Roecker v. Postmaster General, United States Postal Service

Filing 54

MEMORANDUM AND ORDER granting in part and denying in part 46 Motion for Summary Judgment. Signed by District Judge Daniel D. Crabtree on 02/02/2017. (mig)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ALLENE R. ROECKER,
Plaintiff,
v.
Case No. 15-7201-DDC-JPO
MEGAN BRENNAN,
Postmaster General of the
United States Postal Service,
Defendant.
_____________________________________
MEMORANDUM AND ORDER
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.

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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

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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

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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,

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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

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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

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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

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rate assigned to plaintiff’s job. Ms. Watson deleted plaintiff’s incorrect clock rings because they
caused the system to reflect that two Dock Clerks were working when USPS had authorized only
one Dock Clerk to work at a time.
As described above, plaintiff performed EVS sampling as part of her modified job duties.
Plaintiff performed the EVS sampling duties assigned to Vicki Hackett when she was on
vacation. Ms. Hackett was a Clerk assigned to the BMEU, a separate postal unit. Performing
the EVS sampling was only a portion of Ms. Hackett’s job duties. Later, USPS moved the
BMEU employees at NDC to another facility. After that occurred, plaintiff and other employees
performed the EVS sampling duties that Ms. Hackett used to perform at NDC. Plaintiff contends
that she should receive a higher level of pay for performing the EVS scans because Ms. Hackett
was paid at a higher level in her position as BMEU clerk.
An employee named Z. Malik was assigned the Grade Level 7 duty of reading the
operational numbers that employees had entered to verify their accuracy. Mr. Malik only
performed this function for a limited amount of time each day. The task could last about 20
minutes to an hour. Plaintiff thought that Mr. Malik was using a higher level operating number
when he performed EVS sampling. Mr. Malik told plaintiff the number he was using for EVS
sampling, and plaintiff began entering that same number when she performed EVS sampling.
Plaintiff believed she was entitled to a higher rate of pay when she performed EVS sampling.
Mr. Malik did not receive a higher level of pay for any Dock Clerk functions that he performed
along with plaintiff.
Plaintiff’s Communications with her Union Steward
Plaintiff spoke to her union steward many times about her concerns with her working
conditions, including her belief that supervisors were assigning her work outside of her medical

9

restrictions. Plaintiff gave her union steward written statements about these concerns. Plaintiff
thought the union would file a grievance based on her complaints. The union never did.
When an employee asks to speak with a union steward, USPS supervisors follow a
general rule of arranging the meeting within two hours. But, the timing of the meeting depends
on the union steward’s availability, any pressing needs on the job that the employee must
perform, and the mail volume. Whenever plaintiff asked to speak with a union steward, she
provided Ms. Watson a carbon copy of a routing slip. Ms. Watson would initial the slip, and
plaintiff and Ms. Watson would each keep a copy. If Ms. Watson’s initials are not on the slip,
then plaintiff probably did not provide the routing slip to Ms. Watson.
Plaintiff’s Complaints
On September 21, 2010, plaintiff contacted an EEO counselor to file an informal EEO
complaint alleging that Ms. Watson and Ms. Lackner were assigning plaintiff work outside of
her medical restrictions. Plaintiff also asserted that Ms. Watson and Ms. Lackner did not allow
her to see her union steward. Plaintiff resolved the September 2010 complaint to her
satisfaction, and she withdrew the complaint in December 2010.
On November 31, 2011, plaintiff filed a formal discrimination complaint. She alleged
retaliation and disability discrimination. Her complaint asserted the following alleged
discriminatory acts:
(1) On September 17, 2011, Complainant became aware that her supervisor
deleted her clockrings without her knowledge, (2) on September 13, 2011, the
Complainant was told that she would be denied sick leave dependent care, (3)
since April 2010, the Complainant was instructed to perform work outside of her
work restrictions (i.e., hanging sacks and loose debris), (4) since June 2010
through the present, the Complainant has been assigned to perform dock clerk
shipment duties, but [has] not been paid higher level pay for performing those
higher level duties, (5) since September 10, 2010, the Complainant was denied
time to speak with her union steward, (6) since May 13, 2010, the Complainant

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was instructed to work in the mail handler craft while work was still available in
her clerk craft.
Doc. 47-21 at 5. The EEO office allowed plaintiff to amend this complaint to include allegations
asserted in a February 13, 2012 informal EEO complaint, and a March 9, 2012 letter from her
representative. Plaintiff’s February 13, 2012 informal complaint asserted that she “was assigned
work in the mailhandler craft when work was available in my clerk craft.” Doc. 47-23 at 2.
The Administrative Law Judge (“ALJ”) consolidated the information in plaintiff’s
representative’s letter and included plaintiff’s hostile work environment claim in the November
31, 2011 formal complaint. Plaintiff’s hostile work environment claim alleged specific incidents
of harassment beginning January 3, 2013 and lasting through February 9, 2013. These incidents
included the following: (1) on January 3, 2013, Mr. Slade told plaintiff to perform EVS
sampling during her sit down/rest period; (2) on January 5, 2013, plaintiff was performing EVS
sampling daily, no one else was current on training, and plaintiff was complaining about doing
the EVS sampling because she believed Loose-In-Mail duties were available; (3) on January 31,
2013, Ms. Watson asked Ben Brown “what eVS sample scans were necessary [and] how long it
takes to do them” (Doc. 47-24 at 3); (4) on February 2, 2013, Mr. Slade asked plaintiff “why it
took 4 hours to do [the] Morning Report,” and plaintiff advised that she “cleared/expediting mail
missed while doing report—would gladly stop.” (id.); (5) on February 6, 2013, Ms. Watson
advised plaintiff that the Morning Report should only take two hours, plaintiff responded with
the reason why it was taking her so long to complete the report, and Ms. Watson suggested going
around with plaintiff while she completed the report to determine what took so long; and (6) on
February 9, 2013, Ms. Watson instructed plaintiff to “take mail on in-house to do eVS sample
scans,” which required plaintiff “to pull 14 NMOs from Gaylord box on DK 19 trailer. Weight
for one NMO was over 21 lbs after putting on scale. London Bonds, APP’s SDO, took the NMO
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from scale [and] put back in Gaylord box on Fed Ex PRS trailer at DK 19 (drop [and] pick Fed
Ex trailer)” (id. at 4).
II.

