Thornton v. United Parcel Service, Inc.

United States Court of Appeals
For the First Circuit

No. 08-2162

CHARLES THORNTON,

Plaintiff, Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Gajarsa,* and Lipez, Circuit Judges.

Michael Tumposky, with whom Stephen B. Hrones was on brief,
for Appellant.
Elizabeth A. Kowal, with whom Susan J. Baronoff was on brief,
for Appellee.

November 12, 2009

*
Of the Federal Circuit, sitting by designation.
 GAJARSA, Circuit Judge. Charles Thornton appeals from a

final judgment of the United States District Court for the District

of Massachusetts that was entered upon the court’s grant of summary

judgment to United Parcel Service (“UPS”) on Mr. Thornton’s

disability discrimination claims under the Americans with

Disabilities Act (“ADA”). Because we agree with the district court

that the allegations encompassed by Mr. Thornton’s August 2001

charge filed with the Massachusetts Commission Against

Discrimination (“MCAD”) do not support the ADA claims he presents

here, we affirm.

I.

UPS employs a large number of tractor trailer drivers to

drive established routes between UPS’s regional facilities. Routes

differ and are distinguished from each other in a variety of

meaningful ways. Some routes involve hauling single trailers;

others involve doubles — two trailers hitched together. Some

routes require driving distances less than one hundred fifty miles;

some require driving substantially greater distances. As a result,

drivers of different routes are paid differently. Pursuant to a

collective bargaining agreement with the employees’ union, UPS

permits its drivers to select the routes they will drive on the

basis of seniority using a bidding system.

Mr. Thornton was employed as a driver for UPS from 1968

until he was no longer able to drive in 2002. In the later years

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of his career, Mr. Thornton suffered from various back, shoulder

and arm ailments, which required him to restrict his work. At all

relevant times, Mr. Thornton selected the routes he drove pursuant

to the bidding process described above.

In early 2001, Mr. Thornton suffered a back spasm while

driving his selected route to Buffalo, New York. On August 30,

2001, he filed a claim with the MCAD (hereinafter, the “2001 MCAD

charge”),2 alleging as follows:

I have been employed with United Parcel
Service for approximately thirty-three years.
I suffer from chronic lower back pain. After
being on light duty (driving only), I went for
a check-up exam and received a review from the
doctor saying that my light duty was still
active. UPS interpreted the note (attached)
as saying that I can do anything except
lifting heavy things. They began to give me
more duties as a result of this. On 03/05/01,
I was sent to Buffalo on a duty. While in
Buffalo, because of the extensive driving, I
needed to seek medical attention immediately.
I believe that I was discriminated against
because my disability restrictions were
misinterpreted [sic] and I was doing jobs that
I was not physically able to do.

Mr. Thornton attached to his MCAD complaint a note from Dr. Richard

B. Hawkins, dated January 20, 2001, which recommended the

following:

In terms of work restrictions, it appears that
he has been given permanent work restrictions

2
Pursuant to 42 U.S.C. § 2000e-5(e)(1), federal
discrimination charges may initially be filed either with the Equal
Employment Opportunity Commission or with a state agency empowered
to investigate such charges. The MCAD is such a state agency.

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 of no heavy lifting, such as loading and
unloading of trucks. These restrictions
should stay in position, as they have been
effective in allowing him to continue to work
on a regular basis. The restrictions do not
affect his ability to work full time,
including overtime.

The MCAD ultimately dismissed Mr. Thornton’s complaint,

concluding:

[H]e has not demonstrated that in honoring
[his] route selection, [UPS] subjected him to
an adverse employment action. [Mr. Thornton]
selected the route himself. Not only did
[UPS] leave the choice of route up to
[Mr. Thornton], [UPS] confirmed that [he] was
comfortable with the physical demands imposed
by the route.

Memorandum to File re: Recommendation for Lack of Probable Cause,

Thornton v. UPS, MCAD No. 01132418. Subsequently, as authorized by

statute, see 42 U.S.C. § 2000e-5(f)(1), the U.S. Equal Employment

Opportunity Commission (“EEOC”) provided Mr. Thornton with a

right-to-sue letter on the basis of the MCAD’s dismissal of his

charge. Mr. Thornton filed the present legal action.

