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September 30, 1992


The opinion of the court was delivered by: ARTHUR D. SPATT

 SPATT, District Judge.

 This case concerns a charge against the United States Postal Service of discrimination based on gender and national origin. The plaintiff, who was a part-time temporary clerk in the Postal Service, contends that she was initially discharged and subsequently denied employment because of her Hispanic "origin" and because she is a female.


 The plaintiff, Donna Fernandez ("the plaintiff" or "Fernandez"), is a female of Hispanic origin, and a citizen of the United States. For a short time in 1984, Fernandez was a temporary clerk for the defendant United States Postal Service ("PO").

 In Action I (CV 87-1265), Fernandez alleges that from on or about May 21, 1984, at the Hicksville Post Office, she was discriminated against with respect to working conditions, compensation, and terms and privileges of employment due to her national origin. Specifically, Fernandez alleges that she was discharged from employment at that time because of her Hispanic origin, in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). Fernandez seeks declaratory relief, reinstatement, back pay, compensatory damages and attorney's fees.

 In Action II (CV 89-0679), Fernandez alleges that on or about April 3, 1985, she was denied the position of part-time "flexi clerk" with the postal service, at the Seaford Post Office, on the basis of her gender, and she also alleges "reprisal discrimination due to a prior EEO complaint," in violation of Title VII of the Civil Rights Act of 1964, (42 U.S.C. § 2000e et seq.). As in Action I, Fernandez seeks declaratory relief, reinstatement, back pay, compensatory damages and attorney's fees.


 "Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20003-2(a), makes it an unfair employment practice for an employer to discriminate against any individual with respect to . . . the terms and conditions of employment because of such individual's race, color, religion, sex, or national origin; or to limit, segregate or classify his employees in ways that would adversely effect any employee because of the employee's race, color, religion, sex, or national origin" ( Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642 109 S. Ct. 2115, 2118, 104 L. Ed. 2d 733 [1989]; see also Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140 [1991]).

 Title VII expressly prohibits discrimination in employment "because of such individual's . . . sex . . .." In Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), it was noted that the word "sex" was added to Title VII shortly before its passage. When read in the context of the other categories protected under Title VII such as race, color, religion or nationality, the word "sex" refers to membership in a class delineated by gender (see De Centio v. Westchester County Medical Center, 807 F.2d 304 [2d Cir. 1986], cert. denied 484 U.S. 825, 98 L. Ed. 2d 50, 108 S. Ct. 89 [1987]).

 It is not clear from the complaints in the actions at issue whether Fernandez is alleging "intentional" discrimination or "disparate impact."

 Disparate treatment "is established under Title VII by proof that plaintiffs was treated less favorably than others solely because of his race, color, religion, sex or national origin" ( Zahorik v. Cornell University, 729 F.2d 85, 91 [2d Cir. 1984]). As stated, to establish a discriminatory treatment claim under Title VII, proof of discriminatory motive is "critical." Discriminatory motive can be proved by direct or circumstantial evidence, though most often a Title VII plaintiff "is usually constrained to rely on the cumulative weight of circumstantial evidence" ( Rosen v. Thornburgh, 928 F.2d 528, 533 [2d Cir. 1991]).

 A Title VII claim, including one alleging discriminatory treatment, is adjudicated consistent with a three-step analysis (see Woodbury v. New York City Transit Authority, 832 F.2d 764, 769 [2d Cir. 1987]). The Second Circuit summarized how a Title VII trial is to proceed:

 "The Supreme Court fashioned the manner in which a Title VII action is presented by establishing the now familiar pattern of shifting burdens of proof. Complainant has the initial burden of proving a prima facie case of discrimination, the burden then shifts to the employer to articulate a legitimate nondiscriminatory reason for its action and, finally complainant must show that the employer's stated reason was pretextual. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973). Once the employer satisfies its burden of production, the inquiry moves to 'a new level of specificity,' where the plaintiff has the burden of persuading the court 'that the proffered reason was not the true reason for the employment decision.' Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). The plaintiff may carry this burden 'directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.' Id. at 256" ( Ibrahim v. New York State Dept. of Health, 904 F.2d 161, 165-66 [2d Cir. 1990]).

