The opinion of the court was delivered by: Debevoise, Senior District Judge.
This matter is before the court on the motion for summary judgment of
defendant William J. Henderson ("Henderson"), Postmaster General of the
United States. For the reasons that follow, the motion will be granted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Helen Swingle ("Swingle") has been an employee of the United
States Postal Service since September 7, 1991. Amended Complaint of Helen
Swingle, filed 1/4/01, ¶ 10, at 3. She works as a rural postal
carrier; her base of
operations is a postal facility in Sparta, New Jersey. Swingle Compl.
¶¶ 10-11, at 3. In this action, she alleges that she has been
subjected to gender-based discrimination and sexual harassment in
her employment in violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), 42 U.S.C. § 2000e-3(a),
and 42 U.S.C. § 2000e-16. More specifically, she claims she has been
unlawfully subjected to disparate treatment based on her sex, Swingle
Compl., ¶ 20-23, at 4-5; that she has been unlawfully subjected to a
hostile work environment, id. ¶ 20, at 4; and that she has suffered
unlawful retaliation for having reported the alleged discrimination and
sexual harassment, id. ¶ 25, at 5; ¶ 28, at 5-6. She seeks
judgment against her employer for her alleged "severe emotional and
psychological distress, anguish, anxiety and injury, pain and suffering,
and damage to her reputation and character," id. ¶ 28-33, at 6-7, and
prays for relief in the form of compensatory damages, costs, and
attorney's fees under 42 U.S.C. § 1981a(a)(1) and
42 U.S.C. § 2000e-16(d) (incorporating 42 U.S.C. § 2000e-5(k)),
an injunction against further or future acts of discrimination or sexual
harassment, and such other and further relief as might be appropriate.
Id. ¶ 33(a)-(c), at 7.
Swingle's allegations stem from her interactions with Robert Krysiak
("Krysiak"), who was her principal supervisor from June 1993 until August
1998, at which time he was voluntarily transferred to another postal
facility. Certification of Helen Swingle, Exhibit D to Declaration of
William J. Koy, filed 3/26/01, ¶ 1, at 1; Transcript of Deposition of
Helen M. Swingle, 11/9/00, at 138:18-20.*fn1 Swingle alleges Krysiak
began sexually harassing her late in 1995 or early in 1996. Swingle
Certification ¶ 2(a), at 2; Swingle Depo. II, at 36:18-23, 37:14-16.
Swingle's claims of gender-based discrimination and sexual harassment in
the form of disparate treatment and creation of a hostile work
environment are based upon the following allegations of Krysiak's
Swingle alleges that Krysiak would stand behind her while she worked
and ask her inappropriate personal questions. Swingle Certification
¶ 2(a), at 2. She alleges that Krysiak began expressing heightened
sexual interest in Swingle in the spring of 1996, when he allegedly began
leering at her and staring at her buttocks. Id. ¶ 2(b). Krysiak would
also allegedly ask Swingle what brand of blue jeans she was wearing and
ask her to raise her shirt so he could see the label. Ibid. Krysiak
allegedly told a male fellow worker that he had been watching "Helen's
ass." Ibid. Swingle alleges that Krysiak would gyrate his hips and tell
Swingle that he had her "beef." Ibid.
Swingle further alleges that Krysiak would stand behind her while she
worked, whisper continuously to her, and make kissing sounds. Id. ¶
2(c). He also allegedly called out her name and blew kisses to her, told
her that he would be her "boy toy," and responded to Swingle's asking a
clerk if certain mail was "DP" by asking Swingle if she had "peepee
mail," whether she had a "pee pee," and whether she would let him touch
her "pee pee." Id. at 2-3.
Swingle further alleges that in the summer of 1996, Krysiak sat in his
car in front of her home blowing his car horn, and appeared unexpectedly
on her route while she delivered mail. Id. ¶ 2(d), at 3.
Swingle further alleges that in the fall of 1996, Krysiak pestered
Swingle about her renting him a room in her home, and told fellow workers
that he would be moving in with Swingle because he was losing his
condominium and filing for bankruptcy protection. Id. ¶ 2(e).
