The opinion of the court was delivered by: Van Antwerpen, District Judge.
MEMORANDUM DECISION AND ORDER
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
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
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
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
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
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.)
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 ...