did Babcock name the employee who she claimed physically harassed her.
While the gift of red lace underwear as a gag gift at an office Christmas party does not seem amusing in retrospect, it does not rise to the level of harassment, nor was it so perceived by Babcock at the time.
The picture of a half-naked woman pinned to the wall of Paciullo's office may have been offensive to Babcock, but it was not observed by others and it was not the subject of any complaint, contemporaneous or otherwise.
The incidents of harassing conduct alleged by Babcock simply are not sufficient to establish a hostile working environment. At most, the above incidents were a few isolated incidents that Babcock may not rely on to prevail here, see Snell v. Suffolk County, 782 F.2d 1094, 1103 (2d Cir. 1986), and the Postal Service responded promptly to all of Babcock's complaints. Taken together, the absence of a hostile environment was demonstrated.
In Vinson, the Supreme Court approached, but did not decide, the issue of employer liability. The Court rejected a rule of strict employer liability and instead suggested that courts "look to agency principles for guidance in this area." Vinson, 477 U.S. at 72; Watts, 724 F. Supp. at 106. The reason for doing so is "to place some limits on the acts of employees for which employers under Title VII are to be held responsible." Vinson, 477 U.S. at 72. Nevertheless, once the employer is apprised of the occurrence of such offensive behavior in the work place, Title VII imposes an affirmative duty on the employer to investigate the charges. Snell, 782 F.2d at 1104.
As described above, Smith promptly investigated Babcock's claim regarding Musso and effectuated Musso's removal from the work place. In addition, Smith cancelled the LOW issued by Musso to Babcock and struck it from Babcock's personnel file.
Both Williams and Smith investigated the Haishun and Travali incidents. Haishun, who allegedly threw pencils at Babcock which did not strike her, was reprimanded and transferred out of the ETU. Postal Service Inspectors also investigated the pencil throwing incident. Travali, who confessed to writing the note about the hairpiece, received a LOW for insubordination and was recommended for training on how to improve his behavior.
The Postal Service acted promptly in investigating and disciplining both Haishun and Travali. Even assuming that Haishun and Travali's conduct could be considered sexual harassment, the Postal Service should not be held liable, because it took reasonable and expeditious steps to remedy the situation.
The Postal Service also acted promptly and reasonably with regard to the alleged acts of harassment at the Monticello postal facility. As soon as Babcock complained to DeEttore, he conducted an investigation and reported both of these incidents to the Postal Inspection Service.
In short, upon being made aware of Babcock's complaints, the United States Postal Service "'exhausted the field of reasonable and feasible actions' it might have taken to cleanse [Babcock's] working environment" Watts, 724 F. Supp. at 107 (quoting Snell, 782 F.2d at 1104); Bennett, 705 F. Supp. at 987-88. The Postal Service could not have done more and should not be held liable for Musso's conduct or for the other incidents reported by Babcock and investigated by the Service.
Babcock resigned from the Postal Service on October 6, 1989. She claims that her resignation was a result of a constructive discharge forced upon her by the conditions she endured at the Postal Service.
"A constructive discharge occurs when the employer, rather than acting directly, 'deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation.'" Lopez, 831 F.2d at 1188 (quoting Young v. Southwestern Saving and Loan Ass'n, 509 F.2d 140, 144 (5th Cir. 1975)); Watts, 724 F. Supp. at 108-09.
To prove constructive discharge, a plaintiff must show that "the working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign." Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir. 1977)). In addition, a plaintiff must prove that her employer deliberately acted or refrained from acting, rendering her working conditions so intolerable as to force her resignation. Watts, 724 F. Supp. at 109.
Babcock claims constructive discharge on the grounds that, after she filed her complaint against Musso, her supervisors were arranging to relocate her to another facility and into a lower level position. However, in response to her request to be reassigned, Corcoran decided to transfer Babcock to an OIC position in another facility. Placing her in such a position not only would have separated Babcock From Musso, but also would have provided Babcock with the opportunity to enhance her employment credentials. Smith said that Babcock had requested such an assignment prior to the Musso incident because OIC assignments are a training device. Babcock, though, was never transferred because Musso left the ETU on sick leave. Being considered for a transfer in 1988 which she herself requested cannot amount to a retaliatory or constructive discharge of Babcock by the Postal Service in 1989.
Babcock further claims that she was penalized for using sick leave. However, the record incontrovertibly shows that Babcock did in fact use an excessive amount of sick leave. Indeed, the record shows that she used some of her sick leave to work in another job as a teacher. Moreover, according to Smith, Babcock's placement on sick leave restriction was simply an administrative measure and was not considered an adverse action. DeEttore also told Babcock that restricted sick leave was not a disciplinary device.
In sum, Babcock has not proved that her working conditions at the Postal Service were so intolerable that a reasonable person would have resigned in the same situation. Moreover, the evidence established that the Postal Service did not act deliberately in making Babcock's working conditions so intolerable that she should have felt compelled to resign.
For the foregoing reasons, judgment will be entered dismissing the second, consolidated complaint against the USPS.
It is so ordered.
New York, N. Y.
February 7, 1992
ROBERT W. SWEET
© 1992-2004 VersusLaw Inc.