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Roecker v. Brennan

United States District Court, D. Kansas

February 2, 2017

ALLENE R. ROECKER, Plaintiff,
v.
MEGAN BRENNAN, Postmaster General of the United States Postal Service, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Plaintiff Allene R. Roecker brings this employment discrimination action against defendant Megan Brennan, as Postmaster General of the United States Postal Service. This matter is before the court on defendant's Motion for Summary Judgment (Doc. 46). Plaintiff responded to defendant's motion (Doc. 50). And, defendant filed a Reply (Doc. 53). The matter thus is fully briefed, and ripe for ruling. After considering the parties' arguments, the court grants in part and denies in part defendant's summary judgment motion. It explains why, below.

         I. Uncontroverted Facts

         The following facts are uncontroverted or, where controverted, are stated in the light most favorable to plaintiff, the party opposing summary judgment. Scott v. Harris, 550 U.S. 372, 378 (2007).

         Plaintiff's Employment with USPS

         Plaintiff has worked for the United States Postal Service (“USPS”) in its Kansas City, Kansas Network Distribution Center (“NDC”) since 1987. In 1998, plaintiff sustained injuries to her left shoulder and left elbow while performing work duties. On April 10, 1999, plaintiff filed a notice with the Department of Labor's Office of Workers Compensation Program (“OWCP”) for work-related injuries to her left elbow. OWCP accepted plaintiff's workers' compensation claim. When it accepts a workers' compensation claim, OWCP pays an employee's medical bills, lost wages, and lost time for attending therapy and medical appointments. Plaintiff also continued to receive all of her employee benefits from USPS.

         On July 17, 2002, USPS offered plaintiff a Modified FT Distribution Clerk position, a Grade Level 5 position that was tailored to meet plaintiff's physical needs at the time. Plaintiff accepted that position on August 17, 2002.

         On April 14, 2008, the OWCP gave plaintiff a 1% permanent impairment rating for her right elbow under the schedule award provisions of the Federal Employees' Compensation Act (“FECA”). On April 15, 2008, the OWCP gave plaintiff a 4% permanent impairment rating for her left shoulder under the FECA schedule award provisions.

         Plaintiff's Rehabilitation Modified Position

         The USPS has implemented a program called the National Reassessment Process (“NRP”). The NRP works to ensure that employees who have sustained on-the-job injuries are performing necessary work available within their restrictions and not “made up” work. The NRP requires all employees on limited or modified duty to obtain updated restrictions from their physicians. Plaintiff updated her medical restrictions on May 19, 2008.

         Limited duty and rehabilitation modified jobs at USPS are generated through a department called In-Plant Support. NDC's In-Plant Support works with USPS's Injury Compensation department to identify available job tasks within the facility where the injured employee works and that the injured employee could perform within her restrictions.

         On June 25, 2008, USPS offered plaintiff a rehabilitation modified position as a Parcel Post Distribution Machine Clerk, Grade Level 6 (“Machine Clerk position”). Plaintiff accepted the Machine Clerk position. It included the following job duties: walking through the facility and looking through containers and discharges to check the accuracy of mail within the container or discharge; checking for accuracy of placarding, labeling, and signage through the mail flow; reporting discrepancies within the mail flow to In-Plant Support or a supervisor as directed; assisting with placarding and labeling changes as needed; assisting with drop shipment paperwork; and assisting in the Loose-In-Mail section with separating mail, notifications, and letters. The description for the Machine Clerk's position listed the physical activity required to perform these job duties. These requirements fell within plaintiff's May 19, 2008 work-related restrictions. The requirements included lifting up to 20 pounds intermittently, up to 4 hours per day; standing/walking intermittently, up to 3 hours at a time, up to 6 hours per day; bending/stooping/twisting, intermittently and up to 4 hours per day; reaching above the shoulder, intermittently, up to 30 minutes at a time and up to 1 hour per day; simple grasping, continuously, not more than 1 hour at a time, intermittently, up to 4 hours at a time; and fine manipulation, intermittently, up to 30 minutes at a time.

         Plaintiff is able to perform the required functions and duties of the Machine Clerk position that she accepted in June 2008. When asked what USPS should have done to reasonably accommodate plaintiff's medical condition that it had not already done, plaintiff testified that she was “not sure.” Doc. 47-2 at 38.

