any of George's medical or employment records.
Expert Testimony: Postmaster General
Dr. Robert H. Berger ("Dr. Berger")*fn2 testified as an
expert witness for the Postal Service. He examined George in
March and May of 1990 for a total of three hours and, unlike
Dr. Ferretti, Dr. Berger reviewed the pertinent written
materials such as Dr. Ferretti's report, dated September 21,
1988, medical documentation submitted to the Postal Service by
George and her treating medical physician, Dr. Johnson, the
performance evaluations of George submitted by her supervisors,
letters from the Postal Service to George concerning her
grading and status as an employee, and deposition testimony
given by George.
The credible evaluation submitted by Dr. Berger failed to
reveal evidence that George suffered significant psychological
or emotional distress in response to her work situation. Dr.
Berger found that the symptoms George complained of, including,
headaches and facial pain, anxiety, occasional sleeplessness,
hypertension and gastrointestinal problems had no causal
relationship to alleged supervisor harassment. Instead, he
opined that two medical conditions — Temporal Arteritis, which
George was diagnosed as suffering from, and Carcinoid Syndrome,
which had been discussed and considered for diagnosis by her
treating physician — specifically accounted for a majority of
the symptoms (Tr. 453). In fact, Dr. Berger found no specific
evidence to support the view that any of the symptoms,
conditions or disorders were job related. Nor did he find any
documentation supporting George's position that her physical
symptoms were of a debilitating magnitude or that either
psychological or physical symptoms persist (deft's exh. 60).
On the other hand, Dr. Berger reported that George personally
experienced difficulty performing up to the standards of her
position, and characterized George as exhibiting
passive-aggressive, narcissistic and paranoid personality
traits. Accordingly, she interpreted her supervisors'
constructive criticism as a personal attack, and blamed her
physical ailments on others who she considered responsible for
creating stress on the job. And George defended her own acute
vulnerability respecting failure by projecting blame and anger
outward onto others who she pictured as criticizing her
competency and employment performance. In the final analysis,
Dr. Berger concluded that George preferred to "perceive" sexual
discrimination rather than the possibility that she may not be
performing up to the expectations of her supervisors and her
own high expectations of herself.
Supervisor's Assessment of George's Performance
As a supervisor, Scalici described George as an aggressive
type that interacted satisfactorily with her subordinates, a
fact which is supported by the collective statement submitted
on George's behalf by her subordinates (pltf's exh. 17). But
Scalici stated that George was sorely deficient in maintaining
smooth working relationships with her peers and/or superiors.
Nevertheless, despite observing that George was prone towards
interpersonal conflict with her peers and superiors Scalici
rated George as "good" on the first merit evaluation, dated
August 25, 1981 which indicated George's performance as a
Security Supervisor. Additionally, in early 1982 Moir evaluated
George favorably although he noted that she was "not a good
team worker" and remarked that "she [did] not display a spirit
of cooperation." Stemming from the first two positive merit
evaluations Scalici recommended that George receive a salary
step increase. Warren replaced Moir as George's immediate
supervisor shortly thereafter.
Scalici's 1982 mid-year evaluation, although still generally
favorable, noted that although George was trying hard she did
not get along well with her fellow supervisors, always
complaining about sarcastic harassment and criticism from her
peers because of her gender; Scalici concluded that she
"seem[ed] to be constantly on the defensive because she is a
female" (deft's exh. 12).
According to Scalici, George's job performance deteriorated
rapidly following the mid-1982 evaluation. George failed to
submit timely reports concerning the PPO's she supervised, and
when she did the evaluations appeared to be exactly alike
despite referring to separate individuals (deft's exh. 11).
Scalici was required to go through the evaluations individually
to supplement relevant information. Furthermore, Scalici
detailed one particularly glaring example of George's open
disregard for correct procedure in which George was evaluating
a PPO being considered for promotion to sergeant. Essentially,
Scalici's undisputed assessment suggests that George provided
the PPO's wife with the blank form and instructed her to
complete the form using the same language as appeared on the
prior evaluation George had submitted respecting that PPO. But
George's response to any constructive criticism regarding her
work performance, however, was characterized by Scalici as
argumentative or expressive of hostility towards Scalici or a
Beginning in late 1982 Scalici remarked that George
encountered employment performance problems with even greater
frequency. On November 12, Scalici talked to George concerning
her improper handling of a weapon, as reflected in an incident
report prepared by George (deft's exh. 13). On December 7,
George was counseled by Scalici for permitting a potentially
intoxicated PPO to complete his tour carrying a loaded weapon.