Summary Judgment Standard
Summary judgment is appropriate if the moving party demonstrates “no genuine dispute”

about “any material fact” exists and that it is “entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c). When it applies this standard, the court views the evidence and draws inferences
in the light most favorable to the non-moving party. Nahno-Lopez v. Houser, 625 F.3d 1279,
1283 (10th Cir. 2010). “An issue of fact is ‘genuine’ ‘if the evidence is such that a reasonable
jury could return a verdict for the non-moving party’ on the issue.” Id. (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if under the
substantive law it is essential to the proper disposition of the claim’ or defense.” Id. (quoting
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (citing Trainor v. Apollo
Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To meet this burden, the moving
party “need not negate the non-movant’s claim, but need only point to an absence of evidence to
support the non-movant’s claim.” Id. (citing Sigmon v. CommunityCare HMO, Inc., 234 F.3d
1121, 1125 (10th Cir. 2000)).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Id. (quoting Jenkins v. Wood, 81
F.3d 988, 990 (10th Cir. 1996)); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986);

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Anderson, 477 U.S. at 248–49. “To accomplish this, the facts must be identified by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler, 144 F.3d at
670 (citing Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992)).
Summary judgment is not a “disfavored procedural shortcut.” Celotex, 477 U.S. at 327.
Instead, it is an important procedure “designed ‘to secure the just, speedy and inexpensive
determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III.

Analysis
Plaintiff asserts that defendant discriminated against her based on a disability by failing

to accommodate her, subjecting her to disparate treatment, subjecting her to unlawful harassment
and a hostile work environment, and retaliating against her. Plaintiff alleges that defendant’s
actions violated the Rehabilitation Act of 1973 (“Rehabilitation Act”), the Americans with
Disabilities Act Amendments Act of 2008 (“ADAAA”), and Title VII of the Civil Rights Act of
1964 (“Title VII”), as amended.
Defendant moves for summary judgment against all of plaintiff’s claims. Defendant
argues that plaintiff’s claims cannot survive summary judgment because: (1) plaintiff is not an
individual with a disability; (2) even if plaintiff is disabled, defendant reasonably accommodated
her; (3) defendant did not engage in any adverse employment actions or retaliation against
plaintiff; (4) plaintiff cannot show pretext; and (5) plaintiff was not subject to a hostile or abusive
work environment because of her disability. The court addresses each argument, in turn, below.
A. Individual with a Disability
The ADAAA prohibits discrimination “against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). When a plaintiff seeks to prove disability discrimination
using circumstantial evidence, the Tenth Circuit analyzes the claim under “the analytical

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framework first articulated in McDonnell Douglas in the context of Title VII claims.” Johnson
v. Weld Cty., Colo., 594 F.3d 1202, 1217 (10th Cir. 2010) (quoting MacKenzie v. City & Cty. of
Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). Under this framework, the plaintiff first must
establish a prima facie case of discrimination under the ADAAA by showing: “(1) [she] is
disabled as defined under the ADAAA; (2) [she] is qualified, with or without reasonable
accommodation by the employer, to perform the essential functions of the job; and (3) [she] was
discriminated against because of [her] disability.” Adair v. City of Muskogee, 823 F.3d 1297,
1304 (10th Cir. 2016) (citing Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 883 (10th
Cir. 2015)). If the plaintiff establishes a prima facia case of discrimination, “‘the burden shifts to
the defendant to offer a legitimate nondiscriminatory reason for its employment decision.’”
Johnson, 594 F.3d at 1217 (quoting MacKenzie, 414 F.3d at 1274). If the defendant articulates a
nondiscriminatory reason, “the burden shifts back to plaintiff to show a genuine issue of material
fact” that the defendant’s proffered reason is a pretext designed to mask discrimination. Id.
(quoting MacKenzie, 414 F.3d at 1274).
Defendant contends that plaintiff cannot establish a prima facie case of discrimination
because she is not disabled under the ADAAA. In 2008, Congress passed the ADAAA “with the
stated goal of ensuring that [t]he definition of disability . . . be construed in favor of broad
coverage.” Adair, 823 F.3d at 1305 (citation and internal quotation omitted). To meet this goal,
Congress amended the definition of the term “disability.” Id. Under the ADAAA’s amended
definition, “[t]he term ‘disability’ means, with respect to an individual—(A) a physical or mental
impairment that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an impairment . . . .” 42
U.S.C. § 12102(1).

