Express "must consider reasonable accommodations for Plaintiffs with regard to all of its fringe benefits, including the jumpseat privilege," so long as they do not pose an undue hardship. Id. at 9. Here, the EEOC has proposed that as a reasonable accommodation Federal Express provide limited free personal air travel to disabled employees who are disqualified from the jumpseat program. Id. at 9-10. The court held that "[o]n its face, Plaintiffs' [accommodation] request seems reasonable." Id. at 10. In reaching this conclusion, the district court noted that the costs of the accommodation do not facially outweigh their benefits: The ADA was created to equalize job opportunities and privileges, including employment benefits. A commercial airline travel program clearly would be related to the jumpseat program. While FedEx would incur a cost in paying its commercial airline partners to accommodate Plaintiffs, it would be free to limit the number of trips. FedEx already incurs costs to administer the jumpseat travel program and its appeals process. FedEx would seem, therefore, capable of also incurring some costs in order to give a similar benefit to the ADA qualified individuals. Id. The district court further rejected Federal Express's argument that its compliance with FAA regulations was a complete defense to its failure to reasonably accommodate the plaintiffs. Id. at 10-11. The court noted that nothing before it "shows that, under federal aviation regulations, Plaintiffs are not allowed to ride on commercial airlines" and these guidelines "are not a defense to FedEx's responsibility to accommodate its ADA qualified employees." Id. at 11. The issue of whether or not it would be an undue hardship for Federal Express to provide comparable free personal air travel on commercial passenger aircraft as a reasonable accommodation was specifically left open by the district court. Id. The court will decide the issue after further discovery. On February 18, 2004, the district court entered an order granting Federal Express permission to file an interlocutory appeal of the court's October 15, 2003 order. On February 26, 2004, the district court recertified the order pursuant to Federal Express's motion. See Attachment C to Federal Express's Petition. On March 11, 2004, Federal Express petitioned this Court to review the certified order pursuant to 28 U.S.C. 1292(b). EEOC'S ANSWER TO PETITION FOR INTERLOCUTORY REVIEW A district court may certify an order for interlocutory appeal pursuant to 28 U.S.C. 1292(b) only if "(1) the order involves a controlling question of law, (2) a substantial ground for difference of opinion exists regarding the correctness of the decision, and (3) an immediate appeal may materially advance the ultimate termination of the litigation." In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). This Court has an independent responsibility to determine whether the statutory prerequisites have been met. See Kuehner v. Dickinson & Co., 84 F.3d 316, 318-19 (9th Cir. 1996) ("we have an independent duty [in appeals arising under 28 U.S.C. 1292(b)] to confirm that our jurisdiction is proper"); see also Archie v. Lanier, 95 F.3d 438, 442 (6th Cir. 1996) (court of appeals does not have jurisdiction to consider discretionary appeals under 1292(b) that do not meet the statutory requirements set forth in the statute); Oneida Indian Nation v. County of Oneida, 622 F.2d 624, 628 (2d Cir. 1980) (review improvidently granted where further proceedings in district court may make it unnecessary to decide certified issue). Once an order is properly certified, this Court may exercise unfettered discretion in choosing whether or not to accept a certified order for immediate review. See Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993); Johnson v. Burken, 930 F.2d 1202, 1206 (7th Cir. 1991) ("our permission to take [a 28 U.S.C. 1292(b)] appeal is required and may be withheld in our discretion, without even a statement of reasons"). "Review under 1292(b) should be sparingly granted and then only in exceptional cases." Vitols, 984 F.2d at 170; see also Paschall v. Kan. City Star Co., 605 F.2d 403, 407 (8th Cir. 1979) (interlocutory review not appropriate when "the record must be more fully developed so that we can make a precise decision upon a precise record not an abstract answer to an abstract question.") The Commission stipulated below that it would not contest interlocutory review of the order certified in this case, with the understanding that further discovery remains on the question of undue hardship. This Answer briefly summarizes, however, why the court's decision was inherently correct as a matter of law, and what issues are not before this Court in this interlocutory appeal. If this Court exercises its broad discretion to grant interlocutory review, the Commission will present a more fully developed argument supporting the district court's decision. A. Providing Limited Free Travel on Commercial Airlines to Disabled Employees is a Reasonable Accommodation on its Face. The ADA requires employers to make "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." 42 U.S.C 12112(b)(5)(A). The duty to reasonably accommodate extends to accommodations that allow the individual with a disability to "enjoy equal benefits and privileges of employment." 