 (see also Sumner v. U.S. Postal Serv., 899 F.2d 203, 208-09 [2d Cir. 1990] [the same standard applies in a retaliatory discrimination case]).

 Employing step one of this three-part test, the plaintiff can establish a prima facie case by proving the following factors: (1) she is a member of a protected class; (2) she applied for and was qualified for the position for which the employer was seeking applicants; (3) despite her qualifications, she was rejected; and (4) after her rejection the position remained open and the employer continued to seek applicants from persons with the plaintiff's qualifications ( McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 [1973]; Rosen v. Thornburgh, supra, 928 F.2d at p. 532; Lopez v. Metropolitan Life Insurance Co., 930 F.2d 157, 161 [2d Cir. 1991]). While these factors are not necessarily applicable "in every respect to different factual situations," they "promote the general principle that a Title VII plaintiff must carry the initial burden of offering evidence adequate to raise [ ] an inference of discrimination" ( Meiri v. Dacon, 759 F.2d 989, 996 [2d Cir. 1985], quoting from Furnco Construction Corp. v. Waters, 438 U.S. 567, 577, 57 L. Ed. 2d 957, 98 S. Ct. 2943 [1978]).

 Once the plaintiff establishes a prima facie case, step two requires the defendant to produce "some" legitimate, non-discriminatory reason for its actions -- in the instant case, for its discharge of Fernandez (Action I), and failure to hire her (Action II) (see Rosen v. Thornburgh, supra, 928 F.2d at p. 532; Ibrahim v. New York State Dept. of Health, supra, 904 F.2d at p. 166).

 Finally, under the third step of the analysis, the plaintiff must satisfy her ultimate burden, by a preponderance of the credible evidence (see Villaneuva v. Wellesley College, 930 F.2d 124, 129 [1st Cir. 1991]; Rosen v. Thornburgh, supra, 928 F.2d at p. 532; Sweeney v Research Foundation of the State University of New York, 711 F.2d 1179, 1187 [2d Cir. 1983]), that the defendant's stated reasons for its actions are pretextual ( Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 [1981] ["The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff"]).

 "Ultimately, the trial court must decide the question of whether the employer intentionally discriminated against the plaintiff -- i.e., it must determine 'whether the defendants' purported business reasons are actually such'" ( Ibrahim, supra, quoting Gibson v. American Broadcasting Co., 892 F.2d 1128, 1132 [2d Cir. 1989]). "Pretext can be established by a showing that the 'asserted neutral basis was so ridden with' error that the employer obviously could not honestly have relied on it" or by showing that the reason advanced by the defendant "was unworthy of credence" ( Dister v. Continental Group, Inc., 859 F.2d 1108, 1113 [2d Cir. 1988] [quotation omitted]; but see Lopez v. Metropolitan Life Insurance Co., 930 F.2d 157, 161 [2d Cir. 1991] ["it is enough for the plaintiff to show that the articulated reasons were not the true reasons for the defendant's actions"]).

 "Title VII prohibits overt intentional discrimination as well as discrimination resulting from employment practices that are facially neutral but which have a 'disparate impact' because they fall more harshly on a protected group than on other groups and cannot otherwise be justified" ( Waisome v. The Port Authority of New York & New Jersey, et al., 948 F.2d 1370 [2d Cir. 1991]). To prove disparate impact, "a plaintiff must first identify the specific employment practice he is challenging . . . and then show that the practice excluded him or her, as a member of a protected group, from a job or employment opportunity

 . . . Statistical evidence may be probative where it reveals a disparity so great that it cannot be accounted for by chance . . . and the 'statistical disparities must be sufficiently substantial that they raise . . . an inference of causation'" ( Watson v. Fort Worth Bank & Trust Co., 487 U.S. 977, 994, 995, 101 L. Ed. 2d 827, 108 S. Ct. 2777 [1988]).

