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BABCOCK v. FRANK

January 16, 1990

KATHRYN D. BABCOCK, PLAINTIFF,
v.
POSTMASTER GENERAL ANTHONY FRANK, DEFENDANT.



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

OPINION

Prior Proceedings

This lawsuit, which seeks relief for sexual harassment and retaliatory treatment pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., was instituted by Babcock in March 1989. A second amended complaint was filed in May 1989, which defendant moved to dismiss by its motion of July 28, 1989. After briefing, the motion was heard and fully submitted on October 13, 1989.

Facts*fn1

Babcock is an employee of the United States Postal Service ("USPS"), of which Postmaster Frank is the chief officer. She was hired in January 1986 as a clerk typist and a postal operations associate. Babcock's assigned station has varied but the locale most relevant to this action is the Poughkeepsie, New York branch of the USPS.

The law suit concerns a series of events alleged to have taken place at the Poughkeepsie office over the thirteen month period from April 1988 until the suit was instituted in March 1989. Babcock claims that during this term of employment she was subjected to sexually harassing conduct, principally by her former USPS supervisor Anthony Musso ("Musso"), and that in retaliation for her complaints about such harassment, she has suffered discriminatory treatment from her USPS superiors with respect to job assignments, work evaluations and opportunities for promotion.

The complaint pleads that commencing sometime in April 1988, Musso, a senior postal operations specialist who had participated in hiring Babcock and subsequently acted as her direct supervisor, made unwelcome sexual advances on Babcock (including unconsented and forcible touches, squeezes and kisses) and threatened Babcock with loss of her job if she did not submit to these sexual advances.

Although not stated in the complaint, the parties do not dispute that for a year or more prior to April 1988, Babcock and Musso had conducted a consensual physical relationship. The parties also agree that the relationship between Babcock and Musso continued in some fashion until July 4, 1988, when Babcock terminated it. She contends that prior to that time she sought to end the relationship, and apparently claims that, at least in certain instances, advances made by Musso during the period between April and July were unwelcome but that she succumbed to them, on occasion, because of Musso's threats, including job-related threats and promises.

Babcock also contends that in April she was subjected to harassment or mistreatment by other male USPS employees and that rather than attempting to discourage such conduct by taking effective disciplinary action against those employees, her supervisors discriminatorily issued her a "Letter of Warning ("LOW") in lieu of seven day suspension," asserting insubordination on her part. Babcock met with an EEOC counselor concerning these incidents in May 1988 right after she was issued the LOW, and subsequently in August filed an EEOC charge in which she alleged that by issuing the LOW, her supervisors had unfairly retaliated against her and sought to intimidate her for standing up for her civil rights.*fn2

From July until September Babcock was posted to a separate USPS facility in Poughkeepsie and apparently had little or no contact with Musso and no trouble with other USPS employees. Upon Babcock's return in September to the unit in which she worked under Musso's supervision, however, Musso again allegedly subjected her to harassment. According to Babcock, Musso made repeated entreaties and threats to her, at work, pressuring her to resume their relationship; Babcock rejected his advances and strove to dissuade him from continuing to inquire into her personal life; and Musso, in reaction to her resistance, threatened her that he would not take such treatment from a woman and that if she did not watch out he would destroy her career.

Musso followed up on his threat on September 19, 1988, when he issued Babcock a "Letter of Warning in lieu of a fourteen day suspension" predicated on an incident of insubordination. The LOW was issued after Musso consulted with his supervisors at the USPS facility, Peter Morrissey and Robert Corcoran, concerning what disciplinary action could appropriately be taken. Upon receiving the letter, Babcock told Musso that whatever he did to her, she would not go to bed with him and that she intended to defend herself by airing the truth. She then immediately complained to Corcoran and Morrissey about Musso's conduct and was advised by them to submit a written grievance.

Babcock did so, sending Corcoran and Morrissey, as well as Robert Smith, the USPS director of employee and labor relations for the area, a written statement on September 22, 1988. That same date Babcock met with the USPS EEO counselor to set forth her grievance and on October 4, 1988, she initiated an EEOC complaint alleging discrimination in the form of sexual harassment by her supervisor Musso.

At the time Babcock filed this charge no action had been taken on her first EEOC charge, with respect to which the USPS EEO counselor had met with Babcock about a month and a half before and which, as noted, had also involved the issuance of a LOW against Babcock which she claimed to have been improperly lodged by her supervisors for discriminatory and retaliatory reasons. In her second EEOC charge, as she had before, Babcock requested that the LOW be purged from the files. In her letters to Morrissey and Corcoran Babcock also noted the necessity of working separately from Musso and her desire to continue working at the USPS in her position as a postal operations associate.

Shortly after Morrissey and Corcoran received the written statement setting forth her grievances, Babcock and Musso were each given temporary reassignments resulting in their workplace separation. Following further investigation, on October 24, 1988, Musso was given written notice of his proposed removal from the Postal Service for violation of USPS policy on sexual harassment. The notice indicated that Musso had issued a LOW against Babcock, based on an incident he had fabricated, for the purpose of harassing her in retaliation for her having cut off their relationship.*fn3


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