SAN DIEGO (CN) – A UPS driver who saw a gangland execution, and held the victim as he died, claims in court that UPS refused his request for a transfer, even though gang members were asking other UPS drivers how to find him.
Sergio Cervantes sued UPS in Superior Court for disability discrimination, constructive discharge and retaliation.
“While Mr. Cervantes was working for UPS, he witnessed a man shoot another man in the head. Mr. Cervantes came to the aid of the shooting victim, and held the victim as he died from a gunshot wound to the head,” the complaint states. “Mr. Cervantes saw the shooter watching him as he held the victim. Mr. Cervantes was informed by police that the shooting was a gang execution, and that no arrests had been made for the crime.
“Mr. Cervantes was informed by other UPS employees that while working their delivery routes, they had been approached by gang members who asked about the identity and location of Mr. Cervantes.
“Mr. Cervantes sought medical attention and was treated for Post-Traumatic Stress Disorder. Mr. Cervantes provided UPS with a doctor’s written note which stated that Mr. Cervantes had a permanent work restriction that he not work within 50 miles of the located where he witnessed the gang execution.
“UPS failed to accommodate the request or provide any alternative reasonable accommodation to Mr. Cervantes. Mr. Cervantes was compelled to take disability leave.
“Mr. Cervantes provided a new doctor’s written note which narrowed his work restriction to a different route assignment than the one Mr. Cervantes held when he witnessed the gang execution. UPS assigned Mr. Cervantes to a new route which was in close proximity to the neighborhood where Mr. Cervantes witnessed the gang execution. The accommodation was not successful as the proximity to the location of the gang execution affected Mr. Cervantes’s Post-Traumatic Stress Disorder. Mr. Cervantes reported to UPS that he was unable to work under the accommodation and required a different route as an accommodation.
“UPS failed to accommodate the request or provide any alternative reasonable accommodation to Mr. Cervantes. Mr. Cervantes was compelled take disability again.
“While on disability leave, Mr. Cervantes pursued a worker’s compensation claim against UPS, which included injuries he suffered from witnessing the gang execution while working for UPS.
“In May of 2011, Mr. Cervantes contacted the UPS Human Resources department for the area where he had last worked of his readiness to return to work, referenced his disability which arose from the gang execution, and requested an accommodation in the form of placement on a route outside of the hub which was near the area of the murder.
“UPS did not respond to the request from Mr. Cervantes at all.”
Cervantes says he was unemployed for months, and when he finally did find a new job, “his rate of pay was dramatically lower.”
UPS Public Relations Director Susan Rosenburg told Courthouse News in an email Wednesday that she had not seen the lawsuit but that employee safety was “paramount” for UPS.
“If a driver witnesses such an incident, he would/should be working with his management team and our local security group to engage authorities to assist any investigation and coordinate appropriate protections against reprisal,” Rosenburg wrote. “Our drivers are covered under a contract with the Teamsters which also defines procedures for changing routes and would prompt involvement by the local business agent.”
Cervantes seeks costs and damages for retaliation, constructive discharge and disability discrimination.
He is represented by Matthew Tyson of La Jolla.