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Plaintiff asserts that her elbow and shoulder impairments constitute a disability within the
meaning of subsection (A) above because they constitute an impairment that substantially limits
one or more major life activities. “To establish an ADA disability under subsection (A), . . . a
plaintiff must ‘articulate with precision’ both her impairment and the major life activity it
substantially limit[s].” Johnson, 594 F.3d at 1218 (quoting Doebele v. Sprint/United Mgmt. Co.,
342 F.3d 1117, 1129 (10th Cir. 2003)). The Tenth Circuit has construed “the phrase
‘substantially limiting’ to require an impairment that renders an individual either unable or
significantly restricted in ability to perform a major life activity ‘compared to the average person
in the general population.’” Rhodes v. Langston Univ., 462 F. App’x 773, 778 (10th Cir. 2011)
(quoting Johnson, 594 F.3d at 1218). The ADAAA includes the following in the definition of
major life activity: caring for oneself, performing manual tasks, walking, standing, lifting, and
bending. 42 U.S.C. § 12102(2)(A).
Plaintiff contends that her impairments substantially limit her ability to engage in the
major life activities of walking, standing, bending, stooping, twisting, reaching, pushing, lifting,
grasping, fine manipulation, performing manual tasks, and working. In May 2008, plaintiff’s
doctor completed a form by opining that plaintiff’s impairments require the following
restrictions: lifting up to 20 pounds intermittently, up to 4 hours per day; standing/walking
intermittently, up to 3 hours at time, up to 6 hours per day; bending/stooping/twisting,
intermittently up to 4 hours per day; reaching the above shoulder, intermittently, up to 30
minutes at a time 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.

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Plaintiff testified that her impairments limit her ability to perform certain tasks. Plaintiff
testified that her lifting restriction makes it harder for her to lift cases of pop, water, or any other
bulky item at the store. Plaintiff also testified that her grasping restriction causes fatigue in her
hands after she cooks a large meal. Plaintiff claims she is unable to host many holiday events
because of the extra work involved 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. Although
plaintiff conceded that she 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, she also
testified that her restrictions limit her ability to prune rose bushes, perform yard work, take out
the trash, make her bed, sort laundry, push grocery carts with bad wheels, walk or stand at
functions to two to three hours at a time, and bend and stoop to interact with her granddaughter
and other children.
Defendant asserts that no reasonable jury could conclude from the summary judgment
facts that plaintiff is disabled under the ADAAA. Defendant contends that plaintiff’s work
restrictions do not render her disabled simply because they exist. Defendant also argues that
plaintiff’s testimony does not establish that her impairments substantially limit her capacity to
perform major life activities. The court finds that a reasonable jury could conclude from these
facts that plaintiff does not have a disability as the ADAAA defines that term. But, the court also
concludes that a reasonable jury could find that plaintiff’s impairments substantially limit one or
more major life activities. See Sanchez v. Vilsack, 695 F.3d 1174, 1179–80 (10th Cir. 2012)
(concluding that summary judgment was inappropriate because plaintiff had produced sufficient
evidence for a jury to conclude that her impairment substantially limited her ability to see); see
also Lohf v. Great Plains Mfg., Inc., No. 10-1177-RDR, 2012 WL 2568170, at *4–6 (D. Kan.

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July 2, 2012) (concluding a reasonable factfinder could find that plaintiff’s 25 to 30–pound
lifting restriction substantially limited in his ability to lift, even though it was “a close question”).
Thus, the court cannot properly decide this issue on summary judgment.
Defendant argues that the court should follow Judge Lungstrum’s holding in Clarke v.
Mortg. Lenders of Am., LLC, No. 14-2526-JWL, 2016 WL 1030039 (D. Kan. Mar. 10, 2016),
and conclude that plaintiff here has failed to establish that she is disability under the ADAAA.
In Clarke, the plaintiff asserted that his traumatic brain injury constituted an ADAAA disability
because it limited two major life activities—his organizational skills and his short-term memory
capability. Id. at *3. Judge Lungstrum found plaintiff’s assertion “entirely conclusory” with
“no evidence in the record to support it” because “[t]here [was] no evidence from any physician
or medical expert from which a jury could conclude that a causal relationship exists between
plaintiff’s brain injury and his impaired organizational skills;” “[t]here [were] no medical records
establishing a connection between plaintiff’s brain injury and his problems with organization;”
and “plaintiff's impairment [was] not so obvious from the facts that the court [could] assume it
substantially limits a major life activity.” Id. But the summary judgment facts here are different.
Unlike Clarke, plaintiff has submitted evidence from her physician that establish a need for work
restrictions. Plaintiff’s physician opined that her impairments limit her ability to perform certain
physical tasks. Plaintiff also testified about how these impairments limit activities in her daily
life. The court thus concludes that the facts here differ materially from those Judge Lungstrum
considered in Clarke.
In contrast, plaintiff here has adduced sufficient evidence for a rational jury to find that
plaintiff is disabled in the sense the ADAAA defines that term. In reaching this decision, the
court recognizes that the ADAAA’s implementing regulations instruct that “substantially limits”