 To rebut a finding of discriminatory impact, the employer must prove that the employment practice at issue is used for non-discriminatory reasons. Such a reason can be that the practice serves the employer's legitimate employment goals. The plaintiff must counter with proof that there are "alternative employment practices" that will reduce the disparate impact, so that the reason advanced by the employer was pretextual.

 A prima facie case of disparate impact is made out by showing either a gross statistical disparity, or a statistically significant adverse impact coupled with other evidence of discrimination (see, for example, International Brotherhood of Teamsters v. United States, 431 U.S. 324, 338-340, 52 L. Ed. 2d 396, 97 S. Ct. 1843 and note 20 [1977]; Bridgeport Guardians, Inc. v. City of Bridgeport, 933 F.2d 1140, 1146-1148 [2d Cir. 1991] cert. denied 116 L. Ed. 2d 277, 112 S. Ct. 337 [1991]).

 "To establish a prima facie case of retaliation, 'a plaintiff must show participation in protected activity known to the defendant, an employment action disadvantaging the person engaged in the protected activity, and a causal connection between the protected activity and the adverse employment action'" ( Kotcher v. Kotcher, 957 F.2d 59 [2d Cir. 1992]; Johnson v. Palma, 931 F.2d 203, 207 [2d Cir. 1991]; see also Hollander v. American Cyanamid Co., 895 F.2d 80, 85 [2d Cir. 1990]).

 "Once a prima facie case is made, the burden of production shifts to the defendant to articulate a 'legitimate, non-discriminatory reason' for its actions" ( Johnson v. Palma, supra, at p. 207 citing Taitt v. Chemical Bank, 849 F.2d 775, 777 [2d Cir. 1988]).

 "If the defendant meets its burden of articulating 'a permissible reason for its actions, the plaintiff must then show that the reasons advanced were pretextual'" ( Kotcher v. Kotcher, supra, 957 F.2d at pp. 64-65; citing from Sumner v. United States Postal Service, 899 F.2d 203, 209 [2d Cir. 1990]).

 As stated in Newsday v. Long Island Typographical Union, 915 F.2d 840, 844-845 (2d Cir. 1990), cert. denied 113 L. Ed. 2d 247, 111 S. Ct. 1314 (1991), opposition to unlawful sexual discrimination is protected activity within the policies of Title VII:

 "Title VII places upon an employer the responsibility to maintain a work place environment free of sexual harassment. * * * The EEOC Compliance Manual further provides that employers should create a procedure for resolving sexual harassment complaints that encourages victims of sexual harassment to come forward. It should ensure confidentiality as much as possible and provide effective remedies, including protection of victims and witnesses against retaliation."


 Having outlined the appropriate framework for the trial of plaintiff's Title VII claim, the following constitutes the Court's review of the evidence, findings of fact and conclusions of law (see Fed. R. Civ. P. 52[a]). During this discussion, the Court will make findings of fact which will be supplemented by additional findings later in the opinion.


 The plaintiff DONNA FERNANDEZ is an Hispanic woman who wanted to work for the United States Post Office on a career basis. On April 30, 1984 she was hired by the Post Office as a "casual worker." According to the plaintiff, a casual worker is employed for ninety days and is then evaluated. If qualified, the worker will be employed for another ninety days, for a maximum of three ninety-day periods or a total of nine months.

 When the plaintiff was interviewed for the job, she signed a memorandum stating that "at times she may be required to do heavy lifting." She took a physical examination and was placed on an eligibility list for permanent career opportunity. The plaintiff introduced a document entitled "Certificate of Medical Examination" (Plaintiff's Exh. 20) signed by the plaintiff on April 3, 1984, which states the duties of a casual worker as follows:



 MAILHANDLER -- primarily loads, unloads bulk mail. Up to 10 hours of continuous heavy physical activity.

