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January 15, 1994

JUDY JAMES, Plaintiff,


The opinion of the court was delivered by: THOMAS J. MCAVOY


 Plaintiff filed this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. ยง 2000e et seq., as amended, alleging that she was discharged from service with the United States Postal Service on the basis of her gender and in retaliation for reporting a sexually suggestive or harassing comment made by a co-trainee. Plaintiff asserts that as reprisal for her complaint, she was given more difficult tasks than other probationary trainees during her probationary period, was evaluated on a subjectively unreasonable basis, and was lectured by her superiors in a "disrespectful and hostile" manner.

 The government contends that during her probationary period plaintiff was assigned tasks similar to other probationary trainees yet scored poorly on many of them. Even after counseling and specialized attention, the government claims that plaintiff's work did not meet the acceptable threshold and her employment was therefore terminated. The government asserts that plaintiff has not established a prima facie case of sex discrimination in that she cannot demonstrate that her job performance was satisfactory or that she was treated less favorably than comparable male trainees. Furthermore, the government claims that even if plaintiff can establish a prima facie case of sex discrimination, she cannot show that defendant's legitimate, nondiscriminatory reason for discharging her was pre-textual.

 The matter of James v. Runyon, 91-CV-246, was tried before this court without a jury on May 17 to 19, 1993. This Memorandum-Decision and Order constitutes the court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.


 Following her discharge from the United States Postal Service, plaintiff sought EEO counseling on April 14, 1989. Following the conclusion thereof, she filed a formal EEO complaint (No. 160-90-8047) on May 31, 1989, alleging sex discrimination and retaliatory discharge. On June 13, 1989, the Postal Service issued a final decision addressing her allegations and thereafter, on November 1, 1989, plaintiff requested a hearing. A hearing was held on April 26, 1990, and on May 8, 1990, the Administrative Law Judge issued her recommended decision of no discrimination. Following the Postal Service's adoption of the decision on June 5, 1990, plaintiff filed her pro se complaint in the United States District Court for the Northern District of New York on March 5, 1991. *fn1"


  Initial Training and Employment at the Endicott Post Office

 The following facts were developed at trial. Plaintiff, a white female, was hired as a part-time flexible mail carrier ("PTF") at the post office in Endicott, New York ("Endicott") on January 28, 1989. Prior to commencing employment at Endicott, plaintiff reported for a 5-day orientation program in Binghamton, New York, and was made part of a training group consisting of ten men and two women. The training included such things as general safety, vehicle operation and practical instructions.

 During the training period, plaintiff and her lone female co-trainee were the subject of a crude and vulgar comment uttered by a fellow probationary trainee. *fn2" The remark was made in the company of plaintiff and the other trainees, but no trainer or supervisor was present. Upset by the incident, plaintiff reported it to her training supervisor, Charles Mead ("Mead"). Mead indicated that he would communicate plaintiff's complaint to Endicott Postmaster Richard Nealy ("Nealy"). It is not disputed that there were no further incidents of vulgar or sexually suggestive behavior, whether by the same trainee, other trainees, or plaintiff's supervisors.

 The following week, plaintiff reported for duty to Endicott to begin her 89-day probationary period. *fn3" Five other new hires from plaintiff's training group -- four men and her one female co-trainee -- were also assigned to Endicott. Shortly after beginning work, plaintiff was called into Nealy's office. Without asking plaintiff about the incident, Nealy informed her, in sum and substance, that the occurrence did not constitute sexual harassment. At the time, Nealy offered to call into his office the trainee who had uttered the remark, but plaintiff declined such a confrontation indicating that she had nothing to say to him. Although plaintiff asserted that her "harasser" was a personal friend, or at least an acquaintance, of Postmaster Nealy, the evidence indicated that they had no prior personal or social relationship.

  Probationary Period and Evaluation of Plaintiff's Performance

 During plaintiff's first week of work, all the new PTF's received general orientation and instructions on casing and delivering mail. *fn4" In addition, each new PTF was paired with an experienced mail carrier and worked various mail delivery routes. The supervisors at Endicott and Endwell, N.Y. (a substation of the Endicott office) were Jeanette Coleman ("Coleman"), Thomas Corcoran ("Corcoran"), and James Flick ("Flick"). They were primarily responsible for training the new PTF's and evaluating their performance. Initially, the PTF's did not receive individual evaluations but were provided with group feedback. Although they were generally told to get out of the office sooner to begin their routes earlier, plaintiff testified that she was never instructed as to specific time standards or goals she would be expected to meet with respect to casing or delivering the mail.

 Nonetheless, plaintiff was advised of the five factors by which she would be evaluated. These criteria were contained on a monthly evaluation form, lettered "A" through "E," and included attendance/punctuality, ability to follow directions, compliance with postal regulations, task performance and job knowledge. At the end of each thirty day period during the probationary period, each trainee was to receive a written evaluation. Each criterion was rated on a scale of 1 to 2, or 1 to 3, higher numbers representing better performance. In addition to the five base criteria, PTF's would receive an "Overall" performance rating generally consisting of narrative comments. All trainees, both male and female, were evaluated using the same performance criteria. In addition to the monthly written evaluation form, daily notes were compiled to summarize the new PTF's performance. These notes were not provided directly to PTF's, but were retained by the supervisors as an aid to completing the monthly evaluations.