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“is not meant to be a demanding standard.” 29 C.F.R. § 1630.2(j)(1)(i). Also, the Circuit has
explained that “whether [an] impairment substantially limits a major life activity is ordinarily a
question of fact for the jury.” Carter v. Pathfinder Energy Servs., Inc., 662 F.3d 1134, 1142
(10th Cir. 2011). Applying these standards, the court finds that the summary judgment record
presents genuine issues of fact whether plaintiff’s shoulder and elbow impairments substantially
limit her ability to perform major life activities. The court thus denies summary judgment on
this basis.
B. Reasonable Accommodation
Defendant next asserts that, even if plaintiff is disabled under the ADAAA, she has failed
to come forward with admissible evidence to support a conclusion that defendant failed to
accommodate her because, defendant contends, USPS provided plaintiff with reasonable
accommodations for her disability. “To prevail on a failure-to-accommodate claim a plaintiff
must demonstrate that: (1) she is disabled; (2) she is ‘otherwise qualified’; and (3) she requested
a plausibly reasonable accommodation.” Sanchez, 695 F.3d at 1177. The ADAAA’s
implementing regulations define “reasonable accommodation” as:
(i) Modifications or adjustments to a job application process that enable a
qualified applicant with a disability to be considered for the position such
qualified applicant desires; or
(ii) Modifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed,
that enable an individual with a disability who is qualified to perform the essential
functions of that position; or
(iii) Modifications or adjustments that enable a covered entity’s employee with a
disability to enjoy equal benefits and privileges of employment as are enjoyed by
its other similarly situated employees without disabilities.

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29 C.F.R. § 1630.2(o). But, the regulations do not require an employer to provide a reasonable
accommodation that imposes an “undue hardship” considering the cost, financial resources, and
the operation of the entity. 29 C.F.R. § 1630.2(p).
A court must consider “two components” in the reasonable accommodation analysis.
Wilkerson v. Shinseki, 606 F.3d 1256, 1265 (10th Cir. 2010). First, the court asks “whether a
reasonable accommodation would enable the employee to do the particular job.” Id. (quoting
Gonzagowski v. Widnall, 115 F.3d 744, 747 (10th Cir. 1997)). Second, the court considers
“whether the employee could be transferred to other work which could be done with or without
accommodation.” Id. (quoting Gonzagowski, 115 F.3d at 747). The ADAAA implementing
regulations “envision an interactive process that requires participation by both parties.” Id.
(quoting Templeton v. Neodata Servs., Inc., 162 F.3d 617, 619 (10th Cir. 1998)).
Defendant asserts the undisputed facts establish that it reasonably accommodated plaintiff
by offering her two different modified jobs. Defendant offered and plaintiff accepted the first
job in 2002. The position was a Modified FT Distribution Clerk position, a Grade Level 5
position that was tailored to meet plaintiff’s physical needs. Defendant offered and plaintiff
accepted a second job in 2008. The position was the Machine Clerk position. This job was a
rehabilitation modified position as a Parcel Post Distribution Machine Clerk, Grade Level 6.
Defendant asserts that plaintiff never complained that she needs additional accommodations to
perform her modified position. And, plaintiff testified that she cannot identify any other
reasonable accommodations that would assist her in performing her job duties.
Plaintiff concedes that defendant offered her modified positions meant to accommodate
her disability. But, plaintiff asserts, defendant’s accommodations were not adequate because she
was asked to perform work beyond her restrictions. Plaintiff testified that she was assigned work

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that exceeded her restrictions. Specifically, plaintiff claims 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 which violated her lifting
restrictions. Plaintiff complained to Ms. Watson about the assignment of job duties exceeding
her restrictions. In response, Ms. Watson told plaintiff it was the only work available and that
she decided where plaintiff would work because she was the supervisor.
Defendant disputes these facts. Defendant asserts that plaintiff’s supervisors instructed
her on a daily basis that she should not perform work outside of her medical restrictions. The
supervisors also instructed plaintiff to find them when her restrictions were exhausted so that she
could receive a new assignment. And, the instructors expected plaintiff to ask for help if she
needed and refuse to perform assignments outside her restrictions. Defendant asserts that
plaintiff was responsible for working within her restrictions and, if plaintiff performed work
outside of her restrictions, she made the choice to do so.
Defendant also argues that, on at least one occasion, plaintiff informed Ms. Watson that
she could not perform the slides work because it was unsafe, and, in response, Ms. Watson
assigned plaintiff a different task and never assigned her that task again. Defendant argues that
these facts demonstrates that it provided plaintiff reasonable accommodations. Defendant
dismisses plaintiff’s testimony about her complaints to supervisors when, she contends, they
required her to work outside her restrictions. Defendant refers to this testimony as “selfserving.” See, e.g., Doc. 53 at 46.
A rational jury might find that plaintiff’s testimony is, in fact, “self-serving.” But the
governing procedural standard does not permit the court to make that determination on summary
judgment. See, e.g., Sorrentino v. IRS, 383 F.3d 1187, 1198 (10th Cir. 2004) (Seymour, J.,

