1

The HONORABLE RICHARD H. KYLE, United States District Judge

for the District of Minnesota, adopting the Report and

Recommendation of the HONORABLE RAYMOND L. ERICKSON, United States

Magistrate Judge for the District of Minnesota.

 2The HONORABLE ROBERT G. RENNER, Senior United States District

Judge for the District of Minnesota.

 

No. 95-1197

 

Rhonda Callanan, *

 *

Plaintiff - Appellant, *

 * Appeal from the United

v. * States District Court

 * for the District of

Marvin T. Runyun, Postmaster General,* Minnesota.

United States Postal Service, *

 *

Defendant - Appellee. *

 

 Submitted: October 19, 1995

 Filed: February 9, 1996

 

Before MORRIS SHEPPARD ARNOLD, FLOYD R. GIBSON, and ROSS, Circuit

Judges.

 

FLOYD R. GIBSON, Circuit Judge.

Rhonda Callanan appeals the district court's1 order granting

summary judgment in favor of the United States Postal Service (the

"Service") on her Title VII hostile environment claim. She also

challenges the district court's2

 decision, issued after a six day

bench trial, to dismiss her disparate treatment claim against the

Service. We affirm. 
2

I. BACKGROUND

On December 17, 1988, Callanan began working as a file clerk

at the Service's Mankato, Minnesota branch. Callanan found this

job to be easy and, by all accounts, performed well in her

vocation. Approximately ten months after her initial employment,

Callanan accepted a position as a part-time flexible ("PTF") letter

carrier. PTF letter carriers sort, deliver, and collect mail on

various routes around Mankato and fill in for full-time regular

carriers when those employees are on sick leave, vacation, or are

otherwise absent. When a regular carrier vacates his position for

five or more days, the PTF carriers have an opportunity to "bid" on

the temporarily available route. The bidder with the most

seniority as a PTF carrier then receives the assignment. All other

decisions concerning the allocation of responsibilities to PTF

carriers are not based upon seniority, but rather are made "for the

good of the Service" and at the discretion of management at the

Mankato facility.

After accepting the position as a PTF carrier, Callanan began

to feel that her supervisors were treating her differently from

similarly situated male employees. Primarily, Callanan believed

that she received less desirable job assignments than her male

counterparts. For example, she claims that she and the other

female PTF carrier were assigned "collection one," described by her

as the most difficult collection route, a disproportionate number

of times. Callanan also maintains that the female PTF carriers

received fewer opportunities to "case," or follow, full-time

carriers, a desirable task because it gave the PTF employees a

chance to learn more routes. Although the Service does not

directly dispute these allegations, it claims that Callanan's

supervisors properly exercised their discretion in making job

assignments. Because management at the Mankato facility viewed

Callanan as a no better than average carrier, she received less

favorable work.
 3

The failure to produce these files in response to Callanan's

initial request was unquestionably due to the Service's confusion

concerning the scope of discovery and is in no way reflective of a

contemptible attempt by the Service or its attorneys to defraud the

court.

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Callanan also had periodic negative personal encounters with

her supervisors and peers. On one occasion, she was referred to as

a "bitch" by a fellow employee who was later reprimanded over the

incident. She additionally contends that she was disciplined more

often and more severely than the male PTF carriers. Particularly,

she points to a formal warning letter that she received following

her second violation of a certain Service rule. In October of

1991, after she was diagnosed as having post-traumatic stress

disorder, Callanan left the employ of the Service and began

collecting workers' compensation benefits. She filed this suit on

December 3, 1992, alleging hostile environment sexual harassment,

disparate treatment sexual harassment, retaliatory discipline, and

pendent state law claims.

During discovery the Service claimed that only one other

person in the previous ten years had complained of sexual

harassment at the Mankato branch. The district court, relying in

part on this information, granted the Service's summary judgment

motion as to all of Callanan's causes of action except the

disparate treatment claim. Later, as trial neared, Callanan's

attorney fortuitously learned of files containing charges of sexual

harassment made by several other female employees at the Mankato

facility.3 At that time, Callanan asked the district court,

pursuant to Rule 60(b)(2) of the Federal Rules of Civil Procedure,

to vacate the summary judgment order rendered by Judge Kyle to the

extent that it dismissed her hostile environment claim. Stating

that the pending case was one of "disparate treatment, period," the

district court denied this motion.

At trial, in an attempt to establish indirect evidence of the
4

Service's motive for treating female PTF carriers differently than

their male peers, Ms. Callanan called to the stand several

witnesses who testified about episodes of discrimination that they

allegedly had either experienced or witnessed at the Mankato

facility. While the district judge sustained the Service's

relevancy objection to this testimony, he allowed Ms. Callanan to

tender it as an offer of proof. At the conclusion of the evidence,

the district court dismissed Ms. Callanan's disparate treatment

claim. Specifically, he found that she had met the burden of

showing a prima facie case of discrimination, but he determined

that the Service had offered legitimate, nondiscriminatory reasons

for its actions. Because Ms. Callanan did not carry her ultimate

burden of showing that the Service engaged in intentional

discriminatory activity, the district court ruled in favor of the

Service. Callanan now appeals to this Court.

