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March 27, 1991


The opinion of the court was delivered by: Newman, Senior Judge of the United States Court of International Trade, sitting as a United States District Court Judge by designation:



Millie George ("George"), a black female employee of the United States Postal Service, brings this action under Title VII of the Civil Rights Act of 1964, § 701, 78 Stat. 253, as amended, 42 U.S.C. § 2000e, et seq., against Postmaster General Anthony Frank ("Postmaster General" or "defendant") alleging discriminatory employment practices by employees of the Postal Service against George on the basis of gender. George predicates the court's jurisdiction on Title VII, § 706, 78 Stat. 259, as amended 42 U.S.C. § 2000e-5.

Based on a claim of disparate treatment, George seeks monetary damages for allegedly resultant work-related physical and psychological personal injuries caused by defendant's gender discrimination: (1) compensatory damages for lost wages and income for the period 1985-1989 amounting to $165,000.00; (2) punitive damages; and (3) medical expenses for related health problems in the sum of $1,250.00.

Defendant requests dismissal of the action arguing: (1) that the court lacks subject matter jurisdiction under Title VII insofar as George seeks recovery of damages for work-related personal injuries, for the reason that her exclusive remedy for such monetary awards falls within the scope of the Federal Employees' Compensation Act ("FECA"), 5 U.S.C. § 8101, et seq.; (2) alternatively that, assuming that the court possesses subject matter jurisdiction over George's damages claims, defendant denies liability under Title VII for any alleged disparate treatment of George respecting similarly situated employees; (3) and that even if George prevails on her substantive gender discrimination claim, Title VII precludes George from recovering compensatory and punitive damages.

After careful review of the lengthy transcript of the testimony adduced at a five-day bench trial, the exhibits in the record supplemented by the parties' proposed post-trial findings of fact and conclusions of law, the court holds: (1) that George's claim to recover money damages under Title VII for personal injuries incurred during her postal employment is not foreclosed by FECA; (2) that George did not sustain her burden of proving, by a preponderance of the evidence, that defendant intentionally discriminated against George because of her gender; and (3) that the court need not reach George's damages, since George failed to establish defendant's liability. In accordance with Rule 52(a), Fed.R.Civ.P., the court makes the following Findings of Fact and Conclusions of Law:


The court first addresses the post-trial objection raised by the Postmaster General which suggests that this court lacks subject matter jurisdiction under Title VII to award George the monetary relief she seeks, allegedly for personal injuries sustained during her postal employment. The Postmaster General argues, unconvincingly, that FECA provides George's sole remedy as a federal employee on a claim seeking money damages for work-related personal injuries, and thus the Court lacks jurisdiction to award George damages until George's claim has been presented, and rejected by, the Federal Employees' Compensation Board.

Congress enacted FECA to provide worker's compensation benefits for federal employees who sustain injuries in the course of their employment. Under FECA, federal government employees, including employees of the United States Postal Service, are entitled to compensation for wages lost and medical costs incurred due to such work-related injuries. 5 U.S.C. § 8102(a), 8103(a), 8105, 8106. Indeed, FECA provides that when a plaintiff seeks to recover damages "the liability of the United States or an instrumentality thereof with respect to the injury or death of an employee [while in the performance of his duty] is exclusive." 5 U.S.C. § 8116(c).

The provisions of Title VII prohibit all employers within the public and private sector from committing unlawful discrimination against their employees on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. Postal Service employees are specifically included under 42 U.S.C. § 2000e-16, and are entitled to the following remedial relief:

  the court may enjoin the [employer] from engaging
  in [an] unlawful employment practice, and order
  such affirmative action as may be appropriate,
  which may include, but is not limited to,
  reinstatement or hiring of employees with or
  without back pay . . ., or any other equitable
  relief as the court deems appropriate.

42 U.S.C. § 2000e-5(g), (emphasis supplied).

The question of whether or not to foreclose judicial review of a suit brought by a federal employee under Title VII's employment discrimination statutes on account of overriding FECA coverage has not been squarely addressed in the Second Circuit. Courts in other jurisdictions, however, provide instructive guidance for the resolution of this thorny issue.

One particularly fruitful discussion appears in a decision rendered by the Third Circuit, Miller v. Bolger, 802 F.2d 660 (3d Cir.1986). In Miller, plaintiff sought compensation under Title VII for work-related injuries despite the fact that he had already received benefits under FECA for some of those injuries. Id. at 661. The court acknowledged that FECA § 8116(c) sets forth exclusive boundaries concerning injury or death of employees intending to "limit the employee's right to pursue certain other avenues for obtaining compensation from the United States." Id. at 662.