In his original district court complaint, Mr. Thornton

asserted violations of the ADA and Massachusetts state law, based

on UPS’s alleged failures to provide him with reasonable

accommodations on several occasions. See Complaint at 9 ¶¶57-58,

Thornton v. United Parcel Serv. Inc., No. 05-cv-10210 (D. Mass.

Feb. 1, 2005). In one such instance, he asserted that UPS had

failed to provide him with a reasonable accommodation in relation

to his selection of the Buffalo, New York route, per his 2001 MCAD

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charge. Subsequently, Mr. Thornton amended his original complaint

to further allege that UPS had engaged in per se disability

discrimination by adhering to an unwritten “100% medical release”

policy. Amended Complaint at 9 ¶¶52-53, Thornton v. United Parcel

Serv. Inc., No. 05-cv-10210 (D. Mass. Feb. 10, 2006). Under that

alleged discrimination policy, employees with medical restrictions

are forced to remain on unpaid leave unless they certify that they

are completely recovered and one hundred percent healthy.

On cross-motions for summary judgment, the district court

held that the ADA requires the exhaustion of all administrative

remedies and that such requirement prevents Mr. Thornton from

pursuing claims that fall outside the scope of his 2001 MCAD

charge; and because of such a limitation, Mr. Thornton’s

allegations could not support a violation of the ADA. Premised

upon these holdings, it granted judgment as a matter of law in

favor of UPS. Moreover, in the absence of any remaining federal

law claims, the district court declined to exercise supplemental

jurisdiction over Mr. Thornton’s state law claims, dismissing them

without prejudice. Upon the entry of final judgment, Mr. Thornton

timely appealed to this court.

The district court had jurisdiction over Mr. Thornton’s

federal ADA claims under 28 U.S.C. § 1331. We have jurisdiction

over Mr. Thornton’s appeal of the district court’s final judgment

under 28 U.S.C. § 1291.

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 II.

On appeal, Mr. Thornton raises two issues: (1) whether

the district court correctly determined that the allegations of

discrimination encompassed by his 2001 MCAD charge place a

limitation on the claims he can present now; and (2) whether the

district court correctly determined that, assuming the 2001 MCAD

complaint was properly limited, his remaining allegations do not

support his claims of violation of the ADA.

We review a district court’s grant of summary judgment

de novo. See Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 855

(1st Cir. 2008). Summary judgment is properly granted where there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48

(1986).

A. Administrative Claim Exhaustion

As an initial matter, it is well-settled that an employee

alleging discrimination must file an administrative claim with the

EEOC or with a parallel state agency before a civil action may be

brought. See Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275,

277 (1st Cir. 1999) (“We hold that the ADA mandates compliance with

the administrative procedures specified under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e, and that, absent

special circumstances . . . such compliance must occur before a

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federal court may entertain a suit that seeks recovery for an

alleged violation of Title I of the ADA.”); see also Jorge v.

Rumsfeld, 404 F.3d 556, 564 (1st Cir. 2005) (“The employee may

commence a civil action against [his] employer if, and only if, the

EEOC has dismissed the administrative complaint or has itself

failed to begin a civil action within 180 days of the original EEOC

filing. . . . [A] plaintiff’s unexcused failure to exhaust

administrative remedies effectively bars the courthouse door.”).

When filed with a state agency, the administrative claim must be

filed within 300 days after the alleged unlawful employment

practice occurred. See 42 U.S.C. § 2000e-5(e)(1); see also Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002).

The submission of an administrative claim serves several

purposes. Most importantly, it gives notice to both the employer

and the agency of an alleged violation and affords an opportunity

to swiftly and informally take any corrective action necessary to

reconcile the violation. See Powers v. Grinnell Corp., 915 F.2d

34, 37 (1st Cir. 1990) (“The administrative charge provides the

agencies with information and an opportunity to eliminate the

alleged unlawful practices through informal methods of

conciliation, and affords formal notice to the employer and

prospective defendant of the charges that have been made against

it.”) (internal quotation marks and citations omitted). “The scope

of the civil complaint is accordingly limited by the charge filed

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with the EEOC and the investigation which can reasonably be

expected to grow out of that charge.” Id. at 38.