George claimed she was unsure whether the PPO was intoxicated,
but proper procedure dictated that the PPO be sent to the
Medical Unit to definitively evaluate his fitness for duty.
On April 23, 1983 Scalici corresponded with George informing
her that she had utilized an improper form to fill out a hazard
report. On May 12, Scalici noted in the file that George had
demonstrated "indecisiveness," "a lack of knowledge of her job"
and "poor judgment" by calling Scalici to intervene during an
employee dispute involving a PPO under her direct command
concerning whether a particular door should remain open or
closed; Scalici explained that George should have known proper
post conditions especially after a year and a half on the job
(deft's exh. 23). And on September 8, Scalici counseled George
about improperly responding, alone, to a situation involving an
unruly employee without calling for assistance or radioing
Warren also noted examples of George's interpersonal
difficulties and sub-par performance record. He acknowledged
that tension existed between George and Jenkins from the very
first sergeant's meeting that took place under his direction
and recalled that the two exchanged words. Although Warren
explained that George exhibited the most animosity towards
Jenkins, Warren testified that generally George's desire to
interact with her peers was minimal, and that her attitude was
extremely distant (Tr. 225).
Respecting professional duties, Warren critiqued the manner
in which George posted roll call assignments for PPO's under
her supervision in that she rarely varied the rotations
resulting in the same PPO's carrying out the same assignments.
More, Warren commented that George exercised poor judgment by
assigning unqualified PPO's to operate the National Crime
Index, a specialized training duty for postal security
personnel. Warren added that George was not at all receptive to
attempts at counseling on the roll call issue. Finally, Warren
detailed that George defied repeated reminders concerning her
failure to oversee the proper disposition of the United States
flag hanging outside Morgan GMF during the evenings and during
On January 14, 1983, Warren informed Scalici that George had
violated Warren's directive concerning the proper procedures
for requesting sick leave by alerting the Control Center rather
than a fellow supervisor. On November 13, Warren questioned
George regarding inefficiency in the utilization of manpower.
Evidently, George authorized overtime for a PPO, but Warren
suggested several more efficient alternatives to insure the
completion of the necessary tasks (deft's exh. 34).
"Marginal" Merit Evaluations
Not surprisingly, Scalici's and Warren's merit evaluations
reflected the marked downturn respecting George's job
performance. The January 1983 merit evaluation prepared by
Scalici rating George as "marginal", the lowest possible rating
(pltf's exh. 5). Scalici rated George as marginal with regards
to categories such as decision making, productivity in terms of
thoroughness, promptness and quality of work, perceptivity, and
flexibility. The evaluation detailed that George clashed with
her colleagues, rebuked offers of assistance from fellow
supervisors, and that "her overall attitude ha[d] created
tension and discontent between her fellow supervisors and
herself." In his comments supporting the evaluation Scalici
Sergeant George is being given an overall
evaluation of 'Marginal.' She has the potential of
becoming a Very Good Supervisor. However, she has
a 'chip' on her shoulder about being a woman, and
this interferes with her work. For example, she
has complained often that the other supervisor
[sic] on her tour are trying to frame her, are
making a fool of her, and 'give' her the shaft'
because she is a female (pltf's exh. 5).
Scalici again rated George's job performance as "marginal"
during her July 13, 1983 mid-year performance evaluation
following a July 11 report from Warren to Scalici indicating
that although George "[previously] created a problem by
shirking responsibilities, showing a hostile attitude towards
her peers and supervisors for no apparent reason . . .
approximately a month ago I noticed positive signs of change.
I have continued to offer my help. She now accepts some
constructive criticism and is more cooperative with co workers"
(jt. exh. 2).
After considering Warren's report Scalici determined that
"[he hadn't] seen anything [himself] that indicates a change,
except that [he was] not receiving complaints from the other
supervisors" (jt. exh. 3). Therefore, relying upon his own
observations of George's behavior during work hours and during
the oral mid-year evaluation, Scalici prepared notes following
the oral evaluation and concluded that George continued to
project "a negative and hostile attitude towards everyone,
including [him]self. She is surly and even lacks the social
graces as far as extending greetings of goodbye to other
George argued that the poor mid-year evaluation was based
upon the same gender discrimination that George was subjected
to during her entire employment following her promotion to
sergeant. As a direct result, on August 9, 1983, George filed
an administrative complaint with the Equal Employment
Opportunity Commission ("EEO Complaint") alleging that she was
discriminated against based on sex when she received a poor
1983 mid-year evaluation*fn3.