Concentrating on the statutory framework and legislative history of FECA, however, the court determined that "the language of § 8116(c) specifically refers to the alternative remedies under a workmen's compensation statute or under a Federal tort liability statute," and that Congress only intended FECA to be "a substitute for suits against the United States for tortious injury as authorized by statutes similar to the Federal Tort Claims Act." Id. at 663. Thus, concluding that FECA's exclusivity provisions do not preclude a recovery under Title VII for the reason that Congress did not mention FECA's exclusivity when it made Title VII applicable to federal employees in 1972, Id. at 663-64, the court ultimately held that FECA does not pose a bar to recovery of full compensation for Title VII injuries, as long as the plaintiff is not awarded a double recovery. Id. at 665-66.

The court's approach in Miller was recently followed by the District Court in Oregon in Nichols v. Frank, 732 F. Supp. 1085 (D.Or.1990). The plaintiff in Nichols alleged "quid pro quo" or "hostile environment" sexual harassment under Title VII and sought additional monetary relief over and above her award of prior FECA benefits. The Postal Service responded that the action was moot due to the lack of an available monetary remedy under Title VII, for the reason that FECA payments are the exclusive source of compensation awardable under such circumstances.

Interestingly, as defendant does now in its post-trial brief, it directed the Nichols court to three decisions to support its contention, Black v. Frank, 730 F. Supp. 1087 (S.D.Ala.1990), and two unpublished opinions which were printed as appendices to the Black opinion. Citing a failure of precedential or persuasive value for the reason that the opinions addressed claims brought under the Rehabilitation Act of 1973, 29 U.S.C. § 791, rather than Title VII employment discrimination, the court rejected defendant's argument and permitted plaintiff's recovery of back pay under Title VII to the extent that the back pay sought fell short of a double recovery respecting earlier FECA payments.

The court agrees with the Nichols court in finding a lack of merit in defendant's reliance on Black, or the unpublished opinions appearing as appendices thereto. More, defendant misses the mark with the other supporting non-Title VII cases cited in its post-trial brief. The short of the matter: the genesis of this litigation centers on Title VII gender discrimination which according to the reasoning in Miller and its progeny is not limited to remedies such as reinstatement and back pay, and may include such items as front pay, medical expenses and attorney's fees. The question as to FECA coverage, which is most commonly associated with work-related accidents and diseases, clearly fails to preclude George's request to pursue her discrimination claim under the umbrella of equitable remedies available under Title VII; simply because the plaintiff in this action seeks money damages there is no reason to foreclose her Title VII action. Accordingly, the court holds that George may seek money damages for disparate treatment in connection with a Title VII gender discrimination theory.


Employment at Morgan General Mail Facility

George first obtained employment with the Postal Service as a Postal Police Officer ("PPO") in New York City on January 4, 1974. She was promoted to sergeant on February 6, 1981 and transferred to the General Post Office, Morgan General Mail Facility ("Morgan GMF") in New York City as a Security Supervisor. The responsibilities attendant with George's promotion to Security Supervisor at the Morgan GMF included directly overseeing the PPO's who are assigned to provide security for approximately five post office branches in the borough of Manhattan.

Specifically, George was assigned to Tour III, the 11:30 p.m. to 8:00 a.m. shift, and was required to hire, train, motivate, discipline and sometimes fire the 58 PPO's that comprised Tour III's segment of the Postal Police Force. Three additional Security Supervisors usually worked concurrently with George during Tour III so at any one time George was responsible for directing approximately 15-20 PPO's. The individuals assigned to Tour III with George were sergeants Burke, Green and Jenkins. George was the only female Security Supervisor at Morgan GMF.

One lieutenant supervised the sergeants and directed the tour and its operations. The lieutenant in turn reported to a Security Officer In Charge ("SOIC") who oversaw the overall operations of security at the main post office and four or five smaller facilities in Manhattan. When George was first transferred to Morgan GMF lieutenant William Moir ("Moir") was her immediate supervisor but lieutenant Robert Warren ("Warren") replaced Moir in July 1982. The SOIC during the majority of the period George worked at Morgan GMF was Jack Scalici ("Scalici").

Allegations of Discrimination

Facilities and Equipment

George contends that following her promotion to sergeant she was not given equal training opportunities. She testified that the Postal Service failed to train George after her promotion to sergeant whereas a male sergeant promoted subsequently to George received two weeks of on-the-job training before his assignment to a particular tour. But Jenkins, who was promoted to sergeant concurrently with George, testified that both he and George attended the same one-week training course, and George admitted during cross-examination that she attended this program (Tr. 78).

Upon meeting George for the first time, Scalici recalled that George "took offense" because the Postal Service did not situate her in a locker room separated from her female underlings, unlike her male counterparts who changed in separate locker rooms apart from their subordinates. Shortly thereafter, George also demanded provision of a separate "swing room," a large area with tables shared by the other supervisors and utilized to take "breaks," eat their lunch and perform paperwork duties. Alternatively, George suggested that the Postal Service provide her with the use of a separate combination locker room/swing room, in essence, her own office (Tr. 38-40).

