Banks v. United Parcel Service

1
UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
JAY BANKS,
Plaintiff,
v.
UNITED PARCEL SERVICE,
Defendant.
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR JUDGMENT ON THE
PLEADINGS IN PART
Case No. 4:23-cv-00067-AMA-PK
District Judge Ann Marie McIff Allen
Magistrate Judge Paul Kohler
This matter comes before the Court on a Motion for Judgment on the Pleadings in Part
filed by Defendant United Parcel Service.1 For the reasons discussed below, the Court grants
Defendant’s Motion in part and denies Defendant’s Motion in part.
BACKGROUND2
Plaintiff Jay Banks began working for Defendant United Parcel Service (“UPS”) as a full-
time package car driver in October 2000.3 As a package car driver, Mr. Banks spent
1 ECF No. 47, filed June 24, 2025.
2 The facts below are, unless otherwise stated, taken from Plaintiff’s Third Amended Complaint
(“TAC”). ECF No. 41. This Complaint appears to be mistitled, as it was filed pursuant to the
Court’s granting leave for Plaintiff to file a Second Amended Complaint. ECF No. 40.
Furthermore, a review of the docket reveals that the complaint previously operative was the
amended complaint, ECF No. 14, and thus this Complaint is only the second amended complaint.
However, to avoid confusion and to conform with how the Parties have referenced the Complaint
in the briefing for the instant Motion, the Court will refer to the Complaint in accordance with its
title as the TAC. For the purposes of the Motion at issue, the Court will treat the facts alleged in
the TAC as true.
3 ECF No. 41 ¶ 11.
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approximately eight to eleven hours per day in his UPS truck.4 Mr. Banks worked out of the UPS
center in West Valley City, Utah from the commencement of his employment to February 2016,5
after which, in April 2016, he transferred to the UPS center in Moab, Utah.6 Around two years
later, in May 2018, Mr. Banks transferred to the UPS center in Casa Grande, Arizona.7 At the
time he began working in Casa Grande, Mr. Banks was earning approximately thirty-five dollars
per hour.8
During the period of time relevant to the instant action, the employment relationship
between Mr. Banks and UPS was governed by a collective bargaining agreement, the 2018-2023
National Master UPS Agreement (the “Master CBA”),9 as well as a supplemental collective
bargaining agreement, the 2018-2023 Western Region of Teamsters UPS Supplemental
Agreement (“Supplemental CBA”).10 The Supplemental CBA provides that for package car
drivers,
[t]he regular scheduled work day shall consist of eight (8) consecutive hours, with an
established start time, excluding a non paid meal period of either one half (1/2) or one (1)
hour as provided in each respective area or local Addendum or Rider. The regular
scheduled work week shall consist of five (5) consecutive eight (8) hour days Monday
through Friday or Tuesday through Saturday . . .11
4 Id.
5 Id. ¶ 12.
6 Id. ¶ 13.
7 Id. ¶ 14.
8 Id. ¶ 16.
9 Id. ¶ 25; ECF No. 42 Ex. 1.
10 ECF No. 41 ¶ 26; ECF No. 42, Ex. 1.
11 ECF No. 42, Ex. 1 at 212, art. 20 § 2(a). The information regarding the terms of the
Supplemental CBA is taken from the Supplemental CBA itself, as Mr. Banks references the
agreement in his Complaint and UPS has attached it as an exhibit to its Answer. “Documents
attached to the pleadings . . . are subject to full consideration in a court’s review of a Rule 12(c)
motion.” U.S. v. Zazi, 356 F. Supp. 3d 1105, 1114 (D. Colo. 2018) (citing Park Univ. Enters., Inc.
v. Am. Gas. Co., 442 F.3d 1239, 1244 (10th Cir. 2006)).
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Regarding transfers for full-time employees,12 the Supplemental CBA provides that “[a]ll
full-time package car drivers covered by this Agreement, with one (1) year seniority, shall have
the right to transfer according to” several provisions the Supplemental CBA sets forth.13 First, a
transfer list will be posted in each center during the month of October,14 and “[p]ackage car
drivers interested in transferring . . . in the following year must sign th[e center] transfer list
designating the building requested.”15 These transfer lists are then combined to form a Master
Transfer Roster by December 1, and a copy is given to all Local Unions signatory to the
Agreement.16 Subsequently, “[a]t the time of notification, package car drivers actively working
in their classification, with good records, in accordance with their package car driver seniority,
are given first consideration in filling openings before new people are hired.”17 Failure to accept
or reject the available transfer within the requisite time period “will result in the employee being
removed from the list.”18
On May 24, 2018, Mr. Banks was delivering on his route in Casa Grande when he
experienced, on account of the heat, severe cramping, vomiting, diarrhea, and loss of
consciousness.19 Mr. Banks continued struggling with symptoms of heat exhaustion and heat
stroke while working over the next two weeks20 until he suffered another severe health incident
