United States District Court, N.D. Oklahoma
ROBIN D. JONES, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.
OPINION AND ORDER
V. EAGAN, UNITED STATES DISTRICT JUDGE
before the Court is defendant Megan J. Brennan's motion
for summary judgment (Dkt. # 50).
an employment discrimination case arising under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et seq. (Title VII), the Pregnancy
Discrimination Act, 42 U.S.C. § 2000e(k), and the
Rehabilitation Act of 1973, 29 U.S.C. § 701 et
seq. (Rehabilitation Act). The questions presented are
whether defendant Megan J. Brennan, Postmaster General,
discriminated against plaintiff Robin D. Jones, a United
States Postal Service (USPS) employee, on the basis of her
pregnancy, or retaliated against her for seeking an
following facts are undisputed: plaintiff has worked for
defendant since January 31, 1998. Dkt. # 50-1, at 7. For the
last “nine or ten” years, she has worked
primarily in the “custodial craft” at various
USPS offices in Tulsa, Oklahoma, and, for the past
“couple of years, ” she has worked mostly at 333
West 4th street in Tulsa (the downtown station). Id.
at 8-12. As a custodian, her duties include cleaning,
sweeping, pulling trash, dusting, and mopping, stripping, and
waxing floors. Id. at 10. In cleaning restrooms and
stripping floors, she is required to work with chemicals.
Id. at 108.
about July 17, 2014, at plaintiff's request, defendant
assigned her to the Sheridan Tulsa Post Office (the Sheridan
station) as a “204B” temporary supervisor. Dkt. #
50-3. A 204B is an assignment pursuant to which an employee
works as an interim manager. Dkt. # 50-2, at 10. Defendant
assigns 204B supervisors when, for instance, a full-time
supervisor is on long-term disability, or there is a vacancy
for a supervisory position that has yet to be filled.
Id. Either defendant or the employee can terminate a
204B assignment at will. Dkt. # 50-1, at 52. In effectuating
a 204B assignment, the employee must sign Postal Service Form
1723, Assignment Order (form 1723), and, if the
employee's 204B assignment exceeds 180 days, the employee
must sign a renewed form 1723. Dkt. # 50-4.
July 2014, defendant and the American Postal Workers Union,
AFL-CIO (the Union) entered into an agreement referred to as
MS-47 TL-5 Implementation and Maintenance Craft PSE
Conversions (MS 47). Dkt. # 50-11, at 1. The agreement
provided that each of defendant's facilities had to work
its custodians for at least ninety percent of the hours that
the collective bargaining agreement stated custodians must
work, or pay to custodians a penalty at the overtime rate for
each hour short of the ninety percent threshold. Id.
around November 2014, while working as a 204B supervisor at
the Sheridan station, plaintiff's doctor informed her
that she was pregnant and, because her first pregnancy
resulted in a premature birth, that her pregnancy was
high-risk. Dkt. # 50-1, at 41. Plaintiff immediately told her
supervisor at the Sheridan Station, Jeffrey Bailey.
Id. at 44. At Bailey's suggestion, she then
advised Jeffrey Callison, manager of customer service
operations for ten postal stations in Tulsa (including the
Sheridan and downtown stations), that she was pregnant
(plaintiff testified that she cannot recall whether she
specified to Callison that her pregnancy was high-risk).
Id. at 48. Plaintiff did not feel that her pregnancy
would affect her ability to fulfill her duties as a 204B
supervisor, and neither Bailey nor Callison expressed concern
in this regard or asked her for documentation. Id.
at 45. Accordingly, on or about December 18, 2014, plaintiff
signed a second form 1723, which renewed her 204B assignment
and listed an end date of June 30, 2015. Dkt # 50-4.
December 30, 2014, Callison emailed the supervisors
(including Bailey) of the ten stations he managed to tell
them that, for fiscal year 2015, their stations were a
combined 1100 hours below the MS 47 ninety percent threshold
for custodial hours worked. Dkt. # 50-5. In particular, the
downtown station was 598 hours below its ninety percent
threshold . Id.
about February 13, 2015, Callison informed plaintiff that her
204B assignment was terminated and she was to report back to
the downtown station to resume her work as a custodian. Dkt.
