Employer’s Offer to Revoke Discipline Was Not Retaliation

By Jeffrey Rhodes December 4, 2018
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​An employer's offer to withdraw attendance discipline if the plaintiff withdrew her equal employment opportunity complaint did not validate her discrimination and retaliation claims, a federal district court ruled.

The plaintiff was a mail handler who began working at the U.S. Postal Service (USPS) in 2000. Her duties included processing mail and loading and unloading trucks, and mail handlers were expected to be able to lift up to 70 pounds. During her employment, the plaintiff sustained injuries that were covered by the USPS workers' compensation program. She initially reported having carpal tunnel syndrome in 2002 or 2003.

In 2009, the plaintiff's physical restrictions changed roughly every month or two as she had appointments with her physician. Because her restrictions changed frequently, her job title or duties would often change as well.

In September 2009, the plaintiff made initial contact with an equal employment opportunity (EEO) counselor regarding her claims that the USPS discriminated against her. In early December 2009, the plaintiff had surgery related to her carpal tunnel condition. On Dec. 20, 2009, she accepted an offer of modified assignment, which took into account her limitations in tasks involving pushing, pulling or lifting; restrictions on standing (she could stand for only up to seven hours); and inability to use her right hand. Her modified assignment was for a limited-duty standby, requiring her to sit in a room in the postal facility during her shift hours.

The core events that form the basis for the plaintiff's claims occurred between Dec. 6, 2009, and Jan. 20, 2010: The plaintiff's unscheduled days were changed, and she was allegedly harassed by her supervisor about using a restroom she had previously been given permission to use during her standby shift. The plaintiff also requested leave to either go to a union meeting or to file a grievance.

The plaintiff was subsequently written up as absent without leave (AWOL) by her supervisor. But another supervisor told her that he would remove the AWOL if the plaintiff agreed to withdraw her EEO complaint.

In June 2012, the plaintiff received a letter from the USPS notifying her that there was no work for her, nor would there be anytime soon. Her employment with the USPS ended on July 14, 2012. She began receiving income from the office of workers' compensation programs sometime thereafter.

The plaintiff brought claims under the Rehabilitation Act in federal court, and the USPS moved for summary judgment. The court noted that the plaintiff did not contend that her request for accommodation was denied or that her limited-duty standby assignment was outside her physical restrictions. Rather, she contended that by placing her on limited-duty standby instead of giving her other work to do, the USPS failed to accommodate her.

The court found that there was not sufficient evidence to show that the plaintiff requested an accommodation related to her disability that the USPS failed to provide. Thus, the USPS was entitled to summary judgment as to the plaintiff's claim for failure to accommodate under the Rehabilitation Act.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The court further granted summary judgment on the plaintiff's harassment claims, finding that the evidence could not be reasonably construed as creating a discriminatory environment.

As for the plaintiff's retaliation claim, the court considered the evidence that the plaintiff's supervisor stated that the USPS would remove the AWOL write-up if the plaintiff withdrew her EEO complaint. The appropriate inquiry was whether the AWOL write-up would have discouraged a reasonable employee from further protected activity, according to the court. Under this inquiry, an offer to remove a prior write-up does not retroactively convert the write-up into an adverse employment action.

Because the plaintiff failed to claim that the AWOL write-up was in error or harmed her in any way, the court could not conclude that it was an adverse employment action. So the court dismissed the plaintiff's retaliation claim for failure to show an adverse employment action. Moreover, the court found that the plaintiff's termination from the USPS on July 14, 2012, was too far removed from the plaintiff's protected activity to be retaliatory.

The court thus dismissed all the plaintiff's claims on summary judgment.

Madden v. Brennan, E.D. Tenn., No. 1:15-cv-296 (Sept. 5, 2018).

Professional Pointer: While employers must be careful not to suggest any sort of adverse action in response to an employee's protected activity, a legitimate offer of compromise after a complaint is brought will not necessarily serve as proof of discrimination or retaliation.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.

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