12 See ECF No. 41 ¶ 26.
13 ECF No. 42, Ex. 1 at 202, art. 6 § 6; see also ECF No. 41 ¶ 26.
14 ECF No. 42, Ex. 1 at 202, art. 6 § 6(1); see also ECF No. 41 ¶ 26.
15 ECF No. 42, Ex. 1 at 202, art. 6 § 6(2); see also ECF No. 41 ¶ 26.
16 ECF No. 42, Ex. 1 at 202–203, art. 6 § 6(3); see also ECF No. 41 ¶ 26.
17 ECF No. 42, Ex. 1 at 203, art. 6 § 6(5); see also ECF No. 41 ¶ 26. In the TAC, Mr. Banks
summarizes this provision as follows: “Thereafter, package car drivers who are actively working
and have good work records who have requested transfers are given first consideration for filling
vacancies and openings (in accordance with their seniority) before new people are considered to
fill vacancies and openings.”
18 ECF No. 42, Ex. 1 at 203, art. 6 § 6(5).
19 ECF No. 41 ¶ 17.
20 Id. ¶ 18.
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on June 6, 2018, during which he experienced vomiting, diarrhea, and mental confusion.21
Following this incident, Mr. Banks requested and was granted a week off of work so that he
could see a doctor about his health concerns.22
On June 13, 2018, Mr. Banks visited his medical provider, who determined that Mr.
Banks had developed a type of thyroid disease that, when working in high temperatures, would
cause him to suffer from heat exhaustion, reflex syncope or pre-syncope, muscle cramps,
diarrhea, lightheadedness, and difficulty concentrating.23 The medical provider opined that this
thyroid condition was permanent24 and wrote a letter stating that Mr. Banks needed to be
transferred to a location with a cooler climate or, if he stayed in Arizona, that he needed to be
assigned to a night shift and/or an indoor shift.25
The next day, Mr. Banks informed his supervisor in Casa Grande about his health
condition and his doctor’s recommendation that he transfer to a cooler climate.26 The supervisor
indicated that a transfer back to Moab, Utah may be possible, and he advised Mr. Banks to
contact UPS’s Human Resources Department (“HR”) about the issue.27 Accordingly, Mr. Banks
contacted Colton Smith, an HR representative in Salt Lake City, Utah, to explain his diagnosis
and his doctor’s recommendations, as well as to request a transfer to the position in Moab that he
had vacated a few weeks before.28 Mr. Smith suggested the transfer back to Moab might be
possible and told Mr. Banks to contact UPS’s Labor Relations Department.29 Mr. Banks then
21 Id. ¶ 19.
22 Id. ¶ 20.
23 Id. ¶ 21.
24 Id.
25 Id. ¶ 24.
26 Id. ¶ 27.
27 Id. ¶ 28.
28 Id. ¶ 29.
29 Id.
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reached out to a Union Representative in Salt Lake City, who also indicated that the transfer to
Moab may be possible.30 The Union Representative said that he would consult Tyler Hodgson of
UPS’s Labor Relations Department about the issue.31 On June 21, 2018, Mr. Smith contacted Mr.
Banks and informed him that Mr. Hodgson would not allow the transfer back to Moab. 32 Mr.
Banks was not given a reason for this decision.33
Mr. Banks then sought leave under the Family and Medical Leave Act (“FMLA”), which
UPS approved,34 and continued to seek a transfer. On July 3, 2018, Mr. Banks reached out to
Ricardo Garayear, an HR representative in Arizona, but Mr. Garayear did not respond to Mr.
Banks’s inquiries.35 On July 17, 2018, Mr. Banks submitted accommodation paperwork in which
his medical provider opined that Mr. Banks could perform all functions of the package car driver
position in a cooler climate.36 On July 18, 2018, Mr. Banks contacted Nicole Campbell, another
HR representative in Arizona.37 Ms. Campbell told Mr. Banks that he was not currently eligible
for transfer under the terms of the CBA, as he had not put his name on the December 2017
transfer list, and that he would need to put his name on the December 2018 transfer list in order
to be eligible for transfer in 2019.38 On July 24, 2018, Mr. Banks contacted John O’Riordan, the
UPS regional manager over the Southeastern Utah and Western Colorado area, and Mr.
O’Riordan informed Mr. Banks that his former package car driver position in Moab was still