# 50-1, at 56. At that time, according to Callison, the
stations he oversaw had a total of “four or five”
204B acting supervisors, and, of them, plaintiff was the only
custodian. Dkt. # 50-2, at 17; Dkt. # 50-6, at 244. Also at
that time, Callison further stated, a full-time supervisor
who had previously worked at the Sheridan station wanted to
transfer back there, and Callison was able to employ only a
“limited [amount]” of supervisors in Tulsa at one
time. Id. Finally, according to Bailey, also around
early February 2015, he informed Callison that Jones's
performance as a 204B supervisor was “unsatisfactory,
” as she was often “tardy” and
“exhibited timidity” in correcting poor
performance of the employees whom she was assigned to manage.
Dkt. # 50-6, at 274-75. Bailey stated further that he
discussed these issues with plaintiff “as they
arose” from December 2014 through February 2015, but
plaintiff denies that Bailey ever “came to her”
with any concerns about her performance. Id.; Dkt. #
50-1, at 35.
with Callison's instruction, plaintiff returned to work
at the downtown station on February 17, 2015. Id. at
66. Upon encountering her manager, Andrew Jones, she informed
him that she had a high-risk pregnancy and stated that, out
of concern for her baby, she “wasn't sure the
stipulations of what [she] could do, you know, the lifting,
pushing, pulling, being around chemicals.” Dkt. # 50-1,
at 68. Jones asked if she had any documented medical
restrictions, and plaintiff answered in the negative, but
added that she had a doctor's appointment the following
week. Dkt. # 50-15, at 12-13; Dkt. # 50-1, at 68. In
response, Jones directed plaintiff to, for the rest of that
day, sit “up front”-i.e. at a
customer-assistance desk by the entrance-away from the
“chemicals and all that, ” and asked her to call
her doctor's office to request that they fax
documentation of her medical restrictions, which plaintiff
did not succeed in doing. Dkt. # 50-15, at 13-16. In
addition, Jones informed plaintiff that, if she felt
performing her custodial duties was a threat to her baby and
desired an alternative work arrangement, she would have to
request “light duty and . . . get it approved through
the postmaster . . . Kathy Ervin-Johnson.”
Id. Defendant compensated plaintiff for her
full eight hours of work that day. Dkt. # 50-8, at 1.
next day, February 18, 2015, when plaintiff reported to work
at the downtown station, she returned to the desk by the
entrance where she worked the day before; she still did not
have documentation for her medical restrictions. Dkt. # 50-1,
at 79. That morning, Ervin-Johnson stopped to speak with
plaintiff when she noticed her sitting near the entrance.
Id. According to plaintiff, Ervin-Johnson asked her
why she was not performing her custodial duties, and
plaintiff explained that she had a high-risk pregnancy and
felt that performing custodial work threatened her
child's safety. Id. Plaintiff stated further
that Ervin-Johnson responded, “I had a high risk
pregnancy too. And I was still capable of doing my job. Why
can't you do yours?” Id. Ervin-Johnson,
however, refutes plaintiff's account; she states that she
told plaintiff she could “could identify with a
high-risk pregnancy” because she previously had one and
“assured [plaintiff] . . . that we didn't want to
do anything to hurt her baby.” Dkt. # 50-7.
Ervin-Johnson stated further that, after her conversation
with plaintiff, she said to Jones, “we needed some
medical restrictions on [plaintiff] so we [do] not have to
hear later that [plaintiff], or her baby, were injured in
some way.” Id.
twenty minutes after plaintiff's conversation with
Ervin-Johnson, Joy Franks, a supervisor at the downtown
station, presented plaintiff with light duty paperwork. Dkt.
# 50-1, at 80. According to plaintiff, Franks told her that
she would “walk [her] off the clock” if plaintiff
did not complete the light duty application. Dkt. # 50-1, at
80. Plaintiff responded, “I'm not a doctor. I
can't say what my restrictions will be. And . . . I
can't fill that paperwork out because if I do then I . .