 CARRIER -- responsible for delivery and collection of mail on foot and by vehicle. Requires arduous exertion involving prolonged standing, walking, distributing, and may involve handling sacks of mail up to 70 pounds. Outside assignments are performed in all types of weather.

 CLERK -- requires continuous standing, distribution of mail, stretching and reaching. Handles heavy sacks of mail and parcel post weighing up to 70 pounds."

 In addition, the United States Postal Service Qualification Standard for distribution clerk (Plaintiff's Exh. 12) states the following:

 "1. Clerks. Clerks handle heavy sacks of letter mail, paper mail, and parcel post weighing up to 70 pounds and sort and distribute mail to post offices and to carrier routes in accordance with established schemes.

 . . . .

 Applicants must be physically able to perform efficiently the duties of the position which require arduous exertion involving prolonged standing, walking, distributing, and reaching, and may involve the handling of heavy sacks of mail."

 Fernandez was notified to report for work as a casual worker in the Bethpage warehouse. On April 30, 1984 she reported for orientation at Hicksville. At the orientation she was shown a film which demonstrated the proper way to lift heavy objects. As to lifting, she was told "if it was too heavy, don't pick it up." There is no doubt that heavy lifting was an integral part of her job as a casual worker.

 The plaintiff reported to the Bethpage warehouse where she sorted mail. She also lifted twenty-five pound "file boxes" loaded with first class mail. In her second week on the job, she lifted, by herself, twenty-two sacks of mail that weighed fifty to seventy-five pounds each, and carried the sacks to the next conveyor belt about seven feet away. Fernandez testified that she was assigned to this heavy lifting work because one of the men went out to dinner. Her supervisors at Bethpage were Nicholas John Del Rossi and Gerard Carmine Benevento.

 Fernandez believes that she was treated differently than other casual workers because she was Hispanic. She stated that she was watched constantly by Benevento and if she talked, he kept telling her to "shut up and move the mail." She testified that Benevento harassed her day after day starting on May 6, 1984. He kept saying to her "keep your mouth shut and move the mail." According to the plaintiff, he didn't "pick on" any other employees. On one occasion, Benevento made a "crack" in Italian. Moreover, Fernandez testified that Benevento humiliated her in front of other co-employees.

 After being harassed by Benevento, Fernandez kept a log to record the days and hours she worked. She also got into a dispute about the days she actually worked. The day after Fernandez lifted the fifty to seventy-five pound bags, she felt chest pains. The pain got worse and she saw a doctor on her day off. She continued to work with severe chest pains and pain in her neck, shoulder and arm.

 On May 16, 1984, she visited Dr. Ji-Ming Huag, her family doctor, who said she pulled the pectoral muscles in the chest. He prescribed a painkiller and bed rest. She could return to work but he advised no heavy lifting for two weeks. Fernandez stayed home two days from work. When she returned to work, she brought in a doctor's note and gave it to her supervisor. Supervisor Del Rossi asked her into his office, called her a liar, and referred to the note as a "piece of garbage." Fernandez said "prove it" and Del Rossi told her to get out and do her work. Benevento told her "one more absence and you're fired."

 Fernandez testified she was being harassed because she was Hispanic and that other female employees were not similarly mistreated. As an example, she relates that a Ms. Dickson took two days off and no one said anything to her. After her return to the job, Fernandez worked only three more days. On May 21, 1984, Benevento told her "you're fired and get the hell out of here, right now." She stated she would not leave until she saw Del Rossi. When Fernandez saw Del Rossi he said "You're fired, get the hell out." Fernandez then told Del Rossi that she was going to report him. No one ever told her why she was terminated.

 Fernandez went to the EEOC office the next day and filled out a form. In addition, she made a complaint through the Union, which filed a grievance on her behalf. She also wrote to the postmaster General of the United States.