30 Id. ¶ 30.
31 Id.
32 Id. ¶ 31.
33 Id.
34 Id. ¶¶ 32–33.
35 Id. ¶ 34.
36 Id. ¶¶ 38–39.
37 Id. ¶ 35.
38 Id. ¶ 36.
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open.39 Mr. Banks approached Ms. Campbell about open package car driver positions and was
again told that he was not eligible for transfer in accordance with the CBA.40 Ms. Campbell
informed Mr. Banks that if he wanted one of the open UPS driver positions imminently, he
would have to resign and seek to be rehired.41
On August 8, 2018, Mr. Banks used his last available FMLA absence.42 Mr. Banks
contacted Jill Cude, an HR representative in Salt Lake City, and provided her a letter from his
medical provider, which stated that Mr. Banks “cannot have long exposure to heat, over 90
degrees for 5-6 consecutive hours per day. He can work in temperatures above 90[,] but just for
shorter periods around 1-4 hours per day.”43 The letter also provided that Mr. Banks “has worked
better in the cooler temperatures of Moab versus the high temperatures of Phoenix.”44 Ms. Cude,
however, expressed concern regarding whether Mr. Banks would able to work in Salt Lake City,
as there are forty-two days a year where the temperature reaches 90 degrees or higher.45
On September 21, 2018, Mr. Banks tendered his resignation from UPS.46 Several months
after resigning, in January 2019, Mr. Banks applied and was interviewed for a full-time package
car driver position in West Valley City.47 In March 2019, Mr. Banks was informed that there was
a hiring freeze that impacted the position.48 On April 26, 2019, Mr. Banks was told the hiring
freeze had been lifted, but that UPS would be hiring internally for the position.49 The HR
39 Id. ¶ 40.
40 Id. ¶ 42.
41 Id. ¶ 45.
42 Id. ¶ 47.
43 Id. ¶ 49 (alteration in original).
44 Id.
45 Id. ¶ 50.
46 Id. ¶ 56.
47 Id. ¶ 58.
48 Id. ¶ 62.
49 Id. ¶ 63.
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representative stated that she would reach out to Mr. Banks if there were still available openings
after the internal hires had been made.50 On May 15, 2019, the HR representative contacted
Banks and informed him that UPS would be hiring outside candidates.51 However, Mr. Banks
was not selected for the position.52 The HR representative suggested that Mr. Banks should apply
for a part-time package handler position so that, if hired, he could put his name on the internal
list for consideration for a full-time position.53
In late May 2019, Mr. Banks applied for a part-time package handler position in Salt
Lake City.54 Mr. Banks also found two open full-time package driver positions, one of which was
in Moab, and the other in Gillette, Wyoming.55 Mr. Banks talked to a supervisor in the Moab
center, who told him that Mr. O’Riordan would not offer Mr. Banks an interview for the
position.56 Mr. Banks then reached out to the center manager for Gillette who initially expressed
interest in hiring Mr. Banks but then, after speaking with HR, informed Mr. Banks that there was
a “real concern about [Mr. Banks’s] stability and engagement to stay in Gillette.”57
On June 4, 2019, UPS hired Mr. Banks for the part-time package car driver position in
Salt Lake City.58 Mr. Banks immediately put his name on the internal list for consideration for a
full-time package car driver position.59 Additionally, at that time, there was an available position
for a 22.4 combination driver, which is a full-time hybrid position that includes driving shifts as
50 Id.
51 Id. ¶ 64.
52 Id.
53 Id. ¶ 66.
54 Id. ¶ 67.
55 Id. ¶ 68.
56 Id. ¶ 70.
57 Id. ¶¶ 71–73.
58 Id. ¶ 75.
59 Id.
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well as indoor shifts.60 At the end of June 2019, Mr. Banks applied and was subsequently hired
for a 22.4 combination driver position at the Mountain View center in Salt Lake City.61
January 2020 Moab, Utah Vacancy
In late January 2020, Mr. Banks became aware of an open, full-time package car driver
position in Moab.62 Mr. Banks attempted to apply online for the position; however, after filling
out the initial forms, the remainder of the application was blocked such that Mr. Banks could not
submit the application.63 Mr. Banks then texted Mr. O’Riordan about wanting to apply for the
position in Moab.64 Mr. Banks also called Mr. Hodgson.65 Mr. Hodgson informed Mr. Banks that
Mr. O’Riordan had no interest in hiring Mr. Banks.66
On April 2, 2020, Mr. Banks, concerned that he was not earning enough as a 22.4 driver
to meet his expenses, resigned from that position.67 On October 22, 2020, Mr. Banks filed a
Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”),
complaining that UPS’s refusal to hire him for the full-time package car driver position in
January 2020 was a form of discrimination on the basis of disability.68
60 Id. ¶ 76.
61 Id. ¶ 78.
62 Id. ¶ 82.
63 Id. ¶ 84.
64 Id. ¶ 85.
65 Id.
66 Id.
67 Id. ¶ 88.
68 Id. ¶ 91.
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August 2020 Gypsum, Colorado Vacancy
Having resigned, Mr. Banks applied for an open, full-time package car driver position in
Gypsum Colorado on August 26, 2020.69 Mr. O’Riordan did not select Mr. Banks for the
position.70
November 2020 Moab, Utah Vacancy
On November 2, 2020, Mr. Banks applied for another open, full-time package car driver
position in Moab.71 Again, Mr. O’Riordan did not select Mr. Banks for the position.72
On March 9, 2021, Mr. Banks filed another Charge of Discrimination with the EEOC,
complaining about UPS’s refusal to hire him for the full-time package car driver positions in
August and November 2020.73
Procedural History of the Instant Action
Mr. Banks initiated the action in this Court on August 30, 2023.74 Following UPS’s
previous Motion for Judgment on the Pleadings,75 which the Court denied without prejudice,76
the Parties stipulated to dismiss with prejudice all claims based on adverse employment actions
alleged to have occurred before January 2020, as such claims are time-barred.77 Mr. Banks then
