RANDALL v. POTTER

2005 | Cited 0 times | D. Maine | February 9, 2005

ORDER GRANTING DEFENDANT POSTMASTER GENERAL'S MOTION FOR PARTIAL SUMMARY JUDGMENT

Claiming sexual harassment and a hostile work environment,Plaintiff Linda Randall has filed an action under Title VII ofthe Civil Rights Act, 42 U.S.C. §§ 2000e et seq. against thePostmaster General of the United States Postal Service ("PostalService"). Ms. Randall alleges, inter alia, during the periodfrom 1996 to 2001, she was sexually harassed by co-workers and asupervisor. The Postal Service moves for partial summary judgmenton Ms. Randall's pre-October 2000 claims, arguing the claims arebarred by the statute of limitations and to the extent thetime-barred claims could survive as continuing violations, theyare barred by the Postal Service's intervening action.1Concluding the Postal Service's intervening employment actionsare sufficient under National Railroad Passenger Corp. v.Morgan, 536 U.S. 101 (2002) to break the causal nexus betweenthe within statute events and the out of time events, this CourtGRANTS the Postal Service's Motion for Partial Summary Judgment.Page 2

I. STATEMENT OF FACTS

In accordance with "conventional summary judgment praxis," thisCourt recounts the facts in a light most favorable to Ms.Randall's theory of the case consistent with recordsupport.2 Gillen v. Fallon Ambulance Serv., Inc.,283 F.3d 11, 16 (1st Cir. 2002). This Court has relied either on theuncontested facts or on Ms. Randall's version, if contested.

A. Employment at the Hampden Facility: 1996 — January 2000

Ms. Randall began working for the Postal Service in 1996.(Def.'s Statement of Undisputed Facts Including Material Facts(DSMF) ¶ 1 (Docket # 20)).3 Her first position was as amail handler at the Postal Service's Hampden facility; she workedon Tour 3 from 2:30 p.m. to 11:00 p.m.4 (DSMF ¶ 1, Pl.'sResp. to Def.'s Statement of Undisputed Facts and Statement ofAdditional Facts (PSMF) ¶ 1 (Docket # 23)). As a mail handler,she emptied equipment and brought mail to where it needed to go.(DSMF ¶ 1). Her supervisors were Donna Ransom and PaulHendrickson. (DSMF ¶ 1, PSMF ¶ 1).

1. 1996: Indecent Exposure

Ms. Randall alleges that, shortly after she began working forthe Postal Service, Rick Defillipo, a co-worker, exposed hisgenitals to her. (DSMF ¶ 7). Mr. Defillipo was working "in emptyequipment in the dock and [she] was walking through to gooutside" when he told her to "come over." (DSMF ¶ 7). When shedid, he exposed himself. (DSMF ¶ 7). Ms. Randall asserts that Ms.Ransom was present and knew of the incident. (DSMF ¶ 7). Ms.Randall did not, however, complain about the incident. (DSMF ¶ 7).Page 3

2. 1996-97: Lewd Suggestion

During the holiday season in late 1996 or early 1997, Ms.Randall occasionally worked in the priority mail area. (DSMF ¶9). Once when they were throwing mail in the priority sacks, BradMcNally, a mail clerk, asked her to "sit between the sacks whilehe threw the mail and perform oral sex on him." (DSMF ¶ 9). Ms.Randall refused and left. (DSMF ¶ 9).

3. 1997-99: Mr. McNally's Persistence

In 1997-1998, Ms. Randall worked in automation as a clerk andlater as a flat sorter. (DSMF ¶ 12). Mr. McNally was an acting"204B" supervisor. (DSMF ¶¶ 10, 12 n. 5). She worked with DanSickler, Joel Greenleaf, James Mercure, Randy Hooper, and MarkFernald. (DSMF ¶ 12). Liz Walker supervised her most of the time,but occasionally Mr. McNally supervised her in his capacity as atemporary "204B" supervisor. (DSMF ¶ 12 n. 5).

During her time in automation, Mr. McNally persistentlyharassed her. (DSMF ¶¶ 10-12) He would ask Ms. Randall what colorunderwear and bra she was wearing and if he could see herbreasts. (DSMF ¶ 10). On one occasion, Mr. McNally told twofemale clerks, Candy Sergi and Heather Buck, "to watch themachine because he wanted [Ms. Randall] to go out back so [they]could screw like dogs."5 (DSMF ¶ 11). Ms. Sergi told Mr.McNally that was inappropriate. (DSMF ¶ 11). Nobody complainedabout Mr. McNally's comment at this time, and Ms. Randall did nottell any supervisor about the comment. (DSMF ¶ 11, PSMF ¶ 11).

Ms. Randall stated Mr. McNally made comments to her "[a]ll thetime. Every day." (DSMF ¶ 11). He also told Ms. Randall his"girlfriend could get him off in two minutes" and wondered howlong it would take Ms. Randall to do the same. (PSMF ¶ 40(f),DSMF ¶ 14). Mr. McNally told Ms. Randall, "I shouldn't say this.I shouldn't do this stuff. I know one of thesePage 4days I am going to get caught." (DSMF ¶ 11). Ms. Randall told hersupervisor, Mr. Fernald, Mr. McNally was a pig, but never putanything in writing. (DSMF ¶ 11 n. 3).

When Ms. Randall began working as a Part Time Flexible ("PTF")employee in March 1999, she was transferred to Tour 2 where sheworked primarily as a flat sorter. (DSMF ¶ 13). Mr. McNally wasno longer Ms. Randall's supervisor, but she would see him forabout thirty minutes in the morning during the change of shift.(DSMF ¶¶ 13, 14). According to Ms. Randall, Mr. McNally wouldmake lewd comments, whisper in her ear, pull at her clothes, andtry to look down her shirt. (PSMF ¶ 40(g), DSMF ¶ 14).

