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July 13, 2000


The opinion of the court was delivered by: Van Antwerpen, District Judge.



Plaintiff Susan J. Koschoff filed this civil action on May 28, 1998 seeking damages arising from alleged discrimination, retaliation, and a hostile work environment while employed by the United States Postal Service*fn1 ("USPS"), in violation of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-16. Discovery was completed on June 18, 1999, after which both parties moved for summary judgment. We denied Plaintiff's motion and granted partial summary judgment for Defendant on October 7, 1999. Remaining for trial were Plaintiff's hostile work environment claim resulting from her employment at the Reading, Pennsylvania, Downtown Station facility ("DTS") from June, 1995, through November, 1996, and Plaintiff's retaliation claim resulting from her proposed separation from USPS on April 30, 1999.

We conducted a non-jury trial from April 3 through April 6, 2000, in Easton, Pennsylvania. After Plaintiff's and Defendant's brief opening statements, Plaintiff called George Cook ("Cook"), a letter carrier at DTS and grievance chairman of the National Association of Letter Carriers ("NALC") local which represented Plaintiff. Plaintiff also called Kenneth Rhoads ("Rhoads"), a letter carrier at DTS and NALC official; Sandra Williams ("Williams"), the Reading postmaster; Kimberly McKnight-Jimenez ("McKnight-Jimenez"), a co-worker of Plaintiff at DTS; Andrew Caporale, an expert vocational specialist; and Plaintiff herself. Defendant called Kevin Moyer ("Moyer"), one of Plaintiff's supervisors through April or May of 1996 and later station manager at DTS; and Judith Pelka ("Pelka"), one of Plaintiff's supervisors.

In lieu of closing arguments, we ordered the parties to submit proposed findings of fact and briefs. Based upon the parties' submissions, our evaluation of the evidence presented, and the credibility of the witnesses during the non-jury trial, we have made special findings of fact and conclusions of law. These are set forth more fully infra. See Fed.R.Civ.P. 52(a).

We dismiss Plaintiff's retaliation claim without prejudice. In regard to Plaintiff's hostile work environment claim, we grant judgment for Defendant.


There is considerable disagreement between the parties regarding the events which took place while Plaintiff was employed at DTS between June, 1995 and November, 1996. We make the following special findings of fact:*fn2

A. Generally

1. Plaintiff began working for USPS in March, 1985. (4/3/00 tr. at 165.) She eventually became a letter carrier and worked at DTS during the relevant time period from June, 1995, to November, 1996. (Id. at 167, 175-76). Plaintiff stopped reporting for work at DTS on November 5, 1996. (Id. at 161-62; 4/5/00 tr. at 114-15.) She has not worked nor attempted to work since that time. (4/5/00 tr. at 118, 135.)

2. Plaintiff received normal pay and benefits for her position, including increases negotiated between USPS and NALC. (Id. at 136-37; Def. ex. 2 at 438-39, 442.)

3. During the relevant period, approximately five or six female letter carriers and thirty-two to forty male letter carriers were employed at DTS. (4/3/00 tr. at 38; 4/4/00 tr. at 84-85.)

4. Because DTS suffered from low performance and inefficiency, USPS managers instituted a strict, "by the book" management approach. This new approach resulted in increased labor problems, greater need for discipline, and more grievances. (4/4/00 tr. at 10-18.) Consequently, the working atmosphere at DTS was very unpleasant. (Def. ex. 113 at 27.) It was characterized by "[o]verbearing management, dictatorial attitude, no compassion for the workers [and a] tendency to single out certain people." (Def. ex. 112 at 29.) It was "unbearable. . . . It was almost like a prison. . . . [Employees] were treated like children." (Def. ex. 113 at 8-9.)

6. Plaintiff was not the only employee harassed or treated more harshly than others. For example, we find credible the deposition testimony of Plaintiff's coworker Gary Bucher that six male mail carriers and a second female carrier were also subject to similar treatment. This treatment included heightened supervision, being talked down to, and being earmarked as "bad carriers." (Def. ex. 112 at 29, 58.) We also find credible the deposition testimony of Plaintiff's coworker Bonnie Sterling that as many as fifteen carriers (including Plaintiff) felt they were targeted by management. (Def. ex. 113 at 10, 32.) In addition, we find credible the deposition testimony of Harvey Kimble that at least four male and two female letter carriers (including Plaintiff) felt targeted by management. (Def. ex. 114 at 16-18, 44, 50, 53.)

