Fitzgerald v. Henderson

Decision Date01 August 1999
Citation251 F.3d 345
CourtU.S. Court of Appeals — Second Circuit

Appeal from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, then-Chief Judge, summarily dismissing sexual harassment claims under 42 U.S.C. § 2000e et seq. as time-barred and lacking in evidentiary support. 36 F.Supp.2d 490 (1998).

Affirmed in part, vacated and remanded in part.

Judge Korman dissents in part, in a separate opinion. [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Peter Henner, Clarksville, New York, for Plaintiff-Appellant.

David G. Karro, Attorney, United States Postal Service, Washington, D.C. (R. Andrew German, Managing Counsel, United States Postal Service, Washington, D.C., on the brief), for Defendant-Appellee.

Before: Kearse and Jacobs, Circuit Judges, and Korman, Chief District Judge.*

Kearse, Circuit Judge

Plaintiff Lisa L. Fitzgerald appeals from a judgment of the United States District Court for the Northern District of New York, Thomas J. McAvoy, then-Chief Judge, dismissing her amended complaint alleging that her employer, defendant United States Post Office ("USPS" or "Postal Service"), discriminated against her on the basis of gender, in violation of her rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 (1994 & Supp. IV 1998) ("Title VII"). The district court granted summary judgment in favor of the Postal Service on the principal grounds that (a) most of the alleged incidents underlying Fitzgerald's claims of hostile work environment and disparate treatment were time-barred; (b) the last incident complained of, though not time-barred, was an insufficient basis for those claims or for a claim of constructive discharge; and (c) Fitzgerald had failed to exhaust administrative remedies with respect to her claim of retaliation. On appeal, Fitzgerald contends principally that her claims based on earlier incidents were timely under the "continuing violation" doctrine; that her claim of retaliation was properly exhausted because it was so related to her other claims that it was within the scope of the administrative agency's investigation; and that the record was sufficient to allow her to pursue her claims of disparate treatment, retaliation, and constructive discharge. For the reasons that follow, we affirm in part, vacate in part, and remand for further proceedings.


Fitzgerald, employed by the Postal Service, worked as a letter carrier at the Post Office in Lake Placid, New York, from 1986 until September 25, 1997. In August 1994, Timothy Gerling began working as a supervisor at the Lake Placid Post Office and had direct supervision of Fitzgerald. The present action centers on events alleged to have occurred in connection with Gerling's supervision of Fitzgerald. The following description, taken largely from various sworn documents submitted in the district court, views the events in the light most favorable to Fitzgerald as the party opposing summary judgment.

A. The Events
1. Sexual Harassment by Gerling

From his August 1994 arrival at the Lake Placid Post Office until the spring of 1995, Gerling showered Fitzgerald with unwanted personal attention of a sexual nature, including the following. Each day he entered the cubicle in which Fitzgerald sorted mail, stood inappropriately close to her, blocked her exit, and laid his hand softly on her shoulder. He repeatedly shook hands with Fitzgerald in a way that was sexually suggestive, in both manner and duration, as he attempted to engage her in non-work-related conversations. He made inappropriate remarks about Fitzgerald's body and commented that she looked nice in shorts; he inquired about Fitzgerald's marriage; he told Fitzgerald that his own wife was "no fun." He repeatedly stared at Fitzgerald lustfully. He touched and ran his fingers through her hair. On at least one occasion Gerling embraced her.

Fitzgerald resisted Gerling's advances. He invited her to go dancing; she declined. He invited her to lunch; she declined. He told her he liked long hair; she promptly had her hair cut short. Fitzgerald attempted to make clear to Gerling that she was happily married and was not interested in having a sexual relationship with him. Gerling was not deterred. On several occasions, Gerling summoned Fitzgerald to his office, where he attempted to engage her in personal conversation. On one such occasion, Gerling removed his tie, began unbuttoning his shirt, and said to Fitzgerald, "I will father your first child." Fitzgerald promptly left Gerling's office.

Fitzgerald told Gerling that his comments were inappropriate and made her uncomfortable. She asked him to stop coming into her work area, and she began to refuse to shake his hand. Gerling persisted. Fitzgerald complained to Lake Placid Postmaster Dennis King and asked him to stop Gerling from frequenting her cubicle and harassing her; King took no action.

