postcard referring to me or Mr. Parrett has been posted on the
workfloor." Id. But she claims that for the next three months,
her co-workers taunted her anew, chanting "service talk service
talk" whenever she was present. Id. at 5.
On May 30, 1997, Brown sought EEO counseling because of the
Just a few days later, Brown claims that Fils-Aime insulted and
threatened both her and Parrett, saying "fat people should be put
in gas chambers," "fat people got something genetic, they're
missing most of their brain, they shouldn't be allowed to live,"
and "if they write me up, I'll grieve it with an AK." Id. ¶ 22.
Brown reported the Fils-Aime threats to her supervisors and to
the Postal Service's Inspection Service. The following day,
Fils-Aime shouted at Uscier, in Brown's presence, "shoot 'em up,
shoot Mary Lou!" Brown once again reported the incident to
Goldheimer, who "glared furiously" and shouted "what are you
going to do, run back upstairs to the inspectors?" Brown then
reported the incident to the postal inspectors.
Goldheimer discussed the incident with Postal Inspector Stephen
Attardi, who advised Goldheimer to take whatever disciplinary
action against Fils-Aime he deemed necessary. Goldheimer Dep. at
33. Fils-Aime admitted to both Goldheimer and Lynch that he had
made the statements, but denied that they were threatening. Id.
On June 9, 1997, Goldheimer issued a warning letter to Fils-Aime
charging him with "verbal abuse" and "threatening statements."
Further, as a result of a complaint by Parrett about the same
comments, Fils-Aime's mail route was moved away from both Brown's
and Parrett's routes.
On October 6, 1997, following the mandatory pre-complaint
counseling period, Brown filed a formal complaint with the Postal
Service's EEO office.
Finally, in November 1997, letter carrier Larry Williams told
Brown that he had seen obscene graffiti about her in the men's
bathroom at JAF. Continued Deposition of Madeline Brown at 11-13.
The graffiti portrayed a bare-breasted woman with exaggerated
lips and a wide upturned nose, with the words "Mrs. Brown"
written above. Brown entered the bathroom when it was empty and
saw the graffiti herself. Id. About four weeks later, Brown
photographed the graffiti and then informed Lynch, who in turn
informed Hernandez, who filed a work order to have the stalls
painted over only to find that the stalls had already been
On November 2, 1998, the Postal Service issued a final decision
denying Brown relief on her EEO complaint. In February 2000,
Brown initiated this action, alleging sex discrimination under a
hostile work environment theory in violation of Title VII. The
Postal service now moves for summary judgment, arguing, among
other things (1) that the bulk of Brown's claims are time-barred
because of her failure to seek an administrative remedy in a
timely fashion, and (2) that the alleged harassment was directed
at both Brown and Parrett, a man, and therefore cannot form the
basis for a sex discrimination claim.
I. SUMMARY JUDGMENT STANDARD
A motion for summary judgment should be granted when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court's
role in summary judgment is not "to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In
deciding whether a genuine issue exists, a court must "examine
the evidence in the light most favorable to the party opposing
the motion, and resolve ambiguities and draw reasonable
inferences against the moving party." In re Chateaugay Corp.,
10 F.3d 944, 957 (2d Cir. 1993). Nonetheless, "Rule 56(c)
mandates the entry of summary judgment . . . against a party who
fails to make a showing sufficient to establish the existence of
an element essential to that party's case, and on which that
party will bear the burden of proof at trial." Celotex, 477
U.S. at 322, 106 S.Ct. 2548.
II. TIMELINESS OF ADMINISTRATIVE ACTION
"`Title VII is the exclusive remedy for discrimination by the
federal government on the basis of race, religion, sex, or
national origin.'" Briones v. Runyon, 101 F.3d at 289 (quoting
Boyd v. United States Postal Service, 752 F.2d 410, 413-14 (9th
Cir. 1985) (citing Brown v. General Services Admin.,
425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976))). Title VII requires a
litigant to exhaust available administrative remedies in a timely
fashion. See Brown v. General Services Admin., 425 U.S. at
832-33, 96 S.Ct. 1961; Pauling v. Secretary of Dept. of
Interior, 160 F.3d 133, 134 (2d Cir. 1998); Briones v. Runyon,
101 F.3d 287, 289 (2d Cir. 1996). These time limits are
prescribed in Equal Employment Opportunity Commission ("EEOC")
regulations. See 29 C.F.R. § 1614.101, 1614.607. Before filing
a formal complaint, a federal employee who believes she has been
the victim of discrimination "must consult a Counselor . . . in
order to try to informally resolve the master."