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dissenting) (“The self-serving quality of the testimony goes to its credibility, which is to be
judged by the trier of fact. Credibility determinations are not to be made at summary judgment .
. . .”).
On this record, the court cannot conclude as a matter of law that defendant provided
plaintiff with reasonable accommodations. Plaintiff’s testimony conflicts with her supervisors’
testimony. A reasonable jury could conclude from these facts that plaintiff’s supervisors
instructed her to work within her restrictions, and plaintiff’s failed to follow her responsibility of
identifying tasks that exceeded her restrictions, refusing to perform such tasks, or asking for help
with such tasks. But, a reasonable jury also could believe plaintiff’s testimony that her
supervisors regularly assigned her work that exceeded her restrictions, and, when she complained
to her supervisor, Ms. Watson told her that she had to perform work, even though it violated her
restrictions. The court thus concludes that genuine issues of fact exist whether defendant
provided plaintiff with reasonable accommodations. The court denies summary judgment on this
basis.
C. Adverse Employment Actions
Defendant next asserts that plaintiff cannot establish that defendant engaged in any
adverse employment actions to support her discrimination and retaliation claims. Defendant also
argues that plaintiff cannot establish a temporal or causal link between an alleged adverse action
and her disability or protected activity to maintain a discrimination or retaliation claim.
To establish an ADAAA discrimination claim, “a plaintiff generally must show that [s]he
has suffered an ‘adverse employment action because of the disability.’” E.E.O.C. v. C.R. Eng.,
Inc., 644 F.3d 1028, 1038 (10th Cir. 2011) (quoting Mathews v. Denver Post, 263 F.3d 1164,
1167 (10th Cir. 2001)). And, “[t]o establish a prima facie case of ADA retaliation, a plaintiff

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must prove that (1) [s]he ‘engaged in a protected activity’; (2) [s]he was ‘subjected to [an]
adverse employment action subsequent to or contemporaneous with the protected activity’; and
(3) there was ‘a causal connection between the protected activity and the adverse employment
action.’” Foster v. Mountain Coal Co., LLC, 830 F.3d 1178, 1186–87 (10th Cir. 2016) (quoting
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999)).
An adverse action is one that produces “a significant change in employment status, such
as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington Indus., Inc., v. Ellerth, 524 U.S.
742, 761 (1998). It does not include “petty slights, minor annoyances, and simple lack of good
manners.” McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006) (quoting Burlington
N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). The court considers whether an action is
adverse on a case-by-case basis, using an objective standard and “examining the unique factors
relevant to the situation at hand.” Id. (quoting Sanchez v. Denver Pub. Sch., 164 F.3d 527, 532
(10th Cir. 1998)).
Plaintiff identifies four actions that purportedly constituted adverse employment actions:
(1) plaintiff’s work assignments; (2) plaintiff’s request for leave; (3) plaintiff’s disagreement
with her supervisors’ failure to increase her pay; and (4) plaintiff’s complaint that she was unable
to see her union steward within two hours. See Pretrial Order Part 3.a. (Doc. 45 at 3–7).
Defendant contends that none of these actions amount to adverse employment actions sufficient
to support a discrimination or retaliation claim. The court addresses each one below.
1. Plaintiff’s Work Assignments
Defendant asserts that plaintiff’s disagreement with the job tasks her supervisors assigned
her are not adverse employment actions. Defendant argues that plaintiff’s criticism about how

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her supervisor exercised authority is not an adverse employment action. See Young v. White, 200
F. Supp. 2d 1259, 1272–73 (D. Kan. 2002) (no adverse employment action when a supervisor
assigns tasks within his authority even though plaintiff “might disagree with the tasks that are
assigned or with the decision to give certain tasks to certain individuals” because such
assignment did not “alter[ ] plaintiff’s employment status in any way or had any negative effect
on plaintiff’s standing within the organization.”). Defendant also contends that undesirable jobs
falling inside a plaintiff’s work restrictions do not constitute adverse employment actions. See
Griffin v. Potter, 356 F.3d 824, 829 (7th Cir. 2004) (holding no adverse action when job
reassignments did not significantly alter the terms and conditions of plaintiff’s job). The court
agrees. Defendant’s assignments of job tasks within plaintiff’s restrictions are not adverse
employment actions, even if she deems the assignments undesirable. So, for example, plaintiff’s
assignment to perform EVS sampling duties when Loose-In-Mail work was available is not an
adverse action sufficient to support a discrimination or retaliation claim.
But, other aspects of plaintiff’s complaints go beyond the mere assignment of undesirable
tasks. Plaintiff asserts that defendant required her to perform tasks that exceeded her work
restrictions. Plaintiff also contends that, at least once, she complained to her supervisor that an
assignment was beyond her restrictions. In response, plaintiff’s supervisor told her that it was
the only work available and that she (the supervisor) would decide where plaintiff would work.
As discussed above, defendant disputes plaintiff’s version of the facts. The parties’ conflicting
views of the evidence create fact issues that the court cannot resolve on summary judgment.
Defendant’s failure to provide reasonable accommodations may serve as an adverse
employment action sufficient to support plaintiff’s discrimination and retaliation claims on
summary judgment. See Douglas v. Gen. Motors Corp., 982 F. Supp. 1448, 1452 (D. Kan. 1997)