Here, Mr. Thornton failed to file charges with the MCAD

or EEOC relating to any alleged continuing acts of disability

discrimination that post-date his 2001 charge. Instead,

Mr. Thornton invokes the “scope of the investigation rule” to

assert that his suit may extend to claims that reasonably would

have been uncovered during the MCAD investigation of, or have been

collaterally related to, his 2001 MCAD charge. Mr. Thornton is

seeking to apply this rule far too broadly.

As this court has explained, “the scope of a civil action

is not determined by the specific language of the charge filed with

the agency, but rather, may encompass acts of discrimination which

the MCAD investigation could reasonably be expected to uncover.”

Davis v. Lucent Technologies, Inc., 251 F.3d 227, 233 (1st Cir.

2001) (internal quotation marks and citations omitted). Moreover,

we have noted that:

According to the so-called scope of the
investigation rule, the exact wording of the
charge of discrimination need not presage with
literary exactitude the judicial pleadings
which may follow. Plaintiffs have been
allowed to allege a claim in a complaint where
the factual statement in [the] written charge
should have alerted the agency to an
alternative basis of discrimination, and
should have been investigated . . . regardless
of whether it was actually investigated.

Id. (internal quotation marks and citation omitted; alterations in
original); see also Powers, 915 F.2d at 38, 39; White v. N.H. Dep’t

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of Corrections, 221 F.3d 254, 263 (1st Cir. 2000). Simply stated,

the scope of the investigation rule permits a district court to

look beyond the four corners of the underlying administrative

charge to consider collateral and alternative bases or acts that

would have been uncovered in a reasonable investigation. See

Lattimore v. Polaroid Corp., 99 F.3d 456, 464-65 (1st Cir. 1996)

(“An investigation is a systematic inquiry into a particular

matter. When it is launched in response to a charge of employment

discrimination, the direction and scope of the investigation are

guided by the allegations contained in the charge.”).

The rule does not, however, provide a plaintiff with an

unlimited license to extend his claim endlessly beyond the bounds

and parameters encompassed by the administrative charge. Indeed,

such an extension of the scope of the investigation rule would

effectively nullify the administrative exhaustion requirement and

convert it into a simple notice requirement that some claim may be

brought, thereby depriving employers of the opportunity to resolve

issues at an early stage and rendering the EEOC (and state-level

equivalents) superfluous. See id. at 464 (“The purpose of

[requiring an employee to file an administrative charge as a

prerequisite to commencing a civil action for employment

discrimination] is to provide the employer with prompt notice of

the claim and to create an opportunity for early conciliation.

That purpose would be frustrated if the employee were permitted to

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allege one thing in the administrative charge and later allege

something entirely different in a subsequent civil action.”)

(internal citations omitted).

Mr. Thornton’s 2001 MCAD charge relates solely to UPS’s

alleged misunderstanding of his medical restrictions, resulting in

a failure to accommodate his disability in relation to a route he

drove to Buffalo, New York. Using these allegations as our guide,

we are in agreement that a reasonable investigation of this charge

would naturally relate to Mr. Thornton’s then-existing medical

restrictions, UPS’s response, if any, to those restrictions, and

the circumstances of Mr. Thornton’s assignment to drive the

Buffalo, New York route. But we see no reason to believe that a

reasonable investigation would have uncovered the various

subsequent, discrete events, actions, and medical restrictions that

Mr. Thornton cites in his district court complaint. Nor would we

expect that a reasonable investigation would have uncovered UPS’s

alleged 100% medical release policy, as Mr. Thornton made no

reference to such a policy. Mr. Thornton’s reliance on the scope

of the investigation rule is thus misplaced.

In the alternative, Mr. Thornton cites to the continuing

violation theory and asserts that his action may extend to all

subsequent claims that are related to UPS’s continued

discriminatory conduct. Again, his arguments fail.

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 This court has recognized two types of continuing

violations: serial violations and systemic violations. Sabree v.

United Bhd. of Carpenters and Joiners, 921 F.2d 396, 400 (1st Cir.