4. January 2000: Mrs. Randall's Complaint

In January 2000, Ms. Randall continued working as a PTF on Tour2, primarily as a flat sorter. (DSMF ¶ 15). Although Mr. McNallywas not Ms. Randall's supervisor while she worked on Tour 2,during this time, she learned the Postal Service was consideringMr. McNally for promotion as manager of distribution operations("MDO"). (DSMF ¶ 15). She told David Prescott, a union steward,Mr. McNally was a "pig" and what had happened. (DSMF ¶ 15). Mr.Prescott informed Louis Zedlitz, the plant manager. (DSMF ¶ 16).Mr. Prescott initially did not tell Mr. Zedlitz who had told himabout Mr. McNally's conduct. (DSMF ¶ 16 n. 9). Mr. Prescott askedMs. Randall to write a statement and she then spoke with Mr.Zedlitz. (DSMF ¶ 17, PSMF ¶ 17). Mr. Zedlitz asked Ms. Randallabout Mr. McNally's conduct and told her that the matter would beinvestigated. (DSMF ¶ 17). Several other female employees hadalso complained about Mr. McNally's conduct. (DSMF ¶ 17, PSMF ¶17). Upon learning this information, Mr. Zedlitz immediately "put[Mr. McNally] out of the building that night" and placed him onadministrative leave pending an investigation. (DSMF ¶ 18).RichardPage 5Finkenberg, the MDO of Tour 3, was assigned to investigate. (DSMF¶ 18). Mr. McNally never returned to work at the Hampdenfacility. (DSMF ¶ 18).

B. Transfer to Greenbush Post Office: January 2000 — September25, 2000

Ms. Randall "had some concerns about being in the plant duringthe investigation" of Mr. McNally, and therefore Mr. Zedlitz toldher he would assist in getting her transferred to an associateoffice while the investigation was ongoing. (DSMF ¶ 20). StevePelletier, the customer service operations manager in charge ofthe associate offices, assigned Ms. Randall to be an officer incharge ("OIC") at the post office in Greenbush, thirty miles fromthe Hampden facility. (DSMF ¶ 21). Ms. Randall worked at theGreenbush Post Office from February 14, 2000 to September 25,2000; she worked from 7:00 a.m. to 5:00 p.m. and sorted the mail,waited on customers, performed accounting, and ordered stamps.(DSMF ¶ 22). According to Ms. Randall, when she was transferred,Mr. Zedlitz said she "wouldn't have to come back to Hampden everagain." (DSMF ¶ 23). Ms. Randall "felt" she would be staying inGreenbush. (DSMF ¶ 23).

1. Mike Dyer Searches for Negative Information

While at Greenbush, Deborah Noonan, a Hampden mail handler,called Ms. Randall and told her that supervisor Mike Dyer, whowas Mr. McNally's union representative, was soliciting statementsagainst Ms. Randall. (DSMF ¶ 24). Mr. Dyer, who was responsiblefor defending Mr. McNally, had asked employees whether they hadwitnessed improper conduct by Mr. McNally or whether they heardMs. Randall use profane language or tell dirty jokes. (DSMF ¶25). Mr. Dyer did not discover any negative information about Ms.Randall. (DSMF ¶ 25).

Ms. Randall called Mr. Zedlitz and informed him of Mr. Dyer'sactions, and Mr. Zedlitz said he would investigate and take careof it. (DSMF ¶ 24). Mr. Finkenberg advised Mr. DyerPage 6that he should receive authority to be released from his postalservice assignment before conducting the investigation duringwork hours. (DSMF ¶ 25). He also told Mr. Dyer that because therehad been no disciplinary charges initiated against Mr. McNally atthat point, he was "putting the cart before the horse." (DSMF ¶26). Ms Randall understood that Mr. Dyer received a two-weeksuspension for his conduct, was investigated, and returned to thefacility.6 (DSMF ¶ 27). Ultimately, Mr. Dyer consideredMr. McNally's demotion was deserved because he had beenuntruthful. (DSMF ¶ 25 n. 16).

2. Ken Carr Visits Greenbush

Ken Carr, a clerk at the Hamden facility and friend of both Ms.Randall and Mr. McNally, came to the Greenbush Post Office whileMs. Randall was working, accused her of complaining about Mr.McNally, called her a "bitch," kicked the counter, and said thatshe "better take it back or he and other people were going to getback at [her] and write statements." (DSMF ¶ 28). Ms. Randall was"pretty scared" and told Mr. Carr to stop or she was going tocall the Sheriff's Department. (DSMF ¶ 28). Mr. Carr calmed down,and Ms. Randall told him what Mr. McNally was doing was wrong.(DSMF ¶ 28). After Mr. Carr left, Ms. Randall called Mr. Zedlitzand told him what happened. (DSMF ¶ 29). Ms. Randall understoodMr. Zedlitz talked to Mr. Carr and he "ended up quitting becauseof the whole thing." (DSMF ¶ 29).Page 7

C. Transfer Back to Hampden: September 2000 — February 2001

1. September 21, 2000: Mr. McNally Leaves

In late September or early October 2000, Ms. Randall learnedshe was going to be transferred back to the Hampden facility.(DSMF ¶ 30). By this time, the McNally investigation hadconcluded. (DSMF ¶ 30). Mr. McNally was notified on August 15,2000 he was to be removed from any supervisory role anddowngraded to a craft position as a PTF because he madeinappropriate comments. (DSMF ¶ 19). Mr. McNally challenged thepersonnel action, and to resolve his challenge, on September 21,2000, Mr. Zedlitz assigned Mr. McNally for 180 days as an OIC ata small post office in Sorrento, Maine where he would notsupervise any employees. (DSMF ¶ 19). Mr. McNally was downgradedto the PTF position on March 28, 2001. (DSMF ¶ 19).