29 C.F.R. 1630.2(o)(1)(iii); 29 C.F.R. pt. 1630 app. 1630.2(o). Thus, because Federal Express affords its employees the benefit of free personal air travel through its jumpseat program, it must reasonably accommodate those employees it denied this benefit because of their disabilities. This accommodation must allow these disabled workers to enjoy equal benefits and privileges of employment as are enjoyed by Federal Express's non-disabled employees. Id. When seeking a reasonable accommodation, the EEOC need show only that the accommodation "seems reasonable on its face, i.e., ordinarily or in the run of cases." U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002) (so holding in a case involving a transfer as a requested accommodation that would have conflicted with the operation of seniority rules in making job assignments). This initial showing "need not be onerous," and, to make out a prima facie case, the employee must "merely suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits." Cehrs v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d 775, 781 (6th Cir. 1998) (quotation marks omitted). Once the EEOC meets this burden, the employer must demonstrate that the accommodation would cause an undue hardship. Barnett, 535 U.S. at 402. Moreover, even if the Commission cannot show that the accommodation is reasonable on its face, it "remains free to show that special circumstances warrant a finding that . . . the requested 'accommodation' is 'reasonable' on the particular facts." Id. at 405. In this case, the Commission has suggested a plausible accommodation as an alternative to riding jumpseat: limited free travel on commercial airlines. This accommodation seems particularly reasonable given that Federal Express (1) already incurs a cost to administer the jumpseat program, (2) operates an office to administer this benefit, (3) has agreements with commercial airlines to purchase tickets at highly discounted rates, (4) regularly purchases passenger airline tickets for employees for personal travel, and (5) has sold commercial tickets to employees for as little as fifty dollars. Because the jumpseat program itself involves significant costs and Federal Express can purchase commercial airline tickets at significantly reduced rates, the cost of providing disabled employees limited free travel on commercial airlines does not clearly outweigh the benefit to these employees. In fact, the cost of providing this travel need not even exceed the cost of providing free jumpseat travel to other, non-disabled workers. Moreover, the number of tickets each disabled employee would be entitled to remains an open question, and any remedy designed by the district court would have to be tailored to assure that it does not create an undue hardship for Federal Express. See District Court Order (Oct. 15, 2003), at 10 ("While FedEx would incur a cost in paying its commercial airline partners to accommodate Plaintiffs, it would be free to limit the number of trips."). But in any event, the district court was correct in holding that the accommodation request "seems reasonable" at this stage. B. The Issue of Undue Hardship Remains Unresolved by the District Court and is not Before This Court. The ultimate question to be resolved in this case is whether the ADA requires Federal Express to provide the EEOC's proposed accommodation to its disabled employees. The district court answered half of this question by ruling that the proposed accommodation was "reasonable." But the ADA also requires that the accommodation not pose an undue hardship to Federal Express. The district court has not yet decided this issue, because the record is not yet sufficiently developed. Discovery remains open on the issue of undue harship while this petition is pending. Thus, the question of whether the EEOC's proposed accommodation poses an undue hardship to Federal Express will be ripe for appeal only at the conclusion of proceedings before the district court. Indeed, should the district court decide the undue-hardship question in favor of Federal Express while this appeal is pending, it would likely render the appeal moot, because if an accommodation poses an undue hardship, an employer need not offer it regardless of its reasonableness. Moreover, even if this Court were to rule that the EEOC's proposed accommodation is not reasonable on its face, further discovery might allow the EEOC to establish that the accommodation is reasonable under the "particular facts" of this case. See Barnett, 535 U.S. at 405. Thus, even if this Court were to grant this petition and reverse entry of summary judgment for the EEOC, further proceedings in the district court might nonetheless establish that the accommodation was reasonable. Regardless of how this Court rules on this petition, then, there will likely be a subsequent appeal on whether the ADA requires this accommodation albeit with a more fully developed factual record. CONCLUSION The Commission does not oppose interlocutory review of whether the EEOC's proposed accommodation is reasonable on its face, with the understanding that the issue of undue hardship is not yet ripe for decision. However, as the Commission will explain in more detail if this petition is granted, it strongly believes that the district court reached the correct result in holding that the proposed accommodation is reasonable on its face. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel _____________________________ JOSEPH A. SEINER Attorney U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W., Room 7020 Washington, DC 20507 (202) 663-4772 CERTIFICATE OF SERVICE I, Joseph A. Seiner, hereby certify that on the 18th day of March, 2004, I caused copies of (1) the attached Answer and (2) my appearance form to be sent overnight via federal express to: Office of the Clerk Colby S. Morgan Carolyn Howard U.S. Court of Appeals Federal Express Corp. 1407 Union Avenue for the Sixth Circuit Legal Department Suite 807 532 Potter Stewart 3620 Hacks Cross Road Memphis, TN 38104 U.S. Courthouse Building B, 3rd Floor 100 E. Fifth Street Memphis, TN 38125 Cincinnati, OH 45202-3988 J. Kendrick Kresse Richard Fields Connie Westbrook California Center for Law The Wright Carriage House 2504 Arthur Road and the Deaf 688 Jefferson Avenue Memphis, TN 38138 14895 E. 14th Street Memphis, TN 38105 Suite 220 San Leandro, CA 94578-2926 __________________________ Joseph A. Seiner EEOC / Office of General Counsel 1801 L Street, N.W., Room 7020 Washington, D.C. 20507 (202) 663-4772 March 18, 2004