We do not find credible the testimony of Plaintiff, (4/3/00 tr. at 197; 4/4/00 tr. at 94-95; 4/5/00 tr. at 98; Def. ex. 2 at 103), Cook, (4/3/00 tr. at 35-36, 36-37, 41, 44), and Rhoads, (4/3/00 tr. at 111-112, 114-15, 127; Pl. ex. 8), to the extent it implies that Plaintiff was the only employee subject to harsher treatment. We also do not find credible the testimony of McKnight-Jimenez that only women were harassed at DTS. (4/4/00 tr. at 60-61, 65-66.)

7. Plaintiff was inclined to fight management's unpleasant "by the book" style at DTS rather than acquiesce to it. (4/6/00 tr. at 20-21.) One of Plaintiff's doctors wrote that "she has some kind of war going on with her superiors." (Def. ex. 66 at 8/12/96.)

B. Explicit Sexual Harassment

8. Plaintiff was not subject to explicitly sexual harassment in the course of her employment, including no sexually explicit language, (4/5/00 tr. at 110; Def. ex. 2 at 102, 160, 179-80), no sexual jokes told by supervisors, (Def. ex at 180-81), no sexual comments, (id. at 183) (notwithstanding the "bitch" and "little dyke" comments discussed infra), no sexual gestures, (id. at 181-82), no touching by any supervisor, (id. at 102, 159-60), no propositions or attempted social contact by any supervisor, (id. at 107-08, 160-161, 169; 4/5/00 tr. at 128), and no sexually explicit calendars, graffiti, photos, or sexual objects in her work space (except one picture discussed infra). (Id. at 177-78.) Even when one of Plaintiff's female supervisors wanted to meet Plaintiff alone, Plaintiff was not certain that the supervisor had sexual reasons for wanting to do so. (4/5/00 tr. at 127-28). See also Findings of Fact ¶ 20, hereinafter Facts ¶ 20.

9. In July or August of 1995, while in the presence of other letter carriers, Plaintiff was asked by a supervisor trainee, Jay Decker, "why is it that everyone thinks you're a bitch?" (4/5/00 tr. at 109, 133). Plaintiff did not consider this comment sufficient to warrant a complaint. (Id. at 134.) We find that Decker intended to demean Plaintiff, not merely to ask a question. Although Decker's particular choice of epithet would most certainly have been different had Plaintiff been a man, we find that Decker was not motivated by her gender.

10. We find credible the testimony of Cook and Rhoads that Moyer, who was one of Plaintiff's supervisors, referred to Plaintiff using crude epithets including "little dyke." (4/3/00 tr. at 55, 127; Def. Ex. 76 at 94.) We find credible the testimony of Cook and Rhoads that Moyer intended to made work difficult for homosexuals working under him both in the Army Reserve and at DTS. (4/3/00 tr. at 57, 126; Def. Ex. 76 at 94.) We do not find credible Pelka's testimony, (4/6/00 tr. at 87), and we find particularly un-credible Moyer's testimony, (id. at 61, 63), denying these allegations. While we express no opinion regarding the irrelevant issue of Plaintiff's sexual orientation, we find that Moyer's comment was motivated by his belief that Plaintiff was homosexual and by his intent to discriminate against homosexuals of either gender. (4/3/00 tr. at 127.)

11. Someone hung a picture of a woman's breasts in Plaintiff's work space toward the latter part of 1996. (4/5/00 tr. at 110, 134.) Plaintiff chose to ignore it, and two weeks later it had been removed. (Id. at 110-11, 134-35).

C. Non-Substantive Job Performance

12. We find credible the testimony of Pelka that she never intentionally followed Plaintiff into the bathroom, with the exception of one incident when Pelka believed Plaintiff was ill. In that case, Pelka followed Plaintiff into the bathroom to offer assistance. (4/6/00 tr. at 79.) On this point, Pelka's testimony is consistent with Rhoads'. (4/3/00 tr. at 110-11.) On another occasion when Plaintiff was ill, Pelka gave her a ride home. (4/6/00 tr. at 76.) We do not find credible the testimony of Plaintiff that Pelka followed her into the bathroom on January 30, February 13, and February 29, 1996, (4/5/00 tr. at 156-57). We also do not find credible Plaintiff's similar deposition testimony in which she claims to rely upon her work diary for her recollection, (Def. ex. 2 at 53-56), because Plaintiff's work diary does not mention such events on those dates. (Def. ex. 23.) We do not find credible the testimony of Cook, (4/3/00 tr. at 48), and McKnight-Jimenez, (4/4/00 tr. at 62), to the extent they imply Pelka followed Plaintiff into the bathroom more than once.