 Prior to these incidents, Fernandez had applied for the Post Office position of part-time flexi clerk. She took the Civil Service carrier clerk test in 1983. She passed the test, was put on the eligible list, and was interviewed for the position of part-time flexi clerk by Alphonso Rocco, the Postmaster of the Seaford Post Office. At the interview, Postmaster Rocco showed her around the loading dock and told her that she would have to load and unload trucks. It is significant that Rocco emphasized the heavy lifting involved in the job.

 Prior to the interview, she was told by her union representative to tell the interviewer (in this case Rocco) what had occurred when she was discharged as a "casual worker" in the Bethpage warehouse in May 1984. Her testimony in this regard was as follows:

 "Q Do you believe that Mr. Rocco discouraged you from taking the position?

 A He asked me, he said because I stated that I worked before as the casual and I told him I got hurt. And I was told to tell him through the union rep. He says when you go in through -- for your interview, you tell him exactly what you did before in the job in Hicksville. Tell him everything that happened.

 I told him that I won't stand a chance of getting a job if I am going to put down that I got fired.

 He said tell him everything. Bring the doctor's note with you and tell him that you have an EEO complaint going and from there he says you will call me up and you will tell me exactly how the interview went.

 Q And you presented a doctor's note to Mr. Rocco at the interview; is that correct?

 A Yes.

 Q And what reaction did Mr. Rocco have to the note?

 A He said how did this happen and what did you do?

 I told him exactly what I did. After that he still showed me around. He showed me what the job consisted of. And I told him, I said I think I am capable. I said I want to have the opportunity to take the chance and offer me a position with the post office.

 And from there he just said I will just show you around, he said, and I will get back to you" (Tr. at pp. 354-355) (emphasis supplied).

 Rocco suggested that she might become an LSM operator, because "there is less work, no lifting, sitting down and typing." The function of the LSM machine was explained later in the trial, in the testimony of Alphonso Rocco, as follows:

 "Q The LSM machine, let's focus on that.

 Is there something demeaning about being assigned to an LSM machine in the post office?

 A It is a lot cleaner operation. It is involving less manual dexterity of any kind. It is eye trained, mostly women for LSM. They enjoyed it because it was a clean type of work. You don't have to handle heavy sacks. You sit down for 30 minutes at a machine and get up for fifteen minutes. It was really a type of work that most people preferred, to be a part time flexi, I would say, physically if they like cleaner work" (Tr. at p. 164).

 Because of the easier physical requirements, "ninety percent of the people working on the LSM were women" (Tr. at p. 181).

 Fernandez responded to this suggestion by Rocco that she might become an LSM operator, as follows:

 "Q Did Mr. Rocco suggest to you, you might become an LSM operator?

 A He told me I should take an interest in that. There is less work, no lifting, sitting down, and typing. And I don't like typing at all. That's why I didn't even take a test for that. I wasn't interested in typing.

 Q Did you tell him that?

 A I wasn't interested. I just said I wasn't interested in LSM machine. I took the test for clerk carrier and that's what I am interested in."

 Fernandez testified that she believed she was qualified for the position of part-time flexi clerk, had recovered from her injuries and was physically able to do the job. She believes she was not hired in 1985 due to retaliation against her because she had been previously fired and in view of her prior EEOC complaint.

 The plaintiff testified about her prior and subsequent employment history. She worked for the Seaford School District for twenty-five years as a teacher's aide. She so worked in retail stores. However, she was not formally trained for any career. Since 1985, she has worked in retailing as an "on-call" person and she also had part-time employment with the Seaford School District. Apparently Fernandez looked for full-time employment in 1984 but gave up that quest by 1985. During the period 1985 to 1991, she was turned down by three banks, and "was totally discouraged."

 On cross-examination, it was brought out that the post office clerk's position was really not the type of job ...

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