29 C.F.R. § 1614.105(a); Pauling, 160 F.3d at 134. The employee "must
initiate contact with a Counselor within 45 days of the date of
the matter alleged to be discriminatory." Id. § 1614.105(a)(1).
The time limits established by Title VII and the regulation are
"analogous to a statute of limitations, and [are], therefore,
considered subject to waiver, estoppel, and equitable tolling."
Briones, 101 F.3d at 290; accord Irwin v. Department of
Veterans Affairs, 498 U.S. 89, 94-95, 111 S.Ct. 453, 112 L.Ed.2d
Brown first sought EEO counseling on May 30, 1997. Thus,
according to the Postal Service, only that conduct which occurred
after April 15, 1997 — within the 45 day period immediately
preceding the May 30, 1997 request for EEO counseling — is
actionable. Brown counters that the conduct at issue constituted
a continuing violation.
III. CONTINUING VIOLATION
Where the conduct complained of may be deemed to constitute a
continuing violation, allegedly harassing conduct that falls
outside the forty-five day period nevertheless may be actionable
as related to conduct that falls within the period. The Second
Circuit has limited the application of the continuing violation
doctrine to cases where there is (1) proof of a specific ongoing
discriminatory policy or practice (such as discriminatory
seniority lists or employment tests), or (2) where specific and
related instances of discrimination are permitted by an employer
to continue unremedied for so long as to amount to a
discriminatory policy or practice. See Van Zant v. KLM Royal
Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996); Cornwell v.
Robinson, 23 F.3d 694, 703-704 (2d Cir. 1994). Discrete
discriminatory acts not related to a discriminatory policy are
not a continuing violation. See Lambert v. Genesee Hospital,
10 F.3d 46, 53 (2d Cir. 1993).
Brown argues that the "continuing atmosphere of sexual
harassment" suffices to establish a continuing violation. Ongoing
discrimination, however, is in itself insufficient to establish a
continuing violation. There must be evidence that the alleged
discrimination was related to either an actual or de facto
policy or practice.
The hostile environment alleged by Brown involved several
specific and related incidents. Brown claims that she informed
Goldheimer as early as the spring of 1996 and that his work
station was so close to the harassment that he could not
have been oblivious to it, but that he failed to take any action
to abate it. Goldheimer has denied that Brown ever told him about
the alleged harassment.
Whether Goldheimer was aware of the allegedly discriminatory
conduct as early as spring 1996 would be a question for the
fact-finder. If established, and if the underlying conduct
qualifies as sex discrimination, it may constitute a continuing
violation. Therefore, the Court will consider all of the alleged
conduct in assessing whether a hostile work environment can be
The Court now turns to the conduct at issue, and whether, if
true, it is actionable under Title VII.
IV. HOSTILE WORK ENVIRONMENT
To establish a hostile work environment claim under Title VII,
Brown must prove that: (1) she belongs to a protected class; (2)
she was subjected to unwelcome sexual advances or other verbal
conduct of a sexual nature; (3) the harassment was based on sex;
and (4) the harassment was sufficiently severe and pervasive to
alter the conditions of her employment and create an abusive
working environment. See Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 66-73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986);
Cosgrove v. Sears, Roebuck & Co., 9 F.3d 1033, 1042 (2d Cir.
1993) Because the alleged harassment was perpetrated by
co-workers, as opposed to supervisors, Brown must also establish
that the Postal Service either provided no reasonable avenue for
complaint or knew of the harassment but did nothing about it.
See Richardson v. New York State Dep't of Corr., 180 F.3d 426,
440 (2d Cir. 1999) (citing Faragher v. City of Boca Raton,
524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).
Here, it is undisputed that Brown is a member of a protected
class and was subject to unwelcome verbal conduct of a sexual
nature. Whether the harassment was sufficiently severe to alter
the conditions of Brown's employment would be a question left for
the fact-finder. Brown's failure to adduce evidence that the
conduct at issue here was based on her sex, however, is fatal to
A Title VII plaintiff "must always prove that the conduct at
issue was not merely tinged with offensive sexual connotations,
but actually constituted `discriminat[ion] . . . because of . . .
sex.'" Oncale v. Sundowner Offshore Svcs., Inc. 523 U.S. 75,
81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
We have never held that workplace harassment, even
harassment between men and women, is automatically
discrimination because of sex merely because the
words used have sexual content or connotations. "The
critical issue, Title VII's text indicates, is
whether members of one sex are exposed to the
disadvantageous terms or conditions of employment to
which members of the other sex are not exposed."
Oncale, 523 U.S. at 81, 118 S.Ct. 998 (quoting Harris v.