13. We find credible the testimony of Pelka and Moyer that on another occasion, Pelka happened upon Plaintiff brushing her teeth in the bathroom, and that Plaintiff explained she did not have time to brush her teeth at home before work. (4/6/00 tr. at 52-53, 79-80.) We do not find credible Plaintiffs testimony denying that she made this explanation. (4/4/00 tr. at 106-07.)

14. In October, 1995, after the, tooth brushing incident, management met with NALC representatives (but without Plaintiff) regarding Plaintiffs use of the bathroom for personal hygiene. (4/3/00 tr. at 40-41, 68-69; 4/6/00 tr. at 80; Pl. ex. 3.)

15. We find credible the testimony of Plaintiff, (4/4/00 tr. at 102), Pelka, (4/6/00 tr. at 77-78), and Cook, (4/3/00 tr. at 67-68) that there existed at DTS a stated policy ("the policy") that letter carriers were to inform their supervisor (as opposed to seeking permission) when they left their work cases for any reason, including to use the bathroom. (See also Pl. exs. 19-20.) We do not find credible the testimony of Rhoads that there was no stated policy. (4/3/00 tr. at 106.)

We do not find credible the testimony of Plaintiff, (4/5/00 tr. at 148), Cook, (4/3/00 tr. at 38), and McKnight-Jimenez (4/4/00 tr. at 62), and the deposition testimony of Gary Bucher, (Def. ex. 112 at 40), and Bonnie Sterling, (Def. ex. 113 at 17), and a statement in Plaintiff's exhibit 21 to the extent that this evidence implies that the policy explicitly required letter carriers to seek permission before using the bathroom. However, we do find credible all this evidence to the extent it shows that management successfully created the impression amongst employees that they were required to seek permission from management before using the bathroom. (See also 4/6/00 tr. at 20.)

16. Plaintiff violated the policy on five occasions between July and September, 1995. (Pl. ex. 20). Moyer eventually suspended Plaintiff for seven days in part for these violations. (Id.) However, the suspension was never carried out pursuant to an agreement in which Plaintiff promised to leave a note if she stepped away from her case. (4/6/00 tr. at 51; Def. ex. 2 at 27.)

17. The policy was enforced more strictly against Plaintiff than against many other employees; however, Plaintiff was not the only employee to whom the policy was strictly applied. Six employees, including Plaintiff, another female carrier, and four male carriers, complained to the National Labor Relations Board about the policy and about NALC's acquiescence to it. (Def. exs. 20-21; 4/5/00 tr. at 147-149.) We find credible the testimony of Pelka that she applied the policy to Plaintiff and five male carriers who had violated the policy. (4/6/00 tr. at 78.) We find credible the testimony of Moyer that he applied the policy to at least two male violators. (Id. at 50-51.) We find credible the deposition testimony of Gary Bucher that the policy was applied to both Plaintiff and male employees. (Def. ex. 112 at 49, 61, 67-68.) We find credible the deposition testimony of Plaintiff's coworker Harvey Kimble that he was watched by management and was once personally cautioned about violating the policy. (Def. ex. 114 at 34, 61, 68.)

However, we also find credible the testimony of Cook, (4/3/00 tr. at 38), and the deposition testimony of Harvey Kimble, (Def. ex. 114 at 32, 34), that the policy was applied arbitrarily. Some letter carriers were allowed to ignore the policy while others (both men and women) were not.

We do not find credible the testimony of Plaintiff, (4/4/00 tr. at 102-103), Cook, (4/3/00 tr. at 38), and Rhoads, (id. at 106), and the deposition testimony of Bonnie Sterling, Plaintiff's co-worker at DTS, (Def. ex. 113 at 17-18), and the contention by Plaintiff in her grievance on the subject, (Pl. ex. 21 at 2), that this policy was only applied to Plaintiff. We do not find credible the testimony of Plaintiff, (4/4/00 tr. at 102-03), Cook, (4/3/00 tr. at 38), and McKnight-Jimenez, (4/4/00 tr. at 62-65), that the policy was only applied to women.

