See Herkalo v. National Liberty Corp., No. 94-CV-7660, 1997 WL
408325, at *8 (E.D.Pa. July 22, 1997).
While the evidence does not reflect specific dates for the
incidents which harassed Plaintiff, it is clear that they were
frequently day-to-day, ongoing events. Moreover, Plaintiff's many
grievances and EEO complaints span most of the relevant time
period. See Facts ¶¶ 31, 33-35. Accordingly, we find that the
harassment was pervasive and regular.
3. Subjective Effect of Discrimination on Plaintiff
This prong is crucial to establish that a particular plaintiff
suffered injury warranting judicial relief. See Andrews, 895
F.2d at 1483. Such effects may include being forced to resign or
suffer emotional trauma, see id. at 1484, but serious
psychological harm is not required. See Harris v. Forklift
Systems, Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 126 L.Ed.2d 295
(1993). Moreover, the effects need not be economic. See id. at
21, 114 S.Ct. 367.
The evidence of the change in Plaintiff's disposition and of
Plaintiff's crying as a result of workplace harassment is clear.
See Facts ¶¶ 41-42. Although we do not decide whether Kraynak's
deposition is admitted as expert testimony, we note that Doctors
Kraynak, Laudadio, and Bove all found Plaintiff to have been
detrimentally affected by her work. See Facts ¶¶ 47,
50-52.*fn8 We conclude there was a subjective effect on
4. Objective Effect of Discrimination
The objective prong of the Andrews test for a hostile work
environment puts a check on the overly sensitive plaintiff who is
unreasonably affected by acts of discrimination. See Andrews,
895 F.2d at 1483. Evidence that others were harassed may tend to
show that a plaintiff's claims are objectively reasonable. See
West v. Philadelphia Elec. Co., 45 F.3d 744, 757 (1995).
DTS management's harassment of other employees, see Facts ¶¶
6, 17, indicates that Plaintiff's claims of harassment are not
entirely unreasonable. However, the effect the harassment had
upon Plaintiff would not have been suffered by a reasonable woman
in Plaintiff's position. Plaintiff was hypersensitive, abnormally
responsive to criticism, and prone to misunderstand the actions
of others. See Facts ¶ 47. She would not ignore the harassment
the way many of her coworkers did. See Facts ¶ 43. Even when
advised to do so by medical professionals, she refused to
consider the pros and cons of dropping her complaints. See
Facts ¶ 45. We conclude that Plaintiff has failed to show that
the harassment she suffered would have been so severe or
pervasive so as to change the conditions of a reasonable female
letter carrier's employment.
5. Respondeat Superior Liability
Common law principles of agency apply to limit employers'
liability for their agents in Title VII actions. See
Meritor, 477 U.S. at 72, 106 S.Ct. 2399. Nevertheless, where a
hostile work environment is created by an immediate or
successively higher supervisor, a prima facie case of vicarious
liability by the employer exists per se. See Burlington Indus.,
524 U.S. at 765, 118 S.Ct. 2257; Faragher, 524 U.S. at 807, 118
S.Ct. 2275. Such is clearly the case for the asexual harassment
of Plaintiff, and a prima facie case for respondeat superior
liability clearly exists for these events.
However, no credible evidence has been presented that the
posting of the picture of the woman's breasts, see Facts ¶ 11,
was done or condoned by management. Moreover, Plaintiff did not
complain to management about this incident. Therefore, we find
that no prima facie case for respondeat superior liability exists
for the posting of the picture of the woman's breasts.
An employer may assert an affirmative defense to respondeat
superior liability if no tangible employment action (such as
discharge) is taken. Such a defense requires that: (a) the
employer reasonably tried to prevent and correct the harassment,
and (b) the employee unreasonably failed to take advantage of the
prevention and corrections offered by the employer. See
Faragher, 524 U.S. at 807, 118 S.Ct. 2275.
As an affirmative defense, Defendant's argument that it tried
to resolve Plaintiff's grievances is required by Federal Rules of
Civil Procedure 8(c) and 12(b) to be pleaded in the Answer.
Defendant has failed to do so. (Answer at 5-6). Although both
Plaintiff and Defendant have argued and presented evidence
relevant to this defense at trial without objection, see Facts
¶¶ 33-35, such evidence is also relevant to the prima facie case.
Hence, we decline to hold that the affirmative defense has been
tried with the "express or implied consent of the parties,"
Fed.R.Civ.P. 15(b), and we will not treat the pleadings to have
been amended to conform to the evidence presented.
However, even if we were to allow this affirmative defense, we
would find that Defendant had failed to meet his burden of proof.
Although Plaintiff did indeed refuse to participate in the EAP
process, see Facts ¶ 35, the ongoing nature of the harassment
throughout the relevant time period indicates that USPS did not
reasonably try to prevent and correct the situation. Hence, we
find that respondeat superior liability exists with regard to
We dismiss Plaintiff's retaliation claim without prejudice. We
hold that Plaintiff's hostile workplace environment claim fails
for three independent reasons. First, Plaintiff's administrative
remedies were not pursued or not pursued on a timely basis.
Second, Plaintiff has not proven that gender motivated her
mistreatment by USPS. Finally, Plaintiff has not proven that the
harassment she suffered would also have detrimentally affected a
reasonable woman in Plaintiff's position. Thus, we grant judgment
to Defendant on the hostile workplace environment claim.
IV. CONCLUSIONS OF LAW
Consistent with the above findings of fact and discussion, we
make the following conclusions of law:
1. Our federal question jurisdiction is based upon
28 U.S.C. § 1331, 42 U.S.C. § 2000e-16(c), and 29 C.F.R. § 1614.407.
2. Plaintiff's retaliation claim is not ripe.
3. Plaintiff has not satisfied the administrative time limits
imposed by 42 U.S.C. § 2000e-16(c) and 29 C.F.R. § 1614.105(d),
1614.106(b), and 1614.407.
4. Plaintiff has proven that she was intentionally harassed by
5. Plaintiff has failed to prove such harassment was because of
6. Plaintiff has proven the harassment was pervasive and
7. Plaintiff has proven the harassment had a subjective effect
8. Plaintiff has failed to prove that the harassment would have
had a detrimental effect upon a reasonable woman in Plaintiff's
9. Plaintiff has proven that respondeat superior liability
existed for the asexual harassment conducted by Plaintiff's USPS
10. Plaintiff has failed to prove that respondeat superior
liability existed for any sexual harassment.
11. Defendant's affirmative defense regarding respondeat
superior liability was not pleaded and is not considered.
12. Nevertheless, Defendant has failed to prove his affirmative
defense to respondeat superior liability.
13. Plaintiff has failed to satisfy her burden of proof for her
hostile work environment claim.
14. Plaintiff is not entitled to relief.