Gordon Guptil can't remember. Any recollection of the four days before and five days after the accident has been wiped out. The way he figures it, that's the good news.
At 4:52 on a clear October morning in 1996, Guptil, who had been driving delivery trucks for the Star Tribune for more than a decade, was navigating one of the newspaper's vans through a green light at the intersection of Highway 55 and Lyndale Avenue in Minneapolis. At the same time, according to witnesses who were at the scene, a garbage truck owned by Browning Ferris Industries blew through a red light. The two vehicles collided. The driver of the garbage truck came screeching to a halt, uninjured. But when Guptil's van came out of its 360-degree pirouette, broken glass littered the blood-stained pavement.
Troy Bowman, on his way to work, was the first to reach the crumpled van. Guptil was unconscious inside, Bowman recalls, his body so twisted by the impact that his seat belt had turned into a hangman's noose. Before the paramedics arrived, Bowman and a few other passersby managed to reach into the van and hoist Guptil to get some slack in the restraint and cut it away.
When doctors got a look at him, it quickly became clear that Guptil hadn't fared much better than his truck: He'd suffered deep head wounds, muscular damage to his shoulders and knees, spinal injuries, and a blood clot in his right thigh that would later require a second hospitalization. A full year after the ordeal, when Dr. Steven Morgan completed a neuropsychological exam of Guptil, he concluded that the 60-year-old might forever struggle with basic, short-term memory functions.
Several months after the smash-up, the Strib circulated among its staff a photograph of the mangled truck, in poster form. The message was clear: Delivery drivers who wear their seat belts can survive the ugliest of crashes. What the Star Tribune Company didn't mention--and what is about to land them in U.S. District Court--is that after recovering to some degree from his injuries, Guptil lost his job, his retirement benefits, and, he believes, his dignity.
In a federal lawsuit filed November 19, employment attorney Andrew Tanick agrees that the Star Tribune was right not to take Guptil back as a driver; his client was, and still is, under doctor's orders not to lift heavy stacks of newspapers. What Guptil's suit does allege is that his employers were obligated by law to make accommodations for his physical limitations, either by finding him another suitable position or at the very least by giving him preference when such a job opened up. Because the company did neither, Guptil is suing the Star Tribune for violating the letter and spirit of the Americans with Disabilities Act of 1990 (ADA).
"The poor guy almost dies delivering their paper," says Tanick, summing up his case. "Then they kick him out the door."
Haunted by hindsight, Guptil now believes his fate was sealed in August 1997, when the Star Tribune's worker's compensation coordinator concluded that his physical restrictions--including a ban on repetitive squatting, climbing, or lifting more than 15 pounds--made a job in the paper's transportation department out of the question. In accordance with the paper's policy, that meant Guptil had just 90 days to find another job elsewhere in the company.
It also meant he would no longer be protected by Local 638, a chapter of the Teamsters union that represents only Strib drivers. Robert McKee, who at the time was 638's business agent, says the media company honored the Teamsters' labor contract by agreeing to provide Guptil with 104 weeks of worker's comp. Beyond that, he didn't think union pressure would be necessary; he believed the Star Tribune would do right by his union brother so he could one day collect the retirement benefits due him after a decade on the job.
"When Gordon met with the company, I sat in on the meeting. And I was really impressed with his commitment to the company and his willingness to do any reasonable job," McKee recalls. "It turned out that they allowed him an opportunity to apply for a job. But in actual fact they had already decided they weren't going to give him a job, even though he was qualified for more than one."
In September 1997 Guptil applied for a job as a cashier in the Star Tribune's retail store. To his surprise, he was told that other applicants were "more qualified," and he was never interviewed. A month later he applied for one of several positions in customer service. This time he did manage to get an interview, but the jobs were given to outside candidates who were, once again, deemed "more qualified." In November Guptil applied for work as a purchasing clerk and also made a second run at a position in customer service. Again, no dice. Later that month the Star Tribune advised him that his 90-day search period had expired. He was unemployed.