II. DISCUSSION

A. Hostile Environment

1. Summary Judgment

Callanan argues that the district court improperly granted the

Service's motion for summary judgment on her hostile environment

claim. Summary judgment is only appropriate when no genuine issue

of material fact exists, and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Cram v. Lamson

& Sessions Co., 49 F.3d 466, 471 (8th Cir. 1995). On review, we

apply the same standard as the district court, resolving all

disputed facts and drawing all inferences in favor of the nonmoving

party. Cram, 49 F.3d at 471.

To prevail on a hostile environment cause of action, a

plaintiff must establish that:
 4

This assumption represents no easy endeavor. To begin with,

Callanan has failed to satisfactorily demonstrate a connection

between some of her chief complaints and her employment with the

Service. For example, she has not shown that Service personnel

were responsible for her unwanted subscription to Penthouse

magazine. In addition, after thoroughly reviewing the record, we

feel that gender neutral personality conflicts, rather than sex,

may have been the fountainhead which fed the harassment of

Callanan.

5

(1) she belongs to a protected group; (2) she was subject

to unwelcome sexual harassment; (3) the harassment was

based on sex; (4) the harassment affected a term,

condition, or privilege of employment; and (5) [her

employer] knew or should have known of the harassment and

failed to take proper remedial action.

Kopp v. Samaritan Health Sys., Inc., 13 F.3d 264, 269 (8th Cir.

1993). Assuming that Callanan has otherwise carried her burden,4

we find that summary judgment was appropriate because she has

failed to show under the totality of the circumstances that the

harassing conduct was "so severe or pervasive that it create[d] an

abusive working environment." Burns v. McGregor Elec. Indus.,

Inc., 955 F.2d 559, 564 (8th Cir. 1992)(citing Meritor Sav. Bank v.

Vinson, 477 U.S. 57, 67 (1986)). To the contrary, Callanan's

allegations fall far short of proving the sort of sustained

harassment that we have previously determined to be a proper

foundation for successfully pursuing a hostile environment cause of

action. See, e.g., id. at 560-62 (describing a consistent course

of insulting and debasing conduct). We agree with the district

court that the conduct to which Callanan was subjected was not

"frequent, severe, physically threatening, or humiliating."

Furthermore, we feel that the Service, when it became aware of the

improper behavior, took "prompt remedial action reasonably

calculated to end the harassment." Davis v. Tri-State Mack

Distribs., Inc., 981 F.2d 340, 343 (8th Cir. 1992)(quotations

omitted). Thus, we conclude that the district court appropriately

granted the Service's motion for summary judgment on this claim.
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2. The Rule 60(b)(2) Motion

Callanan further argues that the district court wrongfully

refused to grant her Rule 60(b)(2) motion to vacate the order

granting summary judgment to the Service on her hostile environment

claim. Rule 60(b)(2) "provides for extraordinary relief which may

be granted only upon an adequate showing of exceptional

circumstances." Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d

509, 515 (8th Cir.)(quotation omitted), cert. denied, 469 U.S. 1072

(1984). The district court possesses wide discretion in

determining whether to grant a motion under this Rule, and we will

not reverse absent a clear abuse of that discretion. Atkinson v.

Prudential Property Co., 43 F.3d 367, 371 (8th Cir. 1994).

Rule 60(b)(2), which applies to claims of newly discovered

evidence, is a proper ground for relief where the movant shows:

(1) that the evidence was discovered after [the summary

judgment hearing]; (2) that the party exercised due

diligence to discover the evidence before the end of [the

summary judgment hearing]; (3) that the evidence is

material and not merely cumulative or impeaching; and (4)

that a new [hearing] considering the evidence would

probably produce a different result.

Id. Here, Callanan has failed to meet the fourth criterion. We

are unpersuaded that the district court, even if it had known of

the discrimination claims made by other employees at the Mankato

branch, would have declined to grant the summary judgment motion.

In other words, even in light of this newly discovered evidence,

Callanan failed to substantiate that the Mankato postal facility

was the situs of conduct "sufficiently severe or pervasive to alter

the conditions of the victim's employment and create an abusive

working environment." Harris v. Forklift Sys., Inc., 114 S. Ct.

367, 370 (1993)(quotation omitted). Accordingly, the district

court did not clearly abuse its discretion when it refused to grant

Callanan's motion.
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B. Disparate Treatment

1. Dismissal of the disparate treatment claim

Callanan asserts that the district court committed error when,

following a six day bench trial, it dismissed her disparate

treatment claim. The district court concluded that Callanan had

proven her prima facie case, but it also found that the Service had

offered legitimate, nondiscriminatory reasons for Callanan's

treatment. Because Callanan failed to carry her ultimate burden of

showing that she was the victim of intentional discrimination, the

district court ruled in favor of the Service.