Forklift Systems, Inc. 510 U.S. 17, 25, 114 S.Ct. 367, 126
L.Ed.2d 295 (1993)). A plaintiff must demonstrate that she was
subjected to the hostility because of her membership in a
protected class. "[A]n environment which is equally harsh for
both men and women . . . does not constitute a hostile working
environment under the civil rights statutes." Brennan v.
Metropolitan Opera Ass'n, Inc., 192 F.3d 310 (2d Cir. 1999). Put
bluntly, "the equal opportunity harasser escapes the purview of
Title VII liability." Holman v. State of Indiana, 24 F. Supp.2d 909,
915 (N.D.Ind. 1998); accord Butler v. Ysleta Independent
School Dist., 161 F.3d 263, 270 (5th Cir. 1998) ("Irwin's
sending of offensive materials to both men and women is evidence
that the workplace itself, while perhaps more sexually charged
than necessary, was not sexually charged in any way that made it
a hostile work environment for either men or women"); Pasqua v.
Metropolitan Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996)
("[H]arassment that is inflicted without regard to gender, that
is, where males and females in the same setting
do not receive disparate treatment, is not actionable because the
harassment is not based on sex").
Here, the undisputed evidence demonstrates that the harassing
conduct was directed at both Brown and Parrett. Indeed, Brown
admitted repeatedly in her various informal and formal EEO
complaints and affidavits that the alleged harassment was
directed at both her and Parrett. Brown also testified at her
deposition that the comments regarding the alleged affair were
directed at both of them, and in fact, were directed at Parrett
more often. Similarly, Parrett testified at his deposition that
the alleged harassment was directed at both him and Brown, and in
his EEO affidavit he wrote, "I felt all along that these remarks
were meant for me." See Thomas Parrett EEO Investigative
Affidavit. The pornographic photograph and postcard were
undeniably directed at both Brown and Parrett, naming Parrett and
having been posted on Parret's route. Even the graffiti, which
singled out Brown, was drawn in the men's, not the women's,
bathroom. In addition, Brown stated several times in her EEO
filings and at her deposition that the harassment was largely
motivated by a longstanding personal union-related feud she has
had with the harassers.
Brown's and Parrett's belated attempts to create an issues of
fact in this regard, by filing post-motion affidavits stating
that the harassment was based on gender, must be rejected. A
party may not "create an issue of fact by submitting an affidavit
in opposition to a summary judgment motion, that, by omission, or
addition, contradicts the affiant's previous deposition
testimony." Hayes v. New York City Dep't of Corrections,
84 F.3d 614, 619 (2d Cir. 1996). Here, both Brown's and Parrett's
affidavits contradict their respective deposition testimony and
prior affidavits, and therefore, cannot create a genuine issue of
As cruel and harassing as the conduct alleged here undeniably
was, Brown cannot show that it was motivated by gender so as to
bring it within the scope of Title VII. As a matter of law, the
sex discrimination claim must be dismissed.
Although not explicitly pleaded as such in the complaint, the
Fils-Aime's threats could conceivably form the basis for a
To establish alleged retaliatory harassment by a co-worker, a
Title VII plaintiff must prove, among other things, that (i) the
alleged retaliatory harassment was sufficiently severe to
constitute an adverse change in the terms and conditions of her
employment, and (ii) her employer knew about but failed to take
action to abate the retaliatory harassment.
Assuming for the purpose of this matter that Fils-Aime's
threats are sufficiently severe to constitute an adverse change
in the terms and conditions of Brown's employment, the Postal
Service nevertheless took prompt action to abate the alleged
retaliatory harassment. After Brown reported the threats to her
supervisors and to the Inspection Service, Goldheimer issued a
letter of warning charging Fils-Aime with verbal abuse and
threatening statements. Additionally, Fils-Aime's mail route was
moved further away from Brown's and Parrett's. Fils-Aime made no
Consequently, Fils-Aime's retaliatory conduct cannot, as a
matter of law, be attributed to the Postal Service.
VI. SUPPLEMENTAL JURISDICTION
Having disposed of all federal claims raised in the complaint,
the Court declines to exercise supplemental jurisdiction over the
remaining state law claim for intentional infliction of emotional
distress. See generally Purgess v. Sharrock, 33 F.3d 134, 138
(2d Cir. 1994) (a district court may decline to exercise
supplemental jurisdiction based on "considerations of judicial
economy, convenience, and fairness to litigants").
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that the Postal Service's motion for summary judgment
is granted, and the complaint is dismissed in its entirety.
The Clerk of Court is directed to enter judgment for the
defendants and close this matter.
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