These employees did not necessarily know of enforcement actions taken against other employees. (4/6/00 tr. at 54-55; Def. ex. 2 at 30-31; Def. ex. 113 at 17-18.) McKnight-Jimenez, who made an effort to find out, merely asked "some of the [male] clerks," (4/4/00 tr. at 64). We do not find credible her testimony that she inquired of "every last one" of the male carriers. (4/4/00 tr. at 85.)

18. Moyer met with both Plaintiff and male employees to discourage loud talking and looking around instead of "casing" (sorting) mail. However, he did permit most carriers to talk quietly. (4/3/00 tr. at 199; 4/6/00 tr. at 54-55, 63-64; Def. ex. 2 at 29-30; Def. ex. 114 at 32.) Unlike most carriers, Plaintiff was prohibited from talking at all. (4/3/00 tr. at 200; 4/4/00 tr. at 96.) At least two male employees were given letters of warning for talking at their cases, (4/5/00 tr. at 155), although Plaintiff was not.

D. Substantive Job Performance

19. We find credible the testimony of Pelka that at least some aspects of Plaintiffs substantive job performance were deficient. (4/6/00 tr. at 75-76.) We do not find credible testimony of Plaintiff to the extent it may imply that there was never a problem with her work. (4/4/00 tr. at 100-101.)

20. Moyer and Pelka wanted to meet alone with Plaintiff on several occasions to informally criticize Plaintiff's job performance. (4/3/00 tr. at 201-02; 4/4/00 tr. at 93; 4/6/00 tr. at 55, 92-93.) Plaintiff objected to meeting with her superiors alone and requested union representation. (4/3/00 tr. at 201; 4/6/00 tr. at 55). Plaintiff was fearful of meeting with Pelka alone. (4/4/00 tr. at 94-96.) Nevertheless, USPS and NALC had agreed that such discussions should be held in private, (Def. ex. 82 at 78), and Pelka insisted on a private meeting for that reason.

21. In July, 1995, management issued a warning letter to Plaintiff for not delivering enough mail based in part upon the "footage" (thickness) of mail delivered rather than the normal standard, which was an actual count of the number of pieces of mail delivered. (Pl. ex. 13; 4/3/00 tr. at 35, 191.) The warning was also based upon Plaintiff's unauthorized use of overtime. (Pl. ex. 13.) Management had attempted to employ a footage standard in the past, but had lost "arbitration after arbitration settlement" on that point. (4/3/00 tr. at 35.) This warning letter was withdrawn in a settlement agreement. (Pl. ex. 30; Def. ex. 7.) See also Facts ¶ 33.

22. In July, 1995, Plaintiff requested assistance in completing her route on a day in which both the volume of mail and the temperature were particularly high. (4/5/00 tr. at 92-94.) Requesting such assistance was not unusual. (Id. at 92-93.) Moyer was dispatched to assist Plaintiff, but observed her instead of assisting her. (Id. at 94-95.)

23. In September, 1996, Plaintiff was told by management that she need not deliver several parcels to a senior citizens' building because it was closed. (4/3/00 tr. at 115-18; 4/5/00 tr. at 104-07.) Despite this instruction, she received a disciplinary warning letter the next month for not having delivered the parcels. (Pl. ex. 31; 4/5/00 tr. at 108-109.)

24. Male and female employees were treated equally when management noticed problems with their substantive job performance. We find credible the testimony of Pelka that she did not speak differently to males and females when criticizing their substantive job performance. (4/6/00 tr. at 97.) We do not find credible the testimony of Plaintiff, (4/4/00 tr. at 100), or McKnight-Jimenez, (Id. at 72), that males were spoken to more politely than females. Moyer disciplined at least eight male letter carriers in writing while the only female he recalled disciplining was Plaintiff. (4/6/00 tr. at 48, 74-75.) Plaintiff knew of two male letter carriers who, like her, were disciplined for unauthorized overtime. (4/3/00 tr. at 193.)

E. Enhanced Supervision

25. While casing mail, Plaintiff was supervised more closely than were other employees. (4/3/00 tr. at 108; 4/4/00 tr. at 70, 73, 100.) Indeed, at times a supervisor would stand only a foot away while Plaintiff cased ...

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