69 Id. ¶ 89.
70 Id. ¶ 90.
71 Id. ¶ 92.
72 Id. ¶ 93.
73 Id. ¶ 94.
74 ECF No. 1.
75 ECF No. 25.
76 ECF Nos. 33, 36.
77 ECF No. 35; see also ECF No. 33.
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sought leave to file a Second Amended Complaint,78 which the Court granted in part and denied
in part,79 and Mr. Banks then filed his TAC.80
UPS filed the instant Motion for Judgment on the Pleadings in Part on June 24, 2025.81
Mr. Banks filed his Opposition on July 21, 2025,82 and UPS’s Reply was filed on August 4,
2025.83
LEGAL STANDARD
Courts apply the same standard in reviewing a motion for judgment on the pleadings
under Federal Rule of Civil Procedure 12(c) as they do in reviewing a motion to dismiss for
failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).84 Accordingly, to survive
a motion for judgment on the pleadings, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’”85 As with a Rule
12(b)(6) motion, in construing a plaintiff’s complaint, the Court will assume the truth of any
well-pleaded facts and draw all reasonable inferences in the light most favorable to the
plaintiff.86 “Documents attached to the pleadings . . . are subject to full consideration in a court’s
78 ECF No. 37.
79 ECF No. 40.
80 ECF No. 41.
81 ECF No. 47.
82 ECF No. 49.
83 ECF No. 50.
84 Crane v. Utah Dep’t of Corr., 15 F.4th 1296, 1302 (10th Cir. 2021).
85 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)).
86 See Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011).
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review of a Rule 12(c) motion.”87 Furthermore, “facts subject to judicial notice may be
considered . . . without converting the motion . . . into a motion for summary judgment.”88
DISCUSSION
In Mr. Banks’s TAC, he asserts disability discrimination claims in violation of the
Americans with Disabilities Act (“ADA”) in relation to three adverse employment actions: (1)
the failure to promote to the Moab, Utah position in January 2020, (2) the failure to hire for the
Gypsum, Colorado position in August 2020, and (3) the failure to hire for the Moab, Utah
position in November 2020.89 He also asserts claims for retaliation in violation of the ADA
related to those same three adverse employment actions.90 UPS seeks judgment on the pleadings
on the ADA discrimination claim for the January 2020 failure to promote, the ADA
discrimination claim for the November 2020 failure to hire, and all three of Mr. Banks’s ADA
retaliation claims. UPS does not move for judgment on the pleadings on the ADA discrimination
claim for the August 2020 failure to hire. Accordingly, the Court will not address that claim but
will address the other claims in turn.
A. 	DISCRIMINATION
As stated above, UPS contends that it is entitled to judgment on the pleadings on Mr.
Bank’s ADA discrimination claim for UPS’s failure to promote him to the position in Moab in
January 2020, as well as on Mr. Bank’s ADA discrimination claim for UPS’s failure to hire him
for the position in Moab in November 2020.
87 Zazi, 356 F. Supp. 3d at 1114.
88 Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006); see also Zazi, 356 F. Supp. 3d at
1114 (“[A] district court may consider facts subject to judicial notice such as matters of public
record without converting a Rule 12(c) motion into a summary judgment motion.”).
89 ECF No. 41 ¶¶ 96–122.
90 Id. ¶¶ 123–137.
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1. 	Discriminatory Failure to Promote91
To establish a prima facie case for the failure to promote under the ADA,92 a plaintiff
must show
(1) he has a “disability” within the meaning of the [ADA]; (2) he was qualified, with or
without reasonable accommodation, to perform the essential job functions of the position
he sought; and (3) his employer refused the promotion under circumstances which give
rise to an inference the decision was based on his disability.93
UPS argues that Mr. Banks has failed to allege sufficient facts showing that he was qualified for
the promotion and transfer to Moab in January 2020 because he has failed to allege that he was
eligible for such a promotion and transfer under the terms of the Supplemental CBA. The Court
agrees.
“[T]he ADA defines ‘qualified individual’ as ‘an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position that
such individual holds or desires.’”94 A plaintiff must, to demonstrate that he was a qualified
individual, “first establish that he had ‘the requisite skill, experience, education and other job-
related requirements of the employment position.’”95 “Second, he must establish that he can
91 As Mr. Banks was working for UPS as a 22.4 combination driver at this time, his moving to
the open package car driver position would have entailed a promotion. Thus, the Court finds it
appropriate to view this claim as a failure-to-promote claim, in accordance with how UPS has
framed the claim in its Motion.
92 ADA discrimination claims based on circumstantial evidence are subject to the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework,
“[a]fter a plaintiff has made the requisite [prima facie] showing, the burden shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for its actions. If the defendant
proffers such a reason, the burden then shifts back to the plaintiff to show that the defendant’s
stated reasons are merely ‘pretextual.’” EEOC v. C.R. Eng., Inc., 644 F.3d 1028, 1038 (10th Cir.
2011) (internal citation omitted).