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(Lungstrum, J.) (concluding that plaintiff satisfied the second element of an ADA retaliation
claim by asserting that she suffered an adverse employment action based on defendant’s “refusal
to accommodate”); see also Williams v. Philadelphia Hous. Auth. Police Dep’t, 380 F.3d 751,
761 (3d Cir. 2004) (“Adverse employment decisions in [the ADA] context include refusing to
make reasonable accommodations for a plaintiff’s disabilities.”). Plaintiff has presented
sufficient evidence for a jury to conclude that defendant engaged in an adverse action by failing
to accommodate her disability. Plaintiff’s discrimination claim thus survives summary
judgment. But, plaintiff’s retaliation claim fails because she has not established a casual or
temporal link between plaintiff’s work assignment and the protected activity of filing an EEO
complaint sufficient for her retaliation claim to survive summary judgment.
Plaintiff asserts that she has established the requisite causal link because she alleged in
her September 2010 EEO complaint that Ms. Watson and Ms. Lackner assigned her work
beyond her restrictions and these two supervisors assigned her such work continuously after she
filed the complaint. Indeed, in plaintiff’s November 2011 EEO complaint, plaintiff again alleged
that her supervisors had instructed her to perform work outside of her restrictions since April
2010. Plaintiff’s asserted timeline cannot support a causal link between her EEO complaint and
the work assignment because she alleges that her supervisors gave her the assignments starting
months before she filed the EEO complaint in September 2010. Plaintiff provides no other facts
from which a jury could infer a causal connection between her supervisor’s assignments and her
EEO complaint. Plaintiff also alleges that she engaged in protected activity by requesting
reasonable accommodations, but she provides no facts from which a jury reasonably could infer
that her supervisors continued assigning her work outside of her restrictions because she had
requested reasonable accommodations. Without evidence giving a jury a sufficient evidentiary

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basis to infer a causal link between defendant’s failure to accommodate plaintiff and the
protected activity, plaintiff’s retaliation claim fails as a matter of law.
2. Plaintiff’s Request for Leave
Defendant asserts that the summary judgment facts fail to support plaintiff’s claim that
defendant denied her request for sick leave. Defendant has established that plaintiff requested
leave for dependent care for her husband’s surgery on September 13, 2011. Ms. Watson granted
plaintiff’s leave request, and USPS placed plaintiff on paid leave status for that day. The
placement of an employee on one day of paid leave is not an adverse employment action because
it does not change the employee’s status, pay, or benefits. See, e.g., Armstead v. Wood, No. 10cv-02783-CMA-KMT, 2012 WL 2298495, at *7 (D. Colo. June 15, 2012) (holding that
plaintiff’s placement on paid leave was not an adverse employment action); see also Gerald v.
Locksley, 785 F. Supp. 2d 1074, 1117 (D.N.M. 2011) (same).
Plaintiff does not respond specifically to defendant’s argument. Instead, plaintiff states
only:
Defendant argues that the actions complained of do not constitute adverse
employment actions sufficient to maintain a claim under the ADA. Viewing the
evidence in the light most favorable to Plaintiff, a jury could find otherwise.
Doc. 50 at 1. This ipse dixit response is insufficient to create a triable issue for the jury. Plaintiff
has failed to present evidence sufficient to establish that the way defendant responded to her
leave request constituted an adverse action. Plaintiff thus cannot support a discrimination or
retaliation claim based on her leave request.
3. Plaintiff’s Disagreement with Pay
Defendant asserts that plaintiff’s supervisor did not engage in an adverse employment
action when she deleted plaintiff’s incorrect time entries, or clock rings. The undisputed

25

evidence establishes that plaintiff’s supervisor deleted plaintiff’s clock rings because plaintiff
had used the wrong operational number to clock in. Plaintiff’s supervisor replaced the wrong
operational code with the code for Grade Level 6 pay—the pay rate assigned to plaintiff’s job.
The correction of plaintiff’s clock rings so they reflect her accurate pay level is not an adverse
employment action. See Scott v. Donahoe, 913 F. Supp. 2d 355, 367 (W.D. Ky. 2012) (holding
that defendant’s correction of plaintiff’s incorrect clock rings was not an adverse employment
action); see also Garcia v. Bd. of Regents of the Univ. of N.M., No. 09-0203-RB/RHS, 2010 WL
2606285, at *8 (D.N.M. June 2, 2010) (holding that defendant’s delay in depositing plaintiff’s
paycheck so that defendant could correct an overpayment and pay plaintiff the accurate salary
was not an adverse employment action).
Plaintiff also fails to show that defendant failed to pay her the correct level of pay for the
tasks she performed. 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. Although the summary judgment
evidence establishes that plaintiff believed USPS should have paid her at a higher rate to perform
certain job duties, she submits no evidence to substantiate her belief. Specifically, plaintiff
believes she was entitled to a higher pay rate in three instances.
First, plaintiff used an operational code reserved for Dock Clerks (a Grade Level 7
position) when she performed the drop shipment work. But, defendant has established that this
task was only one of the job duties assigned to Dock Clerks. Plaintiff’s performance of this
single job duty did not entitle her to a higher rate of pay. Also, USPS had authorized only one
Dock Clerk to work at a time so plaintiff’s clock rings made the system reflect, erroneously, that
two Dock Clerks were working. Second, plaintiff contends that USPS should have paid her at

