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MacKenzie v. Potter

April 14, 2006

PAMELA L. MACKENZIE, PLAINTIFF,
v.
JOHN POTTER, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Marvin E. Aspen, District Judge

MEMORANDUM ORDER AND OPINION

Presently before us are cross-motions for summary judgment filed by Plaintiff Pamela L. MacKenzie and Defendant John E. Potter, Postmaster General of the United States Postal Service ("USPS"). MacKenzie alleges that a supervisor subjected her to a hostile work environment, resulting in her constructive discharge. The USPS, on the other hand, contends that MacKenzie did not suffer any tangible employment action and that the Ellerth/Faragher defense shields it from liability. For the reasons set forth below, we grant the USPS' motion and deny MacKenzie's motion.

I. SUMMARY OF THE FACTS

Beginning in January 1986, MacKenzie worked for the USPS as a general expediter on an overnight shift at the Palatine Processing and Distribution Center. (Pl.'s Facts ¶¶ 6-7; Def.'s Facts ¶ 2.) Although not her primary supervisor, Edgar Collins supervised MacKenzie periodically and when she worked overtime.*fn1 (Pl.'s Facts ¶ 12; Def.'s Facts ¶ 4; Pl.'s Resp. Def.'s Facts ¶ 4.) Alan Lipschultz was the USPS Manager of Operations for MacKenzie's shift. (Pl.'s Facts ¶ 6-7; Def.'s Facts ¶ 3.)

In October 1996, Sheila Winterpacht, another female USPS employee, complained to Lipschultz that Collins was sexually harassing her.*fn2 (Pl.'s Facts ¶ 13.) In response, Lipschultz confronted Collins on November 16, 1996. (Id.) According to Lipschultz's notes from that meeting, Collins acknowledged that he spoke with Winterpacht and may have touched her hand, but that he did so in a friendly manner without any sexual intent. (Pl.'s Facts ¶ 14; Lipschultz Dep. at 11-14, Ex. 1.) Lipschultz asked Collins to prepare a statement and counseled him to address Winterpacht on a professional basis only. (Pl.'s Facts ¶ 14; Lipschultz Dep. at 13, Ex. 1.) After speaking with Collins, Lipschultz neither further investigated Winterpacht's allegations, nor disciplined Collins.*fn3 (Def.'s Resp. Pl.'s Facts ¶ 16.)

That same month, and continuing for approximately eight or nine months, Collins began making comments of a sexual nature to MacKenzie. (Pl.'s Facts ¶¶ 17-18, 20; MacKenzie Dep. I Ex. 57.) According to MacKenzie, such comments included: "When are you going to give me some?"; "Try it, you'll like it"; and "Come and sit on my lap and let's see what pops up." (Pl.'s Facts ¶¶ 17-18; MacKenzie Dep. I Ex. 57.) He also asked if she breast-fed her son when he was an infant. (Pl.'s Facts ¶ 20; MacKenzie Dep. I Ex. 57.) Collins repeatedly grabbed MacKenzie and attempted to pull her into a room located near the lower dock time clock. (Pl.'s Facts ¶ 19; MacKenzie Dep. I Ex. 57.) On one occasion, Collins held MacKenzie in a bear hug, kissing all over her face while she struggled to get free. (Pl.'s Facts ¶ 23; MacKenzie Dep. I Ex. 57.)

MacKenzie further claims that she was denied requested time off because, as Collins allegedly put it, she was "not being nice" and "not giving him anything." (Pl.'s Facts ¶¶ 21, 24; MacKenzie Dep. I Ex. 57.; MacKenzie Dep. II at 73-74.) The "last straw" occurred on June 9, 1997, when Collins ate MacKenzie's lunch and then asked: "Hey, baby, when are you gonna give me some pussy?"*fn4 (Pl.'s Facts ¶ 26; MacKenzie Dep. I Ex. 57.)

Outraged by Collins' final comment -- and having been unsuccessful with her earlier attempts to get Collins to stop his harassing behavior -- MacKenzie immediately complained to two supervisors, who instructed her to contact Lipschultz. (Pl.'s Facts ¶¶ 25, 27.) She did so the following evening. (Id. ¶ 28.) Though there is some disagreement about what information MacKenzie provided Lipschultz, the parties agree that she told him that Collins had been harassing her generally and specifically described the most recent offensive comment. (Pl.'s Facts ¶ 28; Def.'s Facts ¶ 8; Def.'s Resp. Pl.'s Facts ¶ 28.)