Swingle further alleges that in October 1996, Krysiak began entering
her work space, touching her arm and shoulder, and telling her in low
tones how she was "so soft." Id. ¶ 2(f). He also allegedly "nuzzled"
the back of her neck and asked her how she would "like it." Ibid. Krysiak
would also allegedly spring on Swingle from behind, wrap his arms about
her waist, and hug her, making unpleasant sounds. Id. at 3-4. Swingle
alleges that she did everything possible to avert these attacks,
including yelling at Krysiak when he came too close to her or leered at
her and elbowing him in the midriff or stomping on his foot when he
touched her. Id. ¶ 2(g), at 4. Krysiak allegedly told Swingle that he
was unable to keep himself from touching her. Ibid. He also allegedly
intimidated Swingle by asking her what she was going to do about his
conduct. Id. ¶ 2(h).
Swingle further alleges that in October 1996, Krysiak entered her work
space with a balloon in hand, made motions on the balloon with his hands,
and asked her if she would want her breasts to be caressed in the same
manner. Id. ¶ 2(i). He then allegedly became angry with Swingle.
Swingle further alleges that at the end of 1996, Krysiak became
extremely upset with Swingle when she refused his invitation to come to
his home for a viewing of his extensive Christmas diorama. Ibid.
Both before and during the time in late 1995 or early 1996 that
Krysiak's supposed harassment allegedly began, Swingle has admitted, she
repeatedly engaged in sexually oriented, ribald, and provocative conduct
while on the job.
During the Easter season in 1995 or 1996, Helen Swingle sat for an
unusual family portrait with her daughters Nicole and Dawn. With Nicole's
husband Steven behind the lens, Helen, Nicole, and Dawn posed for a
semi-nude photograph featuring the three women naked below the waist.
See Ex. 10, Kirsch Decl. The women all wore nothing but light-colored
shirts bearing the phrase "No Johnny, You're Not Going To Get My Bud
Light," and bent forward, facing away from the camera, with their exposed
buttocks prominently thrust towards the viewer. Each woman bore one word
written in large capital letters on her buttocks: Dawn, at left, bore the
word "HAPPY"; Helen, in the center, bore the word "EASTER"; and Nicole,
at right, bore the word "ROB." Ibid.; Swingle Depo. I, at 173:3-18. The
resulting message, "HAPPY EASTER ROB," was apparently directed to a man
named Robert who was Dawn's boyfriend at the time the photograph was
taken. Id. at 173:19-20.
Swingle was taken enough with the photograph that she mentioned it to
several of her fellow workers. Id. at 176:1-8. When she asked Dawn for
the photograph so she could share it with her colleagues in the Sparta
Post Office, Dawn refused to give it to her; instead, Dawn gave her
mother a darkened photocopy of the photograph. It was this scumbled but
still readily discernible portrait that Swingle showed to several of her
fellow workers. Id. at 176:24-25, 177:1-2.
One day in October 1995, in response to ongoing sexual banter with a
male postal carrier, id. at 167:17-25, 168:1-18, Swingle arrived at work
with two large pink balloons. She inflated the balloons in the ladies'
room of the Sparta Post Office,
placed them underneath her shirt to make it appear that she had
grotesquely enlarged breasts, and circulated about the work floor of
the Sparta Post Office for five to ten minutes. Id. at 157:23-25,
158:1-25, 159:1-5. She posed for a photograph taken by a male postal
worker, id. at 159:14-17, 160:9-11, see Ex. 11, Kirsch
Decl., who eventually photocopied the photograph and gave it to Swingle.
Id. at 160:16-19.
In February 1997, Sparta Postmaster Jerrold Piccola ("Piccola")
contacted Karen Tucker ("Tucker"), a Diversity Development Specialist
with the United States Postal Service, about a problem between a female
and a male employee in the Sparta Post Office. Equal Employment
Opportunity ("EEO") Investigative Affidavit of Karen E. Tucker, 5/8/98,
Exhibit 21 to Declaration of Robert Kirsch, filed 2/28/01. On February
20, 1997, Tucker visited the Sparta Post Office, met with Piccola to
discuss the problem, and then met with the female employee in question,
who complained about a chalk drawing on a blackboard in the men's room of
a female with male genitalia, which drawing bore the employee's
initials. Ibid. After Tucker informed Piccola that he should remove the
blackboard, she conducted a stand-up talk for all postal employees in the
Sparta Post Office regarding the Postal Service's policy of no tolerance
for sexual harassment. Ibid.; Swingle Depo. II, 20:5-10, 20:20-21. After
her talk, Tucker remained at the Sparta Post Office for a time to speak
with any employees who might want to speak with her. Swingle
Certification ¶ 2(l), at 5.