2. October 2000: Ms. Randall Returns7

In October 2000, Ms. Randall returned to the Hampden facilityand worked as a flat sorter on Tour 3. (DSMF ¶ 32). Mr.Finkenberg was the MDO of Tour 3, and Michael Dyer was her directsupervisor.8 (DSMF ¶ 32, PSMF ¶ 32). Ken Farris and PaulHendrickson were Ms. Randall's relief supervisors. (DSMF ¶ 32).Upon learning of Ms. Randall's return, Mr. Finkenberg talked tothe supervisors and the union officials and made it clear not toretaliate against Ms. Randall or give her a "hard time." (DSMF ¶33, PSMF ¶ 33). On Tour 3, Ms. Randall worked with differentemployees than she had worked with on Tour 2 in 1999, but withsome of the same employees when she was a transitional or casualemployee. (DSMF ¶ 33).Page 8

3. October 2000 — February 2001: The Harassment Starts Again

In December 2000 or January 2001, some of Ms. Randall's maleco-workers tackled her and pushed her into a snow bank. (PSMF ¶56). They bragged to people in the break room that "they had justcooled [her] ass off." (PSMF ¶ 56). These male workers also madeobscene and lewd sexual comments to her. (PSMF ¶¶ 55,56)9

Ms. Randall testified the following incidents of harassmentoccurred upon her return to the Hampden facility:

(1) James Mercure, a union steward, told Ms. Randall: "I ownyou. I will make you pay. You are going to do what I want you todo. I can make your life miserable" and "you better not sayanything. I will slap you" (PSMF ¶ 61);

(2) Within her first week back, Dan Sickler told her: "I cantell you to blow me and get away with it" and "Nobody is going todo anything." (PSMF ¶ 62). He would kick Ms. Randall "whenever hegot the opportunity" and told her, he was "going to get [her] asskicked real good that day" (PSMF ¶ 63);

(3) Mr. Mercure and Mr. Sickler told her they would sayanything they wanted to her and that she was not going to reportthem as she did Mr. McNally (PSMF ¶ 64); and,

(4) Joel Greenleaf told Ms. Randall she ought to give Mr.Sickler "a blow job" and they "ought to have a threesome" andasked her the size of her bra. (PSMF ¶ 65).Page 9

According to Ms. Randall, she complained to Mr. Zedlitz, theplant manager, approximately one week after her return to theHampden facility, and he told her to "deal with it." (PSMF ¶¶ 66,67). Ms. Randall testified she met with Mr. Finkenberg and toldhim what was going on and he transferred her from the flat sorterto priority and express mail, which is across the building fromthe flat sorter. (PSMF ¶¶ 68-69). Despite being transferred topriority and express mail, Ms. Randall testified Mr. Dyer wouldfrequently make her return to the flat sorter. (PSMF ¶ 71).

4. February 26, 2001: Ms. Randall Quits

Ms. Randall stopped working on February 26, 2001, alleging thesexual harassment caused her to be physically ill. (DSMF ¶ 35,PSMF ¶ 78). Ms. Randall testified that, on her last day of work,Mr. Finkenberg told her the situation was not going to get anybetter and told her she should quit; he said, "[w]hy don't youmake this your last day and I'll take you out and get you drunk."(PSMF ¶ 75). According to Ms. Randall, Mr. Finkenberg called hera "pain in the ass." (PSMF ¶ 76).

D. Administrative Complaints

On July 19, 2001, Ms. Randall filed an EEOC Complaint ofDiscrimination. (DSMF ¶ 36). In September 2001, the PostalService dismissed Ms. Randall's pre-October 2000 claims becauseshe failed to exhaust administrative remedies as to those claimsand failed to establish a continuing violation. (DSMF ¶ 36, Ex. Aat 2-4). Specifically, the Postal Service found Ms. Randallreported her sexual harassment claim to management in February2000 through her Union, and therefore, she "had reasonablesuspicion of discrimination when [she] made [her] union aware ofthe alleged sexual conduct," but did not seek EEOC counselinguntil January 23, 2001. (DSMF ¶ 36, Ex. A at 2). The PostalService also determined Ms. Randall hadPage 10constructive knowledge of the Postal Service's anti-sexualharassment policies. (DSMF ¶ 36, Decl. of Robert Hylen at Ex. Aat 3).

E. Procedural Posture

On June 2, 2003, Ms. Randall received a Notice of FinalDecision, affirming the dismissal of her pre-October 2000 claimsand finding she failed to prove discrimination on herpost-October 2000 claims. (Compl. ¶ 6 at Ex. A (Docket #1)). Ms.Randall filed this Complaint on August 15, 2003.

II. STANDARD OF REVIEW

Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). A fact is "material" if it has the "potential to affectthe outcome of the suit under the applicable law,"Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46,52 (1st Cir. 2000), and for an issue to be "genuine," theevidence relevant to the issue, viewed in the light mostfavorable to the non-moving party, must be "sufficientlyopen-ended to permit a rational factfinder to resolve the issuein favor of either side," Nat'l Amusements, Inc. v. Town ofDedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied,515 U.S. 1103 (1995).