On June 11, 1997, Lipschultz held a meeting with MacKenzie and Collins. (Pl.'s Facts ¶ 29; Def.'s Facts ¶ 9.) At that time, MacKenzie informed Lipschultz that "Collins had been bothering her for some time, that he had been asking her to 'give him some,' and that Collins' 'pussy' comment was the last straw." (Def.'s Facts ¶ 9a.) Collins responded that he and MacKenzie had a history of exchanging sexual comments, which MacKenzie denied. (Id.) When asked for further detail, she stated that Collins had also grabbed her. (Id. ¶ 9b.) MacKenzie told Lipschultz that she would like him to do whatever was appropriate, but that she specifically wanted Collins to apologize and to leave her alone. (Id. ¶ 9c.) Collins apologized for saying anything that offended her. (Id. ¶ 9d.) Lipschultz informed them that he would take care of the situation and chastised Collins for his unacceptable behavior, reminding him that "our supervisors can't speak to people like that." (Id. ¶ 9e.) Lipschultz did not investigate MacKenzie's allegations further, nor did MacKenzie experience any additional sexually harassing conduct from Collins. (Pl.'s Facts ¶ 30; Def.'s Facts ¶ 10; Lipschultz Dep. at 29.)

The following evening, MacKenzie observed Collins silently glaring at her while nodding his head up and down. (Pl.'s Facts ¶ 31; Def.'s Facts ¶ 11.) Nervous about this behavior, she complained to Lipschultz, who said he would handle it. (Pl.'s Facts ¶ 31; Def.'s Facts ¶ 11.) MacKenzie testified that she did not recall any additional conduct that concerned her. (Def.'s Facts ¶ 12; Pl.'s Resp. Def.'s Facts ¶ 12.) From June 16 through June 19, MacKenzie missed work per her doctor's orders due to bronchitis. (Pl.'s Facts ¶ 34; Def.'s Facts ¶ 15.) MacKenzie worked sporadically between June 20 and July 3, 1997. (Def.'s Facts ¶ 17.)

On June 18, 1997, Lipschultz issued Collins a disciplinary letter for conduct unbecoming a postal officer for "making comments of a sexual nature" to MacKenzie. (Pl.'s Facts ¶ 32; Def.'s Facts ¶ 13.)

On June 20, MacKenzie submitted a letter to Lipschultz memorializing her allegations against, and their meeting with, Collins. (Pl.'s Facts ¶ 33; Def.'s Facts ¶ 16.) In her letter, she informed Lipschultz that Collins "tried to pull [her] into the room by the lower dock time clock" and added that "[t]here are witnesses to a lot of these incidents." (Pl.'s Facts ¶ 33; Def.'s Facts ¶ 16; MacKenzie Dep. Ex. 3.) She then asked Lipschultz "to address the situation more seriously, as she no longer felt safe." (Def.'s Facts ¶ 16; Pl.'s Facts ¶ 33.) On July 3, MacKenzie wrote Lipschultz another letter, reiterating that she felt uncomfortable working with Collins and feared retaliation because he said he was "very upset with [her] for jeopardizing his job." (Pl.'s Facts ¶ 33; Def.'s Facts ¶ 16; MacKenzie Dep. Ex. 5.)

MacKenzie did not return to work for the USPS after July 3. (Def.'s Facts ¶ 18.) Beginning that month, MacKenzie submitted a series of notes from her doctor, Dr. Sarantos, excusing her from work and routinely commenting that she was "totally disabled." (Def.'s Facts ¶¶ 21, 23, 28-29, 32, 34, 43, 46.) She was treated by a psychiatrist, Dr. Faiza Kareemi (Pl.'s Facts ¶ 42) and began regularly seeing a psychologist, Dr. Eldifrawi (Def.'s Facts ¶ 26). After being diagnosed with a depressive disorder due to work-related incidents, MacKenzie received workers' compensation benefits. (Pl.'s Facts ¶¶ 36-37; Def.'s Facts ¶¶ 23-24.)

In July or August 1997, the USPS offered MacKenzie a limited-duty assignment in her same position, but without Collins as a supervisor for 30 days. (Pl.'s Facts ¶ 38.) The USPS later sent two letters dated August 19 and 28 informing MacKenzie that she was absent without leave since July 5, 1997, and threatening disciplinary action in the absence of a satisfactory response. (Pl.'s Facts ¶ 39.) In November, and at the recommendation of Dr. Kareemi, the USPS evaluated the possibility of reassigning Collins and MacKenzie to separate buildings. (Id. at ¶¶ 42-44.) On December 1, 1997, Dr. Kareemi advised the USPS that MacKenzie could return to work in her same position as long as Collins worked in a ...


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