Swingle alleges that because she did not want to walk past Krysiak and
the rest of the work force to speak with Tucker at that time, she
obtained Tucker's name and telephone number, which she taped to the side
of her work area. Ibid. She alleges she told Krysiak the following
morning, February 21, 1997, that she "was not going to put up with him
anymore," pointing to Tucker's name and telephone number, and warned him
not to set foot inside her work space lest she call Tucker. Ibid.
Swingle alleges this event precipitated a sea change in Krysiak's
behavior. From this point on, Swingle alleges, Krysiak ceased sexually
harassing Swingle and began a retaliatory campaign of intimidation,
ridicule, isolating her from her fellow workers, and creating work
problems for her. Id. ¶ 2(m), at 5-6; Initial Certification of Helen
M. Swingle, 5/15/97,*fn2 attached to EEO Investigative Affidavit of
Helen M. Swingle, 11/10/97, Ex. 14A to Kirsch Decl., at 2; Information
for Precomplaint Counseling submitted by Helen M. Swingle, 6/12/97, Ex.
14B to Kirsch Decl., at 1; EEO Complaint of Discrimination in the Postal
Service filed by Helen Swingle, 8/23/97, Ex. 23 to Kirsch Decl.; Swingle
Depo. II, at 128:14-21; Swingle Depo. III, at 65:21-25, 66:1-10.*fn3
Swingle's claim of unlawful retaliation is based upon the following
allegations of Krysiak's conduct.
Swingle further alleges that Krysiak began ensuring that Swingle and
the coworker with whom she was romantically involved, Perry Mindo, would
no longer be able to coordinate their days off from work. Id. ¶
2(p). She also alleges that Krysiak discredited and delayed her
completion of her work, id. ¶ 2(q), and allowed city postal carriers
to use her government-issued vehicle without refueling it. Id. at 7.
Swingle further alleges that Krysiak harassed her about certain "comp
time clean-up work," id. ¶ 2(r), and denied Swingle "comp time" she
was entitled to, forcing her to rectify the problem by calling her union
representative. Ibid. She also alleges that Krysiak interfered with her
relationship with the female postal worker who would substitute for her.
Id. ¶ 2(s).
Swingle eventually spoke with Carrie Sprich, Clerk Shop Steward, about
Krysiak's conduct. Id. ¶ 3. On May 14, 1997, Sprich accompanied
Swingle to a meeting with Postmaster Piccola, at which Swingle voiced her
grievances about Krysiak's conduct. Id. ¶ 4, at 7-8. Following the
meeting, Piccola forthwith relocated Swingle's work space within the
Sparta Post Office. Swingle Depo. II, at 134:10-15.
Swingle requested an appointment with an EEO Counselor on June 2,
1997. Info. Precomplaint Counseling, Ex. 14B to Kirsch Decl., at 1. On or
about June 25, 1997, Swingle spoke by telephone with Pilar Zambrano, an
EEO Counselor (EEO Compl., Ex. 23 to Kirsch Decl., at 1), who offered to
have Piccola replace Krysiak as Swingle's supervisor. Swingle Depo. III,
at 31:15-24. Swingle refused this offer. Id. at 32:16-18. Piccola
reiterated this offer in July 1997; Swingle again refused. Id. at
Swingle filed a formal complaint with the EEO Office on August 26,
1997. EEO Compl., Ex. 23 to Kirsch Decl., at 1. She alleges that
"[f]iling an EEO complaint brought forth the vindictive wrath of both
Mr. Krysiak and his ally, the Postmaster." Swingle Certification ¶
6, at 8. More specifically, she alleges that Krysiak and Piccola
discredited her work, questioned her productivity, ridiculed her in front
of her fellow workers, isolated her from her fellow workers, and imposed
restrictions and conditions upon her in violation of her rural ...