A jury will decide whether the U.S. Postal Service failed to accommodate a pregnant employee’s restrictions on lifting, pushing and pulling heavy items, after the federal appeals court based in Colorado reversed a judge’s ruling that sided with the agency.

Sharhea L. Wise was a postal worker in Denver for three months before her termination. She learned early on that she was pregnant and obtained a doctor’s recommendation to limit her exertion to 20 pounds. Wise claimed she was disabled due to her pregnancy and was entitled to workplace accommodations under federal law.

Although a trial judge believed Wise was to blame for not reminding her supervisors on two separate occasions that they were asking her to violate her accommodation, the U.S. Court of Appeals for the 10th Circuit decided a jury could find the supervisors knew about Wise’s accommodation, but disregarded it.

“That inference could trigger liability for failing to accommodate a disabled employee,” wrote Judge Robert E. Bacharach in the three-judge panel’s majority opinion.

Judge Timothy M. Tymkovich dissented, arguing Wise had an “obligation” to remind her supervisors to abide by the accommodation.

The panel unanimously rejected Wise’s other claim that the Postal Service retaliated against her for seeking a pregnancy accommodation.

Case: Wise v. DeJoy

Decided: June 16, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 2-1 on the failure-to-accommodate claim; 3-0 on the retaliation claim

Judges: Robert E. Bacharach (author)

David M. Ebel

Timothy M. Tymkovich (partial dissent)

Background: Pregnancy Discrimination and Pregnancy-Related Disability Discrimination

Wise worked as a city carrier assistant in Denver from November 2014 through January 2015. In mid-January, she provided a doctor’s note to supervisors Ron Domingo and Dean Lego, who agreed she did not have to handle packages in excess of 20 pounds, as the doctor recommended.

However, Wise claimed Domingo subsequently called her while she was delivering mail and asked her to return to pick up overweight packages. Also, Lego reportedly yelled at Wise for improperly handling a gurney, which itself weighed 20 pounds. Wise believed Lego was expecting Wise to use the gurney in a way that violated her weight restriction.

At the end of January, the Postal Service first suspended, then fired her. By that time, Wise had received negative performance evaluations, warnings about unprofessional conduct and had abandoned her delivery route on a snowy day.

Last April, U.S. District Court Judge Regina M. Rodriguez sided with the Postal Service on Wise’s claims of sex discrimination, pregnancy-related discrimination and a hostile work environment. She also found Wise’s termination was not due to Wise asking for a disability accommodation, but because of an “intervening event” – walking off the job while delivering mail.

As for Wise’s failure-to-accommodate claim, Wise “never told anyone at the Postal Service that she believed her accommodation was not being followed,” Rodriguez wrote. For example, Wise did not remind Domingo that she need not return for heavier packages under her arrangement with the Postal Service.

“This accommodation, as well as Tenth Circuit case law, puts the responsibility on Plaintiff to communicate with her employer about whether her accommodation was being met,” the judge concluded.

Wise turned to the 10th Circuit, challenging Rodriguez’s evaluation for just the failure-to-accommodate and retaliation claims.

“Not only did Ms. Wise not receive the help she asked for, but she was yelled at instead,” argued Melpomene Vasiliou, a student attorney at the University of Colorado.

“It seems like the employer and the employee ought to work things out maybe on a day-to-day basis depending on what objects come in the door,” observed Tymkovich during oral arguments. “It’s a two-way street, isn’t it?”

Although Wise claimed the Postal Service had shifted its explanations for firing her, suggesting its reasons were actually retaliatory, the government insisted Wise was fired solely for walking off the job.

“There’s probably no more significant error that a mail carrier can make than abandoning the route,” said Assistant U.S. Attorney Michael C. Johnson.

The 10th Circuit’s majority concluded Rodriguez incorrectly tossed Wise’s failure-to-accommodate claim. It was possible, on the one hand, that Domingo had forgotten about Wise’s weight restriction when he called her back to deliver heavy packages.

“But there’s no evidence that Mr. Domingo forgot what he had said, and it’s reasonable to infer that he had changed his mind about getting another employee to help Ms. Wise,” Bacharach wrote for himself and Senior Judge David M. Ebel on June 16.

Bacharach acknowledged the circumstances of Wise’s gurney incident were “ambiguous,” but, similarly, a jury could find Lego also disregarded her arrangement with the Postal Service. Consequently, the majority reinstated her claim.

As for her retaliation allegations, the panel agreed the Postal Service terminated Wise for walking off the job, not because of any disability.

Tymkovich disagreed only with the reinstatement of the failure-to-accommodate claim, believing Wise “did not adequately communicate her need for the accommodation to her supervisors.”

The case is Wise v. DeJoy.