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USPS Loses Covid-Based Bid to Block In-Person Job Bias Testimony

Nov. 4, 2020, 9:27 PM

A former U.S. Postal Service employee in South Carolina can depose fact witnesses in-person in her sexual harassment and retaliation lawsuit, after a federal court rejected the renewed contention that the witnesses ought to be deposed virtually because of Covid-19.

Mail carrier Kanzora Robinson sued in December 2018. She said Eastover, S.C., postmaster Kertina Epps retaliated, culminating in her termination, when she complained that a male co-worker was sexually harassing her.

Robinson sought live deposition testimony from Epps and other witnesses, but the USPS objected.

The parties reached an impasse on the issue and the U.S. District Court for the District of South Carolina sided with Robinson in October. The court ordered the witnesses to appear in-person and for the parties to conduct the depositions in accordance with Center for Disease Control-recommended pandemic safety guidelines, which include mask wearing and social distancing.

The witnesses refused to appear and the court issued an emergency ruling last week reaffirming its prior order.

But the USPS still balked at producing Epps and mail carrier Candace Barber for in-person testimony. The two had special Covid-19 related concerns that made it proper for them to testify virtually, the agency said in seeking a protective order.

Magistrate Judge Paige J. Gossett disagreed, saying Tuesday that the agency failed to show good cause for granting the motion.

The USPS provided an affidavit from Epps stating it would be “unhealthy and unreasonable” for her to travel to Robinson’s lawyer’s office to be deposed because she has multiple underlying health issues, is undergoing iron infusion in advance of upcoming surgery, and is a single parent.

Barber similarly said she isn’t comfortable being deposed in person because of the pandemic, her status as a single mother, and the unreliability of her car, the court said.

Those mostly “conclusory, vague” concerns weren’t enough to demonstrate good cause, Gossett said. Although “serious,” they related to the pandemic generally and weren’t specific to Epps or Barber, the judge said.

There also was no showing as to why protection beyond the CDC-based safeguards already ordered were insufficient, the court said.

Epps’ affidavit didn’t provide the date or other details of her upcoming surgery or explain how “the manner of deposition could unreasonably jeopardize her health,” it said.

Gossett cited rulings by federal courts in Kansas and North Carolina.

Tanya D. Jeffords in Aiken represents Robinson. The U.S. attorney’s office represents the USPS.

The case is Robinson v. Brennan, 2020 BL 426354, D.S.C., No. 3:18-cv-03460, 11/3/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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