1990). As to serial violations, the Supreme Court has reiterated

that “discrete discriminatory acts are not actionable if time

barred, even when they are related to acts alleged in timely filed

charges.” Morgan, 536 U.S. at 113; see also Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 550 U.S. 618, 639 (2007) (“Morgan is

perfectly clear that when an employee alleges ‘serial violations,’

i.e., a series of actionable wrongs, a timely EEOC charge must be

filed with respect to each discrete alleged violation.”). It is

undisputed here that Mr. Thornton did not file timely charges

related to any alleged act of discrimination other than the single

act identified in his 2001 MCAD charge. His civil action,

therefore, cannot reach these additional acts. See Morgan, 536

U.S. at 114-15.

As to systemic violations, “we have recognized that if a

Title VII violation occurs in the wake of some continuing policy,

itself illegal, then the law does not bar a suit aimed at the

employer’s dogged insistence upon that policy within the

prescriptive period [even if no discrete violation occurs during

the period].” Mack v. Great Atl. and Pac. Tea Co., Inc., 871 F.2d

179, 183 (1st Cir. 1989). But a mere “series of discrete

discriminatory acts motivated by a discriminatory animus cannot be

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a systemic violation.” Megwinoff v. Banco Bilbao Vizcaya, 233 F.3d

73, 76 (1st Cir. 2000). Rather, the alleged discriminatory

violations must arise from some discriminatory policy. See id.

“[G]eneral references to some vague, undefined policy of

discrimination are not . . . sufficient to make out a . . . showing

that a discernible discriminatory policy was in effect.” Mack,

871 F.2d at 184.

In this case, Mr. Thornton’s 2001 MCAD charge does not

allege the existence of a discriminatory 100% medical release

policy. Similarly, his original complaint in the present action

neither cited to nor pled the existence of such a policy. See

Complaint, Thornton v. United Parcel Serv. Inc., No. 05-cv-10210

(D. Mass. Feb. 1, 2005). Indeed, Mr. Thornton first pled the

existence of a discriminatory policy in his amended district court

complaint, in which he alleged simply:

Moreover, this discrimination and failure to
offer reasonable accommodation was due to an
unlawful employment policy requiring employees
to obtain a “100% medical release,” without
restrictions, before being allowed to return
to work from a medical leave.

This “100% medical release” policy forced
Mr. Thornton to bid on jobs outside his
restrictions because U.P.S. refused to
accommodate his medical limitations.

Amended Complaint at 9 ¶¶52-53, Thornton v. United Parcel Serv.

Inc., No. 05-cv-10210 (D. Mass. Feb. 10, 2006). And ultimately, in

opposition to summary judgment, Mr. Thornton proffered only his own

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affidavit to support his allegations. Even then, Mr. Thornton’s

allegations are self-contradictory, as he agrees that UPS has

repeatedly permitted him to return to work with medical

restrictions in place. He also admits that UPS provided him with

an accommodation in the form of assistance with the lifting

necessary for the March 2001 drive to Buffalo, New York.

This court in Megwinoff rejected a similar systemic

violation argument. 233 F.3d at 76. In that case, as here, the

plaintiff alleged a series of discrete acts of discrimination. And

as here, the plaintiff was unable to point to any standing policy

or direct evidence thereof. “Systemic violations have been

recognized rarely, usually in instances of a discriminatory

promotion, hiring, training, or compensation system where direct

evidence, statistics, or other evidence demonstrate the

discriminatory effects of that policy.” Id. Mr. Thornton’s

belated attempt to convert his alleged claims of serial violations

into a claim of a systemic violation is thus not well grounded.

See id. (“[Plaintiff’s] attempt to recast her unsuccessful serial

violation claim into a systemic violation claim fails.”); see also

Jensen v. Frank, 912 F.2d 517, 523 (1st Cir. 1990) (“Absent any

probative evidence of an overarching policy or practice of

discrimination, this argument cannot stay the swing of the summary

judgment ax.”).

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 Accordingly, the district court correctly held that

Mr. Thornton could only pursue his action with respect to alleged

acts of discrimination that occurred in the 300-day window

preceding his 2001 MCAD charge. See Morgan, 536 U.S. at 114

(“Because [the plaintiff] first filed his [administrative] charge

with an appropriate state agency, only those acts that occurred 300

days before . . . the day that [he] filed his charge, are

actionable.”).

