VanHorn v. United States Postal Serv.

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JENIFER A. VANHORN, Plaintiff, v. UNITED STATES POSTAL SERVICE, Defendant.

No. 21-1067-DDC-GEB

United States District Court, D. Kansas

April 28, 2023

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, DISTRICT JUDGE

Plaintiff Jenifer A. VanHorn, proceeding pro se, ^[1] sued her former employer defendant United States Postal Service (USPS) for discriminating and retaliating against her. She claims that USPS violated Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act. Doc. 59 at 8-9 (Pretrial Order ¶¶ 4.a.i.-ii.).

Defendant now moves for summary judgment against all claims under Fed.R.Civ.P. 56. Defendant has filed a Motion for Summary Judgment (Doc. 61) and Memorandum in Support (Doc. 62). Plaintiff has responded (Doc. 64) and defendant has replied (Doc. 66). Defendant also has moved to strike the exhibits plaintiff filed with her Response (Doc. 67), and plaintiff has filed a Surreply, responding both to defendant's summary judgment and Motion to Strike arguments (Doc. 68). For reasons explained below, the court grants defendant's Motion for Summary Judgment in part but denies it in part. It also denies defendant's Motion to Strike as moot.

I Uncontroverted Summary Judgment Facts

The following facts either are stipulated in the Pretrial Order (Doc. 59), uncontroverted or, where controverted, stated in the light most favorable to plaintiff, the party opposing summary judgment. See Scott v. Harris, 550 U.S. 372 378 (2007).

Plaintiff alleges that defendant discriminated and retaliated against her when it (1) abolished her modified clerk position and reassigned her to a different position in October 2017 and (2) suspended her for 14 days in July 2018. Doc. 59 at 8-9 (Pretrial Order ¶¶ 4.a.i-ii.). The court provides the factual background relevant to both theories of recovery, below.

Plaintiff began her career as a part-time mail carrier for the post office in 1998. Id. at 2 (Pretrial Order ¶¶ 2.a.1.-3.). She soon worked full time as a mail carrier; and did so until she injured herself on the job in September 1999. Id. (Pretrial Order ¶¶ 2.a.3.-5.). Due to this work injury, plaintiff didn't work from April 2000 to May 2002. Id. (Pretrial Order ¶ 2.a.6.). In 2003, plaintiff began performing clerk duties for the post office. Id. (Pretrial Order ¶ 2.a.8.). Even though she didn't actually work as a mail carrier-due to restrictions from back pain-defendant “classified [plaintiff] as a mail carrier from 2000 to 2009[.]” Id. (Pretrial Order ¶ 2.a.7.).

In 2009, defendant reclassified plaintiff as a “processing clerk[.]” Id. (Pretrial Order ¶ 2.a.9.). Plaintiff worked as a processing clerk-working on “drop shipment, postage due, collecting keys, deposit bag, and accountables”-until May 2013. Id. (Pretrial Order ¶ 2.a.11.). Plaintiff stopped working in May 2013 because of back pain. Id. (Pretrial Order ¶ 2.a.12.). Following a back surgery in August 2014, plaintiff returned to work in September of the same year. Id. at 3 (Pretrial Order ¶¶ 2.a.14.-15.). After her return, plaintiff's job responsibilities remained the same except she no longer had responsibility for drop shipments. Id. (Pretrial Order ¶ 2.a.16.).

2015 Equal Employment Opportunity (EEO) Complaint and Settlement

In August 2015, defendant offered plaintiff a modified clerk position at the downtown Wichita station tailored to accommodate her physical restrictions from her back injuries. Doc. 62-4 at 3 (2018 EEOC Decision). Plaintiff accepted this position on September 8, 2015. Id. Shortly after, plaintiff asserted an EEO Complaint. Plaintiff and her employer resolved this Complaint on October 27, 2015, memorializing their compromise in a written settlement agreement. Id. Relevant here, this agreement included a term mandating that plaintiff's modified position would remain “at the [Wichita, Kansas] Downtown Station indefinitely unless otherwise agreed by the parties.” Id. at 2.

October 2017 Position Reassignment

On September 15, 2017, defendant issued plaintiff a letter, informing her that her position at the Downtown Station would no longer exist starting September 30, 2017. Doc. 62-2 at 24-25 (VanHorn Dep. 102:3-104:15). Though she had two weeks left in her role as a processing clerk, plaintiff stopped reporting to work the day she received the letter. Id.; see also Doc. 59 at 3 (Pretrial Order ¶ 2.a.17.). She took a sick leave of absence for a couple of weeks. Doc. 59 at 3 (Pretrial Order ¶ 2.a.18.).

On September 26, 2017, defendant notified plaintiff that her position wasn't abolished. Doc. 62-2 at 27 (VanHorn Dep. 105:8-18); see id at 75 (September 26 Letter). Instead, defendant reassigned plaintiff to the role of “distribution clerk” at the Delano Station in Wichita, Kansas. Doc. 59 at 3 (Pretrial Order ¶ 2.a.19.). The distribution clerk position required drop shipment duty. Id. Plaintiff-concerned primarily about the drop shipment requirement of this job-expressed concerns about her reassignment to the Delano office's management. Id. (Pretrial Order ¶ 2.a.21.).