"We're not talking about someone who can't talk or who doesn't make a good appearance," declares McKee, who says he'll testify on Guptil's behalf if called. "He's been around. He's very savvy. He would've been excellent in any one of those positions. The bottom line is that they didn't want an old man doing a job that they would prefer giving to a younger employee."
What emerges as Guptil and his wife of 23 years, Judith Sabin Guptil, tell their story in Tanick's Minneapolis office, is that this suit is about more than a job. Guptil gave up on the Star Tribune a year ago, when he hired on as a driver for Senior Community Services in Minneapolis. His claim for damages in excess of $50,000 is, his attorney says, modest. Guptil believes this suit is about ethics--simply put, the right and wrong way to treat devoted employees in the workplace. "I never thought this could happen at our newspaper," he says. "I thought the Star Tribune was about protecting people. If this would've happened anywhere else, they'd send out a reporter. They'd uncover something like this."
Thus far Guptil is having more success with his complaint against the Strib than he did in trying to find a new job there. The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces civil rights employment laws, concluded in August that the evidence in his case "establishes that there is reasonable cause to believe that violations of the [Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990] have occurred." While the EEOC automatically issues a "Notice of Right to Sue" to anyone who bothers to draft a complaint, an agency spokesperson says that a determination of "reasonable cause" carries weight because it's handed down only after a case is investigated and found to have merit. Perhaps cognizant of the fact that judges may allow juries to consider the EEOC findings, the Star Tribune's lawyers asked the agency to reconsider its decision. The request was denied.
Witnesses such as McKee can testify to suspicions that Guptil was the victim of ageism, but Tanick predicts the case will likely come down to the court's interpretation of the Americans with Disabilities Act. To some extent an untested and predictably controversial bit of federal legislation, the ADA has been interpreted differently in a number of federal cases. In some, courts have awarded judgments to employers who've argued that if an employee's disability prevents him from doing the tasks he was originally hired to complete, there's no obligation to provide, let alone ensure, an alternative. In other decisions, such as one handed down by a Washington, D.C., court of appeals last May, judges have sided with plaintiffs like Guptil who say employers must give their disabled yet qualified workers preference over other applicants.
Jacqueline Rolfs, an attorney at Faegre & Benson hired to represent the Star Tribune in this dispute, says she's not authorized to discuss Guptil's case in detail. In letters she drafted to the EEOC in July and August of this year, though, it's clear the Strib is prepared to challenge the agency's--and Guptil's--interpretation of the ADA. "The Star Tribune allowed Mr. Guptil to apply for alternative positions pursuant to the same procedures available to non-disabled employees," she asserts in a letter dated July 1.
"Our position is that we just don't think that a probable-cause determination will stand up in court," Rolfs says today. "The EEOC decision is against the federal appellate-court interpretations of the ADA."
For his part, Tanick makes clear that it's not enough to simply "allow" Guptil to apply for alternative jobs. If it were, he argues, there'd be no need for the ADA: Anyone able to fill out the paperwork is welcome to apply. Lloyd Zimmerman, who as a senior trial attorney for the EEOC isn't allowed to comment specifically on Guptil's case until it goes to trial, believes the fundamental assumption fueling the suit results from a clear-headed reading of the ADA: "Our view is that the ADA is not an equal-treatment statute. When people have a disability, they're not the same as people who don't. They need special help to function in the workplace. And the employer, we believe, should give that help."
Guptil's case is slated to be assigned a judge within the next three weeks, but Tanick isn't at all sure it will ever go to trial; the Strib may ask for a summary judgment and then, if the case isn't dismissed, start talking settlement. Rolfs, meanwhile, says her client is "prepared to litigate."
Guptil is left to shake his head and wonder why it had to come to this. "It's never made sense to me," he says. "Every time I think about it, it feels like someone kicked me in the stomach."
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