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July 18, 1978

Janet L. BROWN
Francis X. BIGLIN, in his capacity as Regional Postmaster General

The opinion of the court was delivered by: BECHTLE


 Plaintiff Janet L. Brown ("Brown") brought this suit *fn1" to redress the alleged retaliatory treatment experienced in her employment as a mailhandler with the United States Postal Service ("Postal Service"), in violation of § 717(a) of the Equal Employment Opportunity Act of 1972, 42 U.S.C. § 2000e-16(a), amending Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Brown alleged in her complaint that her discharge from employment with the Postal Service was in retaliation for her having filed a complaint with the Equal Employment Opportunity Office ("EEO") of the Postal Service, which charged her supervisors with harassment and favoritism. *fn2" The case was tried de novo3 before this Court and, pursuant to Fed.R.Civ.P. 52(a), we make the following findings of fact and conclusions of law.


 On April 9, 1973, Brown, a black female resident of Philadelphia, Pennsylvania, was hired by the Postal Service as a part-time mailhandler, Postal Service Level 4, Flexible Schedule, with the General Post Office at 30th and Market Streets in Philadelphia. Brown and approximately 20 other new, part-time flexible mailhandlers were assigned to work on Tour Two, Incoming Mails, Third Floor, where the mailhandlers unloaded and moved incoming bulk mail from the truck terminal and various conveyor belts for processing. All new employees with the Postal Service work as probationary employees for 90 days before they become eligible for regular employment. During this probationary period, the Postal Service can terminate a new employee for any reason.

 1. Brown's One-Day Suspension

 In April of 1973, Brown worked on Tour Two, Paper Side, under the supervision of Group Leader Charles C. Lane, Jr. ("Lane"), and Foremen of Mails William J. Buchanon ("Buchanon") and Herbert E. Katz ("Katz"). From the beginning of her employment with the Postal Service, a personality conflict developed between Brown and her supervisors, Buchanon and Lane. On May 17, 1973, Buchanon assigned Brown to sort mail items from non-mail items as they passed her on a particular conveyor belt. *fn4" Brown became upset because the speed of the belt, which was controlled by Buchanon, was so fast that she was unable to effectively remove the mail from the belt as it moved, and because she was the only mailhandler assigned to sort mail on this belt. Brown thereupon left her work station without permission to talk with her uncle, who worked in a different location in the General Post Office. When Brown returned to her work station 20 minutes later, Buchanon called Brown to his desk and advised her that a Postal Service employee is prohibited from leaving an assignment without first obtaining permission from either a group leader or a foreman. As a result of this discussion, Buchanon determined that Brown was uncooperative and that he was unable to communicate with her with respect to the rules of the Postal Service. Consequently, Buchanon recommended a one-day suspension from work for Brown, even though he knew that he could have recommended dismissal of Brown from the Postal Service because of her probationary work status. *fn5" On the same day that Brown left her work assignment, she requested and obtained permission to visit the Postal Service EEO to obtain advice from EEO Counselor Jacqueline Tate ("Tate"), and to initiate an informal complaint charging Buchanon with discrimination. Brown's request to visit the EEO was not unusual, because many employees secured permission to leave their work areas to obtain counseling from the Postal Service EEO.