93 Rakity v. Dillon Cos., 302 F.3d 1152, 1164 (10th Cir. 2002).
94 Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018) (quoting 42 U.S.C. § 12111(8)).
95 Id. (quoting Tate v. Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001)).
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perform the ‘essential functions’ of the position.”96 In relation to this second prong, courts look
first to “whether the individual can perform the essential functions of the job. Second, if (but
only if) the court concludes that the individual is unable to perform the essential functions of the
job, the court determines whether any reasonable accommodation by the employer would enable
him to perform those functions.”97
Here, Mr. Banks has failed to allege sufficient facts to show that he had the requisite job-
related requirements of the position such that he was a qualified individual. According to Mr.
Banks’s TAC, the Supplemental CBA that governed, in part, his employment relationship with
UPS provides that all full-time package car drivers with one-year seniority could request a
transfer to another UPS location by putting their name on a transfer list and designating their
requested location.98 This process occurs during the month of October each year, and the transfer
list is then finalized by the first of December.99 The TAC states that, “[t]hereafter, package car
drivers who are actively working and have good work records who have requested transfers are
given first consideration for filling vacancies and openings (in accordance with their seniority)
before [outside candidates] are considered to fill vacancies and openings.”100 Thus, based on Mr.
Banks’s allegations, having one-year seniority and requesting a transfer by signing the transfer
list—and consequently, being eligible for transfer under the Supplemental CBA—are job-related
requirements of the transfer Mr. Banks sought. Mr. Banks does not, however, allege that he had
one-year seniority or that he put the requisite information on the transfer list finalized in
December 2019.
96 Id.
97 Davidson v. Am. Online, Inc., 337 F.3d 1179, 1190 (10th Cir. 2003).
98 ECF No. 41 ¶ 26.
99 Id.
100 Id.
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Despite this, Mr. Banks argues that he was eligible for transfer even if he lacked one-year
seniority and did not sign the transfer list. According to Mr. Banks, the Supplemental CBA
creates three categories relevant in the context of transfers: (1) package car drivers with one-year
seniority who put their names on the transfer list; (2) package car drivers who are actively
working and who have good records but do not have one-year seniority and have not put their
names on the transfer list; and (3) outside candidates. In Mr. Banks’s view, drivers in the second
category are, although considered after the drivers in the first category, eligible for transfer and
are considered before outside candidates.
This interpretation does not comport with the plain language of the Supplemental CBA.
Pursuant to that agreement, “[a]ll full-time package car drivers covered by this Agreement, with
one (1) year seniority, shall have the right to transfer according to paragraphs (1) through (10)
below.”101 Those paragraphs, in relevant part, outline the process for transfers. First, a transfer
list will be posted in each center during the month of October, and “[p]ackage car drivers
interested in transferring . . . in the following year must sign th[e] transfer list designating the
building requested.”102 These transfer lists are combined to form a Master Transfer Roster by
December 1, and a copy is given to all Local Unions signatory to the Agreement.103
Subsequently, as subsection 5 states, “[a]t the time of notification, package car drivers actively
working in their classification, with good records, in accordance with their package car driver
seniority, are given first consideration in filling openings before new people are hired.”104
101 ECF No. 42, Ex. 1 at 202, art. 6 § 6.
102 ECF No. 42, Ex. 1 at 202, art. 6 § 6(1)–(2).
103 ECF No. 42, Ex. 1 at 202–203, art. 6 § 6(3).
104 ECF No. 42, Ex. 1 at 203, art. 6 § 6(5).
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Subsection 5 further provides that the failure to accept or reject the available transfer within the
requisite time period “will result in the employee being removed from the list.”105
Mr. Banks construes the first sentence of subsection 5 to mean that any package car
driver actively working in his classification and with good records may be considered for transfer
regardless of whether the driver’s information is on the Master Transfer Roster. This reading,
however, conflicts with the subsection itself as well as the section as a whole. The subsection
provides that employees who fail to timely accept or reject the transfer will be removed from the
Master Transfer Roster. Accordingly, the “package car drivers” referred to in the first sentence of
the subsection must be those whose names are on that list. Moreover, nowhere in the relevant
section of the Supplemental CBA is it stated that full-time drivers without one year of seniority
and whose names are not listed on the Master Transfer Roster have the right to transfer. Rather, it
is clear that drivers with one-year seniority shall have that right pursuant to the process the
section sets forth. Thus, according to the Supplemental CBA, in order to be eligible for a transfer,
a driver must have one-year seniority and must be listed on the Master Transfer Roster.
Again, Mr. Banks has not alleged that he had one-year seniority or that he put his name
on the list. In fact, the allegations show that he did not have one year of seniority at this time, as
he was only hired as a 22.4 combination driver at the end of June 2019.106 As such, Mr. Banks
has failed to allege that he was eligible for or had the right to transfer—in other words, he has
failed to allege that he met the job-related requirements of the position he desired.107 Because
105 Id.
106 ECF No. 41 ¶ 78.
107 The Court wishes to note that Mr. Banks, in his TAC, posits legal argumentation concerning
whether a reasonable accommodation under the ADA should “trump” the requirements of the
Supplemental CBA. The Court will not delve into this issue for several reasons. First, legal
argumentation is inappropriate in the context of a complaint. Freeman v. Raytheon Techs. Corp.,
No. 22-cv-01161-RM-NYW, 2022 WL 2437834, at *2 (D. Colo. July 5, 2022). Second, Mr.