 Plaintiff was informed that she would receive a written evaluation at 30 days, 60 days and 90 days into the probationary period. At trial, plaintiff's 30-day and 60-day evaluations were received in evidence. The plaintiff had received a "1" rating on all five criteria on her 30-day evaluation. The overall rating read: "Fails to meet requirements, separation recommended." After receiving the 30-day evaluation, plaintiff was not advised as to how she could improve, nor did she ask for such feedback, and no new goals were set for her performance.

 Plaintiff's daily evaluation forms, approximately thirty of which were received in evidence, reflected various criticisms. Representative comments regarding plaintiff's mail delivery performance included such things as "paces on street are slow," "took keys home with her," "left Jeep lights on," "Judy not performing well, took longer than assigned time," and "failed to lock Jeep." Other less specific criticism included "general confusion."

 Early in her probationary period, plaintiff was assigned to the Endwell substation. Supervisor Corcoran played a pivotal role in her supervision and training there, showing her various delivery routes and giving her further instruction on how to properly "case" mail. Corcoran also timed plaintiff's performance in casing mail; quite literally, he stood very close behind plaintiff and measured her speed with a stopwatch. In this regard, at the very least, it is clear that Corcoran treated plaintiff differently than the other new PTF's, both male and female. The underlying reason for the disparate treatment, however, is not clear. Whether Corcoran did so in an attempt to intentionally pressure plaintiff, or whether he simply felt she needed extra help, was not substantiated by the testimony. Other evidence did indicate, however, that Corcoran attempted to assist all trainees in learning their casing duties by color-coding the mail case for Route # 98.

 Not all of plaintiff's feedback was negative. Sporadically throughout the probationary period, she received positive comments from various mail carriers. One carrier informed plaintiff that her time on a particular route was better than the other new trainees by more than one minute. Another told her, after she was placed on a different route, that she was "doing better." A third carrier reported that although he had not observed plaintiff carrying mail on his route, plaintiff had completed the delivery in only four and one-half hours, a very good time for a PTF considering that the target time was between five and five and one-half hours.

 Plaintiff received her 60-day written evaluation at the end of March, 1989. Plaintiff again received a "1" rating on all five criteria except for category "C" (compliance with postal regulations) in which she received a "2". The "Overall" rating read: "fails to meet expectations, separation recommended if no drastic improvement by 4-15-89."

 Various charts prepared by plaintiff and her counsel were received in evidence, and they summarized the daily evaluations of all five new PTF's at Endicott. Plaintiff's counsel did a commendable job of demonstrating that plaintiff performed as well as or better than her co-trainees on like tasks, as measured by objective criteria, but nevertheless received lower subjective ratings by her supervisors. While not entirely consistent, there were more than a few occasions where this was true. By way of example, plaintiff and a male co-trainee both carried Route # 43 in February, 1989, and although plaintiff was working the route for the first time, and the male trainee had worked it before, the time it took plaintiff to finish the route was somewhat less. Despite this fact, plaintiff received no rating and the male PTF received a "satisfactory" rating. Of course, this particular instance might easily be attributable to the fact that they were evaluated by different supervisors. A similar instance occurred when plaintiff and a male co-trainee both carried Route # 38 for the first time. Although plaintiff's delivery time was significantly less, Supervisor Corcoran gave her an "unsatisfactory" rating and commented that her "street time needs improvement," while the co-trainee received no rating and a comment of "good for first time." Likewise, when plaintiff carried Route # 4, her delivery time was almost identical to that of a new male PTF, nevertheless, she received an "unsatisfactory" rating with the comment "ran over," and the male received a "satisfactory" rating with the comment "very good." Likewise, in carrying Route # 7, plaintiff's first delivery time was significantly lower than two other new trainees, one male and one female, and yet, plaintiff received no rating with the comment "mail not ready, had to get own car," while both co-trainees received a "satisfactory" rating, with a comment to one that read "good for first time." Once again, on Route # 24, plaintiff's delivery time was less than a male co-trainee, but she received an "unsatisfactory" and the male received a "satisfactory."

 Plaintiff's counsel also attempted to demonstrate that plaintiff received comparatively negative evaluations as reflected by the subjective comments of the supervisors during the second 30-day period of work. While this was certainly the case -- plaintiff received mostly "unsatisfactory" ratings and all other trainees received mostly "satisfactory" ratings -- it was not clear whether apples were being compared with apples. That is, although the subjective comments ascribed to plaintiff were generally unfavorable, it was not clear whether the comments pertained to the same work or assignments for each PTF. In that regard, the evidence was of little value. Nevertheless, several mail carriers testified that plaintiff had performed her mail delivery duties satisfactorily.

  Postmaster's Assessment of Plaintiff's Performance

 Of particular note was the testimony of then-Postmaster Nealy. Concerned about the consistently negative evaluations plaintiff was receiving from Supervisors Corcoran and Coleman, Nealy took it upon himself to one day accompany plaintiff on her assigned route to personally evaluate her performance. Nealy testified in unequivocal terms that based upon his observations of plaintiff, she was qualified to deliver mail and, in fact, did it "very well." Based on these observations, Nealy surmised that there must have been some other ...

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