We apply a clearly erroneous standard when reviewing a

district court's finding of discrimination vel non. St. Mary's

Honor Ctr. v. Hicks, 113 S. Ct. 2742, 2756 (1993). Callanan's

primary complaint of disparate treatment concerns her more frequent

assignment to unfavorable duties. According to the Service,

though, many factors contribute to the daily apportionment of

responsibilities, including a carrier's ability, efficiency, and

knowledge of a particular route. Callanan has not shown that these

reasons are merely a pretext for intentional discrimination. Also,

we agree with the district court that Callanan was not disciplined

more often or severely than her male coworkers. We need not

elaborate further regarding Callanan's additional charges on which

she bases her claim of disparate treatment. Suffice it to say that

she has utterly failed to prove that the Service "intentionally

discriminated against [her] because of [her gender]." Id. at 2749

(quotations omitted). The district court's finding of no

discrimination was not clearly erroneous.

2. Evidentiary Exclusions

Finally, Callanan challenges the district court's decision to

exclude the testimony of various individuals who attested to acts
8

of discrimination that they reportedly experienced or witnessed at

the Mankato Post Office. Although none of these persons worked as

a letter carrier or claimed that Callanan's supervisors had engaged

in discriminatory conduct, Callanan attempted to introduce their

testimony in order to buttress her assertion that the disparate

treatment she received was motivated by her gender. 

 

A district court's exclusion of evidence under Rules 402 and

403 of the Federal Rules of Evidence is entitled to substantial

deference on review. Hawkins v. Hennepin Technical Ctr., 900 F.2d

153, 155 (8th Cir.), cert. denied, 498 U.S. 854 (1990). We have

previously cautioned, though, about the harmful effects of blanket

evidentiary exclusions in discrimination cases, noting that "[a]

plaintiff's ability to prove discrimination indirectly,

circumstantially, must not be crippled by evidentiary rulings that

keep out probative evidence because of crabbed notions of relevance

. . . ." Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th

Cir. 1988)(quoting Riordan v. Kempiners, 831 F.2d 690, 698 (7th

Cir. 1987)). Thus, "[b]ecause an employer's past discriminatory

policy and practice may well illustrate that the employer's

asserted reasons for disparate treatment are a pretext for

intentional discrimination, this evidence should normally be freely

admitted at trial." Hawkins, 900 F.2d at 155-56. "The evidence,

however, must assist in the development of a reasonable inference

of discrimination within the context of each case's respective

facts." Bradford v. Norfolk S. Corp., 54 F.3d 1412, 1419 (8th Cir.

1995).

Giving full regard to our admonitions in previous opinions, we

do not feel that the district court abused its discretion when it

excluded Callanan's proffered evidence of other alleged acts of

discrimination. To begin with, the excluded testimony in this

case, unlike the statistical evidence and specific factual

allegations involved in our earlier decisions, see, e.g., Estes,

856 F.2d at 1102-04, consisted largely of generalized, subjective
 5

Also, it would be difficult for us to conclude that some of

the alleged conduct was at all gender based. For instance, we feel

confident that certain cretinous activities in which postal

employees participated, such as contests comparing individuals'

aptitude for belching and flatulence, would be equally distasteful

to similarly cultured males and females. 

9

assertions of a perceived bias in operations at the Mankato

facility. Moreover, to the extent that the testimony did identify

discrete acts of discrimination, the witnesses did not complain

that Callanan's own supervisors had engaged in any behavior that we

could correctly characterize as improper.5 Cf. id. at 1104

(mentioning that evidence of an employer's past discriminatory acts

may not be probative where the employees involved in the improper

activity were unconnected with the employees who discriminated

against the complainant). Lastly, and perhaps most importantly,

the evidentiary ruling in this case was not the type of blanket

pretrial exclusion that we have in the past viewed with such

skepticism. See id. at 1103 (stating that blanket pretrial

exclusions are examined with "particular care"). Instead, in what

must only be viewed as an extraordinary display of patience, the

district judge in this case allowed Callanan to present her offer

of proof in testimonial form and withheld a final ruling on the

evidence until after the trial was completed. Under these

circumstances, we think that the district court was in a unique

position to adjudge the relevance and probative value of the

testimony. As such, we cannot say that the district court abused

its discretion in excluding the evidence proffered by Callanan. 

III. CONCLUSION

For the foregoing reasons, we affirm the district court's

order granting summary judgment to the Service on Callanan's

hostile environment sexual harassment claim. We also affirm the

district court's dismissal of Callanan's disparate treatment cause

of action.
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Affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.