         Plaintiff's Medical Restrictions

         Plaintiff is substantially limited in her abilities to walk, stand, bend, stoop, twist, reach, push, lift, grasp, finely manipulate, perform manual tasks, and work. Within her May 19, 2008 restrictions, however, plaintiff can drive her car (including turning the key), tie her shoes, bathe, shower, dress herself, and walk and stand intermittently up to three hours at a time. But her restrictions affect her ability to prune rose bushes, perform yard work, take out the trash, make her bed, and sort laundry. Plaintiff also has difficulty pushing grocery carts that have bad wheels. The restrictions also limit plaintiff's ability to walk or stand at functions to two to three hours at a time. And, the restrictions affect her ability to bend and stoop to interact with her granddaughter and children at church.

         Plaintiff's lifting restriction makes it harder for her to lift cases of pop, water, or any other bulky item at the store. Plaintiff's grasping restriction causes fatigue in her hands after she cooks a large meal. Plaintiff cannot host many holiday events because of the extra work involved with cutting and fixing salads. Plaintiff's grasping restriction also limits her ability to vacuum and, sometimes, affects her ability to take care of her hair.

         Plaintiff's Supervisors and Work Assignments

         USPS employed Lovie Watson as the Supervisor of Distribution Operations at the NDC. In 2009, Ms. Watson became plaintiff's supervisor in the Secondary Unit. In December 2010, Ms. Watson received a list of jobs that In-Plant Support and Injury Compensation agreed were available in the facility and within plaintiff's restrictions. Ms. Watson then used this list to assign plaintiff work, when needed.

         USPS employed Latrone Slade as Manager of Distribution Operations at the NDC. In this position, Mr. Slade could assign job duties to plaintiff indirectly through plaintiff's supervisor. But he did not always find plaintiff's supervisor before he assigned her work. For example, if plaintiff was standing in front of him, he would assign her tasks without speaking first to her supervisor. Between 2010 and 2013, Pamela Lackner was Acting Manager of Distribution Operations when Latrone Slade was absent. During this time, Ms. Lackner also could assign plaintiff job duties. Plaintiff's supervisors were aware that plaintiff was a modified duty rehabilitation employee with work-related restrictions. But, plaintiff's supervisors did not consider her medical restrictions as “disabilities.”

         The USPS Rehabilitation Assignment Priority Policy authorizes a supervisor to assign rehabilitation employees to perform other work in the facility if adequate duties are not available within their work restrictions in their regularly assigned areas. After Ms. Watson began supervising plaintiff, she noticed that the specific tasks listed on plaintiff's June 25, 2008 modified rehabilitation job offer did not fill an 8-hour workday. So, after considering plaintiff's medical restrictions, the availability of other employees to perform the work, and the needs of the postal service each day, Ms. Watson assigned plaintiff other duties.

         Plaintiff's supervisors daily instructed plaintiff that she should not perform work outside of her medical restrictions. And, they instructed her to find a supervisor when her restrictions were exhausted so that she could receive a new assignment. Generally, Ms. Watson assigned plaintiff to work in areas where work was available in the Clerk Craft, but if no duties in that department that met plaintiff's medical restrictions were available, Ms. Watson would assign plaintiff to debris/loose mail duties in the Mail Handler Craft. Ms. Watson also assigned plaintiff the task of hanging sacks because she could perform this duty within her restrictions. After assigning plaintiff her work duties, supervisors did not watch plaintiff performing the assigned tasks because supervisors walked through other parts of the facility or worked the floor.

         Although plaintiff's supervisors instructed her not to perform work beyond her restrictions, plaintiff testified that her supervisors assigned her work that exceeded her restrictions. Plaintiff asserts that Ms. Watson did not allow her to take necessary breaks, assigned her duties beyond her simple grasping restriction, and required her to perform the debris/loose mail duties in the Mail Handler Craft-an assignment that violated her lifting restrictions. When plaintiff complained to Ms. Watson about violations of her work restrictions, Ms. Watson told her it was the only work available and that she decided where plaintiff would work because she was the supervisor. But, on one occasion, plaintiff informed Ms. Watson that she could not perform the slides work because it was unsafe. In response, Ms. Watson assigned plaintiff a different task. She also never assigned plaintiff the slides work again. Plaintiff also testified that even when work was available in the Clerk Craft that she could perform, she was assigned to perform the debris/loose mail duties in the Mail Handler Craft-a task that exceeded her restrictions. Plaintiff also testified that both Mr. Slade and Ms. Lackner assigned her duties that exceeded the scope of her restrictions.