In February or March 1995, Fitzgerald began to position mail gurneys at the opening of her cubicle in an effort to keep Gerling out. Gerling continued to summon Fitzgerald to his office, purportedly to discuss work, but in fact to attempt non-work-related conversations. On one such occasion, Gerling suggested to Fitzgerald that he would be willing to teach her "relaxation techniques."

2. Gerling's Unwarranted Criticism of Fitzgerald's Work

In the spring of 1995, Gerling finally ceased making sexual advances toward Fitzgerald. Instead, he turned hostile and, without any objective justification, began to shower her constantly with criticism about her work. From that time, on a continuing basis through 1996 and into September 1997, Gerling was aggressively hostile and increasingly abusive toward Fitzgerald in their day-to-day dealings. He excessively followed Fitzgerald on her postal route. Though Fitzgerald's work was exemplary, Gerling regularly and unfairly criticized her, berating her about her hours and productivity. He demanded more production from Fitzgerald and treated her more harshly than similarly situated male employees and than two other female employees who had granted or were granting him sexual favors. Gerling criticized Fitzgerald whenever she worked overtime; he forced her to work unscheduled overtime.

Gerling also denied Fitzgerald her seniority rights in certain work assignments, forcing her to work when she was not scheduled to work so that a female employee with whom Gerling was having an affair, and to whom Fitzgerald was senior, would be free to travel out of town with Gerling. On one such occasion in April 1995, when Fitzgerald declined to work an unscheduled weekend, Gerling took disciplinary action against her by having Postmaster King write her a letter of warning. On receipt of that letter, Fitzgerald, inter alia, threatened to file an administrative complaint against Gerling for sexual harassment. Gerling withdrew the letter on April 20, 1995, but his face-to-face verbal abuse of Fitzgerald intensified.

On at least three occasions in the period 1995-1997, Fitzgerald asked Postmaster King to end Gerling's hostile and harassing behavior toward her. King rejected all of her requests for assistance. His response on one occasion was, "All you women do is complain."

Fitzgerald's ability to tolerate Gerling's abuse came to an end on September 25, 1997, after Gerling summoned Fitzgerald to a meeting for a discussion of her supposed failure to make her postal deliveries as expeditiously as possible. At that meeting, Gerling yelled profanities at Fitzgerald, thrust his finger close to her face, and physically intimidated her. That confrontation, which Fitzgerald terms the proverbial straw that broke the camel's back, caused her to be so distraught that she could not, despite her best efforts, continue to do her work. She left the facility and took sick leave. Since that date, she has been unable to resume her job.

B. Fitzgerald's Administrative Complaint

On October 24, 1997, pursuant to 42 U.S.C. § 2000e-16 and 29 C.F.R. § 1614.105 (2000), which deal with employment discrimination claims by federal employees, Fitzgerald contacted a Postal Service Equal Employment Opportunity ("EEO") Counselor in the USPS Human Resources Division ("HRD") to complain of Gerling's conduct. In early November, she completed an "Information for Precomplaint Counseling" form on which she summarily described her complaints about Gerling's unconsented touchings, suggestive remarks, and sexual overtures, and stated that "[w]hen I rebuffed him he retaliated." Fitzgerald filed under oath a formal administrative complaint ("EEO Complaint") with HRD in February 1998 (and later filed a more detailed supplemental complaint, also under oath), alleging "numerous acts of discrimination based on [Fitzgerald's] sex, continuing sexual harassment, retaliation, and hostile work environment" (EEO Complaint ¶ 20). The EEO Complaint alleged that Gerling had engaged in "a campaign of sexual discrimination and harassment" against Fitzgerald (id. ¶ 8), and that Fitzgerald had "rejected Mr. Gerling's unsolicited and unwelcome advances" (id. ¶ 9). It alleged that

[b]ased on this rejection, Mr. Gerling embarked on a campaign of harassment and abuse against complainant. This intensive, severe, ongoing harassment and abuse was a direct result of complainant's sex and in retaliation for her rejection of his unwanted sexual advances.

(Id. ¶ 10.)The EEO Complaint also alleged that Postmaster King had repeatedly been made aware of Gerling's harassing and discriminatory conduct and had failed to take any steps to halt that conduct.

HRD, relying on 29 C.F.R. §...

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