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Mr. Banks has failed to allege that he met the job-related requirements of the position he desired,
he has failed to plead sufficient facts that, if taken as true, would establish the second element of
his failure-to-promote claim, which requires Mr. Banks to make a showing that he was qualified
for his desired position. 108 UPS is therefore entitled to judgment on the pleadings on this claim,
and this claim is dismissed with prejudice.109
2. 	Discriminatory Failure to Hire
To establish a prima facie case for failure to hire under the ADA, a plaintiff must show
(1) that [he] is a disabled person within the meaning of the ADA; (2) that [he] is
qualified, that is, [he] is able to perform the essential functions of the job, with or without
reasonable accommodation; and (3) that the employer [failed to hire him] under
circumstances which give rise to an inference that the [failure to hire] was based on [his]
disability.110
As with the failure-to-promote claim, UPS contests the second element, asserting that Banks has
failed to adequately allege that he was capable of performing the essential functions of the
Banks does not allege that the transfer sought in January 2020 was related to a request for
reasonable accommodation. Indeed, when Mr. Banks requested reasonable accommodations in
2018, he sought to be transferred to Salt Lake City, which is where he was employed at the time
he sought the January 2020 transfer. Mr. Banks does not suggest that his work in Salt Lake City
was impacting his thyroid condition.
108 Whether a plaintiff satisfies the requisite skill, experience, and other job-related requirements
of an employment position is a “condition to performing the essential functions of” that position.
Tate, 268 F.3d at 993. Accordingly, as Mr. Banks has failed to allege that he met the threshold
eligibility for the position he desired, the Court need not reach whether Mr. Banks has adequately
alleged that he was able, with or without reasonable accommodation, to perform the essential
functions of the position.
109 See Pena v. Greffet, 110 F. Supp.3d 1103, 1112 (D.N.M. 2015) (“Claims dismissed pursuant
to a motion under rule 12(c) are dismissed with prejudice”); Young v. Young, No. 2:17-cv-00082,
2018 WL 4643003, at *3 (D. Utah Sept. 27, 2018) (dismissing claims with prejudice when
judgment on the pleadings in favor of the defendants was appropriate).
110 Wheeler v. IHC Health Servs., No. 1:23-cv-00014, 2023 WL 3391531, at *3 (D. Utah May
11, 2023) (alterations in original); see also Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.
1997) (stating analogous elements for a discriminatory termination claim under the ADA).
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November 2020 position. The Court is not persuaded by UPS’s arguments with regard to this
claim.
To reiterate, “the ADA defines ‘qualified individual’ as ‘an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.’”111 To demonstrate that a plaintiff is a qualified
individual, the plaintiff must initially “establish that he had ‘the requisite skill, experience,
education and other job-related requirements of the employment position.’”112 Then, “he must
establish that he can perform the ‘essential functions’ of the position.”113 Courts look first to
“whether the individual can perform the essential functions of the job. Second, if (but only if) the
court concludes that the individual is unable to perform the essential functions of the job, the
court determines whether any reasonable accommodation by the employer would enable him to
perform those functions.”114
UPS does not suggest that Mr. Banks did not meet the threshold job-related requirements
for the Moab position in November 2020—as he was not employed by UPS at this point and was
not seeking a transfer, he was not subject to the Supplemental CBA’s transfer requirements.
Furthermore, Mr. Banks does not appear to dispute that he would be incapable of performing the
essential functions of the position without reasonable accommodation, arguing and alleging,
rather, that he could perform those functions with such accommodation. Thus, the Court’s
inquiry will focus on whether Mr. Banks has alleged facts that plausibly give rise to an inference
that he, with reasonable accommodation, could perform the essential functions of the position.
111 Lincoln, 900 F.3d at 1192.
112 Id.
113 Id.
114 Davidson, 337 F.3d at 1190.
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The allegations state that, according to Mr. Banks’s medical provider, he must avoid long
exposure to heat such that he cannot work in conditions over 90 degrees for five to six
consecutive hours per day.115 He can still work in temperatures above 90 degrees but for shorter
periods of around one to four hours per day.116 UPS argues that due to these restrictions, Mr.
Banks is medically unable to work in Moab on account of the hot conditions there. In doing so,
UPS asks the Court to take judicial notice that Moab has a desert climate, with high temperatures
that range from 90 to over 100 degrees from May to September.