Respecting changing areas, Scalici explained that there were no separate facilities available at Morgan GMF apart from the existing female locker room to accommodate George who was the only person who would be utilizing such a space (Tr. 353). There were only eight female PPO's on the same tour as George. Thus, the locker room used by George was used by only nine individuals. The eight PPO's were assigned to posts and could only leave the posts during their "breaks" and lunch periods. The only possible times when the PPO's would even be in the locker room were when they changed clothes at the beginning and end of their tours and during their "breaks" and lunch periods. At other times, the female locker room was empty and George had it all to herself.

Regarding an area to work on reports and counsel PPO's, although George categorically denied receiving permission to use the existing supervisor's combination swing room/locker room shared by her male peers to complete paperwork, take breaks, eat lunch and change clothes, Warren and Jenkins both agreed that George was provided access to that facility. Despite the limited possibility for potentially awkward situations at the beginning and end of tours when supervisors changed clothes, the court finds that George could otherwise have made use of this option by simply knocking and inquiring whether or not a fellow male supervisor was changing clothes before entering the area to complete her written reports. Also, Warren credibly testified that George was permitted to use the training room which was usually vacant, any of the inspector's offices which were available, or even Warren's own office which George in fact utilized on several occasions to counsel PPO's. Evidently, George was presented with viable alternatives besides the female PPO's swing room to work on PPO evaluations.

Additionally, George requested provision of a file cabinet during February, 1981 and alleges not being issued one until approximately three years later, in early 1984. The trial evidence established that when George requested a file cabinet from Scalici he shortly thereafter penned a note directing that George be provided the cabinet (pltf's exh. 7; Tr. 81), but Scalici could not recollect when the file cabinet was actually delivered. Warren stated that it was issued to George in early 1983 (Tr. 224). Even assuming the substantial delay alleged by George, there is no proof that Scalici failed to provide George with the cabinet because of her gender, and during the intervening period George was provided primary access to file cabinets in the command center which were available to all supervisors and, if necessary, access to a file cabinet in SOIC Scalici's office.

More, George argues she was denied a key to the fifth floor womens' lavatory facilities at Morgan GMF until a few days prior to her leaving the Postal Service, and thus claims she was effectively denied access to the lavatory facilities at Morgan GMF. George, however, admitted having access to the ladies' room on the work floor. The Postmaster General maintains that George received a key in June, 1983, conceding that its failure to provide a key at an earlier time was an administrative oversight. At trial, George admitted that the Postal Service did issue her a key by June, 1983, and failed to provide evidence that the defendant deliberately refused to issue George a lavatory key for purposes of sex discrimination.

Supervisor Harassment

Despite alleging that gender discrimination existed from the onset of her promotion because of, inter alia, unequal facilities for changing clothing and for preparing and storing reports, George's more potent allegations regarding gender discrimination concern events transpiring subsequent to the time period Warren became George's direct supervisor. George testified that Warren began harassing her within one month following his July 1982 transfer to Morgan GMF. She testified that he repeatedly called her "bitch," "slut" and "cunt" (Tr. 43). In support, she emphasized that Warren was previously accused of using the word "bitch" towards another female while stationed at another post. As further examples of Warren's alleged harassment George testified that Warren would have her paged by the radio room to determine where she was located; that he would call staff meetings with the Tour III sergeants during which time Warren, sergeants Burke and Jenkins would "harass" George (Tr. 45-46); and that Warren improperly accused George of incorrectly performing her duties such as, not properly responding to an alarm bell, providing an improper staff report, and misdirecting a PPO.

Warren categorically denies ever referring to George as a "bitch," a "slut" or a "cunt" (Tr. 268), and it is uncontradicted that the prior unrelated charge concerning the use of the word "bitch" towards a female was resolved in Warren's favor (Tr. 271). Also, Warren credibly testified that it was his general practice to maintain periodic contact with his entire staff of sergeants respecting their locations throughout the day (Tr. 228).

Moreover, George's allegations of gender-based name calling or "harassment" during staff meetings are not persuasive. And both Warren and Jenkins corroborated that George was disruptive during meetings, appeared late, if at all, and generally refused to participate in topics discussed at the meetings. Further, the court finds that Warren's practice of periodically checking the location of his sergeants was necessary and proper for purposes of a potential emergency, and not limited to George but rather applied to all the sergeants under Warren's supervision (Tr. 228).

Additionally, George's allegations of discrimination implicate Scalici. Claiming that Scalici implied sexual threats to her regarding her employment with the Postal Service, George testified that Scalici, while evaluating her performance, remarked that "if [she] played the game, that [she] would get evaluated appropriately" (Tr. 57, 90). George argues that Scalici was suggesting, by his comment, that she should "lay on her back" for the job (Tr. 58, 91). But on cross-examination George was evasive regarding her allegations of Scalici's improper sexual suggestions, and ultimately conceded that, in fact, nobody employed ...

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