B. Disability Discrimination Under the ADA

To establish a prima facie case of disability

discrimination under the ADA, this court has stated that:

a plaintiff must prove: (1) that [he] was
‘disabled’ within the meaning of the ADA; (2)
that [he] was able to perform the essential
functions of [his] job with or without
accommodation; and (3) that [he] was
discharged or adversely affected, in whole or
in part, because of [his] disability.

Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 82 (1st Cir. 2008).

The district court found that Mr. Thornton failed to establish both

prongs (1) and (3). We agree.

1. Disability Under the ADA

A person is “disabled” within the scope of the ADA, if he

has “a physical or mental impairment that substantially limits one

or more of [his] major life activities.” 42 U.S.C. § 12102(1)(A).

The terms “substantially” and “major,” as used in the ADA provision

defining “disability” “need to be interpreted strictly to create a

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demanding standard for qualifying as disabled . . . .” Toyota

Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S.

184, 197 (2002).3 Here, although we are sympathetic to the alleged

impairments from which Mr. Thornton now suffers, we cannot overlook

the fact that Mr. Thornton provided no evidence that he was

substantially limited in any major life activity during the time

period relevant to the act of discrimination alleged in his 2001

MCAD charge. At most, Mr. Thornton has proffered evidence that he

was restricted to some extent in his ability to engage in the major

life activity of working, but even this evidence is thin. And as

he argued to this court, he “never claimed he was actually disabled

in the major life activity of working.” Appellant’s Br. 39.

Mr. Thornton has thus failed to demonstrate that he was disabled

under the ADA during the relevant time period.

2. Adverse Impact Due to Alleged Disability

As to the third prong of the disability discrimination

analysis, it is difficult for us to discern how Mr. Thornton could

3
We note that the ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553, 3553-55 (2008), became effective on
January 1, 2009. That Act expanded the definition of “disability”
from the strict requirements laid out in Toyota. Our conclusion
here, however, is unaffected, as (1) the Act is not retroactive;
and (2) even under a broader definition of disability, Mr. Thornton
has not presented sufficient evidence to survive summary judgment.
See Milholland v. Sumner County Bd. of Educ., 569 F.3d 562, 565
(6th Cir. 2009) (“The ADA Amendments Act of 2008, which became
effective on January 1, 2009, Pub.L. No. 110-325, § 8, 122 Stat.
3553, does not apply retroactively to govern conduct occurring
before the Act became effective.”)

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have been adversely affected because of any disability he may have

experienced, when at all relevant times, he selected his own work

assignments. The two arguments presented by Mr. Thornton on this

point are unpersuasive.

First, Mr. Thornton asserts that UPS’s alleged “100%

medical release” policy is per se discriminatory. See Teamsters v.

United States, 431 U.S. 324, 349 (1977) (stating that

discriminatory practices or policies may establish a prima facie

case of discrimination). As discussed above, however, Mr. Thornton

did not proffer sufficient evidence of such a policy to avoid

summary judgment. Simply put, he has offered no credible evidence

either that a 100% medical release policy was in place during the

relevant time period or that such a policy was applied to him.

Second, Mr. Thornton asserts that UPS failed to make a

reasonable accommodation for his work restrictions during the

relevant time period, such that permitting him to voluntarily drive

the Buffalo route was itself discriminatory. But his work

restrictions in effect at the time (quoted above) permitted

unlimited driving and restricted only lifting. Mr. Thornton offers

no evidence that the Buffalo route required accommodation, that he

requested accommodation in connection with driving that route, or

that less strenuous routes were unavailable to him for his

voluntary selection. And indeed, Mr. Thornton concedes that UPS

did provide an accommodation for the Buffalo route, assigning other

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employees to lift the trailer dollies for him. See Audio Recording

of Oral Argument at 8:15-49 (“The trip to Buffalo was the only

instance in which UPS agreed to provide him with someone to help

him with the heavy lifting.”). Mr. Thornton has thus failed to

demonstrate that he was in any way adversely impacted by his

alleged disability.

III.

Accordingly, the district court’s grant of summary

judgment to UPS on Mr. Thornton’s disability discrimination claims

under the ADA is affirmed.

Affirmed. No costs awarded.

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