“Courts take judicial notice of facts generally known and accepted,” and “[t]his rule
applies to general climatic conditions.”117 Thus, the Court will take judicial notice of the
National Weather Service data, which indicates that, from 2019 to 2024, the monthly highest
maximum temperature for Moab, Utah from May to September was, on average, above 90
degrees.118 Nonetheless, even taking judicial notice of this data, the Court agrees with Mr. Banks
that the information is not dispositive. As Mr. Banks argues, the data does not reflect when
during the day—and for how long—the temperature generally exceeds 90 degrees. Such
information is relevant because Mr. Banks alleges that he could be reasonably accommodated in
the form of a modified schedule pursuant to which Mr. Banks would make deliveries in the early
to mid-mornings or later in the evenings.119 Mr. Banks argues that he could work from 6:00 a.m.
to 2:00 p.m., or from 7:00 a.m. to 3:00 p.m., and thereby avoid long exposure to conditions over
90 degrees.
115 ECF No. 41 ¶ 49.
116 Id.
117 Spillway Marina, Inc. v. U.S., 445 F.2d 876, 878 (10th Cir. 1971).
118 ECF No. 47, Ex. B.
119 Under the ADA, “reasonable accommodation” may include “modified work schedules[.]”
Aubrey v. Koppes, 975 F.3d 995, 1007 (10th Cir. 2020) (quoting 42 U.S.C. § 12111(9)).
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UPS contends that Mr. Banks’s proposed alternative work schedules would violate his
medical restrictions because, according to UPS, the alleged essential job functions require Mr.
Banks to be medically able to work up to eleven hours a day. An essential function of a position
is determined by considering several factors, including
(1) the employer’s judgment as to which functions are essential; (2) written job
descriptions; (3) the time spent performing the particular function; (4) the consequences
if the individual cannot perform the function; (5) any collective-bargaining agreement;
(6) the work experience of those in the position in the past; and (7) the current work
experience of those in similar positions.120
UPS asserts that Mr. Banks has alleged that the essential job functions of a full-time package
driver include spending approximately eight to eleven hours per day in a UPS truck. This appears
to overstate Mr. Banks’s allegations. Mr. Banks alleges that “[a]s a package car driver, Mr. Banks
spent approximately eight to eleven hours per day in his UPS truck.”121 Even taking this as true,
it does not necessarily follow that spending up to eleven hours per day in the UPS truck is an
essential function of the position or that Mr. Banks is alleging such. Indeed, the Supplemental
CBA suggests otherwise—the agreement provides that for package car drivers “[t]he regular
scheduled work day shall consist of eight (8) consecutive hours, with an established start time,
excluding a non paid meal period of either one half (1/2) or one (1) hour.”122 Thus, with the
information presently before the Court and having to draw reasonable inferences in Mr. Banks’s
favor, the Court cannot infer that working up to eleven hours per day in the UPS truck is an
essential function of the position. Rather, in accordance with the Supplemental CBA, the
reasonable inference is that package car drivers must be able to work eight hours per day.
120 Adair v. City of Muskogee, 823 F.3d 1297, 1307 (10th Cir. 2016) (citing 29 C.F.R. §
1630.2(n)(3)).
121 ECF No. 41 ¶ 11.
122 ECF No. 42, Ex. 1 at 212, art. 20 § 2(a).
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UPS also contends that Mr. Banks’s proposed alternative schedules would violate his
medical restrictions because those restrictions could render him unable to work for over one hour
in 90-degree heat. But Mr. Banks has alleged that, according to his medical provider, he is
restricted from long exposure—five to six consecutive hours—to conditions over 90 degrees.123
This does not suggest that he would be unable to work for over one hour in 90-degree heat.
Rather, Mr. Banks alleges that he can work for four consecutive hours in heat above 90
degrees,124 as confirmed by his medical provider.125 The inference based on these allegations is
that Mr. Banks could work in over 90-degree temperatures for up to four hours of his eight-hour
workday.
Because, based on Mr. Banks’s allegations, it can be inferred that Mr. Banks could work
in over 90-degree temperatures for up to four hours of his eight-hour workday and because of the
outstanding question of fact regarding what time temperatures in Moab generally exceed 90
degrees, the Court cannot conclude at this point that Mr. Banks’s proposed alternative work
schedules necessarily violate his medical restrictions. Instead, it seems plausible that Mr. Banks
could work early in the morning when temperatures are likely cooler and then only work for a
short period of time in temperatures exceeding 90 degrees. UPS has not offered any other reason
why such a modification in schedule would be unreasonable. Therefore, Mr. Banks has alleged
sufficient facts to give rise to a reasonable inference that he could perform the essential functions
of the position with a reasonable accommodation and was thus qualified for the position. The
Court will deny judgment on the pleadings on this claim.
123 ECF No. 41 ¶ 49.
124 ECF No. 41 ¶ 51.
125 ECF No. 41 ¶ 49.
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B. 	RETALIATION
Mr. Banks claims that in January 2020, August 2020, and November 2020, UPS did not
select him for open full-time package car driver positions in retaliation for his requesting
reasonable accommodations from June 2018 to August 2018.126 In relation to the November
2020 failure to hire, Mr. Banks also alleges that he was retaliated against for filing his EEOC
charge in October 2020;127 however, Mr. Banks has conceded that there are insufficient facts
pleaded to support a causal connection between his filing of the EEOC charge and the denial of
his application in November 2020.128 The Court will thus focus only on the requests for
accommodation. UPS argues that Mr. Banks has failed to allege a causal connection between the
accommodation requests and the three adverse actions. The Court agrees.
