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February 7, 1992



The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D.J.

 This Title VII action brought by plaintiff Kathryn D. Babcock ("Babcock") against defendant Postmaster General Anthony Frank (the "USPS" or the "Service") was tried before the Court from October 23 to 29, 1991. Post-trial submissions were completed on December 23, 1991. Upon all the proceedings, the following findings and conclusions were reached upon which judgment will be entered dismissing the complaint.

 Babcock, an attractive, intelligent woman, thirty-seven years old, was indeed the victim of sexual harassment by her immediate superior, Anthony Musso ("Musso"). The Service responded to her complaint appropriately, however, as it did to each of her complaints that alleged sexual discrimination. This record demonstrates that not every action taken by management, perceived as adverse by the employee, can be explained by a claim of an environment hostile to women or of retaliation for asserting claims of sexual harassment.

 The events of 1988 and 1989 unquestionably affected Babcock's career at the Service and undoubtedly created stress and anxiety for her. The determination of what caused these events is the subject matter of this action, and requires the fact finder to become a post-event chronicler of the activities of the USPS Management Section Center (the "MSC") at Poughkeepsie, New York.

 Babcock, divorced with a son now fourteen years old, was first employed by the USPS in 1981. She started out as a clerk typist and progressed through Service's merit system until reaching the position of Postal Operations Associate ("POA"). During the period in question, the MSC unit in which Babcock was involved had between six and seven employees. Musso, a Postal Operation Specialist Senior Level ("POSS"), was Babcock's direct supervisor.

 Babcock and Musso had an intimate physical relationship from December 1986 to the summer of 1988. The relationship developed to the point that by July of 1988 it was Babcock's expectation, based upon Musso's representation, that Musso intended to leave his wife and live with her. Musso's failure to do so was unfortunately a critical event in Babcock's career and her perception of that career.

 During her employment with the USPS, Babcock filed a number of sexual harassment charges. The first arose out of an episode that occurred on April 15, 1988. That day, Matt Haishun ("Haishun"), a male employee subordinate to Babcock, threw a box of pencils at her. According to Babcock, when she asked Haishun to pick up the pencils, Haishun told her to "pick the goddamn pencils up yourself." The incident was investigated by both Tasula Williams and Robert Smith ("Smith"), the Director of Human Resources at MSC Poughkeepsie, who questioned Haishun, Babcock and Larry Green, a co-worker. Haishun claimed he had merely tossed the pencils to the floor. The only other witness, Larry Green, heard but did not see the incident. Haishun was reprimanded and transferred out of the Engineering and Technical Unit ("ETU"), the unit in which Babcock worked. The ETU at the time had three employees.

 On April 21, 1988, Babcock called the Wappingers Falls Police and lodged a complaint against Haishun. The same day, Babcock also called the Postal Service Investigators regarding the Haishun incident. The Postal Service Investigators commenced an investigation. On April 24, 1988, Babcock filed a complaint with the Equal Employment Opportunity Commission ("EEO Complaint") alleging she was subjected to sexual harassment by the USPS arising out of the Haishun incident. On April 25, 1988, an anonymous note, stating that Babcock ought to wear a hairpiece, was left on Babcock's desk. Later, Rudy Travali ("Travali"), another employee, confessed to writing the note. Travali received a Letter of Warning ("LOW") and was recommended for training to improve his behavior.

 On April 26, 1988, Babcock sought protection from Haishun by the state troopers, even though she was aware that the Postal Service Investigators were looking into the incident. Under Postal Service policy, outside authorities should not be summoned unless the employee believes that she is in imminent danger, a policy reissued at least once a year and published in the local postal newspaper.

 In the absence of any immediate danger, Babcock received a LOW for calling in the state troopers. Although Haishun had been transferred out of the ETU, he was still employed in the same facility where Babcock worked. To separate Babcock and Haishun, Babcock was temporarily assigned to the office of field operations, another postal facility. Babcock, rather than Haishun, was transferred to the other facility because Haishun is confined to a wheelchair.

 Babcock appealed the LOW to Smith on September 24, 1988, and he upheld it. Subsequently, the LOW Babcock received as a result of calling in the state troopers was purged from her personnel file in settlement of her grievance.

 On October 4, 1988, Babcock filed a second EEO Complaint alleging sexual harassment by Musso. Babcock had originally met Musso in 1985, and he became her immediate supervisor in 1986. Babcock and Musso entered into their consensual sexual relationship sometime "around the holidays in 1986." Musso and Babcock first broke off the relationship in April 1988. After the April break-up, Musso threatened her. According to Babcock, Musso warned her that, "if I [Babcock] opened my mouth, I would lose my job, because I was having an affair with my supervisor, meaning him." After this threat, Babcock resumed her relationship with Musso and expected Musso to move in with her over the July 4, 1988, holiday weekend. There were other attempted break-ups, however, and they finally ended the relationship on July 4, 1988.

 Upon Babcock's return to the ETU on or about September 6, 1988, following her temporary duty elsewhere, Musso tried to persuade Babcock to resume the relationship, telling Babcock that he loved her and could not live without her. When she refused to resume the relationship with Musso, Musso threatened to destroy her career.