Importantly, Warren's next evaluation for the quarter ending
in October, 1983 reflected a "retrogression" in George's
professional behavior and corroborated Scalici's negative July
evaluation. Warren's evaluation outlined marked shortcomings
respecting George's level of communicative interaction with
peers, cooperation and response to criticism, quality of work,
and a deterioration in her attendance record. Warren noted that
George's excuse for the downturn in her performance was that
she had been given a "marginal" evaluation on her merit; she
refused to acknowledge that her actions may actually have
caused the marginal evaluation, instead "accusing the
tour and security force management in general of harassment"
(deft's exh. 28).
On January 11, 1984, George received a third "marginal"
rating from Scalici on her merit evaluation (deft's exh. 35).
Shortly thereafter on January 19, Warren issued George a
"marginal" on a performance evaluation (deft's exh. 3).
Respectively, Scalici and Warren provided the following
detailed comments in support of the marginal ratings:
Scalici: Her work performance since the last
evaluation has not improved and her attitude, if
anything, has become worse. She still complains
that the other supervisors are not cooperative and
she creates tension among them, not only on her own
tour, but amongst the supervisors from other tours.
Sergeant George has been offered assistance by her
peers and her supervisors, but she resents this. .
. . . . She still displays only a fair knowledge of
her duties . . . Her judgement and discretion at
times are very poor. She is not thorough in her
work and very often her supervisor must follow up
on her routine duties to see that she performs them
. . . (deft's exh. 35).
Poor ability at organizing, planning and
perceptivity in conjunction with weak job
knowledge, analyzing problems or understanding
instructions and poor communication skills makes
Sergeant George an ineffective supervisor.
Responding negatively to all constructive
criticism. Shirking responsibilities whenever
possible. Using scapegoats to justify her poor
performance, using a lot of unscheduled leave,
often with prior knowledge of supervisor shortages
on the tour.
Security Force management at all levels has made
every effort to help Sergeant George. Every effort
has met rebuffs. Her constant reply is, "I'm
completely negative towards this job and the
people in it" (deft's exh. 3).
Reduction in Grade
As a result of George's continued employment performance
problems, on March 20, 1984 the Postal Service issued a notice
to George proposing to reduce her in grade from a Security
Supervisor to a Postal Police Officer. The notice was based on
two charges: 1) conduct unbecoming a U.S. Postal Service
Supervisor and 2) failing to perform the duties of a Security
Supervisor (deft's exh. 4). Charge 2 was based on George's
marginal performance evaluations issued in 1983 and 1984.
Charge 1 was based on the following incidents:
On February 3, 1984, at approximately 4:15 p.m.,
while at an interview to discuss your merit
evaluation with Lt. A. Jenkins, Jr., Acting
[Senior Officer In Charge], and Lt. R.C. Warren,
Sr., you violated Section 157-Z of Handbook
IS-702, in that after you read your evaluation you
verbally abused Lt. Warren by assuming a
belligerent attitude while shaking and jabbing
your finger vigorously in his face.
On February 3, 1984, while at the same interview,
you violated Section 157-M of Handbook IS-702 in
that you used unnecessarily harsh and boisterous
language while meeting with Lts. Jenkins and
Warren. Also, at about 4:52 p.m., you profanely
referred to Lts. Jenkins and Warren as "You ass
kissing bastards." You also referred to Lt. Warren
as "You yellow punk." Again later in the day, you
told Lt. Warren that "I'm tired of you shitting on
On February 3, 1984, at approximately 11:15 p.m.,
you violated Section 157-H of Handbook IS-702, in
that you were disrespectful and insubordinate to a
superior officer and did verbally threaten Lt.
R.C. Warren, Sr. Lt. Warren asked you a legitimate
official business question and you replied by
stating "I'll be waiting for you downstairs after
work. I'm tired of you shitting on me." Security
Supervisor T. Valentine and M. Pedro were present
at the time you threatened Lt. Warren (deft's exh.
Postal Inspector J.T. Herrmann ("Herrmann")
sustained the notice of proposed reduction in grade,
and reduced George to a Postal Police Officer,
effective July 6, 1984.
Discharge from Postal Service
Following the incidents of February 3, the Postal
Service notified George on February 9, that she was
to be detailed to FDR Station in Manhattan, another
Postal Service facility, for a temporary period
(deft's exh. 51). George was scheduled to begin on
February 11, but never reported to the new station.
