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 conduct.
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. Ibid.
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 alleges that Krysiak prevented Swingle's fellow workers from speaking with her and kept them away from her. Swingle Certification ¶ 2(n), at 6. He allegedly ceased asking Swingle personal questions, and began annoying and distracting her with repetitive palaver. Ibid. He also allegedly refused for several months to correct an error he had made on her paycheck by substituting one form of paid leave for another, ibid.; Swingle alleges Krysiak used the error as an excuse to verbally abuse her. Ibid. Swingle further alleges that Krysiak badgered her for weeks to use her personal vehicle to deliver the mail. Ibid.
Swingle further alleges that Krysiak began ensuring that Swingle and the co-worker 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 ...