The trial court is obligated to view the entire record in thelight most hospitable to the nonmovant and indulge "allreasonable inferences in that party's favor." Cadle Co. v.Hayes, 116 F.3d 957, 959 (1st Cir. 1997); Griggs-Ryan v.Smith, 904 F.2d 112, 115 (1st Cir. 1990). This Court has stated,however, that in discrimination actions, "[c]aution isappropriate whenPage 11considering summary judgment for an employer." Bilodeau v. MegaIndus., 50 F. Supp. 2d 27, 46 (D. Me. 1999).

III. DISCUSSION

A. Hostile Work Environment

Title VII of the Civil Rights Act of 1964 prohibits an employerfrom discriminating "against any individual with respect to hiscompensation, terms, conditions, or privileges of employment,because of such individual's race, color, religion, sex, ornational origin." 42 U.S.C. § 2000e-2(a)(1).10 "[T]hevery fact that the discriminatory conduct was so severe orpervasive that it created a work environment abusive to employeesbecause of their race, gender, religion, or national originoffends Title VII's broad rule of workplace equality.". Harrisv. Forklift Sys., 510 U.S. 17, 22 (1993). Courts have longrecognized that sexual harassment is "a form of genderdiscrimination prohibited by Title VII." O'Rourke v. City ofProvidence, 235 F.3d 713, 728 (1st Cir. 2001) (citationsomitted). Title VII sexual harassment law has evolvedconsiderably from its early focus on quid pro quo sexualharassment, where an employee or supervisor uses his or hersuperior position to extract sexual favors from a subordinateemployee, and if denied those favors, retaliates by taking actionadversely affecting the subordinate's employment. See Lipsett v.Univ. of Puerto Rico, 864 F.2d 881, 897 (1st Cir. 1988)(collecting cases). Title VII also allows a plaintiff to proveunlawful discrimination by showing that "the workplace ispermeated with `discriminatory intimidation, ridicule, andinsult,' . . . that is `sufficiently severe or pervasive to alterthe conditions of the victim's employment and create an abusiveworking environment.'" Harris, 510 U.S. at 21 (citationsomitted). Further, Title VII protection is not limited to"economic" or "tangible" discrimination. Id.Page 12

To succeed on a hostile work environment sexual harassmentclaim a plaintiff must establish: (1) that she is a member of aprotected class; (2) that she was subjected to unwelcome sexualharassment; (3) that the harassment was based upon sex; (4) thatthe harassment was sufficiently severe or pervasive so as toalter the conditions of plaintiff's employment and create anabusive work environment; (5) that sexually objectionable conductwas both objectively and subjectively offensive, such that areasonable person would find it hostile or abusive and the victimin fact did perceive it to be so; and, (6) that some basis foremployer liability has been established. O'Rourke,235 F.3d at 728 (citing Faragher v. City of Boca Raton, 524 U.S. 775,787-89 (1998)); see also Rivera v. Puerto Rico Aqueduct & SewersAuth., 331 F.3d 183, 189 (1st Cir. 2003).

B. Timeliness and Exhaustion of Administrative Remedies

The Postal Service contends any claims based on conductoccurring before October 2000 must be dismissed because Ms.Randall did not timely raise and exhaust them in administrativeproceedings. A federal employee alleging Title VII employmentdiscrimination must exhaust administrative remedies beforebringing a court action. Jensen v. Frank, 912 F.2d 517, 520(1st Cir. 1990). To exhaust her administrative remedies, aplaintiff must contact an EEOC counselor within forty-five daysof the allegedly discriminatory incident.1129 C.F.R. § 1614.105(a)(1); see also Velazquez-Rivera v. Danzig,234 F.3d 790, 794 (1st Cir. 2000) (administrative remedies had not beenexhausted since there had been no contact with an EEOC counselorwithin 45 days); Roman-Martinez v. Runyon, 100 F.3d 213, 216-18(1st Cir. 1996) (holding that a federal employee's failure tocontact an EEOC counselor within the limitations period causeshim to losePage 13his right to pursue a later de novo action in court). Failure todo so bars a plaintiff from bringing a court action based on thatincident. Jensen, 912 F.2d at 520.

Ms. Randall first contacted the EEOC counselor on January 23,2001, making the cut-off date December 8, 2000. However, forpurposes of its motion, the Postal Service has conceded that,because the EEOC investigation extended to October 2000, when Ms.Randall returned to Hampden, "the statutory time period for theplaintiff's claims begins in late October 2000." (Def.'s Mot. forPartial Summ. J. and Incorporated Mem. of Law at 12 n. 3 (Docket# 19)).

C. Discrete Acts Prior to October 2000

To the extent Ms. Randall's Complaint concerns"discrete"12 acts of alleged discrimination occurringbefore the cut-off date, they cannot be converted into a singleunlawful practice for purposes of timely filing, and thus are"not actionable if time barred, even when they are related toacts alleged in timely filed charges." Morgan,536 U.S. at 113.13 Thus, the Postal Service's Motion for PartialSummary Judgment on Ms. Randall's claims for discrete acts ofalleged discrimination prior to October 2000 not part of acontinuing violation must be granted, since those discrete eventsare time-barred under Morgan.

D. Discrete Acts and Hostile Work Environment Claims AfterOctober 2000

In its Motion for Partial Summary Judgment, the Postal Servicehas not raised any legal issues about Ms. Randall's post-October2000 claims, whether discrete acts or hostile work environment,leading to her resignation on February 26, 2001.

E. National Railroad Passenger Corp. v. Morgan:"Continuing Violation" TheoryPage 14

The Postal Service's Motion for Partial Summary Judgmentfocuses on whether Ms. Randall can recover for pre-October 2000claims. Citing Morgan, Ms. Randall claims she can recover underthe theory that the post-October 2000 actions were a "continuingviolation" of the pre-October 2000 incidents.

