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Jones v. Brennan

United States District Court, N.D. Oklahoma

November 20, 2017

ROBIN D. JONES, Plaintiff,
MEGAN J. BRENNAN, Postmaster General, Defendant.



         Now before the Court is defendant Megan J. Brennan's motion for summary judgment (Dkt. # 50).

         This is 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 accommodation.


         The following facts are undisputed:[1] 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.

         On or 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.

         Also in 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.

         In or 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.

         On 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.

         On or 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.

         Complying 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.[2] Defendant compensated plaintiff for her full eight hours of work that day. Dkt. # 50-8, at 1.

         The 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.

         About 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.

         On 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.

         On 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.[3]

         Plaintiff 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.

         On 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).


         Summary 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. ‚ÄúSummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but ...

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