 On September 19, 1988, after discussing the procedure for doing so with Robert Corcoran ("Corcoran"), Acting Manager of the ETU, Musso issued Babcock a "Letter of Warning in Lieu of a Fourteen Day Suspension" predicated on an alleged act of insubordination. Corcoran was Musso's supervisor.

 Babcock wrote to Smith about the LOW from Musso and explained that Musso had fabricated the act of insubordination. Immediately after Babcock complained to Smith of Musso's action, Smith initiated an investigation and spoke to Musso, Green and Vogt, a co-worker, all of whom had witnessed Babcock's alleged act of insubordination and none of whom substantiated Musso's story. Smith also learned from Babcock herself that she had had affairs with other Postal Service employees in addition to Musso.

 On September 29, 1988, Babcock wrote to Peter Morrissey, Director, Operations Services, and Corcoran requesting that either she or Musso be transferred out of the ETU. In response to her request, Corcoran decided to transfer Babcock to a position that would both separate Babcock and Musso and provide Babcock an opportunity to enhance her employment credentials. He proposed a transfer into an Officer-In-Charge ("OIC") position, an assignment Babcock had requested prior to the Musso incident. However, Babcock was not transferred to the OIC position because Musso left the ETU on sick leave. On October 20, 1988, Babcock met with her own counsel to discuss the remedies available to her.

 On October 24, 1988, the Postal Service issued a notice of proposed removal (i.e., termination) to Musso. Smith cancelled the LOW issued by Musso and had it stricken from Babcock's file and informed Musso that, pending confirmation of the proposed removal, he would be transferred out of the ETU. Because Musso was on unpaid sick leave, the interim transfer was never effectuated. The proposed removal was confirmed by a final decision issued on December 5, 1988.

 Musso appealed the termination of his employment to the Merit Systems Protection Board ("MSPB"). He settled his appeal on June 28, 1989, by agreeing to a three-grade demotion in lieu of removal and assignment to another facility. The settlement further provided that Musso was to receive no pay for the period December 17, 1988, through July 3, 1989, the period during which he was on suspension.

 Two days after Musso's proposed removal from the POSS position, on October 26, 1988, Babcock asked Corcoran to promote her to Musso's position as Acting POSS. Corcoran had performed a mid-year evaluation of Babcock in August 1988. He had worked with Babcock only for a couple of months prior to this, so he consulted with Babcock's previous supervisor in preparing the evaluation. Corcoran's final evaluation stated that Babcock's work was only satisfactory, and Corcoran did not believe that Babcock was qualified for the promotion. According to the job description for the POSS, the employee must have extensive mail processing experience. Babcock's course work, computer knowledge and experience at performing POSKED studies did not fulfill this requirement. Donna Simmons was chosen by Corcoran to be the Acting POSS instead of Babcock. Simmons had been employed with the Postal Service for approximately ten years and had obtained extensive experience in mail processing.

 On November 14, 1988, Robert DeEttore, the POSS, was detailed into the position of Acting Industrial Engineer ("IE") at the MSC facility. Thus DeEttore was one of Babcock's supervisors from that date until she left the Postal Service. Two days after DeEttore became Acting IE, Babcock approached DeEttore and requested that she replace Simmons as Acting POSS. DeEttore told Babcock that he could not put her in Simmons' position because he was not familiar with either Simmons' or Babcock's qualifications. Furthermore, DeEttore did not want to second-guess Corcoran. Simmons remained as Acting POSS for approximately one year.

 According to DeEttore the difference between the POA position, which Babcock held, and the POSS position that she wanted is that the POSS requires "extensive experience in mail processing." DeEttore noted that while Babcock had extensive knowledge of computers, the mail processing experience she lacked was a more important requirement for the POSS position. Simmons was more qualified for the position of Acting POSS because she had mail processing experience and was able to attain a knowledge of computers on the job.

 It can also be inferred that these personnel decisions were taken against the background of the turmoil created in the unit as a result of Babcock's complaint and Musso's consequent termination and appeal. Though the POSS post was temporarily vacant, Musso's entitlement to it remained unresolved. Even if Babcock had established clear qualification to the post, which she did not, it would have been appropriate for the USPS to consider the temporary nature of the vacancy, the unresolved status of Musso's appeal and Babcock's complaint, and the need to stabilize the leadership of the office. The USPS did not retaliate against Babcock by appointing Simmons temporarily to the Musso post instead of promoting Babcock. There was perforce a connection between the vacancy and Babcock's complaint, but there is no evidence of any discriminatory animus in the failure to promote. Indeed, the USPS was committed to the position espoused by Babcock's EEO Complaint against Musso.

 On December 13, 1988, Babcock filed a third EEO Complaint, alleging she had been subject to reprisal. This complaint was rejected by the Service upon the filing of a civil action by Babcock. The alleged reprisal consisted of not being given the opportunity to be detailed into the Postal Operations Specialist Senior ("POSS") ...

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