1. Continuing Violation Theory: General Principles

Morgan mandates a different exhaustion inquiry for Title VIIclaims involving a hostile work environment. Because "a hostilework environment claim is comprised of a series of separate actsthat collectively constitute one `unlawful employment practice',"such a claim will not be time-barred merely because a portion ofthe individual acts that comprise the hostile work environmenttook place outside the forty-five day statutory filing period.Id. at 117 (citation omitted). Under this theory, Ms. Randallclaims she can reach back, even to Mr. Defillipo's 1996 indecentexposure and to all Mr. McNally's pre-October 2000 conduct, andimpose liability on the Postal Service.

By its nature, a hostile work environment "often means thatthere are a series of events which mount over time to create sucha poisonous atmosphere as to violate the law." O'Rourke,235 F.3d at 727. Hostile environment claims are different fromdiscrete acts; their very nature involves repeated conduct.Morgan, 536 U.S. at 115. "The repeated nature of the harassmentor its intensity constitutes evidence that management knew orshould have known of its existence." Id. (citations omitted).The "unlawful employment practice" therefore cannot be said tooccur on a particular day. Id. "It occurs over a series of daysor perhaps years and, in direct contrast to discrete acts, asingle act of harassment may not be actionable on its own. Id.Such claims are based on the cumulative effect of individualacts." Id.Page 15

In the leading Supreme Court cases, the evidence of harassmentcovered a period of years. Faragher, 524 U.S. at 782 (five-yearperiod); Harris, 510 U.S. at 19 (two and a half years);Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 59-60 (1986)(four years). Accordingly, there is "a natural affinity betweenthe hostile work environment theory and the continuing violationdoctrine." O'Rourke, 235 F.3d at 727. "Thus, a court should nothastily dismiss on timeliness grounds a harassment claim where acontinuing violation is alleged." Id. Nevertheless, the twotheories are not the same; "not every hostile work environmentclaim presents a plausible continuing violation." Id. The FirstCircuit declined "to adopt a per se rule that a properly allegedhostile work environment claim also constitutes a continuingviolation." Id. at 727-28 (quoting West v. Philadelphia Elec.Co., 45 F.3d 744, 755 (3d Cir. 1995)).

Provided an act contributing to the claim occurs within thefiling period, the entire time period of the hostile environmentmay be considered for the purposes of determining liability.Morgan, 536 U.S. at 117. "A court's task is to determinewhether the acts about which an employee complains are part ofthe same actionable hostile work environment practice, and if so,whether any act falls within the statutory time period." Id. at120. Therefore, courts must look to "all the circumstances,"including "the frequency of the discriminatory conduct; itsseverity; whether it is physically threatening or humiliating, ora mere offensive utterance; and whether it unreasonablyinterferes with an employee's work performance."14Harris, 510 U.S. at 23. In thisPage 16regard, the alleged acts of physical and verbal abuse "cannot beconsidered unless [Plaintiff] can point to an act that is part ofthe same hostile work environment and that falls within thelimitations period." Lucas v. Chicago Transit Auth.,367 F.3d 714, 725 (7th Cir. 2004). "Unless there are no material facts indispute permitting resolution as a matter of law as to whether acontinuing violation occurred, it is a jury issue." O'Rourke,235 F.3d at 727.

2. The "Intervening Action" Limitation

The Postal Service does not take issue with this well developedbody of law. It relies, instead, on a limitation to thecontinuing violation theory: if such acts are no longer part ofthe same hostile work environment claim because of "certainintervening action by the employer," the causal link may bebroken. Morgan, 536 U.S. at 118; see also Watson v. BlueCircle, Inc., 324 F.3d 1252, 1258-59 (11th Cir. 2003)(intervening action by the employer renders the co-worker'sconduct no longer part of the plaintiff's hostile workenvironment claim); Costanzo v. United States Postal Serv., No.00 Civ. 5044(NRB), 2003 WL 1701998, at *11 (S.D.N.Y. Mar. 31,2003) (whatever abuse the plaintiff received from December 1997through March 1998, her working circumstances clearly changedafter her transfer to a new team with a new direct supervisor inMarch 1998); Fairley v. Potter, No. C-01-1363 VRW, 2003 WL403361 (N.D. Cal. Feb. 13, 2003) (the employer's adequatehandling and investigation of the plaintiff's complaintconstituted an intervening action). Morgan assists in theanalysis by pointing to at least three significant factors: 1)whether the within and without statute of limitations harassmentinvolve "the same type of employment actions"; 2) whether theyoccurred "relatively frequently"; and, 3)Page 17whether they were "perpetrated by the same managers." Morgan,536 U.S. at 120 (citation omitted). These questions are directedto whether the course of action is "part of the same actionablehostile environment claim." Morgan, 536 U.S. at 121.

There is little decisional authority specifically on the degreeof "intervening action by the employer" sufficient to breakcausation. In Watson, the Eleventh Circuit concluded that anemployee's harassing actions could not be considered to determinethe employer's liability, when, upon notice, the employer tookeffective action and that employee's harassment ceased. Watson,324 F.3d at 1258-59. In Costanzo, a case involving the PostalService, the plaintiff claimed a long term hostile workenvironment. The district court noted the employee had beentransferred to a "new team with a new direct supervisor."Costanzo, 2003 WL 1701998, at *11. The court concluded underMorgan the pre-transfer acts of alleged harassment were "nolonger part of the same hostile environment claim" and theemployee could not recover for them. Id. In Fairley, also aPostal Service case, the district court concluded that becausethe Postal Service launched a prompt investigation, immediatelyseparated the two employees directly involved, warned theharassers, and ordered them to stay away from the victims, thePostal Service could not "as a matter of law" be liable.Fairley, 2003 WL 403361 at *8-9. In Foley v. Proctor & GambleDistrib. Co., No. Civ. A. 01-11314-RWZ, 2003 WL 21696544 (D.Mass. July 21, 2003), the employer took "prompt, effectiveremedial action" and "decisively changed plaintiff's workenvironment" by transferring his supervisor across the country.Foley, 2003 WL 21696544, at *2. Judge Zobel concluded theemployer was not liable for plaintiff's sexual harassment hostileenvironment claims. Id.