On June 5, 1973, Brown received a Notice of Disciplinary Action from the Postal Service which approved Buchanon's recommendation of a one-day suspension, effective June 12, 1973, for Brown's behavior on May 17, 1973. After Brown received the notice of suspension, she circulated a petition among her co-workers charging Buchanon and Lane with "favoritism" and "unnecessary harassment." *fn6" The petitioners, including Brown and 11 other mailhandlers, discussed the charges with Buchanon's supervisors, General Foreman Leroy Hall ("Hall") and Coordinator Joseph J. DiGiacomo ("DiGiacomo"), before they submitted the petition to EEO Counselor Tate. Subsequent to the circulation of the petition, Buchanon was transferred by his supervisors from Tour Two, Paper Side, to a different section of the third floor.
2. Brown's Three-Day Suspension
A number of Postal Service mailhandlers had problems working under the supervision of Group Leader Lane, and one employee observed an immediate personality conflict between Brown and Lane because Brown was so outspoken at work. On August 8, 1973, Lane assigned Brown and co-worker Valerie Gant ("Gant") to work on Opening Mail Belt No. 3. In order to expedite the moving of the mail, Lane requested that Brown move from her position along the belt to an empty space adjacent to Gant. Brown objected because, if she moved, she would no longer be able to utilize a floor bar which enabled her to elevate herself so as to be able to fully reach across the belt. Although Gant volunteered to move into the open position, Lane insisted that Brown comply with his direct order to change her work position along the belt. When Brown refused to move to the vacant position, Lane completed Postal Service Form 13, commonly known as a "buck slip," which reported Brown's infraction of the Postal Service rules. In addition to Brown's refusal to obey a direct order issued by a group leader, Lane reported to his supervisors that Brown addressed him with obscene language as Lane passed by Brown near Belt No. 3. *fn7" Lane submitted the "buck slip" through normal channels to his supervisor, Foreman Katz, who recommended another suspension. In order to avoid another suspension, Brown wrote a letter [Ex. P-2], dated August 21, 1973, to Postmaster Vincent J. Logan wherein she denied the use of obscene language to Lane and argued that Lane's harassment and false charges were based on a personality conflict between herself and Lane caused by her previous filing of an EEO complaint against Lane and by Brown's having joined the National Alliance of Postal and Federal Employees instead of the Mailhandlers' Union. On August 29, 1973, Brown received a Notice of Disciplinary Action [Ex. D-3], submitted by Foreman Katz and approved by Coordinator DiGiacomo, advising Brown of her three-day suspension from work, effective September 3, 1973, because of the mail belt incident with Lane. Upon receipt of this notice, Brown filed an informal complaint with the Postal Service EEO alleging harassment on the basis of sex. *fn8" This complaint was investigated and on October 2, 1973, EEO Counselor John R. Brooks advised Brown that she had the right to file a formal written complaint if the matter were not resolved to her satisfaction. [See Ex. D-4.] Brown did not file a formal EEO complaint with respect to her three-day suspension.
3. Brown's Discharge from the Postal Service
On October 13, 1973, Brown was promoted from a part-time flexible mailhandler to a full-time mailhandler. On November 17, 1973, at approximately 20 minutes before the noon lunch break, Brown left her job assignment in the mail bundles "throw off" area to go to the restroom because she was feeling ill. Brown did not obtain permission from her group leader or foreman to leave the work area because of the emergency nature of her illness. Foreman Arthur L. Klein ("Klein"), a new foreman in the Tour Two, Incoming Mails section of the General Post Office, observed Brown leaving her assignment without permission and noticed that Brown was carrying a brown paper bag. *fn9" Klein, assuming that Brown was leaving her assignment early to have lunch in the "swing room," called Brown and informed her that it was not yet time for lunch. Brown ignored Klein and continued to walk away from her assignment at a fast pace. Klein then told Brown that, if she did not return to her work assignment, he would write a "buck slip" reporting to his supervisors Brown's infraction of the Postal Service rules. Brown refused to obey Klein's order to return, and responded with abusive and obscene language. Although profanity is commonly used on the work floor of the General Post Office, obscene language is rarely directed personally toward supervisors by employees. Klein testified at trial that, before the incident with Brown in November of 1973, no employee had directed profanity toward him as a supervisor. However, as in the incident with Lane, Brown denied the allegation that she had used abusive and obscene language in addressing Klein. Upon consideration of the demeanor of the witnesses and of all of the evidence adduced at trial, we find Klein's testimony concerning Brown's use of obscene language to be the more credible version of the incident. Accord, Findings of Fact and Recommended Decision of EEO Complaints Examiner, dated February 13, 1975, at 10.
When Brown returned to her assignment in the "throw off" area, she made no attempt to explain to Klein the reasons for leaving her work station without permission; nor did Klein inquire about Brown's refusal to follow his direct order because, on the basis of Brown's abusive language, he felt that it would be unwise to have further conversations with her. Klein subsequently described the incident in a "buck slip" [Ex. D-5], and recommended that, "in view of Brown's current action and past indifference," Brown be dismissed from the Postal Service. Klein's recommendation for Brown's discharge was not made in reprisal for her EEO visits and complaints because, as a new supervisor in the Tour Two, Incoming Mails section of the General Post Office, Klein was unaware of any of Brown's EEO activities or of Brown's earlier suspensions, but rather was based upon Brown's insubordination and profanity.

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