26

the same level as the BMEU clerk, Vicki Hackett, when she performed the EVS sampling duties
assigned to Ms. Hackett while she was on vacation. But, defendant has established that the EVS
sampling was only a portion of Ms. Hackett’s job duties. Plaintiff’s performance of this one
aspect of Ms. Hackett’s job did not entitle her to the same higher rate of pay that Ms. Hackett
received. Finally, plaintiff believes that an employee named Z. Malik was entering a higher level
operating number when he performed EVS sampling. But, the only evidence in the summary
judgment record establishes that Mr. Malik did not receive a higher level of pay for any Dock
Clerk functions that he performed along with plaintiff. From these facts, no jury could conclude
that defendant failed to pay plaintiff at the appropriate level of pay. To the contrary, the
summary judgment record shows that defendant paid plaintiff for the Grade Level 6 position that
she performed.
Plaintiff fails to respond specifically to defendant’s argument that the changes to
plaintiff’s clock rings or her disagreement with her pay did not constitute adverse employment
actions. And, even if she did, the evidence described above establishes that no adverse
employment action occurred. The court thus grants summary judgment against plaintiff’s
discrimination and retaliation claims to the extent plaintiff bases them on her supervisor’s
changes to her clock rings or her disagreement with her level of pay.
4. Delay in Meeting with the Union Steward
Finally, defendant asserts that plaintiff cannot establish an adverse employment action
based on her claim that defendant prevented her from speaking with her union steward within
two hours of her request. Defendant first argues that plaintiff should bring this claim under the
union contract because it asserts a contractual right. But, defendant observes, the union has
never filed a grievance on plaintiff’s behalf. Defendant also asserts that plaintiff cannot establish

27

that her inability to speak with a union steward within two hours changed the terms and
conditions of her employment sufficient to constitute an adverse employment action.
Plaintiff fails to respond, specifically, to either of defendant’s arguments. Arguably, her
failure amounts to a waiver of this issue. See In re FCC 11-161, 753 F.3d 1015, 1100–01 (10th
Cir. 2014) (rejecting petitioners’ argument because their reply brief was silent on an issue and
made no attempt to rebut the respondents’ argument); see also Parker v. Bd. of Cty. Comm’rs of
Shawnee Cty., Kan., No. 01-2544-CM, 2002 WL 31527763, at *1 (D. Kan. Nov. 5, 2002)
(deeming plaintiff’s claims “abandoned or waived by plaintiff’s failure to respond” (citing D.
Kan. Rule 7.4(b))). Nevertheless, the court concludes that plaintiff has not set forth sufficient
facts to establish an adverse action based on her request to meet with her union steward.
USPS supervisors follow a general rule of arranging a meeting between an employee and
the union steward within two hours of the employee’s request. But, the timing of the meeting
depends on the union steward’s availability, any pressing needs on the job that the employee
must perform, and the mail volume. Plaintiff concedes that she spoke to her union steward many
times about her concerns with her working conditions, including her belief that supervisors were
assigning her work outside of her medical restrictions. Plaintiff also gave her union steward
written statements about these concerns. Plaintiff’s union steward told plaintiff that she could
refuse to perform job duties that exceeded the scope of her restrictions.
Under these facts, plaintiff fails to establish that any delay in meeting with her union
steward changed her employment status sufficient to constitute an adverse employment action.
See Cantu v. Potter, No. EP-08-CV-349-KC, 2010 WL 1417743, at *9 (W.D. Tex. Apr. 5, 2010)
(holding that a six-day delay in meeting with a union steward did not constitute an adverse
employment action sufficient to establish a prima facie case of discrimination). The court thus

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grants summary judgment against plaintiff’s discrimination and retaliation claims to the extent
they are based on her complaint about the delay in speaking with her union steward.
D. Pretext
Defendant asserts that, even if plaintiff could establish that defendant engaged in an
adverse employment action that was casually or temporarily linked to her disability or her 2010
EEO complaint, she fails to establish that defendant’s actions were pretext for discrimination or
retaliation. The court applies the McDonnell Douglas burden-shifting framework to plaintiff’s
discrimination and retaliation claims. See Dewitt v. Sw. Bell Tele. Co., __ F.3d __, 2017 WL
192685, at *4 (10th Cir. Jan. 18, 2017) (applying the framework to ADAAA discrimination and
accommodation claims); see also Poulsen v. Humana Ins. Co., __ F. App’x __, 2017 WL 56285,
at *4 (10th Cir. Jan. 5, 2017) (applying the framework to an ADAAA retaliation claim).
Plaintiff fails even to address the pretext prong of the McDonnell Douglas analysis in her
Response to defendant’s summary judgment motion. So, even if the acts above constitute
adverse actions sufficient to support a discrimination or retaliation claim, plaintiff has failed to
satisfy her burden to “‘to show a genuine issue of material fact’ that the defendant’s proffered
reason is a pretext designed to mask discrimination” or retaliation. See Adair, 823 F.3d at 1304
(quoting MacKenzie, 414 F.3d at 1274); see also Poulsen, 2017 WL 56285, at *4 (explaining
that the third prong of the McDonnell Douglas test requires a plaintiff asserting a retaliation
claim to demonstrate pretext). The court thus grants summary judgment against all but one of
plaintiff’s disability discrimination and retaliation claims on this alterative basis.
The only remaining discrimination claim is based on defendant’s alleged failure to
accommodate plaintiff’s disability by requiring her to work outside of her medical restrictions.
The court recognizes that defendant denies this occurred. But, as explained above, the summary