3. Point and CounterpointPage 18

To support her continuing violation claim, Ms. Randall arguesthe harassment she "was subjected to upon her transfer back tothe Hampden facility in October 2000 was related to theharassment by Brad McNally from 1996 or 1997 until January 2000."(Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Sum. J. at 14(Docket # 22)). Ms. Randall avers: "The co-workers who harassed[her] upon her return to Hampden specifically mentioned Mr.McNally during that harassment, . . . and it can be inferredtheir harassment was, at least in part, to retaliate against Ms.Randall for reporting the harassment by Mr. McNally." (Id. at15).

The Postal Service responds Ms. Randall cannot recover for herpre-October 2000 claims on the basis of continuing violationsbecause: (1) the two periods are separated by Ms. Randall'stransfer to another facility in Greenbush; (2) the two periodsinvolved different tours with different co-workers andsubstantially different supervisors; (3) the Postal Service'sactions to suspend and discipline Mr. McNally were interveningactions; and, (4) Mr. McNally never returned to the Hampdenfacility. (Def.'s Mot. for Partial Sum. J. and Incorporated Mem.of Law at 14-15). Ms. Randall counters that the harassmentcontinued while she was working at Greenbush and that hertransfer back to Hampden where she worked under the supervisionof Mr. Dyer, who had defended Mr. McNally and had been suspendedfor improperly soliciting statements against Ms. Randall, madethe harassment more likely to occur. (Pl.'s Mem. of Law in Opp'nto Def.'s Mot. for Summ. J. at 15).

4. Evidence of a Continuing Violation and an InterveningAction

a. Brad McNally

Prior to October 2000, three individuals harassed Ms. Randall:1) Mr. McNally; 2) Mr. Dyer; and, 3) Mr. Carr.15 Therecord contains abundant evidence of Mr. McNally's inappropriateand offensive conduct, beginning in 1996 and continuing toJanuary 2000, whenPage 19Ms. Randall was transferred. Mr. McNally's conduct was preciselythe type of boorish inexcusable sexual harassment Title VII wasintended to address. However, when Ms. Randall complained, thePostal Service took prompt, effective remedial action. Itinvestigated Mr. McNally, separated Ms. Randall from him, demotedhim, transferred him far away from Hampden, and returned her towork under different supervisors, a different shift, and adifferent crew. After October 2000, there is no evidence Mr.McNally ever directly persisted in harassing Ms. Randall.

b. Mike Dyer

Ms. Randall's pre-October 2000 complaint against Mr. Dyer wasthat he was engaging in a campaign to secure negative informationabout her while she was in Greenbush. Upon her complaint, thePostal Service promptly investigated and disciplined Mr. Dyer andhe apparently ceased his investigation.16

c. Ken Carr

While she was in Greenbush, Mr. Carr visited her, expressed hisoutrage at her complaints against Mr. McNally and frightened Ms.Randall. Again, upon her complaint, the Postal Serviceinvestigated and Mr. Carr "ended up quitting over the wholething." The record does not reveal when Mr. Carr quit, but thereis no indication he was still employed when she returned inOctober 2000.

5. Pre-October 2000 Claims: ConclusionPage 20

In this Court's view, the Postal Service's responses to Ms.Randall's pre-October 2000 complaints against Messrs. McNally,Dyer and Carr were precisely the types of actions Morgancontemplated when it referred to "intervening action by theemployer." Mr. McNally was transferred, Mr. Dyer was disciplined,and Mr. Carr quit. During this period, Ms. Randall was physicallyseparated from all three of them and when she returned, she wasplaced on a different crew.

a. Mr. McNally and Mr. Carr

Neither Mr. McNally nor Mr. Carr is alleged to have harassedher after October 2000. The actions of Mr. McNally and of Mr.Carr cannot form the basis for the imposition of liabilityagainst the Postal Service because they are out of time, thePostal Service took intervening action, and the causal link for acontinuing violation is not present.

b. Mr. Dyer

This leaves Mr. Dyer. Ms. Randall claims that Mr. Dyer'sactions in investigating her constituted gender-based harassment.The evidence reveals that as union representative, he undertookan investigation of Ms. Randall's sexual harassment chargesagainst Mr. McNally and while doing so, asked if she hadencouraged Mr. McNally's conduct. There is no evidence that Mr.Dyer conducted this part of the investigation due to sex-basedanimus or to harass Ms. Randall. Ms. Randall assumes Mr. Dyerinvestigated her conduct only to develop negative informationabout her and as a corollary to Mr. McNally's harassment;however, the evidence is that Mr. Dyer investigated Ms. Randallto place in context Mr. McNally's actions in order to assess thepotency of the evidence against him.17 There is noevidence that Mr. Dyer attemptedPage 21to influence the employees' responses, that he denigrated Ms.Randall during the investigation, or that he was improperlymotivated. His investigation revealed no negative informationconcerning Ms. Randall and he later concluded Mr. McNally'sdemotion was deserved. The Postal Service's administrative leaveappears to have been based first on Ms. Randall's charge that hewas harassing her by seeking out negative information, a chargeit concluded was not substantiated; and, second, on his use ofwork hours to conduct the investigation. Based on the recordbefore it, this Court cannot find Mr. Dyer's pre-2000investigation of Ms. Randall's charges is probative evidence of acontinuing violation of sexual harassment.