. would [be] falsifying information.” Id. at
81. Plaintiff stated Franks then instructed her to retrieve
her belongings and walked her off the premises. Id.
at 86. Plaintiff informed her union steward, Charlie Mose,
about this interaction. Dkt. # 50-1, at 93. For that day,
defendant paid plaintiff for six hours of work and two hours
of sick leave. Dkt. # 50-8, at 1.
February 19, 20, 23, and 24, 2015, plaintiff did not report
to work (February 21-22, 2015, were her previously scheduled
days off). Dkt. # 50-8, at 1. During this period, defendant,
on its own accord, paid her for eight hours of sick leave
each day (although plaintiff never requested any type of
leave), and plaintiff had no contact with defendant. Dkt. #
50-1, at 92-93.
February 25, 2015, plaintiff returned to work at the downtown
station with documented medical restrictions and a completed
light duty application. Id. at 99. Plaintiff's
medical restrictions stated that she could
“intermittently” stand or walk for no more than
four hours per day, lift only up to twenty pounds
“occasionally, ” and could not mop or work with
chemicals. Dkt. # 50-9, at 1. In her light duty application,
plaintiff stated that her “illness or injury” was
pregnancy and that she was not injured on duty, and requested
light duty “until delivery.” Id. at 2.
Defendant approved her light duty application that day; it
assigned plaintiff to work as a custodian at the downtown
station for four hours per day and excused her from mopping
and handling chemicals. Dkt. # 50-1, at 104-107. In addition,
through the efforts of Mose (her union steward), plaintiff
obtained an additional four hours of sit-down work at
defendant's mail-sorting plant in Tulsa (the plant). Dkt.
# 50-10, at 6. Callison approved these additional hours, and,
on March 4, 2015, plaintiff began working, within her
restrictions, at the downtown station for four hours per day
and the plant for four hours per day, for a total of eight
hours per day. Dkt. # 50-6, at 251.
remained on light duty until July 17, 2015, after which she
took maternity leave. Dkt. # 50-8, at 3. On July 21, 2015,
she requested 240 hours of advanced leave; defendant approved
her request, and plaintiff used this leave until about
October 1, 2015. Dkt. # 50-14. Thereafter, defendant placed
plaintiff on leave without pay, under which she retained her
medical insurance. Dkt. # 50-8, at 3. While on maternity
leave, plaintiff incurred an overpayment from defendant and,
when she discovered this, worked out a repayment plan with a
human resources specialist to deduct $100 per pay check in
order to reimburse defendant. Dkt. # 50-1, at 150-51.
Ultimately, however, plaintiff's repayment rate increased
to an unspecified amount when Ervin-Johnson signed a letter
from the payroll office indicating that plaintiff owed
defendant money. Dkt. # 50-20, at 8-9. On March 7, 2016,
plaintiff resumed her work as a custodian at the downtown
station. Dkt. # 50-8, at 3.
January 28, 2016, plaintiff filed this lawsuit, alleging
discrimination and retaliation on the basis of race and
gender in violation of Title VII, and failure to accommodate
and retaliation in violation of the Rehabilitation Act. Dkt.
# 1. Defendant moved to dismiss (Dkt. # 9) plaintiff's
complaint, and the Court granted this motion in part,
dismissing plaintiff's Title VII race discrimination and
Rehabilitation Act claims (Dkt. # 16). Thereafter, plaintiff
filed an amended complaint (Dkt. # 17), alleging
discrimination and retaliation on the basis of gender under
Title VII and retaliation under the Rehabilitation Act.
Defendant filed a second motion to dismiss (Dkt. # 19),
asking the Court to dismiss plaintiff's Rehabilitation
Act claim, and the Court denied this motion (Dkt. # 30).
Plaintiff then moved for leave to file a second amended
complaint (Dkt. # 40), which the Court denied (Dkt. # 44).
Defendant now moves for summary judgment (Dkt. # 50).
judgment pursuant to Fed.R.Civ.P. 56 is appropriate where
there is no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Kendall v. Watkins, 998 F.2d 848,
850 (10th Cir. 1993). The plain language of Rule 56(c)
mandates the entry of summary judgment, after adequate time
for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.
Celotex, 477 U.S. at 317. “Summary judgment
procedure is properly regarded not as a disfavored procedural
shortcut, but ...