29

judgment record presents a genuine issue of fact about this dispute. Thus, the burden shifts to
defendant to articulate a legitimate, non-discriminatory reason for assigning plaintiff work
outside of her restrictions. Defendant, of course, does not provide a reason because it disputes
that such assignment ever occurred. Defendant thus has not met its burden under the second
prong of the McDonnell Douglas test. And, the court need not reach whether plaintiff has
established pretext at summary judgment under the third prong of the test. The court thus denies
summary judgment against plaintiff’s disability discrimination claim based on defendant’s
failure to accommodate plaintiff’s disability.
E. Hostile Work Environment
Finally, the court turns to plaintiff’s hostile work environment claims. Plaintiff contends
that defendant’s denial of her requests for reasonable accommodation and violations of her
medical restrictions created a hostile work environment. Plaintiff alleges that she was subject to
this alleged harassment because she is disabled and engaged in protected activity.1
To establish a hostile work environment claim under the ADAAA, a plaintiff must
“present evidence from which a rational jury could find that her workplace was permeated with
discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter
the terms, conditions, or privileges of employment, and the harassment stemmed from disabilityrelated animus.” Schlecht v. Lockheed Martin Corp., 626 F. App’x 775, 779 (10th Cir. 2015)
(citing MacKenzie, 414 F.3d at 1280); see also Aramburu v. Boeing Co., 112 F.3d 1398, 1410

1

Although the Tenth Circuit has not recognized formally the existence of retaliatory hostile work
environment claims, Kline v. Utah Anti-Discrimination and Labor Div., 418 F. App’x 774, 780 n.2 (10th
Cir. 2011), our court has noted “[w]ithout addressing whether the Tenth Circuit recognizes a claim for a
retaliatory hostile work environment based solely on plaintiff’s prior EEO activity . . . that ‘[o]nly severe
or pervasive workplace conduct that affects the terms, conditions, or privileges of employment are
protected by Title VII.’” Lombardo v. Potter, 368 F. Supp. 2d 1178, 1196 (D. Kan. 2005) (first quoting
Hounton v. Gallup Indep. Co., 113 F. App’x 329, 332 (10th Cir. 2004); then citing Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)).

30

(10th Cir. 1997) (“To survive summary judgment, the plaintiff must show that under the totality
of the circumstances (1) the harassment was pervasive or severe enough to alter the terms,
conditions, or privilege of employment, and (2) the harassment was based on the victim’s . . .
disability.”).
Defendant asserts that the undisputed evidence fails to establish that plaintiff’s work
environment was sufficiently severe and pervasive to support a hostile work environment claim.
The court agrees. Defendant has employed plaintiff in two different modified positions since
2002. Plaintiff’s hostile work environment claim is premised on various assignments that she
received in her position. As explained above, plaintiff’s disagreements with those assignments,
her preference to perform different tasks over others, and her erroneous belief that she was
entitled to a higher level of pay for certain tasks do not amount to adverse employment actions.
These same actions are not unlawful harassment because they were not severe and pervasive
actions that altered the terms, conditions, and privileges of employment.
Plaintiff’s complaints that her supervisors failed to accommodate her disability by
requiring her to work outside of her restrictions also fail to establish a hostile work environment
claim. Although the court concluded above that plaintiff has presented sufficient evidence to
support a failure to accommodate claim, these same facts fail to demonstrate severe and
pervasive harassment. It is undisputed that plaintiff was responsible for performing her assigned
work duties in a way that does not exceed her medical restrictions. It is also undisputed that
plaintiff’s supervisors expected plaintiff to refuse any job assignment that she believed was not
within her medical restrictions and plaintiff’s union steward told plaintiff that she could refuse to
perform job duties that exceeded the scope of her restrictions. But the record contains evidence
of just two instances when plaintiff complained that her supervisor was assigning her tasks that

31

violated her work restrictions. On one occasion, plaintiff testified that her supervisor told her it
was the only work available and that she decided where plaintiff would work because she was
the supervisor. But, on another 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, and she never assigned plaintiff the slides work again. On this record, no
reasonable jury could find that defendant’s failure to accommodate plaintiff was so abusive that
it created a hostile work environment. See Holly v. Pritchett, No. IP-01-0889-C-T/G, 2004 WL
2757871, at *15 (S.D. Ind. Sept. 30, 2004) (holding that although defendant’s “failure to provide
[plaintiff] with assistance . . . supports [plaintiff’s] failure to accommodate claim and could be
considered insensitive and uncaring, it cannot be characterized as abusive such that it would
create a hostile work environment”).
In sum, the summary judgment record does not contain disputed facts sufficient to show
that defendant’s conduct created a hostile work environment. Thus, plaintiff’s hostile work
environment claim fails as a matter of law.
IV.

Conclusion
For the reasons explained above, the court denies defendant’s summary judgment motion

against plaintiff’s failure to accommodate claim. The court also denies summary judgment
against plaintiff’s disability discrimination claim to the extent it is based on defendant’s alleged
failure to accommodate plaintiff. But the court grants summary judgment against plaintiff’s
disability discrimination claim on all other bases. The court also grants summary judgment
against plaintiff’s retaliation and hostile work environment claims.
IT IS THEREFORE ORDERED BY THE COURT THAT defendant Motion for
Summary Judgment (Doc. 46) is granted in part and denied in part.

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IT IS SO ORDERED.
Dated this 2nd day of February, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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