Further, to find a continuing violation, Morgan requires thepre- and post-statute events be "part of the same actionablehostile environment claim." Morgan, 536 U.S. at 121. Here, Ms.Randall's post-October 2000 allegations against Mr. Dyer werethat: 1) he told her "thanks for the two week vacation"; 2) hetold her he had statements from his investigation and asked herif she wanted to see them to see what people really thought abouther; 3) he gave her an official warning regarding attendance oneday after her union representative had cleared up her attendanceissue and while doing so, he tried to make her sign adisciplinary statement without permitting her to have a unionrepresentative present; and, 4) he frequently assigned her backto the flat sorter position.18 (PSMF ¶¶ 58, 59, 71).

In this Court's view, these allegations, even when viewed in alight most favorable to Ms. Randall, are insufficient toestablish a continuing violation. Although the allegationsagainst Mr. Dyer involved the same manager, the pre- andpost-limitations period incidents do not involve "the same typeof employment actions" and there is no evidence they occurredwith relativePage 22frequency. Morgan, 536 U.S. at 120. Even if Mr. Dyer'spre-limitation actions are considered in the context of his andother Postal employees' post-limitation actions, the evidence,again even when viewed in a light most favorable to Ms. Randall,simply does not sustain a conclusion that her workplace was"permeated with `discriminatory intimidation, ridicule, andinsult,' that is `sufficiently severe or pervasive to alter theconditions of the victim's employment and create an abusiveworking environment,'" for purposes of a continuing violationclaim. Id. at 116 (quoting Harris, 510 U.S. at 21).

6. Nexus: Pre- and Post-October 2000 Harassment andIntervening Action

The actions of the three pre-October 2000 employees having beensevered under Morgan by the intervening action of the PostalService, this leaves only the allegation that the post-October2000 harassment was connected with the pre-October 2000harassment by virtue of the offending employees invoking Mr.McNally's name. Ms. Randall is able under Morgan to seek tointroduce prior acts as background evidence to support her timelyclaim. Id. at 113. However, she is not under Morgan able tofix liability on the Postal Service for actions that took placeprior to October 2000.19

IV. CONCLUSION

This Court GRANTS the Postal Service's Motion for PartialSummary Judgment. The Plaintiff cannot recover against the PostalService for pre-October 2000 events, either as discrete events oras evidence of a continuing violation. However, the Plaintiff isnot barred fromPage 23seeking to introduce evidence of pre-October 2000 events asbackground for her post-October 2000 Title VII claims.

SO ORDERED.

1. The Postal Service is not arguing conduct after October2000 is subject to summary judgment. (Def.'s Reply to Pl.'s Opp'nto Def.'s Partial Mot. for Sum. J. at 1 (Docket # 33)).

2. Ms. Randall has filed a Motion to Strike. This Court hasaddressed the motion in a separate opinion.

3. The information contained in citations to "DSMF" have beenadmitted, in pertinent part, by Ms. Randall.

4. Ms. Randall began as a casual employee. She was hired as atransitional employee ("TE") and then worked again as a casualemployee. She became a part-time flexible clerk ("PTF") andfinally worked as a regular clerk.

5. Ms Randall qualified her admission of this statement. (PSMF¶ 11). Although she testified to this language at her deposition,she later recalled he actually said, "fuck like dogs," alinguistic difference without meaningful distinction.

6. Ms. Randall admitted the Postal Service's Statement thatshe "understood that Dyer received a two week suspension for thisconduct." (DSMF ¶ 27). The Postal Service also made a qualifiedadmission to Ms. Randall's assertion that she understood Mr. Dyerhad been suspended for two weeks. (PSMF ¶ 46). In its qualifiedadmission, the Postal Service referred to its Statements ¶¶ 24and 27 and to specific portions of the deposition transcript ofLouis Zedlitz. In that deposition, Mr. Zedlitz contradicts Ms.Randall. He testified Mr. Dyer had been put on administrativeleave "pending an investigation" with pay for "three or fourdays." (Zedlitz Dep. at 40:19-25; 42:10-12). Mr. Zedlitztestified the reason Mr. Dyer had been put on administrativeleave was the Postal Service thought he may have been creating ahostile work environment, but upon investigation, it found"nothing to substantiate those claims." (Zedlitz at 41:1-6).Despite this testimony, the Postal Service later failed to denyMs. Randall's Statement that when she returned from Greenbush,Mr. Dyer said: "thanks for the two week vacation." (PSMF ¶ 58).

7. The Postal Service contends any events after October 2000are irrelevant to its Motion for Summary Judgment, because it isseeking judgment only on events that pre-date October 2000.Obviously, however, the post-October 2000 events are essential toassessing the continuing violation issue.

8. The Postal Service states that Mr. Fernald, not Mr. Dyer,was Ms. Randall's primary supervisor and Mr. Dyer was one ofthree relief supervisors on tour 3 and occasionally supervisedMs. Randall. (DSMF ¶ 32).