To establish a prima facie case for ADA retaliation,129 a plaintiff must show that he “(1)
engaged in protected activity; (2) suffered a material adverse action; and (3) a causal connection
exists between the protected activity and the adverse action.”130 “To establish a causal
connection, a plaintiff must present evidence of circumstances that justify an inference of
retaliatory motive.”131 “If the protected conduct is closely followed by the adverse action, courts
have often inferred a causal connection.”132 When the temporal proximity is not sufficiently
close, a plaintiff “must present other evidence—more than speculation, conjecture, or surmise—
126 ECF No. 41 ¶ 133.
127 Id.
128 ECF No. 49 at 8 n.5.
129 ADA retaliation claims based on circumstantial evidence, as Mr. Banks’s claims are here, are
subject to the McDonnell Douglas burden-shifting test in which a plaintiff must first prove “a
prima facie case of retaliation by a preponderance of the evidence.” Ward v. Jewell, 772 F.3d
1199, 1202 (10th Cir. 2014).
130 Hermann v. Salt Lake City Corp., 21 F.4th 666, 679 (10th Cir. 2021).
131 Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir. 2019) (internal quotation marks omitted).
132 Id.
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to establish” causation. 133 “The Supreme Court has likened this burden to a showing of ‘but-for
causation.’”134
Mr. Banks alleges that from June 2018 to August 2018 he made several requests for
accommodation in the form of a transfer to a package car driver position in a cooler climate than
Arizona, with a particular focus on an open position in Moab.135 The protected conduct136 thus
preceded the first alleged adverse action, which occurred in January 2020, by almost a year and a
half. Such a gap between the protected activity and the adverse action is too long to support an
inference of retaliation based on temporal proximity alone.137
Mr. Banks claims, however, that he relies on more than temporal proximity because he
has alleged that Mr. O’Riordan was involved in the January 2020, August 2020, and November
2020 decisions. While Mr. Banks offers conclusory allegations that Mr. O’Riordan held a
retaliatory animus,138 Mr. Banks has failed to allege facts that ground this supposed retaliatory
animus in more than mere speculation. As alleged, on July 24, 2018, Mr. Banks contacted Mr.
O’Riordan, who informed Mr. Banks that his prior driver position in Moab was still open.139
Almost a year and a half later, on January 22, 2020, Banks alleges that he texted Mr. O’Riordan
concerning an open position in Moab.140 Subsequently, he was informed on a phone call with Mr.
133 Id. (internal quotation marks omitted).
134 Ward, 772 F.3d at 1203 (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253–54
(1981)).
135 See ECF No. 41 ¶¶ 27–52.
136 The Tenth Circuit recognizes “that a request for accommodation can constitute protected
activity supporting a retaliation claim.” Foster v. Mountain Coal Co., 830 F.3d 1178, 1188 (10th
Cir. 2016). As UPS has not suggested otherwise, the Court will assume for the purposes of this
Motion that Mr. Banks’s requests for accommodation constituted protected conduct.
137 See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (“[W]e have held
that a three-month period, standing alone, is insufficient to establish causation.”).
138 See, e.g., ECF No. 41 ¶ 86.
139 Id. ¶ 40.
140 Id. ¶ 85.
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Hodgson that Mr. O’Riordan had no interest in hiring Mr. Banks.141 Mr. Banks then alleges that
Mr. O’Riordan did not consider Mr. Banks in August 2020 for the Gypsum position for the same
reasons Mr. O’Riordan did not consider Mr. Banks in January 2020.142 Similarly, Mr. Banks
alleges that Mr. O’Riordan did not consider Mr. Banks in November 2020 for the Moab position
for the same reasons Mr. O’Riordan did not consider Mr. Banks in January 2020.143 There is
nothing in these allegations, however, from which the Court can plausibly infer that Mr.
O’Riordan did not consider Mr. Banks for the positions because of Mr. Banks’s 2018
accommodation requests. Indeed, whether Mr. O’Riordan was aware of the accommodation
requests is, from these allegations, speculative.
As such, Mr. Banks has failed to plausibly allege a causal connection between his
protected conduct and the three adverse actions. UPS is therefore entitled to judgment on the
pleadings on these claims. The Court will dismiss the claims with prejudice.
ORDER
For the reasons discussed above, the Court GRANTS IN PART AND DENIES IN PART
Defendant’s Motion for Judgment on the Pleadings in Part (ECF No. 47). Plaintiff’s ADA
discrimination claim for the failure to promote in January 2020 and Plaintiff’s ADA retaliation
claims are therefore DISMISSED WITH PREJUDICE. Plaintiff’s ADA discrimination claims
concerning the failures to hire in August 2020 and November 2020 remain.
DATED this 5th day of January 2026. 	BY THE COURT:
_________________________
Ann Marie McIff Allen
United States District Judge
141 Id.
142 Id. ¶ 90.
143 Id. ¶ 93.
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