Indeed, subsequent to February 3, George never again
reported to work at the Postal Service. Thereafter,
it is stipulated that George utilized accumulated
sick leave for the period February 4 through April
20, 1984, and was granted leave without pay status
for the period from April 21 through September 14,
1984 (Stip. 21; Tr. 125-126).
However, despite providing medical documentation
to justify her absence through September 14, since
George had been found fit for duty following a
fitness for duty examination conducted on July 12,
Herrmann corresponded with George on September 12,
and instructed her to continue submitting
documentation from her physician to support her
ongoing absence subsequent to September 14. Herrmann
also instructed George to contact him if she had any
questions (deft's exh. 42; Tr. 123).
It is undisputed that George failed to submit any
further medical documentation, failed to contact
Herrmann, and failed to report to work. Consequently
Herrmann informed George on January 7, 1985 that she
would be removed from the Postal Service, effective
February 16, 1985 (Stip 22; jt. exh. 9). Herrmann's
notice stated that the proposed removal was based on
two charges: (1) Failure to maintain George's
assigned schedule, in that she failed to be in
regular attendance since February 4, 1984, and her
failure to notify supervisors of the reason for her
absence following September 14, 1984, and; (2)
failure to obey official instructions, based on
George's failure to follow Herrmann's instructions
to provide him with medical documentation explaining
George's absence without leave since September 15,
1984. Additionally, the notice of removal stated
that George's prior reduction in grade had been
considered in arriving at the decision to discharge
George (jt. exh. 9).
George responded to the notice of removal by
letter dated January 14, 1985 indicating that "[she
was] aware of the rules regarding absence from duty.
[She was] also capable of following instructions."
George also conceded, "I acknowledge the failure on
my part to send in doctor's statements after
september [sic] 1984." Yet George maintained that
she was "still ill" and inquired "why continue to
send in medical documentation when I have been
deprived of pay of any kind since April 1984?"
(deft's exh. 9).
There can be no doubt, however, that the Postal
Service regulations concerning employee attendance,
procedures for requesting leave, and the
documentation necessary to justify absence from duty
were set forth in the EMPLOYEE AND LABOR RELATIONS
MANUAL ("ELM"), and were made available to Postal
Service employees in a Postal Bulletin, dated May
17, 1984 (deft's exh. 38). It is also evident that
the regulations clearly warned postal employees that
"when correction of an employee's attendance problem
is not achieved dismissal is usually the result"
In accordance with these strict guidelines,
Herrmann's response, dated February 4, 1985,
informed George that the Postal Service's decision
to remove her remained effective February 16, 1985
(deft's exh 59).
CONCLUSIONS OF LAW
The court has jurisdiction over this matter by
virtue of Title VII, § 706, 78 Stat. 259, as amended, 42 U.S.C. § 2000e-5.
Title VII limits employers from considering gender
when rendering employment decisions. On its face, it
forbids an employer to:
fail or refuse to hire or to discharge any
individual, or otherwise to discriminate with
respect to his compensation, terms, conditions, or
privileges of employment, [or to] limit,
segregate, or classify his employees or applicants
in any way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual's . . . sex.
42 U.S.C. § 2000e-2(a)(1), (2).
This Title VII action properly qualifies as a disparate
treatment matter. The Supreme Court has held that when a Title
VII action involves a claim for disparate treatment, two
independent analytical frameworks exist respecting the
evidentiary burdens imposed upon the employer and employee,
depending upon whether the motivation behind an employment
decision is claimed to be pretextual or alleged to be
characterized by mixed-motives.
A traditional pretext case raises the issue whether a
legitimate or illegitimate motive was the true reason for the
employer's actions. The Court set forth the relative allocation
of evidentiary burdens and order of presentation of proof in a
Title VII pretext case in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and in Texas
Dep't. of Comm. Affairs v. Burdine, 450 U.S. 248, 101 S.Ct.
1089, 67 L.Ed.2d 207 (1981). The analysis involves a three-step
First, the plaintiff has the burden of proving by
the preponderance of the evidence a prima facie
case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the
burden shifts to the defendant 'to articulate some
legitimate non-discriminatory reason for the
employer's rejection.' Third, should the defendant
carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the
evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a
pretext for discrimination.
450 U.S. at 252-53, 101 S.Ct. at 1093 (quoting 411 U.S. at 802,
93 S.Ct. at 1824), (emphasis supplied).