After plaintiff had expressed these concerns, defendant issued plaintiff another letter on October 6, 2017, asking her for her preference for a job at the Customer Care Center. Id. (Pretrial Order ¶ 2.a.20.); see also Doc. 62-2 at 31 (VanHorn Dep. 113:2-25). Plaintiff never submitted her preference. Doc. 59 at 3 (Pretrial Order ¶ 2.a.22.). On October 18, 2017, without a preference to consider, defendant sent plaintiff a letter, assigning her to the position of customer care agent at the Wichita Customer Care Center. Id. (Pretrial Order ¶¶ 2.a.23.-24.); see also Doc. 62-2 at 36-37 (VanHorn Dep. 121:1-122:8); Doc. 62-2 at 78 (October 18 Letter). The letter informed plaintiff that her training at the Customer Care Center would run from October 30, 2017, to November 24, 2017. Doc. 62-2 at 78 (October 18 Letter). It provided plaintiff with her work schedule and informed her that she would begin working as a customer care agent on November 27, 2017. Id.

July 2018 Suspension

From September 15, 2017 (the date when she received notice of her reassignment) to July 2018 (when defendant suspended her employment) plaintiff didn't show up for work. In this period of absence from work, defendant issued plaintiff a series of letters and plaintiff participated in a couple of pre-disciplinary interviews. The court recounts these activities that culminated in plaintiff's suspension, in more detail, below.

Plaintiff failed to report to her first day of training on October 30 2017. Doc. 59 at 3 (Pretrial Order ¶ 2.a.28.). Over the next few weeks, plaintiff reached out to higher ups in the government and at USPS to share her concerns about her reassignment to the Customer Care Center. On November 9, 2017, plaintiff spoke with someone at OPM or OWCP. Id. (Pretrial Order ¶ 2.a.29.).

On November 14, 2017, she spoke with the manager at the Customer Care Center. Id. (Pretrial Order ¶ 2.a.30.). Plaintiff told the manager that she felt defendant had set her up for failure with this reassignment-the computer aspect of the role particularly concerned her. Id. (Pretrial Order ¶¶ 2.a.27., 2.a.31.).

On November 14, 2017, defendant issued plaintiff a letter memorializing the fact that she hadn't reported to work since September 15, 2017. Id. (Pretrial Order ¶ 2.a.32.). This letter requested medical documentation for her absence and documentation from a doctor stating that plaintiff wasn't a threat to herself or others. Id. (Pretrial Order ¶¶ 2.a.33., 2.a.35.). It also explained that plaintiff had the option to attend the next training for her role at the Customer Care Center, beginning November 27, 2017. Id. (Pretrial Order ¶ 2.a.34.). After she again failed to show up for training, plaintiff's supervisor at the Customer Care Center sent her a letter, on December 6, 2017. Id. at 4 (Pretrial Order ¶¶ 2.a.36.-37.). It requested an investigative interview to discuss her continued absence from work since September 15, 2017. Id. This letter scheduled the interview for December 11, 2017, and asked plaintiff to provide medical documentation if illness or injury had caused her absence. Id. (Pretrial Order ¶¶ 2.a.38.-39.).

About two months later, on February 9, 2018, plaintiff's psychologist, Dr. Schell, provided a letter updating defendant on plaintiff's medical status. Id. (Pretrial Order ¶ 2.a.40.). Dr. Schell didn't report that plaintiff was unable to work, but she did report concerns about suicide ideation. Id. (Pretrial Order ¶¶ 2.a.41.-42.). On February 28, 2018, defendant sent plaintiff a letter that acknowledged Dr. Schell's letter. Id. (Pretrial Order ¶ 2.a.43.). It recognized that Dr. Schell's letter didn't state whether plaintiff posed a threat to herself or others and failed to provide a date when plaintiff could return to work. Id. This letter also acknowledged that FMLA covered plaintiff's leave, but that this coverage would expire on April 1, 2018. Id. (Pretrial Order ¶ 2.a.44.). In response, on March 7, 2018, Dr. Schell reported that plaintiff didn't pose a threat to herself or others, and the doctor believed plaintiff possibly could return to work in September 2018. Id. (Pretrial Order ¶ 2.a.45.).

On April 6, 2018, defendant sent plaintiff another letter notifying her that her FMLA leave had expired, and she still hadn't reported to work. Id. (Pretrial Order ¶ 2.a.47.). This letter set a pre-disciplinary interview (PDI) for April 10, 2018. Id. (Pretrial Order ¶ 2.a.48.). Plaintiff participated in this interview, and the next day defendant sent plaintiff a “Letter of Warning”- citing plaintiff's failure to maintain a regular work schedule. Id. (Pretrial Order ¶¶ 2.a.49.-50.). This letter summarized plaintiff's pre-disciplinary interview this way: plaintiff informed the interviewer that she ...