         When Ms. Watson was unable to find an employee at his or her work assignment, she would page the employee to locate the employee. Ms. Watson thinks she paged plaintiff less often than she paged other employees. But, Ms. Watson paged plaintiff on several occasions when she was taking her rest breaks. Plaintiff believes that Ms. Watson was harassing her by paging her to come back to work.

         Plaintiff's Specific Job Assignments

         One of the specific tasks that plaintiff's supervisors assigned her to perform was drop shipment paperwork duties. When assigning plaintiff this work, her supervisors only expected her to highlight eight fields on a 8125 form to ensure the paperwork was complete. Depending on the Dock Clerk's preference, plaintiff could make phone calls to get fax copies of the original form from the originating postal unit. Each supervisor expected plaintiff to perform these tasks within her medical restrictions. A former Dock Clerk asserts that he saw plaintiff performing additional duties associated with the drop shipment paperwork. He states that plaintiff performed every job task except turning on the computers and signing the 8125 forms. But, the former Dock Clerk does not assert that plaintiff's supervisors required her to perform these additional duties.

         Another task that plaintiff performed was EVS sampling duties. This task required plaintiff to weigh samples of packages. Dock Clerks collected the samples and put them in hampers. Plaintiff then weighed them with a scanner and a scale, and plaintiff next placed the scanner in a cradle to download the information scanned. Plaintiff then would write down the work completed that week and provide it to In-Plant Support. Plaintiff's supervisors instructed plaintiff to work within her medical restrictions when performing EVS sampling. But, plaintiff asserts that she was assigned to sort through multiple mailers and scan boxes that exceeded her medical restrictions.

         Plaintiff also requested to perform the Loose-In-Mail job duties because they were part of her modified job duties. Plaintiff complained about her supervisors assigning her to perform EVS sampling duties when Loose-In-Mail work was available. But the Loose-In-Mail job was a bid position, and if the volume of Loose-In-Mail work did not supply enough work for both the bid position and plaintiff to perform, the bid position would perform the work, not plaintiff.

         Plaintiff's Responsibilities as a Rehabilitation Employee

         Plaintiff's supervisors must assign plaintiff work duties that are within her restrictions. And, plaintiff is responsible for performing her assigned work duties in a way that does not exceed her medical restrictions. Plaintiff's supervisors expected plaintiff to refuse any job assignment that she believed was outside her medical restrictions. Also, plaintiff's union steward advised plaintiff that she could refuse to perform job duties that exceeded the scope of her restrictions.

         Plaintiff was responsible for taking periodic breaks or rest periods, for informing her supervisor when she needed to sit down, for performing jobs as long as she could within her restrictions, for letting a supervisor know when she had exhausted her restrictions so she could receive another assignment, and for asking for help to perform tasks that exceeded her weight restriction.

         Plaintiff's Paid Leave in 2011

         On September 13, 2011, plaintiff requested leave for dependent care because her husband was undergoing surgery. Ms. Watson granted plaintiff's leave request. So, plaintiff attended her husband's surgery on September 20, 2011, and did not report to work. USPS placed plaintiff on paid leave status for that day.

         Plaintiff's Belief That She Deserved Higher Pay

         In May 2016, plaintiff was earning $56, 000 from her employment at USPS. Only USPS managers and supervisors can authorize a higher level of pay for an employee. In-Plant Support determined the level of pay for employees' jobs and duties. Supervisors on the floor did not make pay determinations.

         During plaintiff's employment, Ms. Watson learned from her supervisor that plaintiff was clocking into work using the wrong operation number. Plaintiff was using the operation number for drop shipments because she thought she was entitled to a higher rate of pay-the same rate of pay that the Dock Clerk (a Grade Level 7 position) received. Ms. Watson told plaintiff that she was using the wrong operational number to clock in. And, Ms. Watson deleted plaintiff's incorrect clock rings and replaced them with the operation code for Grade Level 6 pay-the pay rate assigned to plaintiff's job. Ms. Watson deleted ...


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