9. Ms. Randall states they made comments such as "suck mycock," "Linda has a hot ass," "blow me bitch," and "blow atailpipe." (PSMF ¶ 55). She states she was asked what size "tits"she had, her bra was snapped, her use of the telephone wasinterfered with, she was called bitch, and her belongings werestolen. (PSMF ¶ 56). Ms. Randall's Statements of Material Fact donot clarify who engaged in this activity; the Postal Servicedenied these Statements of Material Fact. As phrased, it is questionable whether the Statements meet Rule56(e)'s requirement that they be based on "facts as would beadmissible in evidence." Fed.R.Civ.P. 56(e); see alsoNieves-Luciano v. Hernandez-Torres, Nos. 03-2520, 04-1169, 2005WL 182929, at * 3 (1st Cir. Jan. 28, 2005); Perez v. Volvo CarCorp., 247 F.3d 303, 316 (1st Cir. 2001). There is no indicationin the Statements themselves who engaged in this harassment. HerStatement ¶ 56 cites her deposition, which identifies the men whopushed her in the snow bank as James and Dan, referring to JamesMercure and Dan Sickler. (Pl.'s Dep. at 119-20). But, there is noindication who made these obscene and degrading statements.

10. Ms. Randall also invokes 42 U.S.C. § 1981a, which providesrights of recovery for violation of 42 U.S.C. § 2000e-16. Section2000e-16 prohibits discrimination on the basis of sex in federalgovernment employment, including specifically the United StatesPostal Service. 42 U.S.C. § 2000e-16(a).

11. If the issue is not resolved by informal counseling, theemployee may, within fifteen days thereafter, file a formaladministrative complaint. 29 C.F.R. § 1614.106(a), (b). Anemployee who timely files a formal administrative complaint mayfile a civil action in district court within 90 days of receiptof notice of the final administrative decision or after 180 daysif there has been no administrative decision.42 U.S.C. § 2000e-16(c).

12. To illustrate the meaning of the term "discretediscriminatory act," the Supreme Court identified the followingexamples: "termination, failure to promote, denial of transfer,or refusal to hire." Nat'l R.R. Passenger Corp. v. Morgan,536 U.S. 101, 114 (2002).

13. Morgan addresses the 180-300 day filing rule fornon-federal employees. However, courts have treated theforty-five day requirement for federal employees in much the sameway. See Jensen v. Henderson, 315 F.3d 854, 859 (8th Cir.2002); McFarland v. Henderson, 307 F.3d 402, 408 (6th Cir.2002).

14. The following scenarios illustrate this point: (1) Acts on days 1-400 create a hostile work environment. The employee files the charge on day 401. Can the employee recover for that part of the hostile work environment that occurred in the first 100 days? (2) Acts contribute to a hostile environment on days 1-100 and on day 401, but there are no acts between days 101-400. Can the act occurring on day 401 pull the other acts in for the purposes of liability? In truth, all other things being equal, there is little difference between the two scenarios as a hostile environment constitutes one "unlawful employment practice" and it does not matter whether nothing occurred within the intervening 301 days so long as each act is part of the whole. Nor, if sufficient activity occurred by day 100 to make out a claim, does it matter that the employee knows on that day that an actionable claim happened; on day 401 all incidents are still part of the same claim. On the other hand, if an act on day 401 had no relation to the acts between days 1-100, or for some other reason, such as certain intervening action by the employer, was no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts, at least not by reference to the day 401 act.Morgan, 536 U.S. at 118.

15. There is also evidence that, in 1996, another co-worker,Mr. Defillipo, exposed himself to Ms. Randall.

16. In response to the Postal Service's Statement of MaterialFact ¶ 26, Ms. Randall denied Mr. Dyer actually ceased hisinvestigation, asserting the record citation did not support thestatement. She points out Mr. Finkenberg only testified he"believed" Mr. Dyer ceased his investigation. Once again, Ms.Randall's objection is hyper-technical. The Postal Service citeda portion of Mr. Finkenberg's deposition. (Finkenberg Dep. at19:12-13). Just prior to the cited question and answer, Mr.Finkenberg testified he had called Mr. Dyer into his office whenhe heard of the Dyer investigation and told him "to cease anddesist and if he was to continue, [he] would take disciplinaryaction against him." (Id. at 19: 9-11). He was then asked if heceased and he replied: "I believe he did." (Id. at 19:12-13).This Court infers from the fact that Mr. Finkenberg was Mr.Dyer's supervisor, that he had warned him to "cease and desist,"and that he believed he had ceased, that Mr. Dyer had in factceased his investigation. Ms. Randall presented no evidence thatMr. Dyer did not do what Mr. Finkenberg believed he had done.

17. Ms. Randall admitted the Postal Service's Statement ofMaterial Fact ¶ 25, footnote 16, which states: "Dyer consideredMcNally innocent until proven guilty and that a portion ofMcNally's defense might be to discredit plaintiff's complaintsabout him. Ultimately, Dyer considered that McNally's demotionwas deserved because he had been untruthful." (Citationsomitted).

18. In its response, the Postal Service failed to respond toMs. Randall's Statement of Material Fact ¶ 58 in which Ms.Randall stated that Mr. Dyer thanked her for the two weekvacation. This portion of the Statement is deemed admitted. D.Me. Loc. R. 56(e). The Postal Service has either denied orqualified the remaining three statements; this Court assumestheir truth for purposes of the pending motion.

19. The Postal Service also raised in its motion the questionof whether it could be held liable for the pre-October 2000actions of its co-employees and supervisors under theFaragher/Ellerth defense. See Faragher v. City of Boca Raton,524 U.S. 775 (1998); Burlington Industries v. Ellerth,524 U.S. 742 (1998); White v. New Hampshire Dep't of Corr.,221 F.3d 254, 261 (1st Cir. 2000). Because this Court determines thepre-October 2000 claims are time-barred and may be used only asbackground for the post-October 2000 claims, it is unnecessary toreach the question whether, if not time-barred, the pre-October2000 claims would be otherwise subject to summary judgment.Page 1

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